[This post is authored by SpicyIP Fellow Yogesh Byadwal. Yogesh is a 3rd year B.A. LL.B. (Hons.) student at National Law School of India University, Bengaluru. He is interested in IP Law, Constitutional Law and Criminal Law. His previous posts can be accessed here].
On November 3, 2023, Ministry of Information and Broadcasting issued a notification (see here), establishing an ‘institutional mechanism of Nodal Officers’, under Sec. 7(1B)(ii) Cinematograph Act, 1953, for issuing notifications to intermediaries to disable access to content found in contravention of Sec. 6AB.
Sec. 6AB of the Act reads:
6AB- Prohibition of unauthorised exhibition of films-“no person shall use or abet the use of an infringing copy of any film to exhibit to the public for profit-
- at a place of exhibition which has not been licensed under the Act or the rules made thereunder; or
- in a manner that amounts to the infringement of copyright under the provisions of the Copyright Act, or any other extant law”.
In this piece, I will discuss the recently enacted Cinematograph (Amendment) Act, 2023 (see here) which introduced important changes to the ‘piracy regime’ in India. Further, I will critique the new institutional mechanism of nodal officers. I argue that while the current mechanism allows quick action, it vests nodal officers with wide and unguided powers which are prone to abuse and can detrimentally impact intermediaries.
Cinematograph (Amendment) Act, 2023
Lokesh in his post, discusses ‘intermediary liability’ in the new amendment. He points out that the Act enables increased control of the government over intermediaries by allowing it to act against intermediaries who are found to host pirated content. However, the Act leaves certain questions unanswered. Would ‘authorized place of the exhibition’ include digital platforms apart from physical theatres? Or would ‘film’ include digital OTT content? Or can the government take suo moto action against suspected content? Or who are considered intermediaries? What will be the institutional mechanism to take action against such alleged pirated content?
The notification issued clarifies and concretises the combat mechanism against pirated content.
- First, ‘film’ would only include content certified by the Central Board of Film Certification(CBFC) and not online streaming content. Therefore, takedown orders cannot be directed against infringing copy of content hosted on OTT platforms.
- Second, the govt. cannot take suo moto cognizance (here). A complaint has to be filed by the copyright owner or member of the public. If a complaint is raised by a person who does not hold the copyright or is not authorised by the copyright holder, the Nodal Officer can hold hearings on a case to case basis to decide the genuineness of the complaint before issuing the directions (here).
- Third, this institutional mechanism of Nodal officers will be in addition to the remedies available under Copyright Act and IPC (here).
- Fourth, if such nodal officer is satisfied and sends notice to the intermediary (meaning of intermediary here), it must take down the content within forty-eight hours of the receipt of notice. Otherwise, u/s. 79(3)[b] of IT Act (here), intermediary protection under sub section (1) of the said section will not apply to the intermediary.
Institutional Mechanism of Nodal Officers: Learning from the Past
The ‘Statement of Object and Reasons’ 2023 Act mentions the attempt to ‘curb the menace of film piracy by transmission of unauthorised copies on the internet.’ However, the current institutional mechanism of nodal officers raises various concerns.
First, the amendment seeks to create an artificial distinction between Piracy and Copyright Act. Lokesh, points out here, that the Act avoids defining ‘Piracy’, which normally means copyright infringement. The aim for creating such distinction (without difference) seems to be to prescribe higher penalties for film piracy vis-à-vis Copyright Act. As a result, safe harbour protection (here, here and here) or ‘notice and takedown’ procedure, which provides strong due process protection to intermediaries and content uploader, is circumvented. This could lead to a regime where each intermediary has to pre-screen the content being uploaded as to whether it is an infringing copy or not. As argued here, the cost of instituting a fool proof pre-screening mechanism staffed by humans would be prohibitive, and would also require the companies to determine, subjectively, whether online content was defamatory, obscene, inflammatory, or infringing copyright.
Second, with the absence of safe harbour provisions, there is a risk that an entire website besides the impugned URL may be blocked on receipt of a complaint by the copyright owner (here). Traditionally, as Prashant Reddy T. and Sumathi Chandrashekaran show in their book, there seems to exist a prominent bias amongst judges towards copyright owners, and a persistent failure of courts to grant proprietors of allegedly offending websites a hearing, before ordering them to be blocked. In fact, the notification includes a requirement of ‘hearing’ only when a complaint is filed by someone who does not own the copyright. Therefore, the risk of a legitimate website being blocked on a mere complaint of a copyright holder remains a potent threat which violates the tenets of natural justice. Concerningly, there is no requirement within the rules to prove copyright ownership. It takes considerable time, effort and money to again get the website unblocked which makes small intermediaries easy targets (see for e.g. pg. 243 of ‘Create Copy or Disrupt (here). On most occasions, a blocking order is not issued in public domain stating its reasons which violates principles of natural justice (see here for appeal mechanism).
Third, the determination whether copyright infringement has occurred and if yes, whether infringement is ‘sufficient’ to block the URL/ website requires legal determination by a Judge trained in law (see for e.g. pg. 239 of this). On occasion, an infringing material might be saved by the fair use exemption under Copyright Act (here). The notification, however, entrusts this determination with nodal officers who are bureaucrats and regional officers. Earlier, in 2014, Calcutta HC entrusted Computer Emergency Response Team, India (CERT-IN) with the responsibility of blocking websites and URLs which were infringing copyright (here). However, later the onus was shifted back on ISPs recognising the limitation of Technical bodies. The same mistake is being committed by entrusting the same responsibilities with nodal officers. One, for third party complaints, the requirement of hearing is determined on a case by case basis which raises concerns of blocking/ taking down websites based on externally or politically motivated complaints without having to prove either copyright or basis of complaint. Another, since there are twelve nodal officers, nothing stops someone from forum shopping till the website is blocked.
Fourth, as argued here, the penalties of contravening Sec. 6AB are ‘blunt and disproportionate’. Without safe harbour provision, intermediaries and content uploaders stand to be sentenced to jail for up to three years by a non-judicial officer, who, in turn, has no guideline to determine the quantum of fine or period of sentence. Combined with the wide discretion granted to nodal officers, this can create a chilling effect which discourages even fair use of the content in fear of arbitrary punishment.
On one hand, a clear advantage of the newly introduced mechanism is it offers a more streamlined and swifter route to remove the infringing copy. On the other hand, it is apparent that such officers have been vested with power of courts to determine copyright infringement or piracy. Moreover, such powers remain overbroad and largely undefined and thus, prone to abuse.
Nodal officers have been provided wide ranging powers with very few safeguards which on their own do not ensure the requirement of ‘due process’ being followed. In a bid to streamline the institutional mechanism against piracy, govt. has ignored the implications it will have on victims, piracy, and intermediaries. It has been previously argued here that the Cinematograph Act wrongly seeks to override the Copyright Act in combating piracy. The notification seems to set the clock back on gains made regarding entrusting technical bodies with blocking websites. Moreover, it entrusts them with unguided powers in imposing penalties on intermediaries and content uploaders without inserting the requirement of hearing. Although an institutional mechanism is needed to combat film piracy, the current mechanism is undesirable.