But in recent times we have seen many cases, where a complaint has been filed against some of the web series run by these platforms. An FIR  was lodged against Ekta Kapoor’s produced web series XXX Season 2 alleging that it depicted objectionable content. In fact, a few months ago a case was filed against Ekta Kapoor’s web series Gandi Baat too under IPC sections 294 (obscenity), 298 (hurting religious feelings), and also relevant provisions of the IT Act and the State Emblem of India (Prohibition of Improper Use) Act. The list does not end over here, In fact, the most watched web series Mirzapur has not been able to escape this fiasco, where a complaint was filed over the portrayal of Uttar Pradesh’s Mirzapur district in a bad light. A web series called Tandav starring Saif Ali Khan on Amazon Prime has also been taken to Supreme Court, the complainants have alleged that ‘Tandav’ has inappropriately depicted the UP Police personnel, hurts religious sentiments, and has adversely portrayed the character playing the prime minister in the political drama. Netflix has also been criticized for its various web series. Sacred Games was panned because it included some speculative lines regarding Rajeev Gandhi and discussed the Bofors scandal. Leila was chastised for propagating Hinduphobia, which offended Hindus. It was widely panned by viewers.

The question that stands over here is that are we truly enjoying Freedom of Speech and Expression or there is a need for Censorship of OTT platforms?

To gain a better understanding of what censorship is, it is necessary to investigate the need and justification for the term, as well as to remove the taboo associated with it, in order to achieve an unbiased understanding of the term. Censorship is a collection of interconnected concepts, the most notable of which is free speech, which is defined as the right to openly express or explain one’s beliefs without restriction or intervention. This term has evolved throughout time to include speeches, music, movies, and artistic creations, among other things. These are the numerous sorts of censorship that are used in a community or country, and one of its main purposes is to ensure that free speech is suppressed on the grounds that it is offensive or damaging to the public. It is important to comprehend the need for censorship as well as free speech in order to better grasp the need for censorship.

Some may say Censorship is the suppression or control of ideas, free communication, and information that circulates within a society, but as per the government, it is the regulation of content that can be displayed and shown to the public at large.  The right to freedom of speech and expression is protected under Article 19 of the Indian Constitution, with the caveat that such modes of expression may be restricted if they are deemed offensive, detrimental, or that disrupt communal peace. Since the beginning of time, the government has been using censorship to combat any unwelcome form of speech that would disturb the country’s functioning.

INDIAN CENSORSHIP OVERVIEW

An  Overview of Indian Censorship can be best described as a combination of ethnicities, races, and religious bodies that have managed to live in peace. They have similar means of expression, whether literary, artistic, or cinematic, and these expressions have been deemed objectionable to others at one time or another. The Indian Constitution guarantees the right to freedom of speech and expression, subject to certain limitations such as morality, decency, and public order. Furthermore, the Indian Penal Code (IPC) allows for restrictions on free speech if it offends religious sensitivities or makes assertions that create or promote animosity, hostility, or ill will amongst classes on the basis of caste, religion, language, or race. Because these prohibitions are so broadly categorized, it might be difficult for a judge to rule that some speech does not foster enmity between groups. The need for free speech is to have a healthy amount of free expression in order for a democracy to function properly.  It also allows for the dissemination of ideas among the general public, awakens people’s thoughts, and provides a steady setting for the exchange of ideas and debate. It allows for many points of view to be expressed on public policy, as well as useful feedback to legislators. The need for censorship is to protect a person from offense to his sensibilities

Though in India we enjoy Freedom of speech and expression it is limited to the extent it does not promote indecency, hostility, or hurt the religious sentiments of people. The need for censorship is not to curtail freedom but to stop the spread of communal violence. Today we can see in the name of the Right to Freedom of Speech and Expression, people have started spreading negativity about the Independence of Judiciary too, stirring feelings of hostility in the minds of Indians especially teenagers who are at such a tender age that they can we used as a negative shield against India. With everything going digital in this era it has become really easy for a child or a teenager to access the Adult content on OTT platform which requires prior parental permission. There are certain shows which should not be completely watched by a child. However, one of the biggest arguments against such censoring is that OTT platforms’ material is Subscription on Demand, which allows users to pay and choose what they want to watch but if we talk about the people(parents) living in rural areas are not so well versed about the content displayed on these platforms hence they cannot regulate the portion that should be viewed by their children. Freedom of Speech is both boon and bane for the young population but the content to watch must be controlled or regulated.

INDIAN GOVERNMENT’S STANCE:-

The government has issued rules to regulate over-the-top (OTT) streaming, digital news, and social media platforms, including procedures to monitor and block undesirable or unsuitable content. The new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 have taken effect from January 1, 2021, and will replace the previous Information Technology (Intermediary Guidelines) Rules 2011.

The government has created a three-tier system that includes a grievance mechanism and a self-regulatory body led by a retired Supreme or High Court judge.

The board will be registered with the Ministry of Information and Broadcasting and will be in charge of ensuring that the Code of Ethics is followed. In addition, the Ministry will release a declaration incorporating the Standard of Practices for successful self-regulation.

The government also plans to create a process for resolving complaints about both OTT material and social media. Without a censor board, OTT platforms will have to regulate content at their own discretion. The laws, on the other hand, mandate the use of an obligatory parental lock system to prevent children from accessing adult content and the use of credible age verification mechanisms to assure compliance.

CONCLUSION:-

Content censorship is important because, as compared to the printed word, a video inspires thought and action and ensures a high level of attention and memory. The combination of act and speech, sight and sound in semi-darkness of the stage, with the elimination of all distracting thoughts, will have a powerful impact on the minds of the audience and can change emotions. As a result, it has the same potential for good as it does for evil, and it has the same ability to instill or develop violent or good behavior. It is not comparable to other forms of communication. Prior constraint censorship is thus not only desirable but also obligatory.

The audience today is inclined towards content that reflects the truth of the society, deals with socio-political issues provide regional varieties, and most importantly is politically correct. The same raises the urgency for an unbiased regulatory body or a set of regulations to be followed by all platforms offering such services. However, the intent behind the creation of such a body and law should be to regulate and not infringe upon the rights of the content creators and the consumers. The legislative regulation should be such that it would adhere to the flexibility provided under Article 19(2) of the constitution. Notably, these ideal policies can be set through as the OTT platform is at an incipient stage around the world, the Governing Authorities have an opportunity to ensure to set a proper precedent while making legislation. 

– Sonam Chandwani, Managing Partner at KS Legal & Associates

The Indian constitution, in addition to providing tremendous freedoms and liberty, nevertheless imposes fair limitations. This is to preserve culture and particular communities and to assure that the country’s peace and order is not jeopardized. Censorship is one such instrument employed by the government to promote a peaceful and relaxing experience for binge-watchers who are able to appreciate and reflect on the content they watch rather than fuming over a little flaw. Movies, Shows, or Series are an expression, or art and are designed to be relished rather than exploding in rage and causing a riot.

REFERENCES:-

http://www.legalserviceindia.com/legal/article-3418-censorship-of-ott-platforms-a-boon-or-bane.html

https://www.theleaflet.in/centre-releases-new-rules-to-regulate-content-on-ott-social-media-and-digital-news-platforms/

https://www.newscientist.com/article/2282887-are-we-seeing-an-end-to-surveillance-capitalism-on-the-internet/?utm_source=onesignal&utm_medium=push&utm_campaign=2021-07-04-Independence-fr

https://www.bollywoodlife.com/web-series/high-court-reuses-to-dismiss-ekta-kapoors-petition-to-squash-the-case-against-her-web-series-xxx-2-1720904/

https://www.hindustantimes.com/india-news/supreme-court-notice-to-mirzapur-makers-amazon-prime-video-on-plea-over-portrayal-of-up-district-in-bad-light-101611211829348.html

https://theprint.in/india/this-is-how-modi-govts-new-rules-will-regulate-digital-media-and-ott-content/611909/

Priyanka Ghai, Dr. Arnind P Bhanu,’ CENSORSHIP IN INDIA VIS-À-VIS FREEDOM OF SPEECH: COMPARISON OF THE EXTENT OF CENSORSHIP LAWS IN INDIA AND ABROAD’, Amity Law school, 9 June 2020.

The post OTT: Censorship vs Right to Freedom of Speech and Expression appeared first on Legal Desire Media and Insights.

Legal issues associated with Contracts

In film industry contract plays an important role as it acts as a line of agreement between content owners, production houses, artists, investors, sponsors, promoters, distributors, vendors, production companies, broadcasters, ticketing agencies, theatres, and licensors. Recently, the risk of non-performance, poor performance, delay, and non-payment has increased as a result of the disruptive impact of a global pandemic leading to the shutdown of workforces, closing of borders, and forced work from home arrangements. Hence, physical agreements are proving difficult to implement. The delay or cancellation of films premieres, and events raises a slew of practical issues. The sponsors, broadcasters, and ticket holders who may have invested large sums of money and are now facing uncertainty and losses due to potential refunds, exchanges, and contractual obligations. Although, some contracts directly address these difficulties in their terms, while in others, contractual concepts such as frustration will govern the parties’ rights.

At this point, the parties should analyse their deals for termination and force majeure clauses, as well as determine whether the timetables and obligations may be agreed or changed. The parties must determine whether production schedules and release dates may be postponed in light of crew limitations and consumers’ incapacity to attend theatres. Due to the prohibition of mobility and protracted social distancing measures, it is recommended that future agreements be executed via e-agreements and e-stamping. As genuine agreements, e-agreements are subject to stamp duty at the time of execution. For instance, with effect from April 1, 2008, the Delhi government has implemented e-stamping, which is being carried out by M/S Stock Holding Corporation of India, a public sector operation.

Legal Issues associated with Employment

As we know that the entertainment industry’s workforce is mostly made up of casual workers or contractors who do not have access to paid time off and hence risk losing their jobs. Because production and distribution are almost at a halt, businesses will attempt to cut expenses sooner rather than later, resulting in salary cuts and unemployment for causes beyond the employer’s control. Another critical problem at hand is the management of the workplace environment and guaranteeing the safety of its employees as they return to work.

Regardless of the pandemic, the normal standards of procedural fairness in the workplace should continue to apply. Companies are encouraged to exercise prudence before suspending employee payments, issuing stand-down orders, or dissolving employment arrangements in order to avoid legal liabilities. Further, as the lockdown limitations are being lifted, companies are required to provide a safe and healthy working environment for their employees and to follow WHO, the national government, the Ministry of Health and Family Welfare, and state governments’ requirements. The problem that the sector is facing is a conflict between the desire to start a business and the necessity to preserve the health and safety of its employees. To ensure that on-site and off-site shooting venues, studios, vanity vans, and other locations are free of the coronavirus, a set of industry guidelines will need to be established.

Legal issues associated with Consumer

The suspension of live events may give rise to potential consumer protection claims. Companies may have difficulties in refunding money to ticketholders, putting  pressure on the industry’s already sluggish economy. In light of this, the Central Board of Indirect Taxes and Customs (CBIC) has permitted firms to claim refunds of Goods and Services Tax (GST) paid on advances for events or bookings that were cancelled. The government’s move is poised to boost the entertainment business since the increased funds will boost companies’ liquidity positions, which can then be used to keep the economy in shape and keep people employed. 

For the future it is suggested that stakeholders in live entertainment events should study ticket terms and conditions, policies, and obligations in respect to providing services under applicable consumer laws.

M&E Sector post COVID – The digital future 

As the globe adjusts to a new normal, where social isolation, work from home, and virtual meetings are the norm, consumption patterns are rapidly shifting. As habit development and convenience of access emerge as drivers, demand for at-home digital media is likely to skyrocket. OTT platforms and digital media have already attracted new customers and expanded their reach to new demographics and locales.

In a report by KPMG it was projected that by the year 2030 India would have a billion digital users. However, we can now anticipate the ‘digital billion’ trend to accelerate dramatically as a result of the lockdown, with not just the emergence of new users but also the comfort and trust of the present digital citizenry increasing. Younger people will likely prefer conventional TV material supplied through a digital ecosystem, while elderly people will likely prefer traditional TV content delivered through a digital ecosystem. Once the lockdowns start to lessen, demand for OTT originals, which we recognised as a competitive differentiator in our study, should return, and players should expect to gradually bring out original, targeted content for certain audiences.

The analysis of the current situation suggests that M&E organisations should anticipate increasing their reliance on technology to create cost efficiency and revenue enhancement potential in the area of content development to distribution and monetisation. Greater technology integration, for example, could potentially reduce the gestation period for content, resulting in operational efficiencies. Companies may consider efficiencies in the way they conduct business, even across revenue-generating functions such as sales, as a result of the growing use of cloud and remote working solutions. 

The brutal effects of the pandemic are not unknown, and the media and entertainment industry are no exception to the same. In fact, the media and entertainment industry were hit almost immediately by virtue of theatres being shut. Moreover, despite the relaxation of lockdown that followed, the turnaround thereof has almost been dim as it has reduced the attendance at live performances, suspended on -location shootings which has also affected the production houses. However, online platforms have been a saving grace to the industry as consumption of online content has been skyrocketing owing to the pandemic. Having said that, it is about time that contracts binding the individuals of these industries include tightened clauses pertaining to termination and force majeure in order to avoid the harsh effects that the forthcoming waves could bring. Moreover, the legal angle of the said matter requires that new laws be introduced which would govern the censorship and ensure that there is healthy competition in the market.

– Sonam Chandwani, the Managing Partner at KS Legal & Associates.

Conclusion 

Even while the entertainment industry’s future appears to be bleak, there appears to be a silver lining, with digital OTT platforms, music streaming services, and radio all witnessing continuous growth in their business models. Due to the risk of getting the contagious virus, people are more likely to turn to in-home entertainment options such as digital, television, and gaming, which scientists predict will eventually lead to habit building. Clearly, the current situation has shifted the priorities among consumers and M&E players alike. 

Companies are expected to concentrate their efforts in the near future on maintaining present levels of profitability. Companies’ investment cycles may be drastically reduced, limiting supply and growth in the M&E market in the near future. As firms attempt to migrate to a variable cost model and cut fixed expenses, there may be a renewed emphasis on flexibility. Moreover, the companies will have to comply with the digital norms and legal norms associated with e-contracts and employability. 

The pandemic is swiftly bringing a transition in the M&E sector and reimagining the legal compliances associated with it. Technology’s potential and ability to support new models of systems and processes have already been demonstrated. It is recommended that we continue to empower and keep our minds open to responding to new technological changes in our workplaces. Let’s get ready to greet the upcoming Digital Legal Era. 

The post Media & Entertainment Industry: Digital Deliverance in Pandemic & Legal Issues appeared first on Legal Desire Media and Insights.

Introduction:-

Cinema is a form of artistic expression of thoughts, tales, and sometimes views, often influenced by reality that is frequently music-based, fascinated, enchanted, or simply entertained. There are hardly any other mediums of expression that can literally assert hostile degrees of insidious power and presence in our everyday lives. Since the evolution of the human civilization, the mankind had started pursuing for the mediums of entertainment to provide relief from their daily routines. The activities that brought the solace included singing, dancing, sports, playing, and films. While all the events had their appeal, the films had made something exceptional. Films or cinema not only offered entertainment for the viewers, but also manifested the minds of the viewers and led them to believe what the director wanted them to believe. Cinema or motion picture was defined as the art of colorful moving images. Since its inception, cinema has been one of the most important tools for expressing ideas. It is a miniature of the social values and the prevailing trends of society. It has served as a source of ideas and values for transformation and revolution. This offers a forum for society to look forward to positive transition introspection.[1] In the words of Justice Clarke[2]: “It cannot be doubted that motion pictures are significant medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of thought which characterizes all artistic expression. The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform”.

The advent of motion pictures in India began with an exhibition of the Lumiere cinematograph in 1896 in Bombay. With the increasing popularity of the film medium, cinema halls were constructed in the major cities, and travelling showmen brought the new form of entertainment to many of the rural areas around the turn of the century. In December, 1912 the first film made in India, “Rajah Harischandra,” was shown in Bombay. Since then, the Indian film industry had started to grow in an unprecedented manner, now by ending up in making a billion dollar market. Considering the magnitude of the power and effect the cinema has on its audience, since the colonial times the state considered it necessary to control this means of expression in order to limit its misuse. The practice of imposing restrictions has come to be called as censorship. Moreover, with the passage of time new issues are also being arisen with aspect to the field of cinema. One of such is the copy right issue being faced by the Bollywood and the legal issues arising from such infringements. Another Issue is regarding the tussle between the Freedom of Speech and Expression guaranteed underArt.19 (1) (a) of the Constitution and the State’s action of Censorship. In this paper, I will focus on the legal provisions, Court Rulings, Reports of various committees and commissions on the issues being faced by the Indian Cinemas and conclude by advancing some feasible suggestions.

Freedom of Expression and Censorship:-

Freedom of speech and expression is one of the most hallowed freedoms granted by the Constitution of India. It’s the idea of being able to talk openly. It is often seen as an important principle in liberal democracies.[3] Freedom of speech and expression is one of the most hallowed freedoms granted by the Constitution of India. It’s the idea of being able to talk openly. It is often seen as an important principle in liberal democracy. Article 19(1) (a) of the Constitution provides that all citizens have the right to freedom of speech and expression. It has been generally agreed that cinema, as a mode of expression of feeling, is perceived in accordance with the protection contained in article 19(1) (a). Nevertheless, Article 19(2) allows for fair limitations on the rights granted under Article 19(1) (a).[4] However, Article 19(2) lays down reasonable restrictions on the freedom guaranteed under Article 19(1) (a). Reasonable restrictions which can be imposed over these rights can be on the grounds which include interests of the “sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”.[5]The same restrictions are articulated under the Cinematograph Act under which guidelines are laid down on the basis of which film certification is to be done.[6] Regulatory power over cinema is vested to the Union Parliament under Entry 60 of the Union List of the VII Schedule. The states enjoy limited jurisdiction with regards to regulation of motion pictures under Entry 33 of the State List.

Cinema in India is regulated under the Cinematograph Act of 1952. The Act makes provision for the certification of cinematograph films for exhibition and for regulating exhibition by means of cinematographs.[7] Such regulation is also called as censorship. The films are generally censored to monitor for different levels of social and political problems, the showing of which can be conceived as alarming to people. Crime, pornographic content, language misuse, alcohol usage, violent material, radical material and abuses of human rights are important causes that fall under censorship. There is a very limited scope of censorship in India, under the Cinematograph Act of 1952. The Board has nowhere in the Act been granted the authority to censor the motion pictures beyond the specific conditions provided for under the reasonable restriction except as provided for in section 5(B) of the Act. Only if the motion picture or the part / parts of the motion picture contravene section 5(B) of the Act will the Board order the applicant to review and change the film’s objected portion.[8] In February 1960, the Indian Ministry of Information and Broadcasting formulated more detailed guidelines for the censorship and certification of motion pictures. These rules were promulgated as the Cinematographic Censorship rules. Under the heading “Application of General Principles”, a film was not to be certified for either restricted or unrestricted viewing if it deals with the relations between the sexes in such a manner as to[9]:

(I) lower the sacredness of the institution of marriage;

(ii) Suggest that illicit sexual relations are ordinary incidents of life and not to be reprobated;

(iii) Depict-

(a) Rape, premeditated seduction, or criminal assaults on women;

(b) Immoral traffic in women;

(c) Soliciting prostitution or procuration;

(d) Illicit sexual relations;

(e) Excessively passionate love scenes;

(f) Indelicate sexual situations;

(g) Scenes suggestive of immorality

It should be noted, however, that not all exhibitions of motion pictures in India are necessarily subject to the strictures of the Cinematograph Act. On the contrary, the Act provides that the central government may exempt “the exhibition of any film or class of films” from the terms contained therein or from the Censorship Rules, subject to certain conditions and restrictions. The primary beneficiaries of this exemption are recognized film societies and cultural groups organized by foreign embassies in India who now may view films which are not subject to expurgation by the censorship authorities and may be exhibited without the need of a certificate[10].

Nevertheless, the powers bestowed on the CBFC under the Act have been frequently misused since, on a variety of occasions, it has gone beyond its regulatory authority to govern cinema, which is evidently in breach of the basic principle of freedom of thought and expression. It is important to remember that the authority of the Board under the Act applies only to the supervision of the film by way of certification. Ideally, the primary and only responsibility of the CFBC would be to ensure that the proper exhibition certificate is issued to films subject to fair scrutiny. In many cases, however, the stance taken by the Central Board of Film Certification was highly questionable and one that attacked the very basis of the freedom of speech and expression.

In the 1960s, following intense criticism of the Central Board of Film Censors (‘Censor Board’), the Indian government instituted a Committee to examine film censorship laws, headed by Justice GD Khosla. The Khosla Committee observed that, by a ‘strange inversion’, the Censor Board had adopted the same guidelines which the Raj had used to safeguard ‘the dignity of the white people’. The Committee found that inflexible censorship policies were dissuading filmmakers from tackling provocative political and sexual themes. The Committee concluded that some the Censor Board’s practices were in violation of Article 19 of the Constitution of India, and were thus ‘unduly constrictive’ of artistic freedom.[11] This was followed by several Judicial Interpretations on Freedom of Speech and Expression v.Censorship.

Judicial Pronouncements on Censorship:-

It has already been noted above that the issue of the legality of censorship requires an interaction between Article 19(1) (a) which guarantees freedom of speech and Article 19(2) which provides for a fair restriction of that right. According to the Indian Constitution for restricting the exercise of rights pursuant to Article 19(1) (a), the courts have held that the restriction must be enforced by a valid law which must be fair, reasonable,[12] and must be closely linked to purposes mentioned in the respective sub-clauses of Article 19.[13]

With respect to the extent of the restrictions, the Court unequivocally held that the restriction had to be read explicitly and strictly. Because restrictions are in the form of limits on the exercise of the right; they are required to be treated with skepticism, thus putting a heavy burden on the authorities who try to enforce them.[14] The Constitution set out only the grounds for enforcing limitations, thereby granting the courts the power to determine if the restriction imposed was compatible with the purpose of the law.[15] By wielding such authority, the courts had from time to time corrected the misuse of executive actions and had balanced the Censorship with the freedom of speech and expression. Some of the decisions of the court are as follows:-

In K.A.Abbas v. Union of India[16], Chief Justice Hidayatullah has for the first time formulated certain guiding principles of censorship in India. The Court held that censorship of films and their classification according to age groups constitute a legitimate exercise of power in the interests of public morality, dignity, decency etc. It is not inherently a violation of freedom of speech and expression. The most relied on part of the decision was the conclusion that a person reading a book or other writing or hearing a speech or seeing a painting or a sculpture is not as profoundly moved as a view of a film. Consequently, the consideration of the latter on a different footing is also a valid classification. Besides, the court also offered the reason for imposing a pre-censorship. This finding of the Court was the reason provided by all the Governments for enforcing restrictions and censoring the films.

In S.Rangarajan v. P.Jagjivanram[17], The Supreme Court has zealously upheld freedom of expression. In this famous case, the Supreme Court overturned the judgment of the High Court of Madras, which rescinded the U certificate awarded to the film Ore Oru Gramathille. This film, based on the crucial aspect of the government’s policy of reservation, was seen by the High Court of Madras as posing a theme that could cause widespread unrest and problems with law and order in the state of Tamil Nadu. However, when the case was brought before the Supreme Court as an appeal, the Court demolished the contention of the State that the film should be denied a U certificate on fear that it could generate a public stir. The Court held that, “If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and surrender to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and   protect the freedom of expression”.

In LIC v. Prof.Manubhai D. Shah[18], The Supreme Court has again intervened to secure the freedom of expression of the creator in Prof. Manubhai. The filmmaker produced a documentary on Bhopal Gas Tragedy, which won the coveted Golden Lotus Awards. However, when the time had come for its release in India, the national television channels declined to air it citing opposition from the political parties. The Court rejected the argument and held that just because the documentary is critical of the Government, there is no basis to refuse publication of the documentary.  The Court made it clear that “subject to Article 19(2), a citizen has a right to publish, circulate and disseminate his views to mould public opinion on vital issues of national importance. Hence, any attempt to thwart or deny the same would offend Art. 19(1) (a). Under such circumstances, the “burden would, therefore, heavily lie on the authorities that seek to impose them to show that the restrictions are reasonable and permissible in law“.

In Phantom Films (P) Ltd. v. Central Board of Film Certification[19], The Board refused to certify the film “Udta Punjab” which is based on the drug threat in the state of Punjab. Besides, refusing to certify, the Board suggested almost 13 film cuts as a mandatory measure to seek certification. However, on appeal by the filmmaker, the High Court of Bombay criticized the Central Board of Film Certification for its conduct and inadequate handling of the matter. The Court has made a very critical point that the Board is not automatically empowered to censor films. The term censor is not included in the Cinematography Act. The Board may make changes to the film, but this power must be exercised in compliance with the constitutional guarantee and the orders of the Supreme Court. It can be rightly assumed that the decision of the Court in this case would certainly serve as a landmark which could pave the way for the long-standing reformation of the Certification Board. It can be seen that the Board has wrongly expanded its powers, which were in fact restricted to the approval of films for exhibition purposes only, so that it now even has the power to censor them. Such an attitude of the Board, which is often politically motivated, can put the rights of the citizen at risk.

In Sree Raghavendra Films v. Government of Andhra Pradesh[20], In the exercise of the powers of u/Sec.8(1) of the A.P. Cinemas Control Act,1955 , the exhibition of the film ‘Bombay’ in its telugu version was suspended, despite having been approved by the Censor Board for unrestricted display. The suspension was imposed citing a cause that could harm the sentiments of certain communities. The Court found that the authorities that passed the contested order did not even watch the film. The Court therefore quashed the order as arbitrary and not based on proper material.

In another case of F.A. Picture International v. Central Board of Film Certification[21], while overruling the FCAT’s order to censor the movie, ‘Chandbujh Gaya’, the Bombay High Court opined: “Censorship in a free society can be tolerated within the narrowest possible confines strictly within the limits which are contemplated in a constitutional order.” It strongly criticized the role of the concerned authorities and observed that: “The view of the censor does no credit to the maturity of a democratic society by making an assumption that people would be led to disharmony by a free and open display of a cinematographic theme. The certifying authority and the Tribunal were palpably in error in rejecting the film on the ground that it had characters which bear a resemblance to real life personalities. The constitutional protection under Article 19(1) (a) that a film maker enjoys is not conditioned on the premise that he must depict something which is not true to life. The choice is entirely his”

In the case of Union of India v. KM Shankarappa[22], the Supreme Court disapproved of the Government retaining powers by enacting Section 6(1) of the 1952 Act and declared it ultravires the Constitution. It held: “The Government has chosen to establish a quasi-judicial body which has been given the powers, inter alia, to decide the effect of the film on the public. Once a quasi-judicial body like the Appellate Tribunal [FCAT], consisting of a retired Judge of a High Court or a person qualified to be a Judge of a High Court and other experts in the field, gives its decision that decision would be final and binding so far as the executive and the Government is concerned. The executive has to obey judicial orders. Thus, Section 6(1) is a travesty of the rule of law which is one of the basic structures of the Constitution. The Executive cannot sit in an appeal or review or revise a judicial order”.

Copy Rights Infringement Issues in Indian Cinema:-

Copyright ordinarily and primarily means that the creator alone possesses the right to make the copies of his/her work or alternatively, may prevent all others in indulging or from making such copies. The basic motive for such a protection is the premise that “innovations require incentives”. The law of Copyright recognizes and understands this necessity and stretches it in the form of legal sanction. Furthermore, any commercial exploitation of copyright work results in income to its creators and hence resulting in pecuniary rewards to his creativity. But where there’s a way to the creativity, there’s always a measure to circumvent the creative mind and input. One of the earliest and most popular being piracy.

The problem of piracy and its persistence has attracted the continuous attention of government policy makers and law enforcement officials because of the fact that piracy eats the economy like a pestering parasite. The wrath of piracy was not only prevalent before the introduction of Internet. It rather soared to its height after the coming of the digital environment, bringing up the incidence of digital piracy. This virus has sickened the music, publishing, media, software and entertainment industry equally. As far as the film industry is concerned, piracy has had a knee-breaking distress here too.[23]

India is estimated as the largest film industry, yet seriously wedged by the stance    of piracy. A report, ‘The Effects of Counterfeiting and Piracy on India’s Entertainment Industry,’ released by US-India Business Council (USIBC) along with Ernst & Young showed that around 800,000 direct jobs and near about Rs. 16,000 crores are sacked due to piracy.[24] As per a 2013 article in WIPO Magazine, the Indian film industry loses around INR 18,000 crores (US$3.34 billion) and about 60,000 jobs every year due to piracy,[25] when the size of the Indian film industry is estimated at Rs. 19,000 crores with over 2,000 movies released annually.

Legal Measures to Combat Copy Right Infringements in Film Industry:-

Articles 11 & 12 of WIPO Copyright Treaty (WCT) and Articles 18 & 19 of WIPO Performers and Phonograms Treaty (WPPT) mandate the contracting parties to take ‘adequate’ and ‘effective’ legal remedies against unauthorized meddling of information and rights management of electronic dealings and information, they also impose a duty to enforce law to take strict measures against the promoters of such violation of right.[26] Although India did not become the part of WIPO Internet treaties, the introduction of new provisions by 2012 Amendment in the IT Act present a different picture. The provisions similar to the provisions contained in WIPO Internet treaties have been adopted in the form of Sec. 65A and 65B.[27]

Judicial Pronouncements on Copy Right infringements in Film Industry:-

The judiciary had to rely on the basic provisions of copyright law, without the touché of instruments like DRM and electronics right management. However, Indian judiciary has proved its mettle in dealing with the cases of infringement successfully and efficiently to some extent, but a bigger picture of the scene still states a redundant attitude of the court.[28]

In RG Anand v. Delux Films[29], the Court has enunciated few guidelines relating the infringement of the copyrights. They are:-

1.     One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.

2.     Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.

3.     Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant’s work is nothing but a literal limitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.

In the case of Twentieth Century for Film Corp. v. Sohail Maklai Entertainment[30], the Bombay High Court held that Sohail Maklai film “Knock Out” was indeed liable for infringement of the copyrights of the 20^th century Fox’s movie “Phone Booth”. The decision of the Bombay High Court is historic in one way that for the first time in India the court had actually held Bollywood liable for Copy Rights infringement.

In the case of Barbara Taylor Bradford v. Sahara Media Entertainment Ltd.[31], the court relied upon the judgment of the Supreme Court delivered in the case of R.G. Anand v. Delux Films and decided that “there was no infringement of copyright as a theme is not protected under the Indian Copyright laws and reiterated the fact that ideas are given no protection and it is only the expression of an idea which can seek protection under the Indian copyright laws. Ideas can however be protected only when a person with an idea reveals the idea to another person in confidence or through the presence of non-disclosure agreements (NDA) between the parties.”

It is an open secret that the Bollywood had been accused of plagiarism to the effect of stealing scripts of movies, music and even ideas from domestic as well as from International works. It has been the case for a long time now, from Amitabh Bachchan and Hema Malini starrer 1982 movie ‘Satte Pe Satta’ which immensely resembled the 1954 Hollywood movie ‘Seven Brides for Seven Brothers’ to the very recent Ajay Devgan and Kajal Aggarwal starrer 2011 movie ‘Singham’ which had action sequences copied from the 2010 Hollywood movie ‘Red’.[32]

This imitation in Bollywood happens not just from the movies of the foreign film industries like Hollywood but also from different film industries within India like Kollywood or Tollywood. Recent example of this is the movie ‘Ladies Vs Ricky Bahl’ which was accused to be a copy of the Kollywood film ‘Naan Avan Illai’. The Indian filmmakers sometimes go to the extent of lifting an entire scene from these movies knowing and realizing well that to escape liability and accusations of plagiarism, they can take advantage of the various loopholes in the provisions of the Copyright Act, 1957 as well as find themselves to be protected by the lumbering legal system of India[33]

Conclusion and Other Suggestions:-

Some of the Suggestions relating to the Censorship are:-

1.     There is acute politicization when it comes to censoring of movies. The freedom of artistic expression, which the Constitution guaranteed had to be restricted only in exceptional situations. With digitalization taking over, virtual mediums have come up and access to television series, plays, stand-ups and other such OTT platforms are available at free/minimal   cost online. Interestingly, the standard of regulation for such media is lower than for movies. Furthermore, they are subject to post-censorship as against pre-censorship, which movies have to go through. Recent surveys revealed that in the today times, people prefer watching online TV series and movies over physically visiting theatres. Therefore, it is high time that the regulations of the two are reconciled. Moreover, The fact that regulations for the two medium are different and ironically, the regulations are more strenuous for traditional media, this amounts to discrimination barred by Article 14 of the Constitution. Article 14 embodies the right to equality and requires the Government to treat equals as equals. A challenge under Article 14 can be made when a classification lacks reasonable classification and intelligible differentia. In the present case, there is no reasonable basis for strictly regulating movies as against the virtual media, despite the latter being more easily accessible.

2.     As per the current law, there are barely any qualifications for being a member of the Advisory Panel. It is the complete discretion of the Central Government which can nominate any person who it believes is qualified to judge the effect of the films on the public. The Act and the Rules are completely silent on what are the parameters on which one’s ability to judge the effect of films on the public can be assessed, Through the Amendments the qualifications shall be brought forth[34].

3.     A long-standing demand of the filmmakers has been to establish the Film Council of India (FCI). The demand has been to stick to the original object of the CBFC as stated in its Preamble i.e. certification of movies. With time, the CBFC has acquired sweeping powers of editing, mutilating and even banning a film. The proposed FCI shall take away such powers from the CBFC and vest it in itself. Therefore, in case the CBFC finds any content objectionable, it can refer the same to the FCI. The decision over such content shall then be undertaken by the Council consisting of retired Judges, lawyers, filmmakers, writers and artists.

By looking into the above discussed censorships, I believe that the censorship Laws in India are too stringent which needs to be relaxed by giving way to the film makers to express their views freely in this democratic society. However, the rules has to be formulated to regulate the content manifested by the OTT Platforms also. The Balance needs to be created between the Freedom of Expression and the Decency and Public Interest.

When it comes to the copyright infringements, Bollywood has made it a habit to imitate the works of Hollywood primarily taking it to be the formula for a sure-shot successful film. But, Bollywood has to realize that when they copy and imitate Hollywood scripts, styles, and themes, they are effectively conceding creative inferiority of their own. There is a greater need now for Bollywood to rethink its long allegiance towards imitating Hollywood.[35]

The Copy Right Laws has be made more stringent to deal with the infringements happening in the Bollywood and also a Regulatory body consisting of a group of veteran film makers and Judges had to be created so as to curb such infringements.

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It doesn’t matter if a person is a professional photographer or just a hobbyist; the Law applies to everyone. Hence, breaking the Law by either taking or sharing a photo that’s not permitted or illegally using someone else’s photograph can make a person fall into a lot of trouble. It can cost them thousands of dollars or rupees as legal penalties—Here’s to provide you with all the statistics of Law relating to photography and the right of photographers over their content.

Photography in accordance to Indian Copyrights Law, 1957

In India, under section 2(c) of the copyrights act, 1957 photographs are protected as artistic work (the picture must be original). The photograph’s quality is immaterial. A photograph will be protected even if it’s shoddy work. In accordance to section 25 of the copyright act, the photographs are given copyrights for a period of over 60 years from the day it has been published. Publication doesn’t just mean publishing in a magazine or newspaper; it implies everywhere. The copyright law differs in every country, the duration too. The Indian copyright law is in compliance with many international treaties such as artistic work 1886 and Bernie convention of literary, the agreement of intellectual property rights agreement 1995. The international convention has been passed to protect the member country from the convention and agreement. in accordance to that, foreign artistic work are given protection in India. The photographer is the first owner of the copyright because. He/she will remain the first owner unless entered into a contract. Even if one owns a camera and their friend captures a photograph, which is stunning, the friend owns the image and credits copyrights.

Role of consent and publication- When a person is asked to pose for a photograph, in the absence of an agreement to the contrast, publication of the photograph may not be possible without the person’s consent. But when a man takes a photograph of the unposed people, no such approval may be necessary for publication.

In the case Cadbury India Ltd. v. S.M. Dyechem, if a man who is not an expert in the artistic work sees the visual and if it appears to him that the work is the replica of some other work, then it would result in the infringement of the artistic copyright.

Rights of photographer over their content –

The photographer’s rights are the right to produce, make adaptations of their work, and publish where they want to.

Registration

A photographer may register the copyright of the photograph. However, it is recommended but not mandatory for, the copyright commences as soon as the photograph comes into life. Under the copyright act, the expression of the idea is copyrightable but not per se. Section 51 of the Indian copyright act defends the copyright infringement of photographers. Any violation of the right of the owner/author amounts to copyright infringement.

A client before selling the photograph, it is mandatory to get permission from the photographer. Despite the client’s ownership, a photographer should make sure that neither of them will be using it for commercial purpose. If in case of the use, they have to get permission.

Infringement of copyright and remedies

In Kesari Maratha Trust v. Devidas Tularam Bagul, the Bombay High Court held that the publication of photographs without permission of the photographer by copying them from another published material is an infringement of the copyright photographs. However, a person other than a photographer may use the photograph without any malafide intention of attaining any profit from it, such as using the photograph for teaching/research purposes and judicial proceedings.

With the appearance of new social media platforms and many photo-sharing apps, the imminent risk of a possible copyright infringement through the sharing of photos is now an ever-present phenomenon. In a simple “click-of-a-button” world, it is easy to forget about the potential legal consequences and implications of what we do on social networks.

For example, in 2013, a Haitian photographer, Mr. Daniel Morel won his major copyright victory after a four-year-long struggle over specific photographs of he took of the 2010 earthquake which occurred in Haiti. he posted it on social media. Initially, his photographs were posted on a website known as “TwitPic,” which allows users to put up pictures on Twitter. However, the issue emerged when those pictures were reposted by another user known as Lisandro Suero, who claimed they were his property. Further, Agence France-Presse and Getty Images distributed and sold these photos to their clients for money. Mr. Morel eventually succeeded in his action against the infringement of his rights and was awarded a sum of awarded him $1.22 million.

Remedies

There are three types of remedies against infringement of copyrights: criminal, civil, and administrative.

Criminal remedies (Sections 63 – 66 of Copyright Act, 1957) deals with the imprisonment of the accused person and their imposition of fine or both, seizure of infringing copies, and the delivery of infringing copies to the owner of the copyright.

As provided in the Copyright Act, 1957 (Sections 54 – 62), civil remedies deal with damages, injunction and accounts, delivery of infringing copies, and conversion damages.

Administrative remedies consist of moving Copyrights to ban the imports of infringing copies into India and the delivery of infringing copies seized to the owner of the copyright.

Conclusion

The Copyright Act, 1957 is exhaustive, which can effectively safeguard the rights of photographs posted on social media websites and photographer rights in India. This is because the Law protects detailed copy/paper photographs taken and online posting of photographs. The damage claim appears to be one of the most common remedies for such infringement. The lawmakers took a staunch step by categorizing photographs in the artistic category, thereby widening the subject-matter of copyright. The existing copyright law can competently overcome the latest technology challenges and has a solid legal base for protecting copyright.

 Reference –

 1- https://copyright.gov.in/documents/copyrightrules1957.pdf

 2- https://www.kashishipr.com/blog/what-photographers-need-to-know-about-copyright-protection-in-india/#:~:text=How%20Can%20Photographers%20and%20Photographs,photograph%20can%20also%20be%20protected.

 3- https://lens.blogs.nytimes.com/2013/11/23/haitian-photographer-wins-major-u-s-copyright-victory/#:~:text=On%20Friday%2C%20the%20Haitian%20photographer,Images%20willfully%20infringed%20upon%20Mr.&text=Morel%20hours%20after%20the%20earthquake%20on%20Jan.

 4- https://www.bbc.com/news/magazine-30936314

 5- https://www.lawyerservices.in/Kesari-Maratha-Trust-Versus-Devidas-Tularam-Bagul-1998-05-06

 6- https://indiankanoon.org/doc/44410582/

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Well, this artistic curio which can even generate monetary value for the originator is dealt with the appropriate manner by the respective laws, primarily the intellectual property law and the law of contracts.

The IPR provide a wide framework of rights in law that protects the music created by the human mind, primarily including copyrights, trademarks, patents, trade secrets, Geographical Indicators etc. provides intangible work the same protection and recognition as one would to a tangible artifact.  For the purpose of this article, we will deal with the laws that cater to the various palates of musical realm very consistently.

Copyright

Sounds produced in India are preserved by a copyright; it protects a creator’s original dramatic, artistic, musical or literary work, these are mentioned in the Copyright Act, 1957 and supplemented by the Copyright Rules, 1958, govern the protection of Copyrights in India.

It mandates that a musical composer, or lyricist or any classical music, has the copyright of the original form, from the day they are produced, registration of the work is not necessary for obtaining the copyright. The Act provides a procedure to register the copyright in the official records or with the registrar of copyrights, which gives the right to the owner to sue in case of any infringement. The documents purporting to be entries and extracts from the register certified by the registrar of copyrights are admissible as evidence in all courts without proof of original[1] form. India being a member of the Berne Convention[2] and the Universal Copyright Convention[3], has passed the International Copyright Order, 1958 which enables any work published in India to be treated the same if it were published in any of the member countries of these conventions.

After getting the work registered, an author has several rights that he can avail to generate an income from his sound, Section 14 of the Act mandates, A copyright provides the creator the right to prohibit or allow any other person to reproduce his work in any other form than its original one or make use of it for live performances at concerts, restaurants, cafes, etc or distribute the work through various mediums or broadcast in other forms than its original one and lastly translate it into any other language as he wishes to.

The term of the copyright is for the lifetime of the owner and sixty years after his death and in case of more than one owner then sixty years after the death of the last owner.

Section 2(d)(ii), (vi) define who is an author and for our purposes, a composer or any person in relation to any literary, dramatic, musical or artistic work. Sub-clause (p) talks about musical work which consists of music and includes any graphic notation of such work but does not include any words or actions intended to be snug, spoken, or performed with the music.[4]

Section 17 determines, who is going to be regarded as the first owner of a copyrighted work. It provides that in case of an artistic, literary or dramatic work, by the author which is created in the course of employment by the proprietor or under a contract for the purposes of publication in newspaper, magazine or similar periodical, in the absence of any contrary provision will vest with the owner of the said proprietor but for all other purposes will vest with the author.

The 2012 Amendment to the act has brought in substantial changes, it has introduced several monetary rights for the authors of musical work that are incorporated in cinematography and sound recordings, it provides that the authors of any literary and musical works who are incorporated in films or sound recording and are not part of films, have the right to receive royalties equal to the royalties received by the person who has been assigned such rights for exploitation of their works. These rights cannot be assigned or waived off by the right holders and in case of any agreement to that effect, will be declared void. Scriptwriters/screenplay writers are also protected under these provisions. The act expressly mentions that the right of author cannot be affected by any agreement, he has the right to claim the royalties or any other consideration payable in the utilization of the work.

The act also provides certain Moral rights to the creators, these are described in Section 57, the act has ascertained certain special rights to the authors, which exist even after the assignment of the copyright. They are exercisable by the legal representatives of the author as well, these include Firstly, the right claim authorship of their work, Secondly, to restrain or claim damages in case of any distortion, mutilation, or any other modification in their work and Lastly, against anything done with the work, which is prejudicial to the honour or repute of the author.

The Act provides for a Performer’s right, which determines that whenever a performer engages in any performance, he has certain special rights pertaining to his performance and for this purpose a performer is not someone whose name is not mentioned in the credits of the film. The term of these rights is 50 years and starts from beginning of calendar year which starts after the year of performance. These rights are:

Firstly, to make a sound or visual recording of the performance and the right to reproduce it in any form other than its original one, or issue special copies of it to the public, or communicates it to the public or using it in a commercial way he wishes to generate money.

Secondly, to broadcast or communicate the performance in any manner and in case of the producer broadcasting the same, the performer has the right to receive royalties.

The Copyright Act provides both civil and criminal remedies in case of an infringement of Copyright.  Infringement of copyright is when any person uses or converts, any copyrighted work in a manner which he does not have the right to do or does not have the owners’ permission, he has violated the copyright and is liable under the various provisions of this act. The remedies include injunction, damages, seizure order and destruction of infringing articles. The acts which would be considered infringement are: Copying and issuing the work of the author for sale, or Performing, showing, playing copyrighted work without appropriate license, or Making any adaptation or doing abovementioned acts with such adaptation.

Further if any person with knowledge or reasonable grounds for having such knowledge, makes for sale or hire or sells or lets for hire or distributes either for the purpose of trade or for any prejudicial reason against the author or by way of trade exhibits in public or imports the work into India, is responsible for such infringement.

There are Copyright societies, with the primary function of preserving the rights of the owners by granting licenses to business and other persons, for the exploitation of these rights. These societies collect license fee on the behalf of the originators and then provide them royalties after deducting their own collection and expenses fees.

Section 33 of the Act mentions these societies,  

Firstly, the Indian Performing Rights Society or IPRS, which administers right in relation to musical and lyrical work, on behalf of its creators. This includes licenses given for business firms who allow singers to sing this music in their premises

Secondly, Phonographic Performance Limited or PPL, it administers the right to commercially exploit such creations or phonograms or sound recording on behalf of its owners. The licenses are issued to places like cafes, restaurants who wish to play music on their premises.

Geographical indicators  

The second type of IPR that protect music are the Geographical Indicators, the act governing them is called Geographical Indications of Goods (Registration and Protection) Act, 1999, which provides protection to any agricultural or natural or manufactured or handicraft or spice or foodstuff goods, which are one of a kind, they originate in a particular place and have quality, reputation or characteristic which are essentially linked or attributable to the geographic place of their origin.

In the musical industry, the classical instruments which are a part of our musical heritage, specially originated in various geographical locations of India and possess the distinct quality, reputation or characteristics attributes, linked to their place of origin are given the GI tag. In India until now only three instruments have been given this tag, under the handcraft category, they are Maddalam of Palakkad from Kerala, Bobbili Veena from Andhra Pradesh and the Thanjavur Veenai from Tamil Nadu.

The Rights conferred upon registration of these goods are- Firstly, the right to obtain relief in case of any infringement of the GI tag, Secondly, the exclusive right to use the GI tag in relation to the good. The term for a GI tag is ten years following which they can be renewed from time to time.

Trademark

Trademarks are the title, name or symbol or any combination of them, used by companies to project their goods to the market. Its motive is to make the goods distinguishable so that can be differentiated from substitute goods, it provides the consumer the clarity of the brand and the promise of authenticity. In India, the Trade Marks Act, 1999, which is in consonance with the TRIPS agreement, is used to register the Trademarks of businesses, in the Trade Marks registry.

In India, sound marks are also recognized as unconventional marks under the Act, India’s first sound mark was granted in August 18, 2008, to Sunnyvale, California-based firm yahoo’s three note yahoo yodel by the Delhi branch of Trademark Registry. The term “mark” includes a device, heading, brand, label, ticket name, word, letter, numeral shape of goods, packaging or combination of any of them. It provides any mark which is ‘graphically representable’ and is indicative of a trade connection with the owner, the protection of this act.

Trademark rules define ‘graphical representation’ as the projection of a trademark for goods or services, in paper form. They should be representable on paper either in sound form, wherein the sound is written or like depiction by oscillogram; spectrum, spectrogram, sonogram. In cases where it cannot be reduced to a written form, they should have a clearly identified, particular or specific sound, which should be appropriately described in the registry.

Even though India provides trademark to sounds there is a need for guidelines for description, recoding and protection of such sound.

Musical Composers or lyricist or producers use brand names and logos for the distribution as well as differentiation. For these purposes, they use Certification Marks, defined under Section 2(e) of the Act, it includes marks from a company that can provide a good which conforms to a certain level of established standards. The ‘ISO 9000’ is the internationally used standards that are widely accepted for grant of a Certification Mark.

Registration is mandatory to exercise the right of infringement of trademark. The infringement includes the similarity in the mark, identical or similar in some aspect, the goods/services should be similar to what are under the registered mark, the marks should be used to conduct business and, in a manner, so as to render its using being of a trademark.  

Law of Contract

The last law that protects the interest of musicians, musical composers, lyricists, sound managers etc., is the mercantile Law of Contract. It is necessary for all the basic contracts formed by the dealers in the industry to conduct business smoothly it includes, all form various contracts for the production of music, for the induction of band members or transfer of rights of lyrics or sound or with collection societies and publishers or for recording and distribution of the music, for guest performances and remake or remixes or contract formed with the respective agencies and management who conduct your business or act as your agent.

For the purposes of such contracts, one needs to follow the procedure established in the Indian Contract Act, 1872. The basic elements of acceptance, promise, consideration etc need to be followed according to the provisions mentioned in the act.

Conclusion

The various laws mentioned above protect a wide spectrum of rights pertaining to the music industry. They provide a safe haven for musicians to let their imaginations run wild. The law is not exhaustive and there is scope for new types of musical creations to adjust and be protected as well. The current laws aptly fulfil the purpose of protecting the rights of creators and authors of music, there is scope for improvement which will come eventually with trial and error.

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Media and Entertainment holds great significance in our country India. Much of the leisure time is spent on either binge-watching or going through your old movies collection. When we talk about the entertainment industry in the 21^st century, it has grown tremendously since 1913, when the first motion picture of India Rajaharishchandra was released. It was the beginning of a great and flourishing industry in terms of viewership and technology advancements. But as this industry advanced, along came the legal intricacies and conditions which had to be fulfilled. Before films make it to releases and big screens, they have to through the certification process and all the legal requirements for a film’s release have to be complied with.

One of the legal compliances is that of a Film Certification.

What is the Film Certification?

Film Certification means that a film before it reaches its appropriate audience has to go through a scanner i.e., it has to be certified by a board of members who are expert in the required fields, and then only a certain film can be released as long as it complies with the legal requirements.

Need for Film Certification

 The need for film certification in India has to be valued and critically analyzed over the period. A thorough legal procedure should be followed before anything can be represented by the general public/audience. The film certification, however, should not curtail the artistic freedom of the filmmakers/artists but also should not violate the sentiments of the public.

Censorship of the films have often come under the radar of freedom of artistic expression, a right which is guaranteed under Article 19(1)(a) of the Indian Constitution[1]. However the Supreme Court in the case of K.A. Abbas v. Union of India[2] had opined on the importance and impact of films which they may have on the audience, it said “films have to be treated separately from other forms of art and expression because a motion picture can stir up emotions more deeply than any other product of art. A film can therefore be censored on the grounds mentioned in Article 19(2).”[3] Article 19(2)[4] provides for reasonable restrictions.

Indian Laws on Film Certification

The film certification and subsequent rules are India is governed by the Indian Cinematograph Act, 1952.

Section 3(1) of the Act[5] provides for the provision of setting up the Censor Board, which shall be issuing the film certifications. The board is known as the CBFC (Central Board of Film Certification) which is currently headed by Mr. Prasoon Joshi.

Section 5 of the Act[6] provides for the Advisory Panels to be set up at the regional levels so as to assist the Board in making decisions about the certification of films.

Section 5A of the Act here deals primarily with the certification of the films and under various categories, the films will fall.

It provides for 4 wide categories which are as follows:

S.5A(1)(a)[7] provides for

1. U Certificate

This is provided when the Board deems it fit that a certain fil is eligible for “unrestricted public exhibition”. It means that people of any age can watch this particular film.

2. UA Certificate

UA means “Unrestricted Public Exhibition but with a word of caution that discretion required for children below 12 years.” If the board deems it fit that a particular film is eligible for unrestricted public distribution but for children aged under 12 years, parental advice is needed.

S.5A(1)(b)[8] provides for

3. A Certificate

This certificate is provided when a particular film is not meant for the unrestricted public but is suitable for adults. Adults, for this Act, have been defined as “a person who has completed his eighteenth year”.

4. S Certificate

This certificate provides that the film is “restricted to any special class of persons” and not for unrestricted public exhibition.

The above was the broad categories into which films can be certified and thus providing a wider lens of freedom of expression and changing modern times with regards to public morality and sanctity.

Procedure for application for Film Certification

Rule 21 of the Cinematograph Rules, 1984 lays down the procedure for applying for the film certification before the Board. The following are the steps to follow while applying for certification:

1. Application shall be addressed to the Board in writing in Form I or Form I-A, Form II or Form II-A, and delivered to the regional officer.

2. Application should be accompanied by fees, as prescribed under the Rule 36, which states requirements as per the film’s credentials.

3. Rule 3 specifies the necessary documents (including the fees) which shall accompany the letter:

 Eight copies for an Indian feature film, and five copies in case of other films

a.     of synopsis of the film

b.     credit titles

c.     full text/lyrics of the songs, if any

d.     a copy of the complete shooting script of the film

e.     a statement showing the reel wise length of the film

Other documents may include, Title Registration Letter from the concerned authority in which the title was registered. Publicity clearance the certificate shall also be provided with wherever applicable.

In the case of Imported Films, an original/certified copy of the import license along with customs clearance papers and permits are required.

Rule 22 provides for the examining committee which shall examine the films, to be viewed for the public exhibition or not.

1.     Examining committee consisting of a member of the advisory panel, examining officer, of one should be a woman, in case of a short film;

In case of a long film, the examining committee shall consist of four members of the advisory panel, an examining officer, of two of them should be a woman officer.

2.     The applicant or their representatives are not present in the preview theatre.

3.     All previews of the film and names of the board members are treated confidentially.

4.     The examining committee examines the film as per the guidelines provided by the government and requirements under the S.5(B) of the Act.

5.     Thereafter the members of the committee are required to express their opinions and reasons for giving a particular certificate (“U”, “U/A, “A”, and “S”) in writing in Form VIII specified in the Second Schedule.

6.     The committee may decide on not giving the film a certificate, or if certain portions of the film need to be excised/modified.

7.     The examining officer after examining the suggestions of the committee send the same to the chairman.

S.5B Principles for guidance in certifying films[9]

provides for the principles that need to be followed while granting the film certification. The principles involve such that they must not be contrary to the public morality or any such incident which may incite offense contrary to the provisions of the Law.

However, this Act provides equal representation to the parties applying for film certification. If they are not satisfied with the decision, they can approach the tribunal with an appeal to the decision under S.5C of the Act.

 Film Certification on OTT (Over- the- Top) platforms

Not many years ago, the majority of people’s source of entertainment used to be Cinemas, television, or reminiscing old songs on cassette recorders. But with the changing sense of entertainment and lifestyle choices of the people amidst the hustle-bustle of a daily-life, OTT platforms like Netflix, Amazon Prime came to the rescue of people. Especially during the pandemic COVID-19, these platforms have witnessed a surge in their viewership.

However, till now there were no concrete rules or provisions related to the films released on such platforms, and thus there was no censorship on the same. But recently in an official notification in the Gazette of India, govt. of India brought the OTT and other digital platforms under the ambit of the Ministry of Information and Broadcasting in India.[10] This move was not welcomed by the film fraternity and they criticized the decision citing that it would hamper artistic freedom. In a detailed research paper, authored by Shekhar Kapur, FTII chairman, Akshat Agarwal, lawyer and other experts on the subject, they argued about the creative freedom on the OTT platforms and that how with the help of technological advancements, it is now possible to create content according to the target audience and that they are sufficient measures available for people-friendly content. They substantiated that such platforms are user-controlled and that there are possibilities for so many industries to thrive in this business.[11] Therefore, there must be creative freedom as we pass two decades in this 21^st century.

Conclusion

The above article and opinions have tried to establish that before a certain thing/product reaches to the public, has to go through a lot of phases, one of which is legal compliance which is important to safeguard the public sanctity and nation’s integrity. However, as much as the legal procedure is important, the aim should also, be to secure the freedom of expression of the artists. Therefore censorship v. freedom of expression debate should always ensure that there must be a reasonable balance between the two, to protect the rights of all, and ensure our duty towards the nation.

References

1.     The Cinematograph Act, 1952 and Rules | Ministry of Information and Broadcasting | Government of India (mib.gov.in)

3.     Embracing Nonlinearity: The Future of India’s Entertainment Industry — Esya Centre

4.     Certification (cbfcindia.gov.in)

5.     Central Board of Film Certification | Ministry of Information and Broadcasting | Government of India (mib.gov.in)

6.    

The post Film Certification: Legal intricacies Behind the Scenes appeared first on Legal Desire Media and Insights.

Cinema or motion picture has been defined as the art of colourful moving images[2]. Since the days of its establishment, it played an important role to bring out the problems, issues, thinking, and perspective of society. It has been viewed as a medium through which a larger picture of the society is portrayed on the screen. Movies have always been a source of entertainment and an excuse to refresh from one’s tiresome schedule. Not only had this it always played a great role to bring people together. Everyone is fond of movies irrespective of their age. Way back, all families were not so well-off to have a television in their homes. Only a few houses enjoyed the use of television. So a channel which is most popular then and now is Doordarshan and it used to show a movie every Sunday, which all the members of the family, relatives, friends, and neighbours used to see together.

In this entertainment world, crime, and courtroom dramas have been popular since the old days which majorly attract and engage the audience with the twists, turns, and suspense. These movies have the power to create a negative or positive side of the justice system because it also serves as a source of knowledge and information.

Cinema and legal framework

Cinema in India is managed under the Cinematograph Act of 1952[3]. Section 3 of this Act establishes an administrative body called as Central Board of Film Certification (CBFC), which is a statutory body i.e. one created by an Act of Parliament or State, under the Ministry of Information and Broadcasting, a body that certifies a film, is known by the name of Censor Board in common speaking. The first mentioned is a process by which the content of the films is classified regarding  certain restrictions such as the age of the viewer, its sexual and violent content, moral and ethical intimation, sentimental content related to any particular religion, and so on.

In 1913, when the first Indian film (Raja Harish Chandra) was produced, the Indian Cinematograph Act was not enacted. It came into force in the year 1920. But, in the year 1952, the board was reconstituted[4]. In the year 1983, the rules of Cinematograph (Certification) were modified and since then, the Central Board of Film Censor came to be known as the Central Board of Film Certification.[5]

As laid in Section 3 of the Cinematograph Act 1952, the CBFC consists of a chairman and 10-25 other members as appointed by the Central Government. Under section 5-A, certification is done for films for which an application is given for the examination of the movie for its exhibition[6]:

These 4 certificates are given to the movies (anyone)[7]–

·         “U”: Unrestricted Public exhibition

·         “UA”: unrestricted public exhibition, but requiring parental discretion needed for children below 12 years

·         “A: Restricted to adults         

·         “S”: restricted to any special class of persons

However, the powers granted to CBFC have been highly misused especially when Mr. Pahlaj Nihalani stepped in as the Chief of CBFC. He has been the buffet of controversies. There is also a rumor that his appointment to this post is through political pressure.

Under his chairmanship, Raj Amit Kumar’s movie on LGBT “Unfreedom” was stopped from releasing.

The movie Damini is famous for its ‘tareekh p tareekh’ scene. Being way forward than the time it was released, the movie provided a deep understanding of the journey of the struggles and problems faced by women. The movie revolves around the woman Damini who witnessed the rape of another woman and how she stood up for the rights and dignity of the raped woman without comprising her ethics. The movie showed the reality of the Indian judicial system, grant of justice in the courtroom, allegations, the murder of the victim, and trying to prove the witness mentally unfit. It also showed the insensitivity of the lawyers towards such cases. The movie lasted a positive impact on the minds of the people of that time. It also made us experience how the cases are dealt with long and long procedures in our system.

The courtroom scene of the movie Aitraaz was one of the most uplifting scenes of Bollywood as it shows how the woman misuses the law. The movie shows Sonia (Priyanka Chopra) was a model and tried to seduce Raj (Akshay Kumar) who was married to Priya (Kareena Kapoor). Sonia inflicted false allegations on him as result he was forced to resign from the company in which he worked. As Priya was a lawyer she fought for her husband and in the end, justice was served to him.

The movie Pink grabbed the attention of the viewers because of its amazing story which was focused on the issue of sexual assault and consent. It provided an insight into the audience by making them aware of Zero FIR and the availability of bail to women and minors in non-bailable offenses. The topic of consent has been discussed to a great extent for a while now. The movie implements a strong belief in understanding the meaning of the word “no.” Pink eventually impaired the court as it was inclined more towards persuasion than arguments. The working of courts and the lawful framework today wasn’t portrayed in its unique structure.

The movie Article 15 was based on the Badaun gang-rape and murder case. It was a hit because it raises some important issues related to the caste that is plaguing the country. There was also a plea submitted in the Supreme Court by the organization ‘Brahmin Samaj in India’ for the cancellation of the certificate issued to the movie. A bench of Justice(s)S A Bobde and B R Gavai told the counsel who was appearing on behalf of the petitioner to go to the appropriate authority under the Act and therefore the petition was withdrawn.

Hence, movies are the source of portraying social cause and it can leave a strong message for the society to think about. For example, the issue of reservation, women empowerment, corruption, rapes, misuse of law, and even highlights of the cases which took place in the country such as ‘Talvar’ which was based on the Aarushi Talvar and Hemraj murder case which shocked the country in 2008. The movie ‘No one killed Jessica’ followed the case which took place on 29 April 1999,  in which the model Jessica was shot with a 0.22 bore pistol in the presence of more than 100 ‘socialites’ at a party in New Delhi. So far, the accused Manu Sharma walked free in 2006 urging a newspaper headline that read ‘No One Killed Jessica’. The film surrounded and provided all the true happenings of the case.

Judicial Pronouncements and censorship

In the case of K.A. Abbas v. Union of India[8], the constitutional validity of the Cinematograph Act and rules framed subsequently in 1983 was challenged on the ground of it being violative of Article 19(1) (a) of the Constitution. The petitioner submitted that such provision as expressed in various sections of the Act, i.e., section 5(1) (B), Section 4 and the CFBC’s refusal to grant a certificate to his film without several cuts are in clear violation of the fundamental right of freedom of speech and expression. However, in this case, the Supreme Court took a stand in favor of reasonable censorship and rejected the challenge of vagueness. The guidelines held were nothing more than concrete manifestations of Article 19(2) of the Indian Constitution, which allows for reasonable restrictions upon the freedom of speech and expression in the interest of, among other things, morality. The K.A. Abbas’s judgment was a complete defeat for the cause of freedom of expression under the Constitution.

The Supreme Court in Rangarajan v. P. Jagjivan Ram[9] repealed the decision of Madras High Court which awarded a void U certificate to the film ‘Ore Oru Gramathille’. This film was based on the aspect of the government’s reservation policy.  Madras High Court saw it as a film that is depicting a theme which could cause widespread unrest in the state of Tamil Nadu. But when the matter was brought to Supreme Court, it nullified the argument submitted by the State – that the film should be refused a U certificate as it can cause agitation that may create a public fuss. The Court stated: “The State has to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem”[10].

The most recent case which served as a milestone was the case of Udta Punjab. In this case, the judiciary stepped in and defeated the Central Board of Film Certification. The Board refused to certify the film Udta Punjab as it was based on the drug jeopardy which was prevailing in the State of Punjab. After the refusal of certification, the board besides offered 13 cuts in the movie which was mandatory for its certification. However, when an appeal was made in the Bombay High Court by the filmmaker, the CBFC received criticism for its poor way of handling the issue. This is a landmark case as in this case the court had made an important observation that the Board is not necessarily empowered to censor the films as the Cinematograph Act does not include the word censor in it. It was also laid down that the board can make changes in the film but this power must be exercised following Constitutional Guarantee and Supreme Court orders[11].

As there is no separate censorship for television, a case came to the Supreme Court against the judgment passed by Bombay High Court in the case of Ramesh v. Union of India[12] a petition demanding to restrain the screening of serial ‘Tamas’ being violative of Section 5 B of the 1952 Act. The petitioner submitted that the serial portrays the Hindu-Muslim tension, Sikh- Muslim tension before the partition of India,  how communal violence was generated by fundamentalists and extremists in both communities and how an innocent boy is lured to violence resulting in his harming both the communities. But the Supreme Court held that there is no doubt that the serial represents violence but, it should be kept in mind that the violence between the communities took place before the pre-partition days. The serial is not based on any historical novel and it just takes into account certain events from history. Secondly, the judges have viewed it from “how the average person for whom the film is intended will view it”[13] and hence concluded that the people will learn from the mistakes of the past. Overall, the serial is capable of creating a lasting impact by giving the message of peace and co-existence and the people are not likely to be swayed by the scenes of violence shown in the serial. Hence, there is no such danger to screen it.

In the famous case of Harinder Singh Sikka v. Union of India & Ors[14], the film Nanak Shah Fakir was based on the life of Guru Nanak Dev and his teachings. The film received a green flag by CBFC after some alterations in the film. But the film was opposed for screening by Shiromani Gurdwara Prabandhak Committee (SGPC) a body of Sikhs. When the matter was brought to the Court, the former Chief Justice of India Deepak Mishra criticized the religious body and also stated that if CBFC grants certification to a movie, then no group, body, association, or individual can create any kind hindrance in the exhibition of the film. It was further noted that creating any hindrance even after the CBFC certifies it will signify becoming a law onto them and not respecting the law that governs the land. The bench also issued a notice to the Centre and all the States directing them to oversee that when a film is released, law and order are to be maintained and no one is allowed to create disturbances. Hence, it is the duty of the State to facilitate the enjoyment of the right.

There are several films which have been caught in the web of Certification Board such as Manikarnika, PK, MSG, and many more. Though they have been certified after some alterations or by the order of the court. Therefore, there is no doubt that censorship of law is justified under the Constitution and the Board is competent to adjudge the suitability of film on a much wider plane. But we cannot deny the fact that the censor board regulations affect the right of freedom of speech and expression of filmmakers whose content face restrictions and several movies become a victim of regressive laws of censorship. Even the Indian Constitution guarantees and protects the right of artists to portray social reality in all its forms. And the same is held by Justice D.Y. Chandrachud in the case of F.A. Pictures International v. Central Board of Film Certification, “Artists, writers, and filmmakers are the eyes and ears of a free society. They are the veritable lungs of a free society because the power of their medium imparts a breath of fresh air into the drudgery of daily existence. Their right to communicate their ideas in a medium of their choosing is as fundamental as the right of any citizen to speak.[15]”

Formation of Committees

The Government of India had set up an Expert Committee and entrusted them with the task of reviewing and recommending the ideas. To utmost despair very little has been done to implement the suggestions which had been put forward by these committees.

The board should follow certain guidelines while examining the film[16]:

The filmmakers should keep in mind the sensitive values and standards of society, context, theme, and what impacts will it bring in the society.

2.   If the details mentioned above are not up to the mark a film should not be certified for the exhibition. If the Board thinks that the film is violating Article 19(1) of the Indian Constitution than it has a full right to impose Article 19(2) of the Constitution which deals with the restrictions on freedom of speech and expression if it is against the interest of the sovereignty and the integrity of India, the security of the State, friendly relations with foreign States, public order, decency, or involves contempt of court or is likely to incite the commission of any offense [17].

A committee was commenced again by the Government of India in January 2016 and this time it was headed by the prestigious filmmaker Shyam Benegal. Various norms had been laid down in this committee. Some of the major guidance suggested is:

1.      The Committee Board should limit its boundary only to certification of films that will help in categorizing it according to the age and maturity of viewers.

2.      Even it was proposed that the size of the Board should be reduced keeping in view its limited functions.

3.      The role of the Chairman of the Board should be of advisory nature only.

 The Committee had abstained itself from touching the restrictions exploited under section 5.1(B) of the Cinematograph Act which in the opinion of the Committee should continue to serve as the ground of refusal of certification by the Board[18].

What is ‘Piracy’?

The term piracy was used during medieval times as an act of raiding or looting which involved ship-borne looters who then used to attack other ships to loot other belongings such as cargo or other important valuables.

But today this word has a modified meaning and now it is more relevant to stealing the copyrights and trademark i.e. unlawfully stealing someone else’s work and produce it as one’s own. Piracy in this digital era means when an individual unlawfully or illegally distributes a digital file on the internet for free then he is preventing the profit from the purchase of that item from going to the one who created it, therefore, creating an economic impact[19].

Types of Piracy

Piracy can be classified into 5 types, those being[20] –

Counterfeiting: It means illegally acquitting, duplicating, and distributing any copyrighted material, which directly emulates the copyrighted product. An example of distributing such pirated works is through compact discs.

Internet Piracy: It is an act of downloading a file from the internet or by acquiring online software through a compact disc. Internet piracy can be conducted through websites offering free downloads of software or P2P servers which transfer programs.

End-User Piracy: In this type of piracy the user illegally reproduces software which he is not authorized to do. For instance, a user using one license to the software and installing it on multiple devices or upgrading already pirated software.

Client-Server Overuse:  When the number of clients exceeds the number which is prescribed in the server license of a computer network, then it is termed as overuse piracy.

Hard-Disk Loading:  This type of piracy occurs once a business sells new computers with felonious copies of software loaded onto the hard-disks to make its purchase more enticing.

Websites to Pirate movie

With the unlawful distribution of movies such as shaky recordings on camcorders to dedicated sites and apps to physical hardware, piracy has grown as a dangerous practice. In the UK, people who are above the age of 16 pirate movies[21]

The process of pirating movies and uploading them online has grown difficult to track. The websites uploading free content experience network trafficking due to their popularity as a number of users access their domains to get their hands on the latest games, songs, movies or series.

ISPs (internet service providers) are installed by several governments to block these sites by default on their services but still these sites are visited on a regular basis through the use of VPNs (Virtual Private Networks). Some of these popular sites are[22]:-

Ø  The ‘YTS’ domains

Ø  The Private Bay

Ø  Torrentz2

India is one of the few countries that have three major cinema industries i.e. Bollywood, Hollywood, and Tollywood. As the torrent sites mentioned above are most popular across the world, people in India also tend to visit piracy sites that host Bollywood and Tollywood content exclusively. These sites are[23]:-

Ø  Filmywap

Ø  Todaypk

Ø  Bolly4u

Ø  Tamilrockers

What is Camcorder Piracy?

In this type of piracy, the pirate records the entire movie while sitting in the theatre using a camcorder. These movies are generally known as ‘Cam print’ movies. The point to be noted is that camcorder piracy is not only limited to the use of camcorders but any device which is capable of recording video comes under camcorder piracy[24].

Such pirated movies are of poor quality because of constant shaking, foreign audio, and low video pixels but still downloaded in large quantities. They are mostly downloaded within a couple of days after the release of the movie. Not only this but most of the movies are repacked into optical drivers for sale in black markets through local vendors.

The Legality of Recording Movies in the Theatre

After the amendment was made in the Cinematograph Act, 1952 it was laid down that recording movie in the theatre by any device which has the option of recording to produce pirated ‘cam print’ of the movie is unlawful and is punishable by law. Even the act of recording the movie for itself is punishable in law the rest of the process to pirate it successfully is a whole different thing. The punishment for the offense is imprisonment for up to 3 years and a fine payable up to Rs. 10 lakh[25].

What is the effect of Piracy on the film industry?

If we talk about the effects that piracy has on the film industry there is one article of Forbes as an example which told that the film, ‘The Expendables 3’ was acquired illegally by pirates and the entire movie was leaked online for people to download it. As per the statistics, it was estimated that the viewership of the pirated movie was close to 70 million viewers[26].

This matter needs a strong action because this act dangers the economic success of the movies as in today’s time every movie can be downloaded on every device, be it phones, tablets, laptops, desktops or even game consoles which leads to losses for the producers of the movie. In general, the more the viewership the more is the deduction of the profit margin for the producers of the movie. And this reduction in the profit is not only a setback to the producers but also a major loss to the employers who are associated with that film such as make-up artists, cameraman, set designers, electricians, composers, etc.

There is no doubt that Bollywood movies are popular at the global level. Still, its turnover constitutes only 8% of the overseas revenue collection. As per Germany- based data analytics firm ‘Tecxipio’, in the four years  i.e. from 2013-2017, the number of film downloads grew by 250% in Tanzania, while Ireland led the market with 100% growth[27].

Macedonia, Germany, Bosnia, Herzegovina and Turkey were the other countries with growing audiences of Bollywood movies, while Zimbabwe, Botswana, South Africa, Cameroon, Kenya, Nigeria, Uganda, Ghana, and Morocco were among the countries that were developing into hubs for Hindi movie downloads[28].

Padmaavat of Sanjay Leela Bhansali topped the Tecxipio’s list for being “the most pirated Hindi movies of 2018”. The piracy list relies upon the numbers of file-sharers who downloaded and shared the various movies in P2P (peer-to-peer) networks between 01 January 2018 and June 30, 2018. As stated by Shailesh Kapoor, CEO of Ormax Media, a consulting firm of media, maximum shares for a film happen in three-four months after its release. A spokesperson from Tecxipio stated that the P2P file-sharing activity reflects customer preferences and consumption patterns; such findings can be used to identify new target markets. “These findings can be used to cost-effectively optimize overseas film distribution strategies, especially for territories in which the content has not officially been released or audience measurements are not available,” said the spokesperson[29].

Some Hindi films downloaded and shared in P2P networks between 1/1/2018-6/30/2018 are[30]–

Rank Hindi Movie                                No. of file-sharers                              Days in Report

Padmaavat                                             7,355,459                                                   157

Tiger Zinda Hai                                     6,326,500                                                   181

Sonu Ki Titu Ki Sweety                        5,265,881                                                    128

Padman                                                  4,603,001                                                    142

Fukrey Returns                                       3,044,965                                                    181

“Days in Report” means the number of days i.e. (between the above- mentioned period) a title has been seen in P2P networks.

Punishment for Piracy

The punishments for piracy are covered in the provisions of the Copyright Act, 1957 and Information Technology Act, 2000. The punishments are-

Copyright Act: It is a tool through which the intellectual property of a person is prevented from being pirated. A legal right is given to the creator of the intellectual property to be able to reproduce and redistribute his work at his discretion. The punishment for infringing copyright is imprisonment for no less than 7 days, extending up to 3 years and a fine no less than Rs. 50 thousand, which may be extended up to Rs. 3 lakh[31].

Information Technology Act: The difference between the Copyright Act and Information Technology Act is that the former one acts as supervisor to monitor acts of piracy and punish the trespassers accordingly while the latter only extends to the unauthorized use of computers i.e. any data copied or reproduced from the system onto an external storage device counts as piracy. The punishment of piracy under the IT Act is to pay compensation for damages which amounts up to Rs. 1 Crore[32].

To decide the amount the pirate has to pay for the damages is qualified through these components–

1.      The amount of gain or unfair advantage, wherever quantifiable, made as to the result of the default

2.      The measure of misfortune caused to any person as a result of the default

3.      The monotonous nature of the default.

Internet Service Providers, however, are exempted from the provisions of this Act, if they can prove that they had no existing knowledge of the act of piracy committed.

Trademark Act[33]: A trademark or a brand name is an essential recognizable mark of intellectual property and is represented by the universal symbol (TM or ®), utilized by a particular organization, which implies that the intellectual property is unique and under their sole possession. A trademark can either be registered or unregistered, though being registered the organization enjoys many more legal remedies. The proprietor of an enlisted trademark can file a suit to protect the intellectual-property registered under it from any infringement or unauthorized use of the trademark. Whereas, the owner of the unregistered trademark can file a suit under the action of making similar remedies as an act of infringement, except the benefits, are limited to only the geographical area in which the owner operates.

What are the effects of leaking a movie through the censor board?

Way back when the movies were submitted to the Censor Board for review it was then submitted in a DVD format because through this it was easy to target the pirates. Most of the movies were leaked online before their official release and carried a watermark that said ‘For Censor’ to make it evident that these were pirated through the DVD copies which were submitted for review to the Censor Board. 

As soon as the Censor Board came to know about the piracy they took an action and changed the format of submission from DVD to an encrypted file format, commonly known as DCP (Digital Cinema Package)-KDM (Key Delivery Message) format i.e. the DCP is either submitted on a hard disk or USB Pen drive whereas the KDM part of the file contains a serial key which is then used to decrypt the movie for viewing[34].

India sees a big spike in film piracy post- Covid-19[35]

Movement restrictions around the world to stop the spread of Covid-19 created boredom for people at homes.  Most of the people in India are responsible for increasing piracy figures just because they cannot afford legal video streaming platforms or they want to consume free content through cheap internet connectivity. According to the digital piracy authority MUSO, online piracy in India rose 62% at the end of March compared with the end of February. Whereas, it increased by 41% in the US, 66% in Italy, 43% in the UK, and 50% in Spain.

According to Mr. Raj Kumar Akella who is an honorary member of the Telugu film industry anti-piracy chamber said, “A lot of pirated content in India is circulated through platforms that people technically use for other features”. As all cinema halls are shut, so people have plenty of time for television, video streaming platforms, and pirated content, he added further.

Akella also stated that piracy of movies at this time will affect the small producers because the theatres are shut and there is no box office to judge the value of the film, so the filmmakers and VoD services are likely to operate on a revenue-sharing basis in some cases, and divide profits based on how the film performs on the platform. Pirating from these services will take away a significant portion of their revenue.

 Piracy also extended to web originals. The second season of Netflix’s crime thriller Sacred Games had found pirated videos circulating on messaging app Telegram and multiple websites on the Internet. Damaged, a Hungama Digital Media original, had more than 169,000 downloads across different torrent websites since its premiere in June 2018. As per a report by Irdeto, a provider for global solutions in digital platform security, media, and entertainment, the Indian industry loses $2.8 billion of its annual revenue to piracy. India secures the fifth position in peer-to-peer downloading.

According to a study by Envisional Ltd, Indians are the largest group of visitors to visit the Indian content-focused torrent sites and also constitute the largest or second-largest group of people who visit major international bit-torrent sites like Mininova, Torrentz and The Pirate Bay.

Cinematograph (Amendment) Bill, 2019

This Bill was introduced by the Minister of State for Information and Broadcasting, Mr. Rajyavardhan Rathore in Rajya Sabha on February 12, 2019. The bill amends the Cinematograph Act, 1952[36].

The salient features of the bill are[37]–

Ø  The amendment in the bill makes film piracy a punishable offense with imprisonment up to three years and fines that may extend to 10 lakh or both.

Ø  The bill  mentions that any person, who without the written authorization of the copyright owner, uses any recording device to make or transmit a copy of a film or attempts to do so, or abet the making or transmission of such a copy, will be liable for such a punishment.

According to the original Cinematograph Act, 1952, section 7 deals with who can watch and exhibit the films and penalties or violating terms and conditions related to the exhibition of board-certified films. The amendment bill adds a new subsection (4) to section 7 of the Cinematograph Act, 1952 with the definition of piracy and the penal provisions for the same[38].

The Amendment in the Cinematograph Bill of 2019 dealt with the problem of film piracy and therefore included the penal provisions for illegal camcording and duplication of films. The Bill when passed can build reliable prevention which would raise industries revenues, support work creation, satisfy significant objectives of India’s National Intellectual Property policy and will give relief against piracy and infringing content online. To tackle hazardous film piracy, the Amendment Bill also provides for[39]:

A new section 6AA has been inserted for the prohibition of unlawful recording. The following section will come after Section 6A of the Cinematograph Act, 1952.

6AA[40]: “Notwithstanding any law for the time being in force, no person shall without the written authorization of the author be permitted to use any audio-visual recording device to knowingly make or transmit or attempt to make or transmit or abet the making or transmission of a copy of a film or a part thereof.”

*The expression “author” shall have the same meaning as assigned to it in clause (d) of section 2 of the Copyright Act, 1957.

Additionally, there has been an amendment proposed in Section 7 to introduce Penal Provisions for violating provisions of Section 6 AA. In Section 7 of the principal Act, after sub-section 1 the following subsection (1A) shall be inserted:

“If any person contravenes the provisions of Section 6AA, he shall be punishable with imprisonment for a term which may extend to 3 years or with a fine which may extend to 10 lakh rupees or with both[41].”

Recommendations by the Standing Committee on the Cinematograph (Amendment) Bill, 2019[42]

Ø  The Bill mentions punishment with imprisonment of up to 3 years or a fine up to Rs. 10 lakh, or both. But, the bill does not mention the minimum term for imprisonment or the minimum fine. Hence, the Committee recommended that both a minimum term for imprisonment and the minimum fine should be specified in the bill.

Ø  The Committee also observed that the fine of Rs. 10 lakh is insignificant and hence should be raised. The Committee then recommended enhancing the maximum fine to a range of 5%-10% of the audited gross production costs of a film.

Ø  According to the Standing Committee the bill does not specify the punishment for the mentioned offense i.e. whether it is bailable or non-bailable. The Committee, therefore, recommended that the Ministry should consider specifying the nature of the offense in this clause to remove any ambiguity.

Ø  The Bill lacked the fair use provision i.e. it lacked the provision which permits limited use of copyrighted material without acquiring permission from the copyright holder. The Committee also noted that the Copyright Act 1952 covers fair use while the Cinematograph Act, 1954 does not.  Hence, it was proposed that the Bill should have a fair use provision because it will provide adequate safeguards to persons utilizing short clips of films for non-commercial purposes.

Ø  The Bill prohibits knowingly making copies of a film without authorization. The Committee proposed that the Bill should clearly define the word ‘knowingly’ to prevent the prosecution of innocent persons.

Ø  The Committee observed that India is not a signatory to the anti-counterfeiting trade agreements. Such trade agreements cover intellectual property rights issues between countries ranging in various areas including movies and music. Hence, it will be difficult to apply provisions of the Bill in case of digital piracy originating across the border. The Committee recommended that a national law on the lines of the Digital Economy Act adopted by a few countries such as the USA and the UK should be considered. Such a law will provide a legal basis for mediation on these matters with other countries.

The Cinematograph (Amendment) Bill, 2019 was introduced in the Rajya Sabha on 12 February 2019 was then referred to the Standing Committee on Information Technology (16^th Lok Sabha) on 22 February 2019 for examination and the report which has to be submitted within two months. The Committee after hearing the views of the Ministry of Information and Broadcasting on the proposed amendment at their sitting held on 6^th March 2019, considering wide consequences of the proposed Amendment Bill on the film industry across the country and the public at large felt the urgent need to have a detailed examination of the Bill and to seek views/suggestions of experts/ associations/bodies/stakeholders/General Public. But, due to a shortage of time, owing to the declaration on General Elections, the Standing Committee on Information Technology (2018-19) left the matter of the examination of the Bill to the succeeding Committee in the new Lok Sabha[43].

At the time when the 17^th Lok Sabha held, the Bill was again referred to the Standing Committee on Information Technology (2019-20) on 4 October 2019 for examination and the prepared report within two months. Since the Committee was occupied with the time-bound exercise of examination of Demand for Grants (2019-20 and 2020-21) related to the four Ministries they sought an extension of time up to the second week of March 2020. The committee received thirteen views and suggestions and after the clarifications in the report, it was considered and adopted by the committee at their sitting held on 13 March 2020[44].     

According to the Union Minister Mr. Ravi Shankar Prasad, “There are penal provisions for unauthorized camcording and duplication of films.”  So keeping in mind all such conditions there should be stricter norms in the use of smartphones, Google glasses, and other such electronic devices in theatres.

Conclusion

Cinema being an important instrument for expressing ideas and free thoughts should not be subjected to any kind of censorship. Though one should remember the practical factors of our society in which such ideas are broadcasted i.e., in the process of expressing ideas and thoughts one should not disturb the peace and security of the society, since it can influence the society at large, caution must be taken while screening the film to avoid any kind of mayhem and danger to public security.

The vision of the filmmakers plays an important part because that is shown in the film and it has the power to bring about positive or negative change in the minds of people. Especially while showing crime and courtroom scenes one must portray the reality and not the imagination one. They should clearly show that the courtrooms are not ‘grand palaces’. That is why the lawyers keep taking digs at Bollywood by constantly stating things like, “This is not a filmy courtroom scene where you can just call in a witness without notice[45].”  Many a time, Bollywood has demonstrated law wrongly and compelled the audience that one cannot place confidence in the legal framework. But there are some movies which have done exceptionally well in depicting law, limitations, and boundaries that have been set by law, what all things create hindrance in the delivery of justice, etc. Through these movies, people have gained knowledge and attention to issues that were obscure to them.

The Certification Board must positively review a film and ensure harmony between freedom of expression and peace in society.

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WHY DO CHANNELS CHASE TRPs?

TRP is a big deal for television channels as it is a key factor in deciding their revenue. The higher a channels’ TRP, the more advertisement it will get, subsequently increasing their revenue scale. The increase or decrease in TRP of any program directly affects the income of the TV channel on which the program is coming. TRP rate of any channel or program depends upon the program that is displayed. It can be understood that when a film star arrives in a program for the promotion of his movie, the TRP of that program increases automatically because people like to see that film star more. It’s all about money – a show with higher TRPs has a bigger audience, so advertisers are willing to pay more to advertise on it. 

HOW TRPs ARE MEASURED?  

Broadcast Audience Research Council (BARC) formed in 2014, is the world’s largest television audience measurement service. After its joint venture with TAM, it is now the only rating body for the broadcasting sector in the country. BARC installs a device called “people meter” at households participating in its survey. The “people meter” (BAR-O-meters) tracks the shows being watched by listening for watermarks embedded in their audio. The BARC remote has buttons assigned to each member of the household. This keeps a track of who is watching a show. 45,000 households spread across the county are surveyed by BARC to estimate the viewing habits of about 20 crore TV households or roughly 84 crore viewers. Every Thursday, BARC releases data comparing the viewership of different channels and programs, broken down by audience demographics – age, education, income, etc. The number of viewers a show has and the time spent watching it from the basis for all TV channels buying and selling in the country and the advertising revenue every channel gets.

WHAT IS TRP SCAM? 

Television Rating Points (TRPs) have been a much debated issue in India since the present system of TRPs is riddled with several maladies such as small sample size which is not representative, lack of transparency, lack of reliability and credibility of data etc. Shortcomings in the present rating system have been highlighted by key stakeholders that include individuals, consumer groups, government, broadcasters, advertisers, and advertising agencies etc. 

In India, around 45,000 meters known as people meter are attached to TV sets. These give data on viewership patterns and behavior. The Modus Operandi is like this- The homes where meters are installed are supposed to be secret but bribes are given to staffers to identify the homes where meters are installed. So TV channels as well as private serial program producers approach these homes and bribe them to switch on the channels or programs. It is a known secret that these homes will be given another TV set by these bribe givers to watch programs as they wish with a condition that they have to always switch on the TV  and technically view the bribed channels or programs where the meter is attached. So in effect, these homes get another TV free also apart from the monthly bribes to switch on the meter attached TV set. These viewers are also bribed with the shopping coupons and many other gifts. 

Recently, Mumbai Police registered a case on the TRP scam the well-kept secret of Indian TV channels in manipulating the viewership data is now out in the public domain added with the mudslinging of TV Channels and anchors each other. Mumbai Police Commissioner said in an interview – Arnab Goswami’s Republic TV Channel is only the tip of the iceberg in the Indian TV Channel industry amounting to Rs.70, 000 crores advertisement spending annually. In many homes the people were bribed with Rs. 400-500 a month to keep specific channels switched on even if they did not watch it. The manipulation became clear when it emerged that non-English speaking poor households were watching English news channels. Hansa Research Group Private Limited has named India Today, Marathi channels and other channels for ‘increasing ratings’. Hansa Research Group Private Limited is the company responsible for installing Bar-O-meter. 

On this, Union minister for information and broadcasting Prakash Javadekar said the present system of Television Rating Point or TRP-oriented programs “needs a rethink” where some other politicians said that they do not wish to get into TRP game.

HOW TO STOP THIS FRAUD?

• Dish TV companies like Tata Sky and Airtel can take responsibility of data of viewership directly from their central control room & the government should authorize these companies to collect data through legislation.
• The government should take action against fake people meter connected to a few TV sets. 
• I & B ministry and TRAI must sit together to evolve a new scientific system to stop TRP scam.
• News provoking news for TRP should be stop (fake journalism). 
• There should be more agencies in this field to ensure curbing of monopoly by BARC.

CONCLUSION

If you go back to the pre-TV era, at least in Hindi, Manohar Kahaaniyaan and Nutan Kahaaniyaan would always have more readership than weeklies like Saptahik Hindustan. They would always be considered separate from news. We now have a peculiar situation in which news channels in their hunger of TRP rates are competing with TV serials by dramatizing news, focusing on crime and scandals and showing pulp content.  There used to be paid news and fake news and now TRP is journalism. It is an open secret that malpractices and bribing exist in the field to get good TRPs. TRP ratings of certain programs and certain channels gave the impression that some sort of hyping was happening in the ratings. In the industry, there are always allegations that companies producing Mega-serials will go to any extent to get good TRPs and use clever ways to hype up the TRP numbers.  Given the above circumstances, the Government and TRAI must intervene to rectify the tweaked “Policy Guidelines for Television Rating Agencies in India”. The Policy Guidelines envisages all sorts of regulations to streamline the TV rating business in India by ensuring independence to the rating agencies for TV programs.  It is high time the Government rectified the manipulated policy guidelines and stops this organized loot and manipulation by the TV channel giants who are fooling people by giving false Television Ratings to their own members and ensure that a professional independent television rating agency is created in India.

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‘Democracy is a government of the people, by the people and for the people’, said Abraham Lincoln. It is a well settled fact that an informed citizen plays a pivotal role in democracy, the reason being- Public opinion is emphasized as a fundamental tool against the autocracy of the representatives of the people. How is this public opinion formed? The most effective medium is media and press. The important task of keeping the citizens informed about the actions of the government is carried by it, thus, a considerable amount of importance is given to the freedom of speech and expression guaranteed by Article 19(1) (a). It was concluded by the constituent assembly that there was no need to have a separate provision for freedom of Press unlike the First Amendment of USA. It is the settled view of the Supreme Court that freedom of speech and expression includes freedom of the Press and circulation.[1]

The success of a democracy depends on the efficacy of the three pillars namely- Legislature, Executive and the Judiciary. Media rightly called as the fourth pillar acts as a watchdog by bringing these 3 pillars under the public scrutiny. It is undisputable that people have been benefitted because of the fearless approach of the journalists.

In S P Gupta v Union of India, the Supreme Court held that, “No democratic government can survive without accountability and the basic postulate of accountability is that people should have the information about the functioning of the government.”[2]

Investigative Journalism is one such method engaged by the media to uncover the truth which is wanted to be hidden from the public. It is also termed as Undercover Journalism or Sting Operations. This article attempts to throw some light on the investigative journalism aspect vis-à-vis right to privacy.

What is Investigative Journalism?

Investigative Journalism is a means through with the media discloses the matter which is otherwise not disclosed deliberately mostly by someone in position of power.[3] Through thorough fact finding missions held in secrecy, analysis of the data and exposure, investigative journalism educates the public. Typically, in such cases the media persons pose themselves as criminals in order to set up a trap. They catch the concerned person by means of deceit. 

Why do we need Investigative Journalism?

            The need for investigative Journalism stems the public’s right to know. This is reiterated by the Supreme Court in the landmark judgement of Romesh Thappar v State of Madras. The court held that, “The public interest of freedom of discussion (of which the freedom of press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves. In some the fundamental principle involved is the people’s right to know.”[4]

Types of Investigative Journalism-

Investigative Journalism can be of two types, namely, positive and negative.

Positive Operations are those which welfare the society as the disclosure of such cases interests the society.

Negative Operations are those which infringe the privacy of individuals, causing severe harm to the reputation of the individual. These do not benefit the society and may be termed as unethical.

Protection of Privacy

A lot of importance has been attached to the investigative journalism practiced by media, however responsibility is associated with every authority and hence the need for media to be accountable and implication of an ethical approach by it can’t be stressed enough. If it be left unchecked, it might be vulnerable to abuse of the liberty or freedom given.

It raises a concern as the method of deception is adopted to catch the criminal in investigative journalism. Sometimes such a condition is created where the criminal is tempted to do the wrongdoing who might otherwise be innocent, thus bringing into question the limitation of public morality and decency under Article 19(2) of the Constitution[5]. The intent of the criminal might not be known, henceforth, a check on media is unobjectionable.

A lot of times, sting operations are carried to increase TRP’s by means of obstructing privacy. The moot question that arises at this point is whether the privacy of individuals be compromised so as to let media exercise its fundamental right of speech and expression. In this era of technological advancement, it becomes quite easy to infringe privacy of a person. With a click, a whole lot of information can be obtained. Small camera’s, GPS trackers, mics can aid the operations.

The person on whom investigation might be carried, has his/her reputation, family and career to protect. In spite of increasing invasion of privacy, there is no explicit provision of law which protects the privacy of individuals. Right to privacy of an individual is inherent in the protection of life and liberty assured by Article 21 of the Indian Constitution.[6]  Article 12 of the Universal Declaration of Human Rights, 1948 (UDHR), also protects the privacy of individuals by restricting by restricting arbitrary interference.[7]

 However, like freedom of speech and expression, right to privacy is not absolute. It may be considered as limited if public interest outweighs individual privacy.[8] Furthermore, in cases where the privacy of an individual is infringed without his consent will be objectionable in a court of law and would amount to damages as a citizen has a right to safeguard his own privacy, family, career, etc. As stated above that right to privacy is subject to public interest, a balance needs to be sought in such cases. Where there is sufficient reason to believe that even if protection of privacy is essential, encroachment of privacy would help in gathering of important information which would advance public interest, then public interest in disclosure will prevail unless such disclosure is of highly personal nature. Positive Investigative Journalism backs this idea as it deals with disclosure of cases of corruption, bribery, terrorism, grievous crimes. Furthermore, it is held by the court of law that privacy can be compromised when the person is a public servant and the matters relates to discharging of his official duty.[9] It won’t be objectionable in cases of public servants as the people have a right to know every public act of the public functionaries, if norms of journalism are followed.

In the judgement Labour Liberation Front v. State of Andhra Pradesh, the Andhra Pradesh High Court further commentated on the said issue, it stated that when a case involves high profile person the media tends to cross its line and this might lead to dangerous turns. It results in abuse of the technological advancements available and causes unhealthy competition among the journalists. In the end the whole idea of responsible journalism gets compromised.

Conclusion

With no concrete legal provisions on Freedom of Media and Press, Right to Privacy and procedures or regulations relating to Investigative Journalism, confusion is bound to occur. There have been attempts to pass draft bills relating to protect of data and privacy in 2011, 2014 and 2017, however, no success has been achieved. Correct use of technology can help in disclosing truths. What needs to be kept in mind is that the freedom of speech and expression is not only for the benefit of media but for the benefit of the whole nation. In cases of clash between the two fundamental rights, only a case to case approach can give a clarity as to which right over weighs the other in that particular matter because there is no blanket winning right.

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 One such Act which deals with regulations imposed on print media is The Press and Registration of Books (PRB) Act, 1867(25 of 1867). The said act makes registration with the concerned authority mentioned compulsory along with laying down a provision for preservation of books and periodicals printed in whole of India. On 25^th November, 2019 the Ministry of Information and Broadcasting released a public notice in order to seek public consultation on the draft of Registration of Press and Periodicals (RPP) Bill, 2019. This bill, if passed, will be a replacement to the existing law – The Press and Registration of Books Act, 1867.

The bill seeks to get away with all the earlier provisions of the PRB Act, 1867, enabling the Central and State Government to formulate appropriate rules/regulations to regulate the criteria/ conditions for issuing Government advertisements in newspapers, accreditation of newspapers and such other facilities for newspapers.[1] Through the draft bill, the Ministry proposed to simplify the registration procedure by creating a Press Registrar General along with laying down a simple system of registration of e-papers. This article attempts to briefly summarize features of the draft bill as are mentioned above.

I.     Ambiguous Definitions

The RPP Bill leaves space for concern by making major changes some of which are brought to light through this article. It is widely attacked for vague and ambiguous definitions. “News on digital media” means “news in digitized format that can be transmitted over the internet, computer or mobile networks and includes text, audio, video and graphics.”[2] It may lead to various interpretations as its ambit looks broad, such as-

1.   Posts put on social media or blogs

2.    It might also include e-newspapers of the existing newspapers

 Imposing registration requirement on the former is excessive as there are thousands of individuals who share news content on a daily basis. It may lead to violation of  fundamental right of Freedom of Speech and Expression of such individuals guaranteed under Article 19(1)(a) of the Constitution as the ambit of interpretation of the said definition is broad. The latter interpretation is a result of three other definitions, namely- publication[3], publish[4], publisher[5] given in the bill.

Due to this ambiguity, who exactly is to register under Section 18 of the RPP Bill can’t be clearly understood. Till date no news website has had to register with the government, thus making this provision first of its kind.

II.     Editors to be Indians

“Editor of a periodical means an individual, whether called editor, chief editor, group editor or editor-in-chief or by any other name called, being a citizen of India and is ordinarily resident in India responsible for the selection and finalization of the content of a periodical”[6]

This provision of the draft bill makes it mandatory for the editor of the periodical to be an Indian citizen. The current law (PRB Act) does not have such a provision. On one hand this provision proposed will be feasible as it is difficult to hold a person of some other nationality accountable in Indian courts, if the need be. While on the other hand the provision can be challenged as a violation to Article 14 of the Indian Constitution. Thus the said provision has its own pros and cons.

III.     Registration Powers with the Press Registrar General

Section 5(1) under Part III of the bill creates a provision for the appointment of the Press Registrar General by the Central Government. The bill seeks to polarize the system of registration of the periodicals or newspapers with the Press Registrar General according to the procedure laid down under the bill. He is also empowered with the responsibility to revise Certificate of Registration, receive annual statements from the owners of the periodicals, impose fines or penalties, revoke or suspend the registration of the periodicals.[7]

However the bill has proposed to register the publishers of the news on digital media with the Registrar of Newspapers of India.[8]

IV.     Entities not allowed to bring out Publication

The bill allows anyone who is a citizen of India to bring out its publication, provided that such a person has not been convicted by the court for offence involving terrorist or unlawful activity and having done anything against the security of state.[9]

While it is stated that the meanings of ‘terrorist and unlawful activity’ shall be traced to the Section 2 of the Unlawful Activities (Prevention) Act, 1967, the draft fails to define what shall be included under the term ‘security of state’. It thus leads to lacunae and disagreements among the parties involved.

V.     Power vested with Government

The Press Registrar General shall be bound by the decision of the Central Government in case a question of policy occurs. The Central Government will also be immune from legal proceedings against it. It has the power to frame rules in accordance with the provisions mentioned under Section 22 of the Registration of Press and Periodicals Bill, 2019.

VI.     Provision of Prosecution of Publishers to be struck down

One of the important features of the new RPP Bill, 2019 is to do away with the provision of prosecution of publishers. The present Press and Registration of Books (PRB) Act, 1867 contains provisions under which for an offence listed under the act, a publisher or whosoever concerned shall be punished with a fine or imprisonment or by both on account of conviction. On the contrary the draft bill seeks to punish the concerned only with a fine as mentioned under Part V of the said Bill.[10]  

VII.     Appellate Board

In case of grievances, an appellate board may be called by the Press Registrar General and its decision will be consider as final. This is mentioned under Section 16 of Part VI of the Registration of Press and Periodicals (RPP) Bill, 2019.    

         The objective of the present Press and Registration of Books (PRB) Act, 1867 is to regulate the newspapers and press systematically and it is much based on the colonial era. The major change that the draft bill proposes distinct from the PRB Act is a control over digital media. The bill does not amplify the Freedom of Speech and Expression but some of the reliefs like prohibition on prosecution will surely be an improvement for the publishers. Due to the pros and cons as mentioned above, only time can answer whether it would be better than the existing law or will be subject to public objection, if passed. 

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