Ready…Set…Action?: Copyright Piracy And The Cinematograph (Amendment) Act, 2023

Introduction

The much-awaited Cinematograph Amendment Act, 2023 (“the Act”) that was introduced in Rajya Sabha on July 20, 2023 received the President’s assent on 4th August 2023. The Act amends the current Cinematograph Act, of 1952 and focuses on curbing film piracy and changing age-based certification to reflect changing societal standards. The Act’s notable features include the demarcation of three distinct “UA markers” intended to indicate age-appropriateness for viewership, addressing film exhibition on media platforms other than theatres (with special “A” and “S” certificates for this purpose), and film piracy.

Amendments on Piracy

• Insertion of Sections 6AA and 6AB

“6AA. No person shall use any audio-visual recording device in a place licensed to exhibit films with the intention of making or transmitting or attempting to make or transmit or abetting the making or transmission of an infringing copy of such film or a part thereof. Explanation.—For the purposes of this section, the expression “audio-visual recording device” means a digital or analogue photographic or video camera, or any other technology or device capable of enabling the recording or transmission of a copyrighted cinematographic film or any part thereof, regardless of whether audio-visual recording is the sole or primary purpose of the device.

6AB. No person shall use or abet the use of an infringing copy of any film to exhibit to the public for profit— (a) at a place of exhibition which has not been licensed under this Act or the rules made thereunder; or (b) in a manner that amounts to the infringement of copyright under the provisions of the Copyright Act, 1957 or any other law for the time being in force.”

Diverting from patterns of ambiguity that surrounded the definition of an “authorised place of exhibition” in the 2019 and 2021 Bills, the Act attempts to provide a clue as to what could perhaps be excluded from the purview of piracy in such a place. On a plain reading of the two sections, a noticeable feature is the continued choice of use of the phrase “place of exhibition”, perhaps pointing to a physical environment, which would render them inapplicable to OTT platforms.

An added benefit to aggrieved individuals allows them to sue for a single instance of piracy under two provisions – a violation brought about through the creation/intent/attempt/abetment of the making/transmission of an infringing copy under 6AA, and copyright infringement under 6AB. This intent, however, is undemonstrated, since the insertion of Section 2 (ddd) under the Act renders it clear that the meaning assigned to the term “infringing copy” is the same as that under Section 2 (m)(ii) of the Copyright Act, 1957. This portrays that an act of piracy is, in its most basic sense, copyright infringement.

• Insertion of Sections 7 (1A) and 7 (1B):

“(1A) Save as otherwise provided in section 52 of the Copyright Act, 1957, if any person contravenes the provisions of section 6AA or section 6AB, he shall be punishable with imprisonment for a term which shall not be less than three months, but may extend to three years and with a fine which shall not be less than three lakh rupees but may extend to five per cent of the audited gross production cost.

(1B) Notwithstanding anything contained in this section— (i) a person aggrieved by a contravention under section 6AA or section 6AB shall not be prevented from taking suitable action for an infringement under section 51 of the Copyright Act, 1957 or from taking suitable action for computer related offences under section 66 of the Information Technology Act, 2000 or any other relevant laws for the time being in force; (ii) the appropriate Government or its agencies shall not be prevented from taking suitable action against an intermediary as defined under clause (w)of sub-section (1) of section 2 of the Information Technology Act, 2000, where such intermediary acts in the manner as set out under sub-section (3) of section 79 of the said Act or any other law for the time being in force.”

Section 7 (1A) deploys punitive measures (minimum imprisonment of 3 months, up to 3 years and with a minimum fine of 3 lakhs up to 5% of the audited gross production cost) in cases of contravention of Sections 6AA and 6AB with the exception of fair dealing provisions (Section 52 of the Copyright Act, 1957). Further, Section 7 (1B) empowers an individual aggrieved under Section 6AA or 6AB to sue for copyright infringement under Section 51 of the Copyright Act, 1957, or for computer-related offences under Section 66 of the Information Technology Act, 2000 (“IT Act”).

Following the reasoning that the piracy provision pertains to the "physical environment," it is unclear how online intermediaries would have a role to play. The courts have yet to address this question in their application of these laws.

What’s peculiar?

As rightly pointed out in Lokesh Vyas’ SpicyIP blog post on the Act [1], one can, on a comparison of the previous drafts with the Act, point out the replacement of the words denoting liability of the user, such as “knowledge” and “copy”, with “intention” and infringing copy” respectively. What does this mean? Albeit a simplistic point of view, this new stance could reflect policymakers’ acceptance that theatre cinema consumers may not have acquired the desirable level of piracy awareness that the previous drafts took for granted. Readers who have watched at least one so-called “blockbuster” movie may be able to attest to the fact that it is not always that piracy violations occur with an intention to engage in the act. The addition of the term “infringing” narrows the scope of violation down to a few specific acts while also astutely tying piracy to copyright provisions.

Conclusion

Although piracy has never been explicitly defined, it has been addressed in a manner that leads one to assume that it is different from copyright infringement. If the intent of the Act’s policymakers is not to differentiate between piracy and copyright infringement, what could be the reason for amending the Cinematograph Act to include piracy instead of amending the Copyright Act? The extent of reliance of the Act on the Copyright Act demonstrates contrary intent.

The discourse is incomplete without a discussion of social media video posts of movie scenes from theatres, which is often done without the intention to indulge in piracy – but with the knowledge that such an act may well fall under its ambit. Would this demonstrate intention?

Copyright piracy is a form of theft that results in economic loss for the property owners. It also negatively affects the creative potential of a society by denying creators their legitimate dues. Cinematographic works have a complex nature of copyright as there exist several layers of copyrights in a single work, and oftentimes, these rights overlap.

Piracy takes away a specific portion of revenue from legal owners of these copyrights. The commercial exploitation of copyrights yields income to the creative persons in the form of royalties. The state gets such income in the form of excise duty, sales tax, income tax, etc., which pirates do not pay. Therefore, piracy brings losses for all involved in the legitimate production and distribution of copyrighted matter, especially so for the film industry.

Sources:

1. https://spicyip.com/2023/08/cinematography-bill-2023-certification-censorship-and-public-consciousness.html#:~:text=Increased%20Punishment%20For%20Piracy%3A%20The,the%20audited%20gross%20production%20cost

2. https://mib.gov.in/sites/default/files/Gazette%20of%20India%20for%20The%20Cinematograph%20%28Amendment%29%20Bill%202023.pdf

3. https://www.legalserviceindia.com/legal/article-12926-an-overview-of-the-cinematograph-amendment-bill-2023.html

4. https://www.mondaq.com/india/social-media/1235196/information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021-adequate-regulation-of-intermediaries#:~:text=The%20term%20'Intermediary'%20has%20been,record%20and%20includes%20telecom%20service

5. Piracy in the Indian Film Industry – Copyright and Cultural Consonance, Arul George Scaria

6. Curbing Online Piracy in the Indian Film Industry: Effectiveness of the Indian Copyright Act, 5 JIPL (2020) 103

7. https://copyright.gov.in/documents/study%20on%20copyright%20piracy%20in%20india.pdf