Can India’s Cinematograph Bill Kill Camcorder Piracy & Satisfy the U.S. ?

For the last 40 years the Motion Picture Association has regularly highlighted the damage caused by in-theater recordings of the latest movies. And quite rightly so.

So-called ‘cam’ copies appear online within hours of movies first appearing in theaters, yet as piracy releases go, cams are unique in their ability to disappoint just about everyone. Not only do these often potato-quality copies somehow eat away at the box office, but filmmakers’ work is often reduced to a smear, and that disappoints pirates too.

The fact that unlicensed gambling ‘companies’ continue to use cams as a promotional vehicle leaves few obvious grounds to argue that the majority of cams benefit anyone at all. Yet camming persists in a number of countries, despite intense pressure from the United States demanding meaningful action against it.

In-theater camming contributed to India being placed on the USTR’s Priority Watch List and the question now is whether a long-running legal amendment process can even begin to address it.

Cinematograph (Amendment) Bill 2019

The Cinematograph (Amendment) Bill 2019 was introduced to amend the Cinematograph Act, 1952, which contained provisions for the certification of films for exhibition and for regulating exhibitions of those films.

Certain amendments proposed to the 2019 bill (pdf) recognized the growth of piracy in India and specifically targeted ‘cam’ piracy. It stated that “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.”

The proposals stated that violations would be punishable by a prison term of up to three years, a fine, or both

The bill was the subject of a Standing Committee Report published in March 2020. A copy available via PRS Legislative Research (pdf) shows that the committee heard evidence from the Motion Picture Distributors Association, Viacom 18, the Film and Television Producers Guild of India, and others.

Amended Amendments

The Standing Committee Report referenced 18 U.S. Code Section 2319B, the United States’ anti-camcording provision, which also provides for up to three years in prison for a first ‘camming’ offense.

The Committee felt that since movies are expensive, punishments should be reviewed in an upwards direction. Somewhat remarkably, the Committee also raised doubts over the bill’s ability to counter the piracy that takes place inside India’s Censor Board.

Throughout the process, concerns were raised over a number of issues. They included fears of potential overreach in the statement that “no person shall be permitted to use any audio-visual recording device…,” which could include the use of a mobile phone, for example. Other debates centered on whether broadly defining recording “in a place” or more specifically an “exhibition facility” would be better or worse, or vice-versa.

A clear definition for the word “knowingly” was sought to establish mens rea while the reference to recording a movie “or a part thereof” raised questions over punishing behavior that should be protected under fair use exceptions.

Calls for tougher sentencing were addressed with proposals for a minimum three-month prison sentence, a minimum fine of roughly US$3,600, and a maximum fine of 5% of the audited gross production cost of the recorded movie. Not even the United States has ventured that far.

Cinematograph (Amendment) Bill, 2023

The Union Cabinet, the supreme decision-making body in India, approved the Cinematograph (Amendment) Bill, 2023 (pdf) in April.

Anurag Thakur, Minister for Information and Broadcasting, predicted the bill would meet the needs of all.

“This Bill will live up to the expectations of the industry,” the minister said. “This Bill is going to satisfy each and every one without any controversy.”

The bill was introduced in the Rajya Sabha (upper house of parliament) on July 20, 2023. It includes provisions for film certification and the prospect of films being denied any kind of exhibition at all. For our purposes here we will not venture into that political quagmire, but it’s fair to say that controversy is rarely far away.

A PRS India summary of the section relevant to camming reads as follows:

The Bill prohibits carrying out or abetting: (i) the unauthorized recording and (ii) unauthorized exhibition of films. Attempting an unauthorized recording will also be an offense. An unauthorized recording means making or transmitting an infringing copy of a film at a licensed place for film exhibition without the owner’s authorization. An unauthorized exhibition means the public exhibition of an infringing copy of the film for profit: (i) at a location not licensed to exhibit films or (ii) in a manner that infringes upon the copyright law

When accompanied by the fines mentioned earlier, which include up to 5% of a movie’s audited gross production costs, it seems likely that the United States would’ve been quite pleased with India’s latest attempt at anti-camming legislation. And then this;

Certain exemptions under the Copyright Act, 1957 will also apply to the above offenses. The 1957 Act allows limited use of copyrighted content without owner’s authorization in specified cases such as: (i) private or personal use, (ii) reporting of current affairs, or (iii) review or critique of that work.

That fair use-style exemptionsFpurp, available under the Copyright Act 1957, will also apply to in-theater recording scenarios, seems unlikely to be viewed in the same positive light. The IIPA previously urged India to “swiftly enact legislative amendments to outlaw unauthorized recording of all or part of an audiovisual work in a cinema.”

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