Legal Desire International Journal on Law November 2020 ISSN: 2347-3525

Indian Cinema: Censorship Laws, Freedom of Speech and Expression and Role of Judiciary

Akshat Agarwal19, Aprajita Sharma20, Mannat Sardana21, Mehul Kumar Shrimali22, Mudita Dubey23, P. Vaishnavi24

INTRODUCTION Entertainment contains within itself the twin seeds of amusement and enjoyment; an activity or event which provides any or both of these will qualify as entertainment. Indian film industry is known as the largest film industry in the world. Every year over 1000 of movies are produced across our country. Therefore this industry thrives on mass support and huge fan following and thus has a maximum movie viewers in the world. Ironically this film industry is going through a rough phase as the one who makes stereotypically commercially viable movies with songs and dance steps and follow common formulas of entertainment- crosses the river, but the moment one dares to raise voices against the odds and ill practices of the society through films they have landed themselves into trouble waters. Our recent past is the witness of such films which faces political bans and censors issues. Now why the films and documentaries are banned? These were banned to maintain the peace and harmony in the society. There have been a political interference in either getting the film banned or to be released it with alterations that don’t stir up the communal feelings of public. Several movies like ‘waters’ , ‘war and peace’ , ‘ The girl with dragoon tattoo’ etc. have faced serious trouble with CBFC in the name of ‘Public Interest’. And many films have gone through major cuts so that they could be released like ‘Jhoodha Akbar‘ , ‘Ajaa nachle‘ etc. Cinema is an artistic expression of ideas, stories and often opinions, sometimes inspired by reality occasionally set to music, designed to enthral, enchant, or simply to entertain. Movies, documentaries, books are only a few source which can create a major impact on our lives. They are a form of art which pressurise us to introspect upon certain happenings around us which are often unnoticed. Since years films have always been a potential tool for communication of a vital message to a large part of our society. They are a medium to bring a positive change in our society.

HISTORICAL BACKGROUND India's first a silent movie "Raja Harischandra", was released in 1913. Raja Harischandra was full- length motion picture in India was produced by Dadasaheb Phalke. He was the father of Indian Cinema.

19 ICFAI University, Dehradun. 20 Galgotias University, Greater Noida. 21 Vivekananda Institute of Professional Studies, GGSIPU, New Delhi 22 Maneklal Nanavati Law College, Ahmedabad. 23 Amity University, Jaipur 24 ICFAI Law School, Hyderabad.

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The Indian Cinematograph Act came into 1920. This Act was based directly on the British Cinematograph Act 1909 that preceded the establishment of the British Board of Film Censors in 1912. The Cinematograph Act 1918 made for exhibitors to secure a license from local civil authorities to screen a film, and for censorship to precede any film exhibited in India. In 1920, Censor Boards were established in the port cities of Bombay, Calcutta, Madras, and Rangoon. Certificate revoked by District Magistrate or Commissioner of Police. The 1918 Act gave the district magistrate (or, in Rangoon, the commissioner of police) the power to issue licences to exhibitors, and the government to appoint inspectors to examine and certify films as “suitable for public exhibition". The Indian cinematograph committee (ICC) was established in 1927-28, chaired by a former Madras high court judge, T. Rangachariar. This committee was worked on inquiry into movie viewing, censoring and exhibiting habits in the country, and an acknowledgment in India. The Indian Cinematograph Committee (ICC) recommended that censorship come under a central authority, while otherwise claiming that mechanisms for restricting content were generally functioning effectively .In 1949, the Cinematograph Act 1918 was amended to include A and U certificates and to centralise censorship. The A category was drawn from the UK adult category of the time, although it excluded the possibility of minor attendance at A-certified films that the UK certificate allowed. India’s first sound film was Alam Ara released in 1931.Indian First colour movie was “Kisan Kanya” (1937) and First technicolour movie was “Jhansi Ki Rani” (1953). India’s First Cinemascope movie was “Kagaz Ke Phool” (1959 or 1960). AN INSIGHT INTO THE CINEMATOGRAPH ACT, 1952: The cinematograph Bill was introduced in the parliament. After getting passed by both the houses of Parliament, the bill received the assent of the President on 21st March, 1952. It came into effect from 28th July, 1952. The relevant provisions are:

 Deals with the Board of film censors. It vests the Central Government with the power to constitute the Board of Film Certification vide notification in the Official Gazette consisting of a Chairman and minimum 12 and maximum 25 members, they appointed by the Central Government.  Talks of examination of films. Under this, any person willing to exhibit any film has to make an application to the Board of Film Certification for a certificate and the Board after examining the film in a prescribed manner shall give the following sanctions:  Film has unrestricted public exhibition and can be exhibited publicly but only restricted to adults  Film can be exhibited only for persons belonging to a particular profession or any class of persons depending on the content and theme of the film  Film cannot be allowed for public exhibition

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 Section 5 allows the Central Government to establish advisory panels in every regional centre consisting of persons who have the requisite expertise in judging the effect of films on public,  Section 5B provides that film against the interests of sovereignty and integrity of India, security of the state, friendly relations to foreign countries, public order, decency or morality or containing defamatory material when film not certified for public exhibition.  Under Section 5D an Appellate Tribunal is constituted to which an appeal against the decision of the Board lies.  Section 7 provides for the penalties for contravention.  The Ministry of Information and Broadcasting has been granted powers to make rules with respect to any of the matters mentioned in the provision under Section 8 of the Act.

Film Certification Appellate Tribunal The Film Certification Appellate Tribunal (FCAT) constituted under the Ministry of Information and Broadcasting as per Section 5(D) of the Cinematograph Act, 1952.

 The FCAT hears appeals filed by applicants aggrieved by any order of the Central Board of Film Certification (CBFC).  An aggrieved person has to file an appeal within 30 days from the date of the CBFC order. In the span, several amendments have taken place as per need of an hour. Cinematograph Amendment Act 1959 Most significant feature of this amendment was the incorporation of ‘Principles for Guidance in Certifying Films’ as section 5B of the amended act. First, it incorporated in the statute books the specific grounds on which public exhibition of any film, or a part of it, could be forbidden. Second, it expressly authorized sanctioning of films for public exhibition. Amendment of 1963 The Cinematograph (Censorship) Amendment Rules 1963 provided for a final appeal to the central government by an applicant who was dissatisfied with the verdict of the CBFC. Recommendations of Khosla Committee 1969 Several guidelines were recommended:-  Formation of an independent and autonomous board;  Films censorship and independence subject to the reasonable restrictions enshrined under Article 19(2) of the Constitution;  Three fold classification of films- ‘U’ for Universal exhibition, ‘G’ for Universal exhibition with children only when accompanied with adults and ‘A’ for Adult exhibition;  Scrutiny and censorship of films when exported out of India exhibition;  Limiting the power of Government to censor for greater flexibility. The Cinematograph (Certification) Rules 1983

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Two more certificates along with U and A, were added: 1. U/A (unrestricted public exhibition, with parental guidance for children under age twelve) 2. S (restricted to specialised audiences as per profession.) Certification Guidelines 1991 In 1991, the Central Government issued new guidelines for providing the certification, i.e., providing clean and healthy entertainment, and promoting good standard films.

Stand of present government about laws related to this aspect STANDING COMMITTEE REPORT (2019-20) The Standing Committee’s Chairperson was Dr. Shashi Tharoor. The Report was considered and adopted by the Committee at their sitting held 13 March, 2020 in both house. The Cinematograph (Amendment) Bill, 2019 as introduced in Rajya Sabha on 12.02.2019 was referred by the Hon'ble Speaker Smt.Sumitra Mahajan(16th Lok Sabha) to the Standing Committee on Information Technology on 22.02.2019 for examination .The Committee, after hearing the views of the Ministry of Information and Broadcasting on the proposed amendment at their sitting held on 6 March, 2019 and considering complication of the proposed amendment Bill on the film industry across the country and public at large felt the need to have an in-depth examination of the Bill . Standing Committee Report

 Insertion Of New Section 6aa After Section 6a Of The Cinematograph Act 1952 And Amendment To Section 7 Of The Principal Act The Cinematograph (Amendment) Bill, 2019 proposes that after section 6A, the following section shall be inserted, namely: - 6AA. "Notwithstanding any law for the time being in force, no person shall, without the written authorisation of the author, be permitted to use any audiovisual recording device in a place 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." In Short—this section, the expression “author” shall have the same meaning as assigned to it in clause (d) of section 2 of the Copyright Act, 1957. The Government propose that in section 7 of the Principle Act, after sub-section (1), The following sub-section shall be inserted: - "(1A). If any person violates the provisions of section 6AA, he shall be punishable with an imprisonment for a term which may extend to three years or with fine which may extend to ten lakh rupees or with both.

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This amendment intends to reduce piracy, increased Industry revenues, boost job creation and fulfill important objectives of India's National Intellectual Property Rights policy (NIPRP). Piracy in the context of the proposed legislation is the unauthorised duplication of films. There is a constant threat of piracy of films. Film Industry has been facing huge losses due to suffer of new technology, decline of number of people visiting the cinema theatres, increase in piracy, particularly release of pirated version of films on the internet, copyright violations, etc. The films are available online within few hours of release, causing huge monetary loss to the industry as well as to the Government exchequer. The Committee enquired about the estimated revenue loss due to film piracy, the Ministry submitted as under: “As per a report of FICCI, the film and TV is constantly battling with the threats of online piracy. In a study of over thousand pirated websites in India, it was estimated that large pirated networks can generate between $2-4 million per annum, and medium and small pirate website can generate up to $ 2 million annually. According to a report by FICCI-EY in 2018 on India’s M&E Sector, the Indian film industry loses $2.8 billion of its annual revenue to piracy.” Film piracy is done in various forms ranging from producing Compact Discs (CDs) through camcording during the exhibition of movies at theatres to downloading movies and sharing files with each other without the permission of author from unauthorized sites. Piracy is done in many ways like video piracy, cable piracy, DVD/CD piracy and online piracy. As per the report, one of the Bollywood movies was downloaded more than 350,000 times on Bit Torrent and two third of downloads could be traced to location within India . The Copyright Act, 1957 clarifies under Section 2(d) (v) defines ‘author’ in relation to a cinematograph film as its producer where the economic rights/ownership of the Copyright in the cinematograph film may have been assigned to a third party . In such cases, seeking consent of the author may not be relevant and in that case, consent of the owner of the Copyright may be sought. The Committee were of the view that the word ‘Knowingly” should be well defined in the proposed amendment as someone may get punished because of incautious use. The Committee furnished written submission; it has been informed that the term ‘knowingly’ has been used in Section 63 of the Copyright Act, without being defined in the Act. Under Section 63 of the Copyright Act, any person who knowingly infringes or abets the infringement of 10 the copyright in a work shall be punishable with imprisonment for a term which shall not be less than six months but which may be extended to three years and with fine which shall not be less than fifty thousand rupees but which may be extended to two lakh rupees.

 Existing provisions deal with Film Piracy Under Section 63 of the Copyright Act, infringement of the copyright in a work is a cognizable offence and the offender shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees.

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Making a copy of a film on any medium by any means, including recording of films in a theatre, is a punishable offence under the Copyright Act.

 'Fair Use’ Provision 'Fair use' related to Intellectual Property Rights, the Ministry has informed that the Copyright Act, 1957 recognizes the concept of fair dealing under clause (1) of Section 52, which is as under: “The following acts shall not constitute an infringement of copyright, namely. A fair dealing with any work, not being a computer programme, for the purposes of – i) Private or personal use, including research ii) Criticism or review, whether of that work or of any other work iii) The reporting of current events and current affairs, including the reporting of a lecture delivered in public.” Reproduction of the whole work or substantial part of it will not be permitted; only use of extracts from a work will be permissible, and may be determined on a case to case basis. Further, there is stated to be no provision related to ‘Fair Use’ in the Cinematograph Act, 1952. the Ministry further expand that ‘Fair Use’ permits limited use of copyrighted material without having to first acquire permission from the copyright holder. The intention of incorporating such a provision in the Act is to create ‘making a copy of a film’ an offence. By making such a provision a conditional one may result into uncertainty in principle itself.

 Expert Committees on Film Certification

 The Committee have observed that an expert committee under the Chairmanship of Justice Mukul Mudgal (Former Chief Justice of High Court of Punjab and Haryana) was constituted by the Government of India on 04.02.2013, in order to examine the issues of certification under the Cinematograph Act, 1952 and this committee submitted its Report on 8.09.2013 along with draft Cinematograph Bill.

 The committee observed that piracy, illegal and unauthorized duplication of certified film should be treated in the strictest form possible and therefore recommended that such Act be made substantive non-bailable offence.

 The Committee suggested structuring on Offences and Penalties recommending a fine which may extend from Rs. 5 lacs upto Rs. 25 lacs and an imprisonment which may extend upto 3 years. Committee of experts headed by Shri Shyam Benegal was constituted on 01.01.2016, to evolve broad guidelines/procedures for certification of films within the ambit of Cinematograph Act, 1952 and the Cinematograph (Certification) Rules, 1983. This Committee submitted report in June, 2016.

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 Online/Digital Piracy The Ministry has stated that as informed by Ministry of Electronics and Information Technology, ISPs provide Internet Connectivity for accessing any Website or application on Internet. They are not authorised to monitor the content transmitted on their network and hence they are like a dumb pipe providing transmission of data and information over the Internet and are not aware of any IPR infringing content or the website of their own. The Ministry has observed that pirated sites immediately change their domain name/ website address and hence become available again. So the Agencies monitoring the pirated sites continue to find any such websites and ISPs can be continually informed/ ordered to block such sites. Speed of identification, communication and action by DoT/ ISPs is therefore of essence. The Ministry has stated that there is already a Grievance Redressal mechanism in place whereby any aggrieved person can lodge a complaint. The Government of India approved an anti-piracy initiative in the audio-visual sector in the Development, Communication and Dissemination of Filmic Content (DCDFC) scheme. For creating awareness about the enforcement of the proposed legislation and to spread the message of anti-piracy to the masses, in addition to spelling out the said penalties for illegal camcording to discourage potential copyright violators, major activities including campaign on piracy through audio-visual, internet and print media; training programmes and workshops to sensitize the police, judicial, administrative officials, multiplex and cinema hall owners; production of a film/documentary, etc. The Committee take note of the submission of the Ministry that the copyright law alone has proved to be insufficient in tackling the menace of film piracy as the amount of illegal camcording in movie theatres globally, which is considered a primary cause of movie piracy, is increasing and threatens the film industry around the world. The Committee note that the Motion Pictures Distributors Association has informed to have trained about 8000 halls to detect piracy as their first-line of defence in the cinema halls. The Committee expect that the legislation would continue to get support of the Film Industry stakeholders in a similar manner in future also. Rajya sabha Questions Online Video Content Regulation By Shrimati Shanta Chhetri on 16-03-2020 (a) Whether Government has plans for online video content regulation? (b) whether Government is planning to restrict streaming companies, censorship of online video content on shows by implementing new legislation on online streaming of videos? (c) if so, the details thereof and if not, the reasons therefor? Answer: Minister of Information and Broadcasting (Shri Prakash Javadekar)

90 Legal Desire Media & Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 ISSN: 2347-3525 a. to (c): The Information Technology Act, 2000, administered by Ministry of Electronics and Information Technology (MEITY) has provisions relating to content on websites, etc. Information / websites / URLs can be blocked under Section 69A of that b. Act, on matters relating to sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to the above. Further, online video streaming services providing curated content are expected to follow various content related domestic laws as applicable to them. c. In addition, web channels, which are intermediaries under that Act, are required to follow certain due diligence as prescribed in the Information Technology (Intermediaries Guidelines) Rules, 2011. Government called a meeting of OTT platforms and their association is in preparation of self-regulation.

Uncensored Media Content By Shri N. Gokulakrishnan on 16-03-2020 (a) Whether Government is aware that the uncensored media content especially from Television and social media are polluting the minds of the viewers and spoiling the character of children? (b) Whether vengeful contents and obscene display of sex have been on the increase, in Over The Top Contents (OTT) media services, if so, steps Government proposes, to curb the menace? (c) Whether the recent social media like Netflix, Prime Video, YouTube, etc. are earning considerable revenue by screening movies, serials, etc. thereby depriving the State of revenue through entertainment tax, if so, whether Government proposes to bring them under tax ambit? Answer: Minister of Information And Broadcasting (Shri Prakash Javadekar) (a) to (b): All programmes and advertisements telecast on private satellite TV channels are required to adhere to the Programme and Advertising Codes prescribed under Cable Television Networks (Regulation) Act, 1995 and the Rules framed thereunder. Action is taken against defaulting channels whenever any violation of the codes is established. The Information Technology Act, 2000, administered by Ministry of Electronics and Information Technology (MEITY) has provisions relating to content on websites, etc. Information / websites / URLs can be blocked under Section 69A of that Act, on matters relating to sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to the above. Web channels, which are intermediaries under that Act, are required to follow certain due diligence as prescribed in the Information Technology (Intermediaries Guidelines) Rules, 2011. (c): Entertainment Tax earlier levied by State Governments has been subsumed under GST w.e.f. 01.07.2017. Online information and database access or retrieval services (OIDAR services) supplied by entities such as Netflix, Prime Video, YouTube, etc. attract GST@18%. OIDAR services have been defined under Section 2(17) of Integrated Goods & Services Tax (IGST) Act, 2017.

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CINEMA AND FREEDOM OF EXPESSION Cinema can be considered as a miniature of societal values and the prevailing trends of the society. It is a source of values and ideas can be a medium for revolution. As a vehement and a potent tool of expression of free idea and thoughts, free cinema can be seen as a touchstone of freedom of expression. By the term free cinema, one can easily attribute to it a reference to a platform where in ideas can flow freely without restriction of any kind. Films have always been regarded as constituting a powerful medium of expression. It is judicially recognized that cinema is a form of speech and expression. The Supreme Court of India has been questioning from time to time the manner in which the citizens of India misuse their fundamental right i.e. freedom of speech and expression (Article 19(1)). However the right of freedom of speech is not absolute and is regulated by the Article 19(2) of the Indian constitution. 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. 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. Under section 3 of the Act, a regulatory body is established known as Central Board of Films Certification for the purpose of sanctioning films for public exhibition. However, there is no provision which mentions that the board has been vested with the power to censor motion pictures beyond the specific conditions provided under the ground of reasonable restriction according to the provision of 5(B) of the act. And even if the film violates the provisions of the act then the board can ask the applicant to modify the parts of the movie. However many times board has gone beyond its statutory power to regulate motion pictures. According to the act the power of the board should only extends to regulation of the film through certification.

Landscape of Judicial Decisions (Film Censorship and Judicial Approach) Case: K.A. Abbas v. Union of India The Supreme Court upheld the constitutionality within the ambit of Article 19(2) of the constitution and added that films have to be treated separately from other forms of art and expression because a motion picture has the ability of stirring up the emotions more deeply than any other form of art. At the same time court also cautioned that movies should be in the interest of public. It was also observed that the Section 5B (2) of the Cinematograph Act, 1952 authorises the Government to issue such directions in order of sanctioning the public exhibition of the film and the same does not infringe the fundamental right of speech and expression. Case: Rangarajan v. P.Jagjivan Ram The Supreme Court pulls down the judgement of Madras high court of the film ought to be refused to a U certificate that it may create a public stir. Supreme Court stated that “It is the duty of the state to protect the freedom of speech and expression since the state cannot protect the freedom of expression since e it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem”. Case: Raj Kapoor and Ors. v. State and Ors.

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It was observed that there has been deplorability that a power for good like the cinema, by a subtle process and sometimes by a ribald display, vulgarises the public palate, pruriently infiltrates adolescent minds, which in actual reality succumb the ‘horror’ crimes of venereal violence and related to same, the CBFC has power under Section 5A of the Act to entrust off the scene which offensively invade or deprave public morals. Case: Prakash Jha and Anr. v. Union of India. The movie concerned was Arakshan which talked about the malaise of reservations. In this case, it was held that once a film has been certified by the Board for public exhibition, the same could not be subjected to further certification by the local authorities. It is for the State to decide in accordance to maintain law and order situation in the State efficiently and potentially. Case: Harinder Singh Sikka v. Union of India & Ors. The famous case, Nanak Sharo case is related to a film based on Guru Nanak Dev’s life and teachings which was given a green flag by CBFC after a few alterations in the movie; still the movie was restricted by a religious body of the Sikhs, Shiromani Gurdwara Prabandhak Committee (SGPC). Our former Chief Justice of India Deepak Mishra criticised the apex religious body and stated that if CBFC grants certification to a movie, no group, body, association or individuals can create any kind of disturbance in exhibition of the film. It was further mentioned that creating disturbance even after the certification from the CBFC signify becoming a law onto them and not respecting the law that governs the land. The bench issued a notice to the Centre and all the States and directed them to oversee that when the film is released law and order should be maintained and no one is allowed to create disturbances. Honourable Court also stated that is the duty of the State to facilitate the enjoyment of right. Case: Manohar Lal Sharma v. Sanjay Leela Bhansali & Ors; Viacom 18 Media Private Limited & Ors v. Union of India (2018 SC) The famous case of Padmavat movie was discussed in these cases. And it was held that though State should decide in accordance to maintain law and order but should also remember that if intellectual prowess and natural or cultivated power of creation is interfered without the permissible facet of law, the concept of creativity paves the path of extinction; and when creativity dies, values of civilisation corrode. Also, the recent case of the movie Udta Punjab where the board refused to release the films without 13 major cuts as the movie is based on drug menace prevailing in the state of Punjab. The filmmakers appeal the Bombay High Court and the Court criticised the board for not handling the issue wisely. The Court also mentioned that the Board is not necessary empowered to censor films as the word censor is not found in the Cinematograph Act. The board can make changes in the film but those changes should be in accordance with the constitutional guarantee and Supreme Court orders. This verdict of the Court is considered as the landmark judgement because it paves the way for the long, pending reformation of the certification board. This indicates that the Board was misusing its power which meant to be restricted to certification of films for exhibition only. Many other films have been caught in the web of Certification Board like Manikarnika, PK, MSG, An Insignificant Man, and many more. However they have been certified with some alterations or by the orders of the court.

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Hence, it can be concluded 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 the fact cannot also be denied that the censor board regulations have been affecting the right of freedom of speech and expression of film makers – who’s content which they want to portray gets restricted and several movies become a victim of regressive laws of censorship. Even the Constitution of India guarantees and protects the right of artists to portray social reality in all its forms. And the same has been held by Justice D.Y. Chandrachud in case F.A. Pictures International v. Central Board of Film Certification: - “Artists, writers and film makers are the eyes and ears of 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 right of any citizen to speak.” In the end, we may conclude by saying that banning motion pictures is equivalent to banning right of freedom of speech and expression.

“As everyone knows this is a popular media and undoubtedly has more impact on the society even, if some section of people vehemently denies it. I would prefer people belonging to the industry and/or fraternity to be more responsible and sensitive towards their role in the society rather than taking refuge of Article 19(1) (a) and be responsible citizens of this country.” - Phani . R. Surampudi, Homemaker

Shyam Benegal Committee Report, 2016 An Expert Committee, chaired by Mr. Shyam Benegal was constituted by the Ministry of Information and Broadcasting to recommend guidelines for certification of films by the Central Board of Film Certification (CBFC). The terms Committee recommended were: i.to study the procedures of certification being followed by CBFC, ii.to recommend guiding principles with respect to certification of films, within the ambit of the Cinematograph Act, 1952, and iii.to suggest a suitable staffing structure for a more efficient service.

Regarding the Role of CBFC, the Committee observed that the owner of the film has complete and absolute rights over it. In case of any alteration or change in the film, the same can only be made by the owner or with his consent (express and/ or implied). The Committee also recommended that the current system of suggesting modifications and amendments to a film by the CBFC should be done away with and the Board must function only as a film certification body, and not as a censor board. The Committee also suggested few Modifications to 1991 guidelines which were issued under section 5B of the Cinematograph Act, 1952. Section 5B declares that a film will not be certified if a part of it or the entire film is against the interest of the sovereignty and integrity of the country, decency or morality, etc. The Committee under this Report noted that some of the objectives under these guidelines, such as requiring the film to be sensitive to the values of the

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society, providing clean and healthy entertainment, were not within the ambit of the Board to rely upon. And hence, accordingly, the Committee proposed some new drafted set of guidelines. The major objectives of the guidelines proposed were: i.protection of artistic expression and creative freedom of filmmakers by suggesting several parameters, ii.audiences are competent enough to make informed viewing decisions and same should be empowered to them, iii.the process of certification is responsive to social changes and must not be rigidly stated. The guidelines also stated that an applicant must mention in his application, the category of certification he seeks, and the target audience and further, any cuts in a film be only made by the applicant, depending on the certification he needs for his film and discrepancy faced as per social outlook. The Committee also suggested that there should be further bifurcation of two categories of certification, which is U/A (films that contain certain scenes not suitable for children below the age of 12) and A (films suitable for adults only). The U/A category should be divided into:  U/A 12(+) - will cater to young teenagers yet to be exposed to the adult world, and  U/A 15(+) - will cater to young adolescents at an age where they are being exposed to issues in the adult world, in a moderate manner. The A category should include an A-C (films suitable for adults only, with caution) sub- category, for films that may contain explicit material, such as nudity, violence, etc., along with the already known A certification. The sole objective behind such categorisation was to help audiences to make distinct choices. The Committee even recommended guidelines to limit the function of CBFC, confining itself to:  submission of an annual report along with an analytical study of the trends in the film industry to the Central Government and Parliament each year,  to review the work of Regional Officers and the Regional and Central Advisory Panels,  regularly and systematically review guidelines laid down for certification of films, etc.

Cinematograph (Amendment) Bill, 2018 The bill was introduced to remove the obsolete provisions which hinder the free flow of free speech, especially the artistic freedom related to the media fraternity. The protection of such artistic freedom was realised as essential for development of the culture of our country and our democracy. The following points were observed and hence there was introduction of the Bill by Dr. Shashi Tharoor: 1. There is need of removal of pre censorship powers of Central Board of Film Certification.

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2. There is need to recognise the artistic freedom as an integral part to the cultural development of our country. 3. There is need to restrict the “regressive and paternalistic” ability of Government related to suspension of films and also the Government’s overriding control over the decisions of the Board need to be curbed. 4. The Board should only act as a certification body and not as a censorship body. The power of the Board to censor films also reflects the “regressive and paternalistic” outlook. 5. The existing guidelines for certification envisaged under Section 5B of the 1952 Act are way too broad and vague, allowing the Board to pass illogical orders; like the famous case of the documentary on Amartya Sen, “The Argumentative Indian” where the Board passed the order of muting the individual words of dialogues like the term cow. In general, the bill aimed to set aside the excessive powers of the Government and Board. The bill aims to do away with State’s power to ban films, which should be the “last resort in order to maintain public order”.

International censorship laws and Indian situation Communication through film media is considered as a form of speech and expression in India. Article 19 of the Human Rights (UHDR) and International Covenant on Civil and Political Rights, 1966 (ICCPR) specifically provide for protection and promotion of right to speech and expression. However these rights are not absolute in any country they have certain limitations. According to the international regime the freedom of speech and expression has to undergo three tests, they are - the restrictions must be provided by the law, the aim to use them must be legitimate and they must be necessary for accomplishment of the act. The aim of the imposed limitations is for the protection of rights of others, the protection of national security and maintaining public order. Our constitution of India also provides with freedom of speech and expression with certain reasonable restrictions. In India when a film is released, it is released for public exhibition and every film has to undergo with the legal process of censorship with CBFC. The main object of the Cinematograph Act 1952 is to provide certification to the cinematography films for regulations and also for the regulations of their regulations.

Piracy and Copyright Infringement in Cinema Piracy is one of the most challenging problems faced by film industry. Online film piracy in India rose 62%. People had found pirated videos and circulating on different websites. Copyright infringement and other forms of intellectual property have become a large problem around the world. The Copyright protection is given to all literary, musical, artistic, dramatic, sound recording and Cinematography works. Section 13 of the Copyright Act, 1957 provides copyright to the original work.

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Copyright Copyright refers to a right given to the creators of literary, musical, dramatic, cinematograph, and sound recording work. It is a bundle of rights which can be exercised only by the owner of copyright or by any other person who is duly licensed in regard by the owner of copyright.

Kinds of Copyright Piracy in Films Home Video Video rights are generally sold for home rental. In whole rental rights, the owner's produce cassettes and rent these out to homes for some time period. Cable TV Movies are brought to the homes by the cable network. The cable operators show movies of camera print and using infringed copies. Commercial Right This is a right which arises in the Cinematograph works. These rights are used to show movies through cable or home video.

Laws of Copyright in India The Copyright Act, 1957 ensures protection to the creators of literary, artistic, musical, dramatic cinematographic films and sound recording. According to Section 14 of the Act copyright means exclusive rights given to the owner of copyright. This includes the right of publication, right of adaption, right of reproduction and right to make translations. According to Copyright Act, 1957 the term “work” means any literary, dramatic, musical or artistic work, a cinematograph Film, or a sound recording.

Artistic Work Artistic work means a work involves painting, drawing, photograph or any other work of artistic craftsmanship.

Musical Work Musical work means a work which includes graphical notation of work.

Sound Recording Sound recording means a recording of sounds through which sounds produced. For example - disc or tape recording of sound. Cinematograph Film Cinematograph film means any work which involves visual recording produced through a process in which moving image may be produced and includes a sound recording. Indian perspective on copyright protection

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The Copyright Act, 1957 ensures copyright protection. In this Act there are two types of rights given to the owner:

 Economic rights  Moral rights Economic rights The right which allows owners to derive financial reward from the use of their works by others provides under Section 14. The different types of work come under different types of rights such as: In literary work, copyright means the right

 To reproduce the work  To issue copies of work to the public  To perform the work in public  To communicate the work to the public  To make any adaption of the work In an artistic work, copyright means the right

 To communicate the work to the public  To reproduce the work  To make any adaption of the work  To include the work in any cinematograph Film In musical work, copyright means the right

 To reproduce the work  To perform the work in public  To make any translation to the work  To make any adaption of the work In cinematograph film, copyright means the right

 To make a copy of the film including a photograph of any image forming part thereof  To sell or give on hire or offer for sale or hire a copy of the film  To communicate the cinematograph film to the public. In sound recording, copyright means the right

 To make any other sound recording embodying  To communicate the sound recording to the public.  To sell or give on hire any copy of sound recording Moral Rights These are the rights which allow authors and creators to take certain actions to preserve and protect their link with their work. It is also known as "Authors Special Rights". Piracy in Cinema

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Piracy refers to the unauthorised use of a copyrighted work, recording or any television program. For example – The record industry is beset with piracy. It is the practice of illegally copying and distributing copyrighted content digitally without permission, such as music or software. Types of Piracy

 Counterfeiting: It is the illegal duplication, distribution or sale of copyrighted material. For example – CD writers are available at very low prices making music piracy easy.  Internet Piracy: It is the act of software downloaded from the internet websites that make software available for free download or in exchange for others.  End - User Policy: It is the act of an individual reproduces copies of software without authorization copying discs for installation or distribution  Client - Server Overuse: This type of piracy occurs when too many users on a network are using a central copy of program at a same time.  Hard- Disk loading: It is the act where business sells new computers with illegal copies of software loaded onto the hard disk to make the purchase of machines more attractive. Copyright, Piracy and the Film Industry: Intellectual Property can be divided into two categories. Industrial property which includes inventions, patents, trademarks, trade secrets and Industrial designs) and copyrights. Copyrights cover original works of authorship fixed in any tangible medium of expression, which includes inter alia literary, musical, scientific and sound recordings. First, Copyrights protect only the expression of ideas not the idea themselves. Second, with the development of digital technology, “works of authorship” are no longer fixed in any tangible medium of expression. Copyright industry continued to be one of the fastest growing industries. There are two classifications of copyright industries:

 The core copyright industries, which include those, create copyrighted works as their primary product: the motion picture industry, the recording industry, the music publishing industry, the book and news publishing industry.  The core industries and other industries that create distribute or depend on copyrighted works such as sales of audio, video and books. The copyright issues arise in film industry due to piracy. Some People copy the copyrighted material and pretend it to be their original work. There is a constant infringement of intellectual property rights. The illegal distribution and sales of films used by other parties whether or not they are owners of the work. Piracy remains a growing threat in movie industry. It effects on work in film industry as well as the economies of countries. The films such as Kabali, Bahubali, Great Grand Masti and Udta Punjab have been downloaded illegally 24.67 times. This remains a threat in movie industry. Socio Economic Factors affecting Piracy The socio Economic dimensions of country can be represented by factors like population size, gross domestic product, literacy level, per capita income and occupational. Some of them are expected to exert their influence on piracy director or indirectly. Such factors include literacy, per capita income, poverty level etc.

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Illiteracy and Piracy High degree of illiteracy shows impact on copyright matters more. It means lesser demand for books and other printed copyrighted materials. In a less literate society piracy rate is likely to be low with respect to books, journals and other literary works. Besides, the illiterate persons depend on audio visual media for satisfaction for their needs of entertainment.

Poverty and Piracy The pirates make money from others creative efforts They can do this because pirated products find demand from a section of society whose demand remain unfulfilled. For most of the people the price of the product remains the main consideration while buying. Copyright Infringements Some common copyright infringements:

 Making infringing copies available for sale;  Downloading movies and songs from an unauthorized source;  Keeping infringing copies in Public exhibition; and

 Distributing infringing copies to others Civil Remedies for Copyright Infringement

 Section 55(1) of the copyright act provides remedy to the copyright holder by way of injunction. An injunction is a remedy which court order demanding one party to stop doing something that is damaging to another party.  Section 55(1) of the copyright act further provides damages to the copyright holder for copyright infringement. Effect of Piracy on a Film Business India's population is responsible for film piracy as it consumes free content online. People spending time at home watching television and web series increased piracy at a higher rate. Piracy extends to web originals. The second season of Netflix’s crime thriller Sacred Games had found pirated videos circulating on telegram app and on other websites. Copyright Infringement and other forms of intellectual property have become a large problem around the world even a small amount of infringement can generate absolute losses to property rights/ holders.

Power of Police Officer in Case of Pirated and/or Counterfeit Product- Section 64 In the case of State Govt. of NCT of Delhi vs Naresh Kumar Garg, the question was raised as to whether the offence under Section 63 of the Copyright Act, comes under cognizable and non- bailable or not? Delhi Court relied on the judgement passed by Gauhati High Court in the case of Jitendra Prasad Singh v. State of Assam in which it was held that the infringement under copyright act i.e. section 63 is a cognizable offence and a non-bailable offence. If the offence under section 63 is a non-cognizable or bailable offence than there would be no requirement of Section 64 of the Copyright Act, where it provides a police officer not below the rank of the sub-inspector with special powers with regard for dealing with infringement cases under the Copyright Act.

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It is a duty of the police officer to register a FIR for the complaints received, found or collected by them. The FIR can be filed by the copyright holder/owner or by its representatives. The police officer shall rectify prima facie that whether the copyright holder has compelled with the requirements mentioned under section 52A of Copyright Act while investigating. Under section 64 of the copyright act, the police officer not less than the rank of the sub-inspector has full power to seize and search the premises without any warrant. The reasons and grounds for such search and seizure shall be recorded in writing by the authorized police officer. The procedure for search and seizure is same as provided under CrPC from Sections 100-102. The authorized officer shall collect all the infringed documents found and shall list all the articles which are being seized at the time of raid or investigation such as infringing copies like purchase register, music videos, broadcasting, hardware, laptop etc all such other accessories which make such infringing copies which are available at the premises. Also, in the case of software piracy, police officers can demand from the user while they conducting search/ raid to provide documents like the End User License Agreement, Software serial numbers, License Key etc. Other necessary documents of accused like driving license, passport, telephone bills, pan card, ration card, a copy of license provided by any municipal or corporation for allowing the accused to run a shop, rent or lease agreements and any other id card which is issued by the central or state government.

The authorized investigating officer has the power to find all those places/ premises where he beliefs to have a reasonable doubt that the accused may hide infringing material/ copies and for which he can conduct a raid and seize the premises. All the proofs which are being found and collected by the investigating officer at the time of raids/ investigation of the accused premises shall also be added as evidence which will be helpful for the prosecution during the trials. All these lists of documents/ articles found shall be furnished to the accused under section 165 of CrPC along with the required signatures according to the prescribed procedure under CrPC.

After search and seizure, the investigating officers shall try to identify the other members, if any, are involved relating to the offence in order to take legal actions against those offenders and the officers try to connect the chain by interrogating as to reach to manufactures and other members who are involved in this case. The investigating police officer shall file a charge sheet, he can also take help of public prosecutor and additional prosecutor while framing a charge sheet for their approval for providing inputs in protecting the rights of the copyright holder/ owner, his title documents and other license agreements etc. The investigating officer shall also carefully draft a charge sheet keeping in mind other statutes/provisions related to copyright other than CrPC such as IPC for cheating, IT Act for software piracy, Cable Television Network (Regulation) Act, shop and establishment act for each state, regulations/ provisions which are dealing with exhibitions of films in TVs for each state and any other regulation or statute which can be included relating to this issue. After the investigation and preparation of the charge sheet, the police officer shall produce in front of the magistrate to take cognizance of the matter. This is the role of a police officer in case of copyright/ pirated issues. Police officers need to be very careful while conducting raids/ search in order not to miss out any premises or alerting the offenders which fails the purpose of the raid, a raid should be always well planned and also to identify the fake products or copies it is advisable to accompany the complainant/ copyright holder along with the officers.

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Punishment of Piracy The Cinematograph Act, 1952 ensures that no person without written authorization of the author be permitted to use audio and visual recording device to make copy of film. The punishment for this is generally imprisonment for a term of 3 years, a fine or both.

Prevention of Piracy

 National IPR policy, 2016 with its strong focus on protection of IP is a right step forward.  OTT platforms are a welcome step in piracy as well.  Innovations in technology of digital cinema enabled films to be released across the country and cut production and distribution costs.  Another innovation is direct to home or satellite television broadcast intended for satellite to home reception which is transparent and accurate way to view figures and entries of companies. Recommendation- The Cinematograph Amendment Bill, 2019 The Cinematograph Amendment Bill, 2019 seeks to amend provisions of Cinematograph Act, 1952, in order to tackle film piracy by including penal provisions for unauthorised camcording and duplication of films. To check piracy, particularly the release of pirated versions of films on the internet which causes huge losses to the film industry and the exchequer, the bill proposes to make film piracy offences punishable with imprisonment of up to three years and fines that may extend to Rs 10 lakh or both. The Bill needs the insertion of new Section 6 AA for the prohibition of unauthorized recording- Section 6 AA: "Notwithstanding any law for the time being in force, no person shall within written authorization of the author be permitted to use any audio visual recording device to knowingly make or transmit or abet the making or transmission of a copy of a film or a part thereof." These amendment states that any person, who without the written authorisation 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 punishable. Increase industry revenues, boost job creation, fulfil important objectives of India’s National Intellectual Property policy and will give relief against piracy and infringing content online. This Bill set up a unified authority for regulating all financial services in international financial services centres (IFSCs) in the country. Currently, banking, capital markets and insurance sectors in IFSCs are regulated by multiple regulators the RBI, SEBI and IRDA and this would provide inter-regulatory coordination. The bill has a provision for establishment and incorporation of the Authority. Regulatory bodies including RBI, SEBI, IRDA (Insurance Regulatory and Development Authority, PFRDI (Pension Fund Regulatory and Development Authority) would have one nominee as its member. The proposed amendments would help industry in increasing revenues, boost job creation, fulfil important objectives of India’s National Intellectual Property Policy and will give relief against piracy and infringing content online.

Credibility of the Cinematograph Bill, 2019

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 The scope of 2019 Bill is very limited. The Bill only tackles film piracy and illegal recording at movie theatre. The punishment given in the bill is small as compared to the absolute losses that a pirated film can lead to.  The Committee observed that efforts at reworking the Central Board of Film Certification (CBFC) which refers to Censor Board. In 2013, the Information and Broadcasting Ministry under the United Progressive Alliance (UPA) introduced committee under Justice Mukul Mudgal. The report was forgotten by (NDA) which formed a committee under filmmaker Shyam Benegal to look at the issue. The Benegal Report proposed that CBFC should only be considered as a film certification body whose scope should be limited to categorising the suitability of the film to viewers on the basis of age. After that the committee said, that the government has done little and archaic processes are followed with superficial improvements.  The committee asked to revisit the Cinematograph Bill and include fair use provision to provide protection to innocent viewers as it leads to harassment of people using film clip for non - commercial purposes.  The committee observed that bill was not determined enough to cover wide range of issues concerning public, dramatic transformation of information and cinematography landscape.

Indian courts play an important role in the development of an IP Jurisprudence in India. According to the Copyright Act, 1957, IP owner communicates the work to the public which considered being an important right. The Copyright law provides protection to copyright owners for infringement and remedies. Indian Courts restricted unauthorized broadcasting, passing injunction orders and blocking websites in curbing the piracy. “Media is a very vast line and there are always some flaws but we can keep things well organized for its better flow of functioning and in order to stop these piracies, we should encourage our audience and provide them better support with the cinema and content.” - Aditya, Media Production

Taj Television Limited v. Rajan Mandal [2003] F.S.R 22 In this case the Jurisprudence of John Doe orders originated. The Delhi High Court issued a John Doe order against cable operators, restricting the unauthorized broadcasting of the World Cup football tournament. Subsequent to this order, seeking a John Doe injunction became a practice before any film or event comes. In 2019, The Delhi High Court issued an ex-parte interim against the unauthorized audio broadcast of the ICC World Cup in channel 2 group Corporation. The suit was filed by channel 2 groups Corporation in anticipation of abuse of its audio rights by defendants which involves websites, internet service providers and radio channels by filling an application praying for a John Do order/ Ashok Kumar Order. It was further decided that any defendant complying with the interim order may relay the score update maintaining time period of 15 minutes. The High Court said that the search result pages listing of websites which infringe Plaintiffs Copyright and broadcast reproduction rights. UTV Software Communication Ltd. v. 1337X.TO and Others [2019(78) PTC 375 (Del)] In this case the Delhi High Court said that the central issue for the Court's determination was to find a solution to combat rogue or hydra headed websites. According to Section 51(a) (i) copyright

103 Legal Desire Media & Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 ISSN: 2347-3525 infringement occurs when any person exercises any right without the authorization of the copyright owner which is in the owner’s exclusive domain. The Defendant websites were uploading copyright infringing content. The court rejected the views of ideologies which means that internet space should be left completely unrestricted was unacceptable. Further, The Court held that constitutional freedoms are regulated under reasonable restrictions and restrict access infringing websites by creating a balance between freedoms and rights of stakeholders. The Court said that music and film piracy are facilitated by rogue websites. For ascertaining a rogue website, The Court held posts guidelines on the website circumvent measures that disable access to the website on the grounds related to copyright infringement. AD FILMS AND DOCUMENTARIES In India, There is no specific statutory authority which deals with Advertising Industry but Advertising Standards Council of India (ASCI) controls it as a non-statutory body. And also it is necessary to follow all local and national advertisement laws for an Industry while making an advertisement. 1) Role of the Advertising Standards Council of India (ASCI) Advertising council of India is a voluntary self-regulatory council that was established in 1985 with the objective to promote responsible advertising and to enhance public confidence in advertisements. It works to ensure the honesty of the advertisement and the same are not offensive in nature. The Board of Governors consists of four members from each sections that are connected with the advertising industry and those are 1) Advertisers, 2) Advertising Agencies, 3) Media (owners of press, television, radio etc.), 4) Related sectors (e.g. outdoor agencies, PR, market researchers, ad producers, business schools). 2) The ASCI Code: Self-Regulation of Advertising ASCI have issued code of self-regulation in advertising that involves commissioning, creation, placement, or publishing of advertisements and it applies all over the India. 3) Laws: Statutory Regulation of Advertising The most significant laws in Advertising Industry that governs specific media, population are given below:

 The Press Council Act 1978  Cable Television Network Rules, 1994  Code of Conduct of the News Broadcasters Association  Emblems and Names (Prevention of Improper Use) Act, 1950  Companies Act, 1956  Consumer Protection Act, 1986  Laws related to intellectual property rights  The Transplantation of Human Organs Act, 1994  The Drugs and Magical Remedies (Objectionable Advertisements) Act, 1954  Securities and Exchange Board of India Act, 1992  Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002  The Food Safety & Standards Act, 2006 and etc.

4) Products and Services Banned From Advertising

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a. Tobacco - Cigarettes and Tabacco are banned to advertise products in all media b. Human Organs - The Transplantation of Human Organs Act, 1994 prohibits any advertising inviting persons to supply, offering to supply any human organ for payment. c. Magical Remedies d. Services for Pre-Natal Determination of Sex - The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 prohibits advertisements relating to pre-natal determination of sex. e. Infant formula f. Prize Chits and Money Circulation Schemes - The Prize Chits and Money Circulation Schemes (Banning) Act, 1978 g. Physicians - The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 prohibits physicians to advertise their function in any form. But there are some exceptions here, they can advertise on the following topic:  On starting practice  On change of type of practice  On changing address  On temporary absence from duty h. Legal Services – BCI rules formulated under Advocate act 1961 strictly prohibits law firms to advertise by stating false statements to gain publicity.

5) Regulations Related to Product and Service Advertising

i.Alcohol (Beer, Wine, and Spirits) – Cable Television Network Rules, 1994 and others prohibits the advertisement of alcohol, cigarettes and other intoxicants but some state allow the advertisement by billboards, signboards. ii.Professionals such as Chartered Accountants, Company Secretaries & Cost Accountants – they cannot solicit clients by advertisement but advertise their firms and their services. iii.Firearms, Weapons, and Ammunition – It require the permission of government so they are prohibited from advertising. iv.Food – Quantity, quality or grade composition are prohibited because they can mislead the consumers. v.Infant Milk Food - The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992 prohibits the advertising of infant milk substitutes or feeding bottles. vi.Gaming (gambling, games of chance; differentiate between private-sector and "state" lotteries) - Under section 294-A of the Indian Penal Code, advertisements of a lottery unless it is in accordance with the Lotteries (Regulation) Act shall be punishable. vii.Medical Services viii.Pharmaceuticals (over-the-counter and prescription medications) ix.Political Candidates, political platforms, political parties, and political issues - The Representation of the People (Amendment) Act, 1996 prohibits advertisement 48 hours prior to polling. x. Religion – No advertisement is allowed that harms the sentiments of other persons. Advertising Codes of Doordarshan and All India Radio prohibits it.

6) Regulations Related to Advertising Methodology

105 Legal Desire Media & Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 ISSN: 2347-3525 a. Advertising to Children (advertising during and immediately before and after children's programming) - The Young Persons (Harmful Publications) Act, 1956 prohibits any advertisement that harms minor under age of 18 years anyhow. E.g. encouraging minors to enter strange places or to converse with strangers in an effort to collect coupons, wrappers, labels or the likes b. Celebrity Endorsements - No current restrictions. c. Comparative Advertising (ads that compare the advertiser's product to that of a competitor) – No company can compare its product by its rival company and the same cannot be advertised. ASCI can take actions against the advertisements that violate ASCI code. d. Contests (games of chance and games of skill) - The Public Gambling Act, 1867 prohibits all the gambling activities in India and if anyone found doing so shall be punished as per ASCI code. e. Deceptive or Misleading Advertising – They are included in Consumer Protection Act, 1986; Cable Television Network Rules, 1994. f. False Advertising – False advertisement are restricted and prohibited under various acts and also are punishable. g. "Free" Gifts/Samples – Free gifts and samples cannot be offered if the same are not providing free of cost or are fully and partly covered by amount charged. h. Free Speech (specific limitations, e.g. personal slurs, defamation, political statements) – Article 19(1)(a) provides right of freedom of speech and expression and 19(2) also gives some parameter that are restricted. ASCI states that no advertisement shall be entertained if it violates ASCI code that derides any race, caste, color or nationality or tends people to do any crime or adverse effects friendly relations with a foreign state.

DOCUMENTARY FILMS

DOCUMENTARY As the word describe, Documentary is a term to document reality which filmmaker feels that this story of the incident had not covered by media properly. It is ways of deep investigate journalism. It also gives opportunity to people to know about the life and learn from it. As we know, everything comes with good and bad both and documentary also fulfills this fact. Many times documentary failed to follow all the rules of laws. From starting to end everything is so unsure. The right of publicity as the name says everyone has right that that can use their identity publically. In the film industry it is always legal to film or take interview of them. The big example of this is a show “Sach ka Samna”. Where they interviewed and present that on television. But this law was made to stop false endorsement like social media these days. This law have disadvantage for the documentary makers as they show the realty of some incidents and to show that they need to present various character which belongs to that incident but because of this call they cannot showcase that person in the film without paying them this cause a really trouble to them. FDI- Films Division of India The documentary aspect is governed by the body called Films Division of India. Films Division of India was established in 1948 to articulate the energy of a newly independent nation. It comes under the Ministry of Information and Broadcasting. It has actively worked in

106 Legal Desire Media & Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 ISSN: 2347-3525 encouraging and promoting a culture of film-making in India that respects individual vision and social commitment. The infrastructure of FDI has put to use to assist in-house as well as free-lance film makers and producers. Around 600 television channels, 100 million pay TV households, 70,000 newspapers and 1,000 films produced annually in India and there is huge investment into the country by many multinational companies. At present, India is one of the most growing countries by conducting Foreign Direct Investment (FDI). The M&E industry has benefitted from this liberal regime and allows the foreign investment. The government (GOI) has recently further liberalized the FDI caps in key sectors (including Direct-To-Home (DTH), print media and radio) and entry restrictions for foreign companies have been relaxed for most segments of the M&E industry. In the year 2001, the film industry was granted the status of an 'industry'. Since then, the GOI has taken several initiatives to liberalize the foreign policy regulations relating to films. Through the liberalization of the foreign exchange regulations, the GOI has allowed 100 percentile FDI in the film sector. For the purposes of FDI, film sector broadly covers film production, exhibition and distribution, including related services and products. FDI in the sector is permitted without any prior approval (‘automatic route’). In addition, there are no entry level conditions for FDI in the sector. However, investors must comply with certain post filing requirements, including notifying the Reserve Bank of India within 30 days of receipt of inward remittance in India and filing of certain documents within 30 days of allotment of shares. The GOI has also entered into film co-production treaties with several countries and is in the process of entering into more bilateral pacts with countries like Australia, China and Canada. Entry routes: As a thumb rule, unless sectorial restrictions/caps have been provided under the Indian foreign exchange regulations, 100% foreign investment may be made in an Indian entity under the automatic route. However, even under the automatic route the foreign investor is required to fulfil certain procedural compliances, such as the valuation at which the shares of the Indian company can be transferred/issued need to be met. International film studios such as Warner Bros., Disney, Fox and DreamWorks have collaborated with local film production houses to develop Hindi and regional films. Some recent investments in the M&E industry by global players’ includes3:

 US based investment firm Tiger Global Management LLC has acquired a 25 per cent stake in 'The Viral Fever' (TVF), an online video content creator, for US$ 10 million.  Balaji Telefilms Limited has raised Rs 150.08 crore (US$ 22.09 million) through allotment of equity shares on preferential basis to catapult the launch and growth of ALT Digital Media, a Business-to-Consumer digital content business segment of Balaji Group.  Reliance Entertainment (owned by Mr Anil Ambani) and DreamWorks (led by Mr Steven Spielberg), along with Participant Media (led by Mr Jeff Skoll) and Entertainment One (eOne) have formed a new film, television and digital content creation company called ‘Amblin Partners’, and have raised US$ 500 million in debt to develop and produce films.  Walt Disney, who earlier held a 50% stake in UTV, has now acquired a controlling stake in UTV Software Communications. Case Law on Documentary Aspect

Name- Anand Patwardhan v. The Union of India and Others on 19 July, 1996

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Court - Bombay High Court Equivalent citations: AIR 1997 Bom 25, 1997 (1) BomCR 90, (1996) 98 BOMLR 794 Bench: A Shah Facts - The petitioners has produced and directed the documentary film in question "In Memory of Friends" about the violence and terrorism in Punjab, about a group of Sikhs and Hindus, who at great personal risk were engaged in an attempt to recover the tolerance and communal harmony that once existed in Punjab so basically It is the case of the petitioner that the respondents have unfairly and arbitrarily rejected the petitioner's film and deprived him of his right of expression guaranteed by Article 19(1)(a) of the Constitution. Issue - The question arising in this petition whether the refusal of Doordarshan to telecast "In Memory of Friends", a documentary produced by the petitioner, violates his fundamental right of freedom of speech and expression will have to be considered in the light of these established principles Judgment of the Court - Petition allowed by stating that the Doordarshan is directed to exhibit the petitioner's documentary film within two months from today either on channel I or II between 6 p.m. to 11 p.m. if shown between Monday to Saturday, or in the morning or evening slot if shown on Sunday.

MUSIC INDUSTRY Music in India is an integral culture of our country. Over the years, the Indian music industry has evolved, which today, generates sizeable revenue from every genre of the music industry for the country. Various music industries are located in Mumbai, Hyderabad, Chennai, Karnataka, Pune, Delhi, Andhra Pradesh, Punjab etc. Music industry plays a great role in Indian Cinema; it alone contributes as much as 15% of individual earnings in the film industry. The music industry has not limited itself only to movies but it also expanded to radio, television, OTT Audio Platforms and live events etc.

LOOPHOLES IN MUSIC INDUSTRY Due to the rapid growth of technology, many innovative ways have developed for piracy in the music industry and content is easily accessible for everyone, due to this there is an increasing threat to copyright holders as well whole of the music industry as it is increasing the risk of music piracy. Recently, the Indian music industry has lost nearly Rs. 1800 Crores due to the rapid growth of the piracy rate in India. Mp3 format is used for distributing the music as with the help of it, one can make numerous numbers of copies without compromising the quality of sound and with a low cost and space. Unlike the previous methods like LPs, CDs and Cassettes where a lot of space and time used to take for download. The users by using appropriate software now are able to download, burn onto a blank CD, and convert it into mp3 format and availing music on online platforms. One of the mechanisms used by piracy offenders is “stream ripping” it is an illegal practice of creating a downloadable file from content that is available to stream online. Also, the study says it is now the most prevalent form of online music copyright infringement. Mostly they are the age of 16-64 years use stream-ripping applications to copy music illegally. This software is not yet determined by the courts. Hence the copyright infringement continuous and yet left unanswered. Piracy is hampering the overall economic growth of the music industry, reduction of sales,

108 Legal Desire Media & Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 ISSN: 2347-3525 economic downfall, leaving music producers, artists and publishers etc. uncompensated for their content creation, advertising and distributing, as music is now easily available to everyone for free. Over the internet, there are 72,000 platforms/websites where this copyrighted music is uploaded illegally daily in mp3 format also after making copies these are sold in the market claiming it to be original. Piracy rate has been reduced over last five years, published by YouGo according to the survey conducted, due to various applications where legally music can be accessed such as Hungama, wynk, gaana, jiosaavan, amazon prime music and Spotify. These applications provide latest songs to old songs available on their applications. “YouGov Associate Director Justin Marshall said in a statement: “While illegal downloads still present a significant challenge to the music industry, there appears to be some light at the end of the tunnel. Our research reveals a change in behaviour, with those that previously attained music by unlawful means now being enticed by the low costs and ease of use associated with streaming.” Rightly stated by Mr Justin Marshall, the piracy issue is not completely solved as the internet is not centrally controlled by the copyright act, the flow of information is uncontrolled on the internet platform, Henceforth, a lot of piracy content is left without regulating. This is one of the emerging challenges on the legal fraternity, intelligent teams who are currently working on for better strategies and infrastructure to solve this problem from its roots.

LEGAL PROVISIONS FOR MEDIA INDUSTRY In India, major law which is protecting musicians right is Indian copyright act 1957, which is amended in year 2012. The intellectual property rights were founded in the year 1969 which is the only authority which issue licenses to users of the music. Royalties which are been collected by them on behalf of their members i.e. the lyricists, music directors and sound producers. In year 2017 central government has granted registration for the intellectual property rights. After registration under Copyright act, under the act it protects the creator rights for lifetime and 60 years after that and performance rights for 50 years. The 2012 amendment to the copyright act has given better ownership rights to the musicians, composers and songwriters working under film industry. The amendment also declares that the song creators are the owners of the copyright and the royalty played by the broadcasters to them is mandatory. Also, it specifies that a cover version may only be created/ made after five years from the first recording of the song. The Indian Singers’ Rights Association (ISRA) was incorporated as a Company Limited which is guaranteed under the Companies Act, 1956. In year 2013 esteemed singers have fought after the amendment 2012 about performer’s right to include distribution and collection of royalties which brought moral and economic rights for the performers to have stronger rights over their content. The sound recordings of the music industry are controlled by the Phonographic Performance Limited (PPL) which looks the copyright issues and the Indian Performing Rights Society (IPRS) handles the rights for lyricists and composers of the music industry. If anyone is willing to play any recorded song in public places for public purpose like restaurants, weddings, clubs, festivals, parlours etc. need to take permission from PPL and if one wants to perform or play on the public place, shall take permission/ license from IPRS. Many are unaware of this process and still continue you to violate it. In case of violation of this provision under copyright act 1957, a criminal action shall be taken against the offender and will be liable for punishment for imprisonment not less than 6 months which could extend up to 3 years or fine of Rs. 50,000 to Rs. 2 Lakhs.

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The Indian copyright act is compliant with most international conventions and treaties in the field of copyrights. India is the member of the Berne Convention of 1886 also to the Universal Copyright Convention of 1951 and to the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1995. Even though India is not a member of the Rome Convention of 1961, WIPO Copyrights Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), the Copyright Act is compliant with it. The rights of every individual solo artist’s rights are protected under Indian copyright act on any platform. The laws regarding piracy are yet to be covered.

JUDICIAL ASPECT International cases: The Napster Case (in the United States of America) A&M Records, Inc. v. Napster, Inc. This case was a landmark intellectual property case. It all began, when Mr. Shawn fanning created a platform in year 1999, where the users can download and access the compressed music files available digitally in mp3 format from others computer. it also included a server central which indexed the connected users the files which are available on their computer by creating a searchable music list available on their network. This network eased people and had gained immense popularity. This case was the first case which addresses the issue of peer to peer sharing files. However, the court “affirmed that Napster could be held liable for contributory infringement and vicarious infringement of the plaintiffs' copyrights”. Napster was closed.

MGM Studios, Inc. vs. Grokster ltd. United States of America, (by many, this case is considered to be the follow up to the Napster case). A copyright infringement suit was filed by MSM Studious against Grokster for its major record label which has come up with a decentralized structure where users can transfer/ share files to each other’s peers to over their platform. Supreme court denied the defence made by the Grokster that their platform has many legal uses, according to observations it was proved that 90% of the files which are shared by the users were copyrighted and this activity was been encouraged by Grokster. The court introduced Inducement theory and held that: “nothing in Sony requires courts to ignore evidence of intent to promote infringement if such evidence exists. Where evidence goes beyond a product’s characteristics or the knowledge that it may be put to infringing uses, and shows statement or actions directed to promoting infringement, Sony’s staple article rule will not preclude liability. This theory states that if the technology, service or the device is in question by quality of its character fundamentally, which induces the users to infringe upon one’s copyright, then the technology or service developer shall be liable for copyright infringement.

Indian cases: Super Cassette Industries v. Bathla Cassette Industries Pvt. Ltd. In this case, the plaintiff filed an injection application against defendant alleging the defendant has infringed the plaintiff’s sound recording of an original musical track of song ‘Chalo Dildar Chalo’ from the film ‘Pakeezah’ with fewer changes. The court observed that under section 52(1)(j) of copyright act, a recorded version is not capable of acquiring any individual right as the recorded version is itself the adaptation of the original recording hence, it lacks the pre requisite essential for asserting the copyright.

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Gramophone Company of India Ltd v. Super Cassette Industries ltd. In this case, the plaintiff has filed an injunction suit against the defendant for restricting him to manufacture, sell or passing of audio cassettes on the plaintiff name. The plaintiff have released an audio recording which was titled as “Hum Aapke Hai Kaun” assigned it under Rajshree production pvt ltd, were the copyright owners of the cinematographic work. The plaintiff claimed that he had sold 40,000 compact discs and 55 lakh audio cassettes under the said tittle and the defendant has launched an audio cassette adopting the same title, design and layout that of plaintiff’s which is creating confusion. Hence, a restraining injunction suit was filed. The court held that the act does permits version recordings hence, defendant was entitled to record related to the music but condition that not using packaging materials that are similar to plaintiffs. The court specifically stated that “the second work is not original work, should be clearly underlined so that the buyer notices it and there is no confusion”.

Not only companies are facing copyright issues but also singers, a very recent case of Badshah where he was alleged of copying a Bengali folk song genda phool which was written by rattan kahar. Badshah has used the lyrics “boro loker beti lo” from this old Bengali folk song and has not given any credit to the original singer. He has given 5 lakh rupees to Bengali singer after a lot of tweets against him. The Bengali singer had no money to sue the rapper hence he kept quiet but the whole Bengal community came to his support soon after release of the song.

Hence, Music industry is a highest revenue generator in our country and protection of this industry is important to remove the loopholes in the industry which is hampering the overall development of the music industry. Several artists are generating with a huge passion to contribute towards this industry, protection of their rights is an important aspect to keep alive this industry. Various applications and software are hampering the rights of the artists such as piracy. Illegally accessing the music without the proper authorization, is infringing the rights of the copyright holders. Piracy rate has reduced up to an extent due to various music applications like wynk, spotify and gaana etc previously the piracy rate was very high as there was no other means to access the music legally instead to buy the music which was highly charged, now after these applications people simply choose this option rather than going through the whole process accessing the music illegally, but the problem is yet not completely resolved, but these applications did show light/way to tackle this piracy issue. Applications like Naptol and other software piracy applications have come up for pirating the music which needs to be controlled. The very purpose of the copyright act is to protect the copyright holders which are being infringed by the digital world. It is the time to re-look the copyright act involving and addressing these issues. The policies shall be made keeping in mind of 3 parties the artists, consumers and the copyright holder. To tackle this problem, it is necessary to encourage these applications like wynk music, spotify etc. music to be avail at a low rates, having a large collection of all genre of music, applying safe harbour provisions, stricter punishments, creating of a software which protects music from downloading or pasting illegally onto one’s device without asking details like id card, address etc and should be thoroughly verified before proceeding each and every step. The solution of the problem in the long run is yet to be discovered.

“Independent music artists do not get big platforms easily; they upload their songs or music on YouTube and the famous big music labels uses their song or music without their consent. So, the

111 Legal Desire Media & Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 ISSN: 2347-3525 renowned labels get big profit and the original creator doesn’t get any benefits. Hence, the government should make strict policy for copyright infringement and piracy for implicating justice.” - Vismay Patel, Singer, Composer and Music Producer

OTT PLATFORM Digitalisation, concurrence of media and the advent of ‘Pro-sumer’ culture on new media platforms has transitioned the way of Media; leading to the introduction of the most recent trend in the Media and Entertainment Industry- OTT Platform. Over-The-Top (OTT) content is becoming a big buzzword in the Gen-Y technology and systems enabled environment. Being one of the largest economies in the world, Indian television industry is going to garner revenues of more than Rs. 975 Billion by 2019. In this digital era, Over The Top (OTT) content has been emerged among the millennial as the new standalone digital multi-media platform where multi-cable or direct broadcast satellite television do not control content, leading to media and consumer autonomy of consumption. Viewers now have complete autonomy in terms of choosing their own content what they want to view. This trend of emergence of OTT platforms by individual media houses has primarily been incite by increase in the number of devices that support these platforms along with tremendous rise in the number of internet and mobile data subscribers. The rise of OTT platforms has also seen growth with the steady but positive increase in the number of people who are wanting and demanding both the regular TV content as well as exclusive freshly brewed content on demand- anytime of the day, thus making it one of the biggest opportunities in the video and content sector in the media and entertainment industry. Even the fact can be seen that many production houses and media cinema fraternity are shifting to these OTT platforms because there is lots of artistic and creative freedom in this portal. And one of the major reasons for same is that it is not regulated by any statutory body. Also, the scope of OTT Platforms is quite wide. Like, Amazon Prime has adopted the recommendation of the Ministry of Information and Broadcasting that persons with disabilities are unable to enjoy recreational activities of media and entertainment due to challenges in vision, hearing or comprehension and for same under the Rights of Persons with Disabilities Act, 2016 which stipulates that few measures shall be taken to develop technology; assistive devices and equipment to facilitate access and inclusion for persons with disabilities in recreational activities. But it can be seen that these relaxations have led to showcase of few sensitive aspects watched even by underage children like, if we specifically talk about "A" certified content, they are usually watched by adults only in cinemas. But in case of OTT platforms, which have varied viewership, no age stringent restriction and leniency over content, it is accessible to all.

“In the world of ever-flowing internet, the 'A' content can’t really be stopped; not by rules of any sort. The censorship on ones’ view on adult content can only be and should be guided from peers and family. The responsiveness to the content changes. That is why in some cases below 18 years of age people are comfortable with the content and somewhere a person in the 'A' category age

112 Legal Desire Media & Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 ISSN: 2347-3525 can be very uncomfortable. It is thoroughly subjective and is based on psychological conditioning.” - Nomaan Khan, Professor

The rapid growth of OTT services has raised a number of national policy issues relating to regulatory imbalances & security concerns that need to be addressed. The viewership of these portals is increasing day by day and it is a known fact that it will keep on increasing in near future as well; especially during this pandemic. And don’t you think for same, there should be some bar or some filtration of the content?

Regulation of online content: How is it done in other parts of the world? In order to understand that whether there is need of regulating, we need to understand the regulations of other countries as the media & entertainment industry, especially related to OTT Platforms has witnessed a steady growth across the world. Some of the countries’ regulations are: Singapore In Singapore, the laws on the regulation of OTT content are direct. The Infocomm Media Development Authority (IMDA), the media regulatory body of Singapore issued a code of practices for OTT and video-on-demand services to follow from 1 March, 2018. Service providers are required to classify their content on the same basis as offline films – a) G: for general, b) PG: for parental guidance, c) PG13: for parental guidance for children below 13, d) NC16: for no children below 16 years of age, e) M18 for mature audiences (18 and above) only, and f) R21 for content restricted to people of 21 years and above only. Australia The Broadcasting Services Act, 1992 (BSA) is the principal legislation governing the OTT sector. It is regulated through a complaints-based mechanism introduced on 1 January 2000 known as the online content co-regulatory scheme. The Schedules of the BSA lay down detailed guidelines on the kind of content which may be hosted online. Indonesia Indonesia’s biggest telecom operator Telkom blocked Netflix after its global rollout in 2016 for violating local censorship laws.In 2017, Indonesia’s Ministry of Communication and Information Technology gave Netflix a month to comply with local regulations and partner with a local operator or create a local unit. Subsequently, Netflix entered into a partnership with Telkom following which the latter unblocked user access.

Online Content in India: Need of regulating the unregulated? There is quite a quandary as to whether we need a regulatory body for the content shown on OTT platforms or not.

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Several petitions have been filed in the deemed court regarding the need of guidelines to regulate the content which are broadcast on the online platform like Netflix, Amazon Prime, Voot, MX Player, Alt Balaji, etc. Case: Justice for Rights Foundation v. Union of India The primary grievance of the petitioner was that there are no guidelines to regulate the content which are broadcast on these online platforms and thereafter the petitioner seeks a writ of mandamus to the respondents to bring into place regulation to control the contents of the broadcast made by these organisations on the online platform. The NGO contended that the series like “Sacred Games”, “Game of Thrones” and “Spartacus”, shown on platforms like Netflix, contain vulgar, profane, sexually explicit, pornographic, morally unethical and virulent content which often depict women in objectifying manner. The Respondents contended that there is no such general power for regulation for material available on such online portals. But if the platform is misused for carrying information or material which are not permissible under law then the provisions of the Information Technology Act, 2000 provides for deterrent action to be taken and as and when complaints are received and hence the competent authority takes action in the matter. The court in this case took into consideration the provisions and rules of the Information Technology Act, 2000 and was of the view in a view of public interest litigations, no such mandamus can be issued for framing general guidelines or provisions when there are stringent provisions already in place under the 2000 Act. And also directed that in case one feels that any of the content exhibited or transmitted by the platforms which violate the statutory provisions and/or rule of the IT Act, 2000; then the said person can file the complaint under the aforesaid provision to the statutory body and the action would be taken against that company. Case: Justice for Rights Foundation v. Union of India The NGO Justice for Rights Foundation filed a petition against the Delhi High Court Judgment in the Supreme Court on 10th May 2019, seeking framing of guidelines by the government to regulate the functioning of online media streaming platforms like Netflix, Prime, Hotstar, etc. And the NGO claimed that the online media streaming platforms show content which is “unregulated and uncertified” for public viewing. In this case, DCCC, a body for regulating was suggested and was contended that it might be relevant to have an institutional mechanism of self-regulation by these media platforms as in respect of other media like print and electronic; along with the relevant provisions and rules of the Information Technology Act, 2000. Case: Patmanabh Shankar v. Union of India Patmanabh Shankar, a businessman of age about 82 years filed the petition on 8th August 2019 in order to regulate online content being aired on internet platforms like Youtube, Amazon Prime, Netflix, under the Cinematograph Act.

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The division bench of Chief Justice Abhay Oka and Justice Mohammad Nawaz rejected the plea, citing that the concept of internet and its operation, the act of exhibition of films, serials and other content perhaps amounts to transfer of files based on the requests by users, and hence it is not possible to accept that transfer of files or films, serials through the internet comes under the purview of Cinematograph Act. It is a known fact that a mere 18 above restriction and appearance of dialog box before starting of adult content is not enough to stop underage children watching vulgar content. And ever since these petitions, the Indian government has been in favour of setting up an industry body for video streaming platforms, an approach that traditional media usually follows. However, not all over-the-top (OTT) streaming services are in favour of setting up a council. The body, Digital Content Complaint Council (DCCC), has been suggested by Hotstar, Voot, Jio and Sony LIV. But other video stream giants like Netflix, Amazon Prime Video, ALT Balaji, Zee5, Arre! and MX Player have opposed the move and refused to join the council. The one who are refusing are of the opinion that Individual OTT media platforms are in the best position to determine the nature of the content and the kind of restrictions that it requires and hence each platform can put together a process and system based on their viewership, market share, business strategies and revenue models. Also, the aspect has already been covered under the provisions of IT Act, 2000. Sections 67A, 67B and 67C of the IT Act provide for penalty and imprisonment for publishing or transmitting obscene material, sexually explicit material and also material depicting children in sexually explicit acts, in electronic form. Further, under Section 69A of the IT Act, the Central Government has been empowered to issue directions to block public access of any information. But by these cases and opinions, the Indian government has been looking to regulate online video streaming platforms since 2019, especially after the right-wing organisations raised issues with certain series and shows. However, by November 2019, after recognising the opinions of OTT companies as well, the government gradually changed its opinion from imposed regulations to self-regulation policy. Also, the OTT Platform is private ownership, i.e., personal viewing and hence in our democratic country, it is our individual choice of what to watch and what not to watch. Barring the content will led to more incognito websites related to screening of obscene material movies and series. We need to have permanent solution of the issue and not the temporary one. Like several OTT platforms are providing child authentication and child lock system so that child has no access over such content and we can say that this step is a reasonable restriction over non-watching of adult content by children. And like some platforms are adhering to guidelines of not disrespecting national emblem, national flag, etc.

“Freedom of speech, freedom of writing and freedom of showing whatever you want to should be adopted. If the government want to regulate something then it should only be limited to the fact that kids below the legal age don't watch that content and even if they do it should be with their parent's consent. It’s the individual choice and the audience must themselves be left to decide what they want to watch and what they don't.”

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- Parag Gupta, Actor, Your Honour (Web series- Sony Liv)

The film makers are striving over such platform only because of the artistic freedom they have and putting a blanket ban on the contents or an impediment on the script would curtail the Fundamental Right and form of art and creativity; and will also affect the rights of people. And also, controlling the aspect of creativity will severely ruin the entire content. So, rather than that, several recommendations should be adopted like the adoption of signing of self-regulatory contentions for taking a major leap in positive technological advancement. Few of the OTT Companies have already signed these contentions which talk about screening of contents not including terrorism, violence, child pornography, etc. which in one way or other promote bad culture and hate culture. Another recommendation is that the OTT companies can themselves according of their norms segregate the contents as per “A” viewership and “U” viewership. But at the end of the day, there is a major duty of parents to not allow their children to watch the “A” content and also to keep a check on what they are watching.

Outcome of Survey held (Questionnaire) Several questions were put in the questionnaire in order to see the opinion of majority of public at large. (Target Audience- 100)

1. In the above pie chart, according to the poll taken from the general public, it is observed that 65% of people have come across the situation, where the ticket collector had refused to give the ticket to an underage for watching an 18+ certification movie. Whereas, 32% have did not come across any such incidents.

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2. In the above pie chart, according to the poll taken from the general public, it is observed that 70% of people have come across the situation, where the shop owner is selling pirated movies or music CDs openly to the general public; whereas, only 30% of people have not come across such a situation.

3. In the above pie chart, according to the poll taken from the general public, it is observed that 57% of people agree that the major reason behind copyright piracy is due to poor enforcement and lack of awareness on copyright matters and 35% of people strongly agree that the major reason behind copyright piracy is due to poor enforcement and lack of awareness on copyright matters. Whereas 4% of people are neutral and another 4% of people disagree that the major reason behind copyright piracy is due to poor enforcement and lack of awareness on copyright matters.

4.

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In the above pie chart, according to the poll taken from the general public, it is observed that 54% of people agree that the proposed cinematograph (Amendment) Bill, 2019, which proposes of including penal provision for the unauthorized camcording and duplication of films, will help in curbing of piracy cases and 24% of people are neutral about this proposal. Whereas 15% of people strongly agree that this proposed provision shall help in curbing of piracy cases, the rest of the 7% of people disagrees or either strongly disagree that this proposed provision shall help in curbing of piracy cases.

5. In the above pie chart, according to the poll taken from the general public, it is observed that 71% of people agree that the content which is available at OTT Platform shall be regulated. Whereas, 29% of people disagree that the content which is available at OTT Platform shall not be regulated.

6. In the above pie chart, according to the poll taken from the general public, it is observed that 49% of people agree that regulating the content available on OTT Platforms would help in filtering up the content as per viewership and 35% of people are unsure about regulating the content available on OTT Platforms would help in filtering up the content as per viewership. Whereas 15% of people disagree that regulating the content available on OTT Platforms would help in filtering up the content as per viewership.

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7. In the above pie chart, according to the poll taken from the general public, it is observed that 68.4% of people agree that imposing mandatory regulation on OTT Companies on the content shown would filter up the content as per adult viewership and universal viewership. Whereas, 31.6% of people agree that imposing mandatory regulation on Media Fraternity (scriptwriters) on the content shown would filter up the content as per adult viewership and universal viewership.

8. In the above pie chart, according to the poll taken from the general public, it is observed that 66% of people agree that putting an impediment on the aspects of creativity of scriptwriters and on other media fraternity in order not to show specific areas of content shall ruin the entire plot of the content. Whereas, 34% of people disagree that putting an impediment on the aspects of creativity of scriptwriters and on other media fraternity in order not to show specific areas of content shall ruin the entire plot of the content.

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9. In the above pie chart, according to the poll taken from the general public, it is observed that 90% of people agree that there needs to be a better framework of laws related to media as it is having a huge impact on the general public and 8% of people are unsure that there needs to be a better framework of laws related to media. Whereas, 2% of people disagree that there needs to be a better framework of laws related to media.

Conclusion We can conclude by stating that as much as film making is an art, it is the most powerful medium of social change or societal transformation. Thus the courts while interpreting the law, strike a balance between creative freedom and public interest i.e. Bahujan Sukhaya Bahujan Hitaaye. Cinema being a medium of expressing ones thoughts and ideas should remain unrestricted from any kind of censorship. The censorship often restricts the basic human right of an individual expressing ones views about the society and a need for the better world. In current scenario rising ones voices for a positive change is necessary and films being the most influential form of art can bring up the necessary change in the society. However maintaining the peace and harmony is equally important as the practical realties should be kept in mind while ideas and thoughts are being broadcasted. Hence, certification board must maintain a balanced approach between in maintaining the national security and also not curbing the basic rights of an individual. And another recommendation is that the OTT companies can accord of their norms segregate the contents as per “A” viewership and “U” viewership so that parents can stop their child not to watch ‘Adult’ content. And also the time has come to re-look the copyright act involving and addressing these issues. The policies shall be made keeping in mind of 3 parties the artists, consumers and the copyright holder. Music industry should also work on music to avail on low cost. Also the Supreme Court was in the opinion that the video game has powerful impact on the youngsters. So this should be protected like other Medias and there must be a specific authority that deals with the advertising industry. The punishment must be stricter so that the issues related to piracy can remove but the solution of the problem in the long run is yet to be discovered. View of Experts and Individuals from various sections of Society on protecting the industry during this Pandemic.  Parag Gupta, Actor, Your Honour (Web series- Sony Liv)

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“It has been rightly said that this pandemic is affecting each and every field and the film industry has not been left behind. And like any other field , film industry also have the disparity of earning , the producers earn much more but the daily wagers who are affected badly due to this pandemic must be on the priority of action. According to me, in order to protect these people, government should take measures and make policies regarding the survival of the freelancers, artists, and crew members in our industry.”

 Sivaramakrishnan K P, Senior Legal Executive at Showbox Channel “This pandemic situation is tough for a lot of people; however, small production budget works can be started in this time. Not necessarily in Mumbai only. For any team across India, they can start working. A few TV Shows have resumed shooting as on this date, and others will definitely follow through. They can start working, with all the necessary WHO prescribed precautions in place and in a disciplined manner.”

 Aditya, Media Production “One of the solutions for resuming the work in media fraternity is virtual production. The production team does not have to be in the same physical space. Creative teams can continue to collaborate despite being in different places. This can help in social distancing and also production of the film which generate revenues.”

 Vismay Patel, Singer, Composer and Music Producer “In this pandemic situation still for films, OTT platforms are working and more than 2-3 films from big banners have already been released on OTT portals. So it has been considered as pros as it is easier to watch for audience but there is also con as high chances of piracy. It is true that the current situation is curse but films are doing fine but on other side music industry will and has been suffering a lot because the one and only income major source was live shows.”

 Phani . R. Surampudi, Homemaker “There are various Associations in media and entertainment field. They should work towards betterment of the lives of people belonging to their industry and fraternity. This being a peculiar situation, people should learn lessons and form schemes for any such future calamities including the unforeseen situations such as COVID, for their protection rather than putting the entire burden on Government.”

 Parth Shrimali, Singer “The amount which has been put on hold of the workers of the M&E fraternity need to be paid as soon as possible in order to help them survive this stressful situation of COVID pandemic.”

Reference:

1. https://www.icmrindia.org/free%20resources/casestudies/t-series-2.htm 2. https://highonscore.com/ 3. https://www.independent.co.uk/arts-entertainment/music/news/music-piracy-uk-spotify- tidal-streaming-services-yougov-survey-a8474436.html

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