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Copyright/Cinematograph Statutory Dissonance

It appears the Cinematograph (Amendment) Bill, 2021, proposes to amend the statute in a way which would effectively result in there being two primary statutes which contain provisions relating to the infringement of intellectual property rights in films: the Copyright Act and the Cinematograph Act. 

Reading through the proposal, it isn't at all clear how the relevant provisions in the two statutes, if they were all to simultaneously be in force, would act together and, to make matters even more concerning, the provisions proposed to be inserted into the Cinematograph Act seem incoherent from the point of view of copyright law: the first appears to suggest that knowingly recording or transmitting a film (or trying to do so or helping others to do so) requires the consent of the author of the film and not its owner; it reads: 

 "6AA. Notwithstanding any law for the time being in force, no person shall, without the written authorization 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. Explanation. For the purposes of this subsection, the expression “author” shall have the same meaning as assigned to it in clause (d) of section 2 of the Copyright Act, 1957." 

Not only does this clash with the basis of copyright law, the non-obstante clause does not accord the proposal adequate clarity regarding how it is to be implemented. The dissonance between the proposed cinematograph law and existing copyright law does not stop there: the 2021 Cinematograph Amendment Bill also addresses violations of what could become s 6AA of the Cinematograph Act via s 7(1A), another proposed insertion — there is no indication of how the new law, if passed, would interact with criminal offences defined by the Copyright Act. The proposal reads: 

"7(1A) If any person contravenes the provisions of section 6AA, he shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to three years and with a fine which shall not be less than three lakh rupees but which may extend to 5% of the audited gross production cost or with both. Provided also that, any act mentioned in Section 52 of the Copyright Act, 1957 (Act 14 of 1957) is not an infringement of the provision of Section 6AA of this Act."

In 2020, the Indian government considered decriminalising copyright offences which was a welcome move. However, although the 2021 Cinematograph Bill attempts to address commercial film piracy, it does not explicitly specify its intention—that takes it beyond India's TRIPS commitments. Of course, India can legally go beyond its TRIPS commitments but whether it should do so in the manner that's been proposed in the 2021 Cinematograph Bill is another matter altogether, one that can be debated. Public comments have been sought in respect of the Bill.

As sound as the rationale underlying the proposals may well be, their formulation leaves much to be desired. If they are ultimately passed, one can only hope that they are passed in a form that is coherent, consistent with existing law, and implementable.

This post is by Nandita Saikia and was first published at IN Content Law following a version of it being published on LinkedIn.