Section 52A(2)(a) of the Copyright Act requires that cinematograph films which are required to be certified under the Cinematograph Act, 1952 (Cinematograph Act) for exhibition display the certification on the video cassette. Section 4(1) of the Cinematograph Act requires certification of any film that is sought to be publicly exhibited. The audio visuals in the discs in question were not certified by the CBFC. They were however marked with a label that said that the discs were only meant for private viewing.
The main issue that arises is whether the discs (made or produced by the Petitioners) sold with label that they are meant for “private viewing” require certification under the Cinematograph Act? In other words, does the publication of audio visuals on the discs for sale (and meant for private viewing) amount to “exhibition” under the Cinematograph Act?
Contentions of the Petitioners:
1. Section 52A(2)(a) of the Copyright Act requires certification under the Cinematograph Act only for public exhibition of the video film and does not apply to films meant for private viewing only. Exhibition of a film in public would not include sale, display or distribution of such discs. If the discs contain objectionable material, they will fall under the purview of Section 292 of the IPC. Section 52A was not intended for the prosecution of copyright holders.
2. Section 14 of the Cinematograph Act penalizes the exhibition of a film in a place not licensed for public exhibition. If the display of discs for sale constitutes public exhibition, it would mean that all shops selling discs require to be licensed leading to absurd results.
3. Censorship of films meant for private viewing is not envisaged by the Copyright Act or the Cinematograph Act. Such censorship would amount to violation of the constitutional right of Freedom of Speech and Expression of the producers and viewers of such films.
Submissions of the Respondents:
1. As soon as a film is made and offered for sale to the public, irrespective of its length or content, it will amount to public exhibition.
2. The expression “public exhibition” should be purposively constructed; keeping in mind the changing context where the public can view content of the discs, without it being exhibited in a cinema hall.
3. Exemption from certification of these discs will lead to films bypassing the certification requirement under the Cinematograph Act and result in the dissemination of objectionable material.
4. The fact that a certified film cannot be shown in an unlicensed place of exhibition does not imply that a film need not be certified if it is not intended for exhibition in a licensed place.
After a thorough examination of the objects of the Cinematograph Act, Cinematograph Rules and the Copyright Act and various judgments, the court concluded thus;
1. Once a film is made available or distributed or offered to sale to the public on discs, it will amount to publication under the Section 52A(2)(a) of the Copyright Act.
2. Where a member of the public who obtains the film, views it (even if it is in the confines and privacy of her own home) certification under Section 5A of the Cinematograph Act becomes necessary for the purposes of Section 52A(2) of the Copyright Act as the film is exhibited at that point.
3. The maker or the distributor of the film is required to anticipate the subsequent exhibition of the flim and is thus required to obtain certification for the same.
4. The exhibition of the films for domestic purposes does not require licensing under Section 10 of the Cinematogrpah Act as per the Delhi Rules, 1986.
The judgment noted that this interpretation will increase the workload of the CBFC and did not examine the constitutional validity of the provisions of the Cinematograph Act or the Copyright Act. The court said that either the CBFC should deal with the increased number of applications for certification or the legislature could pass orders under the Cinematograph Act excluding certain categories of audio visuals, reducing the workload of the CBFC.
There is however a need for more clarity in the objects of the legislations. The sole object of the Copyright Act should be the protection of copyright. The Cinematograph Act however is the legislation enacted “with particular regard to the safety of those attending them and to prevent the presentation to the public of improper and objectionable films”. The confusion could have been avoided if the statutory requirement of certification under Section 5A of the Cinematograph Act was not linked to Section 52A of the Copyright Act. Going by the purposive interpretation of the term “public exhibition”, it becomes abundantly clear that certification would be required solely under the provisions of Sections 4 and 5 of the Cinematograph Act itself. Purposive interpretation would be necessary as the Cinematograph Act was enacted in 1952 where the only means of public exhibition envisaged by the legislature was through cinema halls and television. This would call for an amendment to Cinematograph Act and not an attempt to fulfill the objectives of one legislation through another.