- Copyright 2016
Online subscription-based platforms like Netflix that provide video on demand services are becoming increasingly popular among internet users in India who want to watch films sitting at home. The troublesome question is whether these platforms have a legal obligation to show only those films that are certified by the Central Board for Film Certification (CBFC) in India. This requirement for certification has been laid down in the Cinematograph Act, 1952 (hereafter ‘the Act’). In this article, I examine this question by analysing how this requirement under the Act applies when films are exhibited across different media of delivery.
Under Section 4 of the Act, one requires an approval (in the form of certification) from the CBFC in order to exhibit a film. The CBFC undertakes the process of examining the film and: sanctions it for unrestricted public exhibition (U); sanctions it for public exhibition restricted to adults (A); directs cuts or modification in the film; or refuses to certify the film. The CBFC can refuse to certify the film only if it is against the “interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence”. This requirement for approval applies to the exhibition of films produced in India as well as films imported into the country.
Section 3 of the Act, which provides for the establishment of the CBFC, states that the CBFC is set up for the purpose of certifying films which are intended for “public exhibition”. The term “public exhibition” has also been used in Rule 2 (iii) of the Cinematograph Rules, 1983 which defines an applicant under Section 4 of the Act. This means that the Act applies to all films that are intended for public exhibition. However, “public exhibition” is not defined under the Act. Does the term refer to making a film available for watching only in public places such as cinema halls, or making a film available to the public whether for watching in public or in private?
The Delhi High Court, when dealing with this question in the case of Super Cassettes Industries v. Central Board for Film Certification, held:
“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 this case, the court held that exhibition of films by sale and distribution of DVDs or VCDs would be subject to the Act. Thus, exhibition of films under the Act means exhibition to the public whether for public or private viewing.
Netflix is an online, subscription-based platform which allows us to watch films privately and on demand. Would Netflix therefore be subject to the Act based on this understanding of ‘exhibition’? In order to answer this question we need to find out if the Act applies to public exhibition of films through any medium including cable television networks, DVDs and the internet? I have addressed this question later in the article.
The draft Cinematograph Bill, 2013 defines “exhibition” as “audio or visual dissemination of a film or part thereof or making available a film or part thereto through use of a public medium”. The Bill also defines “public medium” as a “medium, forum or place to which members of the general public have access to with or without the payment of a fee or charge”. Thus, platforms like Netflix – which the public can access to watch films with payment of a subscription amount – would be understood as exhibiting films under the draft Bill. The draft Bill was listed for introduction in the Monsoon Session of the Parliament in 2010. To our knowledge, there has not been any progress on the status of the draft Bill. It is interesting to note that an Expert Committee (chaired by Shyam Benegal) was constituted to formulate recommendations for certification of films by the Central Board of Film Certification (CBFC), and submitted its report on the issue in April 2016. However, the report does not make any reference to the draft Bill and unlike the draft Bill, it has not provided any clarity on the interpretation of the term ‘exhibition’.
It is noteworthy that under the Cable Television Network (Regulation) Act, 1995 (hereafter the ‘Cable TV Act’), cable network operators are required to ensure that the films that can be accessed by their users at home must be certified by the CBFC. Rule 6 (n) of the Cable Television Network (Regulation) Rules, 1994 provides that the content provided by cable network operators to their users must comply with the Act. This suggests that the term ‘exhibition’ of films under the Act has been understood under the Cable TV Act to include exhibition of films for private viewing by the public. As mentioned earlier, with this understanding of ‘exhibition’, films exhibited on Netflix would have to undergo the certification process under the Act.
It would not be right to draw this conclusion without comparing Netflix with different media of exhibiting films – such as VCDs and DVDs, movies on demand provided by cable network operators, internet protocol television channels, and online content-sharing platforms such as YouTube – and examine which medium Netflix closely resembles. It is necessary to do this because different media are regulated by different legislative frameworks.
One can compare Netflix to a cable television network provider (hereafter ‘cable network operator’) as both services allow multiple users to watch films privately at home by payment of a subscription. Cable network operators are regulated under the Cable TV Act and related rules and guidelines. The Cable Network Rules and the Downlinking Guidelines, 2005 formulated under the Cable TV Act, require cable network operators to ensure compliance with the certification requirement under the Act while determining their programme content. Therefore the films that are made available by cable network operators must be only those films that have been certified by the CBFC. Cable television networks are however different from Netflix in the way they operate. This is critical because cable television networks are defined under the Cable TV Act in terms of their operation. They use satellite signals to distribute content to multiple subscribers while Netflix rides on the networks of telecom service providers and internet service providers to provide content to its users. Therefore, the cable television regulation cannot be applied to Netflix.
Now, let us compare Netflix with internet protocol television (IPTV). IPTV is a service which uses the internet for delivery of multimedia content to a customer and makes it available on television, cellular, and mobile TV terminals with STB modules or similar devices. Both Netflix and IPTV use the internet to provide services to their users (which is also referred as streaming) and both are paid services. However, in India, IPTV services can only be provided by registered cable television network operators (because IPTV is treated like cable television service) and telecom service providers and internet service providers who operate under a license given by the Department of Telecommunications (because IPTV is a television service that runs on the internet). As a condition under these licenses, it has been made clear that the content restrictions applicable to cable network operators, as discussed in the earlier section (which includes compliance with the certification requirement under the Act) would apply to IPTV as well. Although Netflix also provides content over the internet (like IPTV) it is treated as an over the top (OTT) service and does not need a license to provide services in India. Since Netflix does not operate under a license, it does not need to comply with the Act unlike IPTV.
Netflix and VCDs/DVDs are similar in that both can be accessed at home to watch films privately on a certain payment of money. The difference between the two is that VCDs/DVDs are sold through a physical medium whereas Netflix uses internet to provide access to films online. Also, the buyer owns a copy of the VCD/DVD containing the film while a user of Netflix does not own the copy of the film that he/she watches on Netflix. The Act does not clearly provide that it regulates the exhibition of films through VCDs/DVDs. The Delhi High Court has however held in the case of Super Cassettes Industries v. Central Board for Film Certification that DVDs come within the purview of the Act. The Court held that under Section 52A (2) (a) of the Copyright Act, one could not make a film which is a cinematograph film available to the public (here by sale/distribution of VCDs/DVDs) that requires certification under the Act unless it was accompanied with a copy of the certificate from CBFC. We know that Netflix makes cinematograph films available to the public using internet. We also understand that the under the Copyright Act, cinematograph film could be film that is available on any medium including internet. Therefore the requirement to display particulars about certification of a cinematograph film as provided under Section 52A(2)(a) of the Copyright Act would also apply to films available on Netflix.
It is also useful to make a comparison between Netflix and paid movies provided by YouTube, an online content (video) sharing platform which allows users to watch films privately using internet by payment of money. Both Netflix and YouTube are OTT services. They do not need prior approval or a license to operate in India and are based outside India. We know that the Act does not clearly provide that it applies to exhibition of films irrespective of any medium. It is however clear that under Section 52A (2)(a) of the Copyright Act, films available to public, in this case on YouTube, must have received certification from CBFC under the Act. In my conversation with the YouTube customer support team for paid content, it was not clear whether, in practice, they only exhibited films which were certified by the CBFC. This then raises several questions about the difficulty in applying the Act to platforms like YouTube and Netflix.
What kind of films can Indian users watch on Netflix? Are these films that are produced and certified in India and made available on Netflix, films that are produced in India but are exclusively available on Netflix, uncertified versions available on Netflix of films that are produced outside India which have been censored by CBFC and released through traditional channels in India, films that are produced outside India that have not been certified or released in India but are available to Indian users on Netflix?
We know that where an applicant is informed that certification of a film by CBFC is contingent upon removal of certain portions of the film, the applicant is required to “remove such portions from the negative of the film and all copies of the film in the possession of the applicant or the laboratory where the film was processed, the distributor, the exhibitor or any other person is required to be surrendered”. Therefore, after a film (whether produced in India or outside India) has been reviewed by CBFC, only the version of the film that has been approved by CBFC would be made available to the public. All other versions in possession of “any other person” must be surrendered under the Act. Releasing versions to the public which are other than the censored and certified versions of such films would be considered illegal under the Act. Recently, in a public interest litigation filed before the Punjab & Haryana High Court against the release of the films Mastizaade and Kya Kool Hain Hum 3, the court directed the producers/directors to submit an undertaking that they would not release the excised portion of the feature/film to anyone in any medium including the internet. It may however prove difficult to regulate exhibition of films on Netflix that are produced and released outside India and films only released on Netflix.
Technology always precedes regulation. This is why for regulation to be effective, it must be technology-agnostic. What we see in this microscopic analysis is an example of a law that is not technology agnostic and thus fails to keep up with new technologies of exhibition of films. The applicability of the Act certainly depends on how we understand the term ‘exhibition’ of a film. Neither the Act nor the relevant case law provides a clear and effective interpretation of this term. There is no legal provision in the Act that states or implies that it is applicable to exhibition of films through the internet. It is however clear that there are separate regulatory frameworks in India for different media of exhibition of films. These frameworks require these media owners or service providers to ensure that they only exhibit CBFC certified films to the public. There is no distinct regulatory framework that ensures that the Act applies to platforms like Netflix.
It is beyond doubt that with the advent of the ‘Netflix era’, the interplay between media content and ownership, service provision and regulatory choices will undergo significant disruption. In the Indian context, the state has unfortunately chosen to deal with this paradigm shift by creating separate regulatory frameworks in an ad hoc manner instead of trying to realise some sort of convergence. This multiplicity of regulatory frameworks comes at a time when the boundaries between these regimes are increasingly difficult to define. Thus, the need to adopt a technology agnostic approach is one of the most central issues that must be addressed in any new reform.
On a separate note, the regulatory uncertainty that the Act has created allows the use of other tools for content regulation online. For instance, the Information Technology Act, 2000 allows the government and the courts to direct ISPs, on whose networks users access Netflix, to either block or take-down films available on Netflix that they consider objectionable. While we know that one could bypass censorship filters and access content that is not available in the country by using free/paid proxy services, this type of content regulation could force players like Netflix to give in to the state’s paternalism and inspire self-censorship to carry out their operations smoothly within the country. That is a dangerous precedent to set in the industry as far as freedom on the internet is concerned.
There is an urgent need to initiate discussions about reform in the present framework(s) for film regulation that addresses technology neutrality and does not stifle the freedom of expression of the film industry and the viewers.
(This essay originally appeared in the third volume of Digital Debates: The CyFy Journal)
 Section 4(1), The Cinematograph Act, 1952 states that “Any person desiring to exhibit any film shall in the prescribed manner make an application to the Board for a certificate in respect thereof.”
 See Section 5B, The Cinematograph Act, 1952. This language has been borrowed from Article 19 (2) of the Constitution of India which imposes reasonable restrictions on freedom of expression.
 Rule 2 (iii), the Cinematograph (Certification) Rules, 1983: “applicant” means a person applying for certification of a film for public exhibition under section 4.
 Super Cassettes Industries v. Central Board for Film Certification, W.P.(C) No. 2543 of 2007
 [Draft] Cinematograph Bill, 2013, available at http://www.prsindia.org/uploads/media/draft/Draft%20Cinematograph%20Bill,%202013-.pdf
 Section 2(c), the Cable Television Network (Regulation) Act, 1995 states that “Cable television network is a system of closed transmission paths and associated signal generation, control and distribution equipment, designed to provide cable service for reception by multiple subscribers.”
 Guidelines For Provisioning of Internet Protocol Television (IPTV) Services, 2006 issued by Ministry of Information and Broadcasting
 Unified License Agreement, Chapter VIII, Provision of IPTV Service, Clause 5.1(d) – The provisions of Programme code and Advertisement code as provided in Cable Television Network (Regulation) Act 1995 and Rules there under shall be applicable…. Since the Licensee will be providing this content, the Licensee shall be responsible for ensuring compliance to the codes with respect to such content. In addition to this, such LICENSEEs will also be bound by various Acts, instructions, directions, guidelines issued by the Central Government from time to time to regulate the contents. 5.1(e) If the contents are being sourced from content providers other than Licensee, then it will be the responsibility of Licensee to ensure that their agreements with such content providers contain appropriate clauses to ensure prior compliance with the Programme and Advertisement Codes and other relevant Indian laws, civil and criminal, regarding content.
 Rule 26, Cinematograph (Certification) Rules, 1983
 Raghav Ohri, Bad news for movie buffs! Censored parts of films to stay out of internet, ET Tech (March 03, 2016) http://tech.economictimes.indiatimes.com/news/internet/bad-news-for-movie-buffs-censored-parts-of-films-to-stay-out-of-internet/51233972
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