MUMBAI: Desperate times call for desperate measures. Breaking the practice of the eight-week holdback period from theatrical release, several mainstream Bollywood films are being directly released on OTT. Who would have imagined that an Akshay Kumar-starrer film ‘Laxmmi Bomb’ or an Amitabh Bachchan-Ayushman Khurana starrer ‘Gulabo Sitaro’ would go directly on OTT without a theatrical release? While the world is adapting to the new normal and the film industry is battling and finding ways for its survival, some legal issues have arisen which probably have not been addressed clearly in our legislations.
There has been a whole debate on OTT content regulation and as we all know OTT platforms are currently not regulated by any specific statute. But this post is not about OTT regulation.
In all probability, the next few months would witness several full-length ‘feature films’ which were lined up for theatrical release to be released directly on OTT. Now, as viewers may have noticed, films which have been directly released on OTT may not be certified by CBFC. Just like web-series or docu-series, such films are streamed without requirement of a CBFC certificate and rightly so as there is no provision in law requiring these OTT platforms to obtain a CBFC certificate to showcase such films.
In the pre-Covid2019 world, this is how a Bollywood feature film’s release would typically go:
Theatrical release– 56-day holdback period- OTT release- 120 days holdback from theatrical release date- satellite release.
Now, with no theatrical release being there for a few films, a question arises as to what happens when these films which are first shown on an OTT platform instead of a cinema theatre and then subsequently shown on television? Does the law require that television channels can only air CBFC-certified films?
There are two statutes to be looked into here:
A. The Cinematograph Act, 1952
The Cinematograph Act, 1952 repealed the earlier Cinematograph Act of 1918.
The Cinematograph Act 1918 was passed in the final months of World War I and came into effect from 1 August 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 central object of the 1918 Act were: “(1) to provide for the safety of audiences, and (2) to prevent the exhibition of objectionable films”.
Pre-independence, Britishers brought silent films from England for their private viewing. However, with passage of time, a few cinema houses sprang up in the country where there was a congregation of Englishmen. A few enterprising Indians also attempted to make silent films with the first full-length feature film being produced by Dadasaheb Phalke in 1913: ‘Raja Harishchandra’. A need was felt to regulate the exhibition of films in these cinema houses to ensure that only films fit for public exhibition are shown in these licensed cinema houses. Thus, the Cinematograph Act of 1918 was passed, which had the Section 3. It provided that no person shall give an exhibition by means of a cinematograph elsewhere than in a place licensed under the Act or otherwise than in compliance with any conditions and restrictions imposed by such license.
The statement of objects and reasons of the 1918 Act indicated that it was meant to control exhibition of cinematographs “with particular regard to the safety of those attending them and to prevent the presentation to the public of improper and objectionable films”. A further object was to counter the “special danger from fire which attends cinematograph exhibits as has been illustrated by terrible catastrophes due to this cause in other countries and to secure the interest of safety of spectators, a proper regard to the structural conditions of the premises utilised. Post-independence, a need was felt to amend the Act with the changed circumstances in the country.
The main object of the Cinematograph Act of 1952 was to resolve the confusion which was caused by the Amendment of 1949 separating the provisions relating to sanctioning of films for exhibition (Union Subject) from the provisions relating to licensing and regulation of cinemas (a state subject).
Thus, state cinema regulation Acts were passed in several states for regulating exhibitions by means of cinematographs and the licensing of places in which cinematograph films are exhibited in the respective states, whereas the task of sanctioning films suitable for public exhibition vested with the Union i.e. by CBFC.
Thus, the intent of the Cinematograph Act from the very inception has been to regulate content being shown in licensed cinema exhibition houses. It could not have extended to any other medium back then as none existed.
The 1990's saw the emergence of VCR/VCP/TV projectors and with it came a new set of disputes. The Supreme Court analysed the issue of whether video parlors wherein a pre-recorded cassette of a cinematograph film is exhibited through the medium of video cassette recorder (VCR)/video cassette player (VCP) falls within the ambit of the definition of ‘cinematograph’ contained in the Cinematograph Act, 1952. The Supreme Court in a couple of judgements
(held that VCR/VCP are within the ambit of the definition of ‘cinematograph’ contained in Section 2(a) of the Act and that the video parlors, in order to carry on the business of running video parlors or showing pre-recorded cassettes of films through the medium of VCR/VCP, must obtain a license in accordance with the provisions of the Act and the Rules. Thus, video exhibition in a video parlor was also interpreted to fall within the scope of the Cinematograph Act, it being pertinent to note that this was limited to public viewing.
With the advent of VCDs and DVDs came a confusing judgment by the Delhi High Court in the case of Super Cassettes Industries Limited v/s Central Board of Film Certification & Ors, where the Delhi High Court dealt with the issue on whether audio-visual recordings on DVDs and VCDs, which the petitioners sell in the market, but with the label that it is meant only for private viewing, requires certification by the Central Board of Film Certification under Section 5-A of the Cinematograph Act, 1952. The Delhi High Court observed that film meant for private viewing would not be exempt from certification by CBFC and held as under:
“The mere labelling by the film maker or distributor that the film is meant for private viewing will not exempt the film from prior certification under Section 5-A CG Act. Once it leaves the shop where the film is purchased, neither the maker of the film nor its seller, has any control on whether it is viewed by one person or by a hundred, or whether it is viewed in a place to which the public is invited or in the private confines of a home. Therefore, the interpretation of the words “public exhibition” has to necessarily be contextual keeping in view the essential purpose of the CG Act and the insertion of Section 52A in the CR Act. In view of the amendments to the CR Act as impacting on the CG Act, what constitutes “public exhibition”, both for the purposes of Section 52A CR Act and Section 5-A CG Act, is no longer confined to exhibition in a cinema hall. Even if there is no audience gathered to watch a film in a cinema hall but there are individuals or families watching a film in the confines of their homes, such viewers would still do it as members of the public and at the point at which they view the film that would be an “exhibition” of such film.”
In my personal view, the Delhi High Court’s decision in this case is erroneous as the scope of the Cinematograph Act could not have been extended to private viewing. I agree with the arguments made by Amit Sibal who was representing the petitioner ‘Super Cassettes’ in this case where he submitted “Since both the CR Act as well as the CG Act contained penal provisions inasmuch they provided for prosecution and punishments for offences committed thereunder, the provisions of both statutes had to be construed strictly. The rule of purposive construction could not be imported to require censorship even of films meant for private viewing.
Fortunately, this issue was considered by the Karnataka High Court recently in the case of Padmanabh Shankar vs Union of India & Ors where the court ruled that content on the internet cannot be governed by the Cinematograph Act, 1952.
B. The Cable Television Network Regulation Act, 1995 (“CTNA”) and the Cable Television Network Rules, 1994 (“CTNR”)
Section 5 of the CTNA provides that no person shall transmit or re-transmit through a cable service any programme unless such programme is in conformity with the prescribed programme code.
Rule 6(1)(o) of the CTNR provides “Programme Code. – (1) No programme should be carried in the cable service which:-
(o) is not suitable for unrestricted public exhibition provided that no film or film song or film promo or film trailer or music video or music albums or their promos, whether produced in India or abroad, shall be carried through cable service unless it has been certified by the Central Board of Film Certification (CBFC)) as suitable for unrestricted public exhibition in India. Explanation – For the purpose of this clause, the expression “unrestricted public exhibition” shall have the same meaning as assigned to it in the Cinematograph Act, 1952 (37 of 1952);”
In the case of Pratibha Nathani v Union of India & Ors [AIR 2006 Bom 259], division bench of the Bombay High Court considered the issue of the telecast of adult films through cable service. The moot question was whether the cable operators/cable service providers were free to telecast the films certified by CBFC as “adult” films despite the restriction in clause (o) of Rule 6(1) that no programme shall be carried in cable service which is unsuitable for unrestricted public exhibition. The court directed cable operators not to broadcast any film with an ‘A’ certificate on television channels. It held that the fundamental rights guaranteed by Article 19(1)(a) can be subjected to reasonable restrictions. Accordingly, if the law authorises restriction in carrying in cable service a programme which is not suitable for unrestricted public exhibition, there is nothing wrong in it. The adult viewer’s right to view the film of adult content is not taken away by Clause (o) of Rule 6(1). Such viewers can always view the adult-certified film in the cinema hall. He can view such films on his private TV set by means of DVD, VCD or such other mode for which no restriction exists in law. Similarly, by putting restriction upon the cable operator and the cable service provider that no programme should be carried in the cable service which is not suitable for unrestricted public exhibition, it cannot be said that such restriction violates their right to carry trade and business.
In another case, Pratibha Nathani v Union of India (Public Interest Litigation No. 1232 OF 2004), the two issues that were debated in this matter were:
(i) Are the broadcasters (foreign or otherwise) and the DTH service providers amenable to the provisions of Cable Television Networks (Regulation) Act, 1995 and the Rules framed thereunder and thereby bound by the Programme Code and the order dated 21 December, 2005; and (ii) Does the order dated 21 December, 2005, restrict the exhibition of the films certified ‘U/A’ by the CBFC, the division bench of the Bombay High Court held that Direct to Home (DTH) service providers are bound to follow the Programme and Advertising Code, and consequently, the order dated December 21, 2005 (supra), binds them too. The court clarified that the films carrying ‘U’ and ‘U/A’ belong to the same class of films i.e. for unrestricted public exhibition.
The court held that a film certified for ‘U/A’ does not cease to be a film sanctioned by the Board for unrestricted public exhibition and hence the films carrying certificate ‘U’ and ‘U/A’ belong to the same class of films viz., for unrestricted public exhibition. It was therefore clarified that the order dated December 21, 2005, did not restrict exhibition of films certified as ‘U’ or ‘U/A’ or ‘V’ or ‘V/UA’.
Issue at hand
So, coming back to the issue at hand, it is abundantly clear that content on OTT platforms is not subject to the provisions of the Cinematograph Act, 1952.
Now, if we take the instances of web-series such as ‘Game of Thrones’, ‘Orange is the New Black’ or such other web series which were first streamed on OTT and subsequently on television, the concerned television channels regulated such content as per the provisions of the CTNA and CTNR and self-regulatory guidelines of the IBF. Obviously, for web-series the question of CBFC certificate did not arise. In this background, should one consider an audio-visual content which is in the form of a feature film or which is termed as a film to meet different standards and be subject to the scrutiny of the CBFC applying Rule 6(1)(o) of the CTNR?
In my personal view such films which are first released on OTT and subsequently on television do not require a CBFC certificate for the following reasons:
CBFC certificate is required for films which are to be publicly exhibited in licensed places as provided in the Cinematograph Act, 1952 and the respective state cinema regulations.
Only such films which are certified as ‘A’ by CBFC as per point (1) above, require re-certification as U/UA for their satellite release in view of Rule 6(1)(o) of the CTNR read with the Pratibha Naitthani judgements above.
A film which is not released theatrically and therefore does not fall within points (1) and (2) above, does not qualify as a cinematograph film within the purview of the Cinematograph Act and its Rules.
Therefore, by necessary implication, an OTT-released film should be considered at par with any other OTT content such as web-series, docu-series, etc. and not be subject to the scrutiny of CBFC.
Broadcasters should apply the principles of the CTNA, CTNR and self-regulatory guidelines of IBF while showcasing such content on their channels the way they do it for any of their other content. I would assume that this principle may apply for any tele-film, short film, or other such direct satellite released films as well.
It is however possible, that by way of abundant caution, broadcasters may take a narrow interpretation of Rule 6(1)(o) of the CTNR and require producers to procure CBFC certificate of such OTT-released films. In any case, a censored film by CBFC helps in defending claims in view of plethora of judgements validating the expert body’s scrutiny of a film by applying the principles for guidance in certifying films.
It will have to be thus seen if films like Laxxmi Bomb, Gulabo Sitaro, etc. would be certified by the producers for the television release.
(The author is the founder of the blog Iprmentlaw and partner at ANM Global and heads the media and entertainment practice there. The views expressed in this article are hers and ANM Global and Indiantelevision.com need not subscribe to them.)
