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.

15 February 2016

Concerns: The Cinematograph Bill, 2013

    (Note: This post contains largely unedited points from an old, rough note lying on my desktop which I've not double-checked before publishing.)
There’s been talk of amending the Cinematograph Act for years now. A draft bill was circulated in 2010 (when I first began looking at potential and proposed amendments), following which another Bill was circulated in 2013.

In the 2013 Bill, there was very little clarity about precisely what content would require a certificate, and the guidelines to be used to judge content appeared to be as vague as ever they were: whatever else the CBFC Guidelines are, they are not a model of clarity. In addition to this, the 2013 Bill appeared to have no time limits within which the Board, FCAT or Government were actually required do anything worth mentioning, which meant that, in theory, were the provisions of the Bill to become law, they could enable the powers that be to hold decisions in abeyance indefinitely.

In terms of specific provisions, and content:

  • In Section 2(1)(j), the definition of 'cinematograph' (read with that of 'film' in 2(1)(m)) appeared to potentially include content online; the definition in Section 2(1)(j) contained a mention of the word 'medium'. Further, in Section 2(1)(t), a ’public medium’ was, oddly enough, defined to include a medium, forum or place. In other words, the definition of a ‘medium’ was not restricted to a medium as the dictionary might understand the term but appeared to include a physical place.
  • Given the definitions contained in the Bill, Section 4 which dealt with the prohibition of exhibition, frankly, looked like a disaster in the making: the Bill suggested that the exhibition of films would require a certificate, and with films possibly including online content, the Section could potentially have become the basis of one of the largest employment generation schemes in history. There was also separate provision for permission for private screenings to a select class but the requirements for such screenings appeared extremely onerous.
  • The principles in Section 24 (called 'guidance for certifying films') appeared to allow anything that the members of the Board disliked to be prohibited; they were broad and ill defined, which would have likely made them extremely susceptible to individual taste and opinion.
  • The Chairperson of the Board could potentially have had an indefinite term under Section 6(2)(a) which said: ‘Chairperson of the Board shall hold office for a period of three years and shall continue to hold office until a successor is appointed,’ without requiring the government to appoint a successor within a specified period of time.
  • Similarly, members appointed to the various bodies envisaged by the Bill (i.e. the Board, Screening Panels, and the FCAT) could potentially wind up with indefinite terms per the provisions of Sections 6(3), 15(5) and 34(1). This is because, for example, Section 6(3) stated: ‘A member, including the Chairperson whose term of the office has expired shall be eligible for re-appointment for a period not exceeding more than one term.’ There was no total number of terms mentioned in any of the provisions which would have applied mutatis mutandis, and as such, in theory, it could have been possible to keep reappointing a member for one term at a time depending on how the provisions were interpreted. And to make matters worse, it wasn’t entirely clear how Sections 8(2) on the removal of Board members and 6(1) on their tenure would be reconciled particularly since, although members had to be heard before being removed, there was no explicit requirement that their removal itself be through a reasoned order. A similar concern about removals also arose in Section 35 in relation to members of the FCAT.
  • Further, Section 11 stated, ‘No act or proceeding of the Board shall be deemed to be invalid by reason or a vacancy in, or any defect in, the constitution of the Board,’ and appeared to be of concern since there was no leeway for invalidity regardless of how problematic the constitution of the Board was. Section 12 then appeared to suggest that the Chairperson acting alone could, if empowered by the Government, supersede the entire Board; the same Chairperson who had a potentially indefinite term.
  • The Bill recognised the possibility of conflicts of interest but the declarations contemplated by Section 16 appeared to apply to the film industry in general, and not to specific films (which members were reviewing). Considering that the persons in bodies contemplated by the Board would ordinarily be expected to have ties to the film industry, it appeared a little odd to ask that declarations be made in relation to the industry as a whole, and not declarations of conflicts of interest in relation to specific films.
  • Worse yet, the Government had wide powers of supersession of the Board under Section 17, a provision which did not require the Government to constitute a new Board within a specific period of time.
  • Under Section 19, for reasons not contained within the Bill, the structure of the Examining Committee was to be to be prescribed in rules and not mentioned in the Act itself as had been done with regard to the other committees, and under Section 20(5), the Chairman inexplicably had the effective power to supersede the Revising Committee's decision.
  • Section 22(2) required orders under Sections 20 and 21 to be reasoned, although, for some reason, there was no specific mention in the functions of the Examining Committee's (in Section 19) that the reasons of that Committee would necessarily be reasoned.
  • Unfortunately, the offences contemplated in Section 41 of the Bill did not include the word 'knowingly'; it wasn’t clear if the intention was to have them be strict liability offences, or what the justification for making them strict liability offences could possibly have been.
  • Section 57 of the Bill stated: ‘Where the applicant under section 18 is the producer, as defined in [Section 2(uu) of] the Copyright Act, 1957, the certificate granted to that applicant under section 18 shall be deemed to be the evidence of copyright owned by such applicant in respect of that cinematograph film subject to the provisions of the Copyright Act 1957 (as amended from time to time).’ It wasn’t at all clear why this should be the case, especially since the Bill did not contemplate introducing any to ensure that the person who benefitted from this provision was actually the copyright holder. The provision was subject to the copyright statute, but even so, it was a concern since the Section used the word 'shall' and did not clearly mention that the presumption was a rebuttable presumption.



(This post is by Nandita Saikia and was first published at Indian Copyright.)

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