Art and Indian Copyright Law: A Statutory Reading

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

20 March 2012

Guidelines Regulating Child Television Performances

Introduction

The National Commission for Protection of Child Rights (NCPCR) has brought out ‘Guidelines to Regulate Child Participation in TV Serials, Reality Shows and Advertisements 2010-2011’ (the ‘Guidelines’). These Guidelines cover all television programmes and advertisements which involve children, and are applicable to companies, organisations and individuals who are involved in the production and broadcasting of television programmes. [Para. 12]

The basic aim of the Guidelines is to protect the ‘Best Interest of the Child’ — the term has been contemplated not only in relation to the vague notion of the ‘well-being of a child’ but has also been spoken of in relation to Article 32 of the United Nations Convention on the Rights of the Child which ‘explicitly indicates that there is a need to recognize the right of the child to be protected from economic exploitation and from performing or participating in any programme that interferes with the child’s right to education, or is harmful to the child’s health or physical, mental, spiritual, moral or social development’. [Para. 12]

With this in mind, a variety of issues have been addressed by the Guidelines including the content of programmes involving children, child protection and supervision, terms and conditions for parental consent to participate in programmes, payment for children, and the setting up of regulatory and monitoring mechanisms. [Para. 13] The Guidelines also refer to the BBC World’s ‘BBCW Editorial Guidelines with Respect to Children to be Followed by BBCPL’ and have, in fact, both appended the editorial guidelines of the BBC to their main body, and suggested that the BBCW guidelines be referred to by other producers to formulate their own guidelines.

Under the Guidelines, production units are required to have a child protection policy in place that should be shared with all stakeholders. [Para. 14] In addition to this, Para. 18 of the Guidelines, which deals with ensuring the physical conditions and safety of children, states that such policies ‘should include general principles, procedures for seeking consent of parents, good practices, staff protocols for engagement with children and a child protection policy’.

Somewhat strangely, the Guidelines make reference to the 'current draft Self Regulation Guidelines for the Broadcasting Sector (2008) for a child that is being developed by the Ministry of Information and Broadcasting' and recommend the Guidelines suggested by NCPCR be included in them.
As far as the contents of the Guidelines are concerned, the provisions contained in them may roughly be divided into those dealing with how children should be treated, and how children may (not) be portrayed. In addition to this, there are also provisions which deal with contracts, and the obligations of producers. Each of these aspects has been briefly discussed here.

A. Content of Programmes Involving Children

(i) The Portrayal of Children

The Guidelines state that the ‘participation of children in scenes depicting violence – whether verbal or physical – should be avoided’, and that children should not be engaged in any situation involving nudity (either their own or of others). It is not entirely clear why the Guidelines include a specific reference to nudity as it is extremely unlikely that nudity on television would, in any case, be permissible under Indian law.

Specific reference has been made to programmes based on the victims of child abuse, and the Guidelines mandate that the content of such programmes be sensitively handled, and that the way children are projected should be so as not to harm or risk their welfare.

In addition to this, children should not be shown ‘to be imbibing alcohol, smoking or using any other substance or shown to be indulging in any sort of antisocial activity and delinquent behaviour’.

(ii) The Treatment of Children with reference to the Nature of Performances

Children may not be cast in roles or placed in situations which may distress them or put them in embarrassing situations. Their 'age, maturity, emotional or psychological development and sensitivity' must be taken into account, and children should not be made to participate in scenes that are inappropriate for their age or that may cause them distress. Further, they should not be ‘put in distressing situations to obtain a more realistic depiction of an emotional reaction’.

Special reference is made to reality TV programmes, and the Guidelines state that ‘reality shows should not be competition based’. Presumably, this does not mean that reality television shows with child participants are disallowed — such an inference may be drawn from the fact that the Guidelines subsequently state: ‘No child should be exposed to ridicule, insult or discouragement, harsh comments or any behaviour that could affect his/her emotional health. The remarks by the judges on reality shows/talent hunt shows should be encouraging. A child’s sensitivity should be borne in mind while evaluating his/her performance in reality shows.’ — Had ‘competition-based reality television programmes’ with child participants been entirely disallowed, there would have been no reason for the Guidelines to deal with the conduct of judges in such programmes.

There is also a line in the Guidelines which says: ‘It should be ensured that the children are not caused anxiety or distress by their involvement in such programmes or by their broadcast’ — although placed after references to reality television programmes in the ‘Content Code’ in Para. 15, this requirement presumably applies to all television programmes.

Further, Para. 23 of the Guidelines state that ‘any proposal to reveal a child’s personal information, for example, suspect child abuse, to a third party without consent, must be referred to legal advice and senior management of the broadcaster’.

(iii) Emotional Support

The presence of a parent/guardian should be ensured during shooting to provide emotional and psychological support to children, and parents should be counselled not to show disappointment if their children lose or perform poorly. In particular, a child psychologist /counsellor should be available on the sets throughout the course of all reality television shows involving children and, in the case of television programmes dealing with abuse, violence, death, etc., a child psychologist / counsellor should be available on call.

Reading into Paras. 19.5 and 19.6, any reasonably foreseeable consequences of a child’s participation in a television programme (including the possibility of bullying and other physical, mental or psychological consequences) must be made clear to the parent / guardian and, if possible, the child, prior to the child’s participation in the programme.

(iv) Child Supervision

The Guidelines envisage children being supervised by adults; the supervision requirements vary depending on the age of the child.

Regardless of age, all children must be directly supervised by at least one parent or a person who has authorized in writing by the parents, and by a person with specified child-care qualifications.

In addition to this, if a child under one year participates in a programme for over one hour on a single day, a registered nurse or midwife must be present at all times. (Pertinently, the Guidelines state that ‘it is inadvisable for infants below the age of 3 months to participate in shows except in programmes on promotion of breast feeding or immunization’ and that, in the case of those between the ages of 3 and 6 months, it should be mandatory for the mother to be present at the time of shooting to ensure breast feeding during the breaks.)

In the case of children under six years, the Guidelines speak of parental supervision / a known person’s supervision as well as the supervision of a registered nurse, a midwife or a person with an early childhood or child-care qualification recognized by Government of India.

Not each child needs to be supervised by a one dedicated supervisor. The Guidelines lay down a relatively detailed formula under which the number of supervisors is to be calculated. Supervisors, however, must not be given other duties by the employer, and must focus on nothing but the supervision of children.

B. Working Conditions

(i) Hours of Work

Children should not be made to participate in more than one programme at a time, and the number of hours for which children are filmed and are required to be present in a studio should be correlated to their age, with less being required of younger children. They must not be required to participate in more than one daily shift and must have a break after every hour. In addition to this, children should preferably be filmed on holidays and school vacations so that their education is not adversely affected. In fact, Para. 20.2 explicitly states that ‘it is the responsibility of the parents and the production unit to ensure that the school attendance of child performers is not affected due to their acting obligations’.

Parents / guardians are required to provide information about when children are ‘required to be at school’ etc., and producers are required to ensure that children are not required or permitted to participate in television programmes during such times.


(ii) Health Considerations

In the case of babies (presumably, as this provision does not make sense when applied to other children), producers should ascertain from the parents that they were born in good health, have not had post-natal problems, are feeding successfully, and that their weight gain from birth has been satisfactory.

Children under one year should not be exposed to harmful lighting; irritating or contaminated cosmetics or persons with contagious medical conditions. Unit members should, in fact, submit a medical fitness certificate and a certificate stating that they do not any carry obvious contagious disease before shooting with children.

Further, ‘in addition to the standard obligations on the part of the producer regarding contacting parents in the case of illness or injury, specific provisions have been developed for school-age and young children engaged in the entertainment industry. These include the provision that the producer should not permit these children to participate if they are unfit due to illness or injury or if they are carrying or have been exposed to a contagious medical condition that may risk the health of another person’.

(iii) Working Environment and Safety Considerations

The production environment is required to be safe for children. Apart from making arrangements for children to travel with parents, etc., providing food, age-appropriate recreational material and rest facilities, producers should also ensure that children have privacy to dress and that they are not required to share dressing spaces/rooms with adults (and especially adults of the opposite sex). There should also be separate toilets for girls.

Further, production sets should be assessed ‘keeping in mind the presence of young children and their physical as well as mental capacities. The assessment should cover the child’s safety both against physical harm and any form of abuse, including mental and emotional’.

(iv) Payments for Children

Payments made towards the participation of children should be in the form of fixed deposit or bonds, and a minimum of 50% of the payment must be set aside for them in fixed deposits or bonds which mature when they reach the age of 18 years. ‘Out of the 50% given to the parents / guardians the balance payment of school fee for that particular academic year should be cleared thus ensuring continuation in the school and indirectly assisting the parents’.

C. Terms and Conditions for Parental/Guardian Consent

The consent of parents / guardians for the participation of their children in television programmes should be obtained by the producers before such participation in a form which contains certain details specified in the Guidelines, and without any financial or other inducement being given to either children or parents / guardians. In the case of orphan children, the head of the relevant institution may grant consent for their participation in a television programme under the supervision of Child Welfare Committee.

The nature of the programme should be made clear in writing, and (reading into the extremely unclear Para. 15.11) it appears that a copy of participation agreement must be provided to the parent / guardian.

D. Setting up of Regulatory and Monitoring Mechanisms

Finally, the Guidelines recognise that there is ‘a need for self-regulation, failing which, regulatory mechanisms are required to monitor that children are protected and not exploited in TV shows’, as well as a ‘need for research on the impact of participation in TV shows on children’.

Recommendations have been made to have The Ministry of Women and Child Development, the Ministry of Labour and Employment and the Ministry of Information and Broadcasting to periodically review the rights of children in TV shows.

Finally, it has been stated that ‘the Child Welfare Committee may monitor production conditions, programme content and other such provisions recommended by NCPCR and keep the Ministry of Women and Child Development as well as the Ministry of Information and Broadcasting informed on issues related to violation’.



(This post is by Nandita Saikia and was first published at Indian Copyright. Its text heavily relies on the text of the Guidelines.)

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