The growth in the media and entertainment industry (M&E industry) has been tremendous in the past few decades. Technology plays a major role in facilitating this headway. The M&E industry has witnessed advancement in gaining various technological trends and an increase in internet usage by suppliers and consumers. Being a huge sector, there is a high prospect of misuse in this industry. Ergo, the following article focuses on the actual and prospective areas for exploitation, changing trends and the relevant laws and provisions to govern the M&E industry.
There is no particular statute that governs the M&E industry, given the wider and distinct sectors it retains. Currently, there are various regulations and self-regulatory mechanisms in place to regulate the industry. The content on Television (TV), which comprise a major portion of the M&E industry is governed through statutory regulation as well as self-regulation for certain aspects. The content on TV is chiefly divided into news and current affairs, and non-news (entertainment) and advertisement.
Following are the relevant provisions providing a legal and regulatory framework to govern the foregoing sectors of the M&E industry-
NEWS AND CURRENT AFFAIRS BROADCAST
There is no specific statute to govern the content broadcast in this sector; it is rather self-regulated by an industry body.
News Broadcasters Association (NBA)
The ‘news and current affairs’ sector is primarily governed by a designated self-regulatory association namely, News Broadcasters Association (NBA). It has formulated the Code of conduct/ethics and Broadcasting standards, viz. “NBA code.” The NBA code comprises a set of principles for the news channels to adhere to. Further, the NBA code ensures the news channels follow the ethic and do not hamper the purpose of the news broadcast by muddling it with promotions and controversial topics.
Lately, NBA told the Supreme Court to make its code of ethics against airing malicious, biased and regressive content applicable to all TV news channels.[i] NBA suggested that the court direct the government to include its ethical code in the Programme Code of the Cable Television Networks Rules, 1994. All news channels,whether or not a member of the association, will then have to follow the NBA ethics code.
News Broadcast Standards Authority (NBSA) is formulated by the NBA, as an adjudicatory body and to enforce the NBA code. The NBSA functions to ensure compliance of the NBA code by various broadcasters and is prescribed to improve the standards of broadcasts.
NON-NEWS AND CURRENT AFFAIRS BROADCAST
The content broadcast in this sector is governed by a statute and various committees formed by the Ministry of Information and Broadcasting (MIB).
The Cable Television Networks (Regulation) Act, 1995
The objective of the Cable Television Networks (Regulating) Act, 1995 (Cable Act) is mainly to regulate the content and operations of cable networks. Under this act, the term ‘programme’ explicitly encompasses advertisement and thus advertisement would also be regulated by the Cable Act.
The programme code and the advertisement code have been prescribed under the Cable Television Networks Rule, 1994, which aims at providing certain parameters to regulate the telecast on TV. Any broadcast showing hints of criticism on friendly countries, offending morality, decency, or religious sentiments of the public, defamation, contempt of court, affecting the integrity of the nation etc. is prohibited by the programme and advertisement codes in their respective sectors.
Assorted committees have been set up with slightly varying purposes, but with a common ultimate purpose of monitoring the violation of the prescribed codes. To exemplify; the inter-ministerial committee, electronic media monitoring committee are a few committees.
Recently, a show-cause notice was issued by the central government against Sudarshan News over one of its programmes which was prima facie found to be vilifying the Muslim community.[ii]
Self-regulatory bodies for regulation of programmes
The Indian Broadcasting foundation adopted self-regulatory content guidelines for non-news channels and established Broadcasting Content Complaints Council (BCCC) in June 2011, as a complaint redressal system. However, films and other productions do not fall in the ambit of these guidelines; they are certified under the Cinematograph Act, 1952.
In India, films are to be exhibited to the public only after they have been certified by the Central Board of Film Certification (CBFC). The Cinematography Act, 1952 prescribes the constitution for the overall functioning and guidelines for certification of cinematographic films, by the CBFC.
The process for certification of films is done in accordance to the Cinematograph Act and the Cinematograph (Certification) Rules, 1983. Following are the four standard categories, whereby the films are certified:
- Restricted to Adults – Certificate ‘A’
- Unrestricted Public Exhibition – Certificate ‘U’
- Unrestricted Public Exhibition but with a word of caution that Parental discretion required for children below 12 years of age – Certificate ‘UA’
- Restricted to any special class of persons – Certificate ‘S’
In the absence of a specific statue, the advertisement content is governed by a self-regulatory mechanism. Advertising Standards Council of India (ASCI) is a self-regulatory, non-governmental body established in 1985. Its objective is self-regulation, code prescription for monitoring, administering and promoting standards of advertising practices in India and ensuring the protection of the interests of the consumers.
Legislations such as the Drugs and Cosmetics Act, 1940; Emblems and Names Act, 1950; Patents Act, 1970; Trademarks Act, 1999: Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 etc. supplements the ASCI code, Cable act and Cable rules in regulating the form or content of an advertisement.
PUBLIC SERVICE BROADCAST- DOORDARSHAN
The Prasar Bharati (Broadcasting Corporation of India) Act, 1990 (PB Act) laid down the foundation for the establishment of Prasar Bharti. It is a government of India undertaking, mandated by the PB Act to ensure that “broadcasting is conducted as a public service.” The PB Act manages various channels within the framework of ‘Doordarshan’.
Broadcasting Council is an authority established under the PB Act, to receive complaints. It is also responsible for adjudicating complaints concerning any contravention of the PB Act objectives. A separate code of conduct has been structured for Doordarshan relating to broadcast, social objectives and advertisement.
Exploited Zones of Media and Entertainment Industry.
The Media and Entertainment industry has observed an upward spiral with respect to consumer demand and progress over the years. It is an actively contributing factor, in boosting the economy with significant strides. As the industry is broadening its framework, the pre-existing and newer grey areas too are exhibiting its broader and different dimensions.
The right to freedom of speech and censorship is one of the concerned areas in the M&E sector. Article 19 guarantees freedom of speech as a key aspect of each individual’s right to self- development. The freedom of expression and communication through published articles and electronic media is a right too; under article 19 of the Indian constitution. Various bodies like the CBFC, I&B ministry impose certain restrictions through censorship on content broadcast, peculiarly films to curb creative freedom of speech and expression. Exemplification of the same in the film industry is movies like Black Friday, Lipstick under my Burkha etc.
In Brij Bhushan& others vs. State of Delhi,[iii]the Supreme Court held that imposition of pre-censorship is a restriction on the liberty of the press, which is an integral part of the freedom of speech and expression declared by Article 19(1) (a), and thereby struck down the order issued. Only the Supreme Court has the independence and the stature to guard free speech in the abstract, in its entirety.
The M&E industry faces major legal challenges on Intellectual Property Rights front. Copyright infringement and trademark protection is a major concern of the ever-growing industry. Copyrights Act, 1957 is a statue structured to protect original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses. Section 51 of the Act deals with infringement of copyrights, which, under the said provision is deemed to be infringed by any person when he, inter alia, without a license granted by the owner of the copyright does anything, which is the exclusive right to do conferred by the Act upon the owner of the copyright.[iv]
The trademark law protects the ownership and prevents the authenticity of titles of songs, albums, movies, names of brands, famous characters, ideas, narration, stories etc. subject to certain conditions. In the case of Bikramjeet Singh v. Anil Kapoor[v], an Indian film actor and producer, got his film titled ‘Shortkut’ registered in the Indian Motion Picture Producers Association (IMPPA). Subsequently, Bikarmjeet Singh brought up this issue with the IMPPA, claiming that he has formerly registered a movie with the IMPPA under the same title before Anil Kapoor. Ultimately, Anil Kapoor had to withdraw the original title of the film and modified it to “Shortkut- the Con Is On”.
Piracy is another augmenting rampant concern of the M&E industry, especially in the wake updated and modern trends in technology. Online piracy refers to stealing or unauthorized copying, distributing the licensed property of an owner from the internet leading to loss and damage. The film sector under the M&E industry loses around $2.8 billion on its total revenue every year due to online piracy.
As a consequence of the pandemic lockdown, the film industry has been highly resorting to OTT platforms for broadcast. Therewith, online film piracy rose to 62% in India in the last week of March compared to the last week of February 2020.[vi] Unaffordable legal online streaming platforms, or merely the desire to consume free content, is the main cause, accountable for the increase in these figures. There is no specific statue to deal with the offence of piracy, but it is regulated by a compilation of Copyrights Act, 1957; Cinematograph Act, 1952 etc.
Indian M&E industry is one of the fastest-growing sectors with an equally larger output. To keep up with this growth trajectory, it is important to lessen, rather eliminate the possibility of exploitation in this sector by means of strengthening the existing legal provisions and structuring newer ones if need be. Furthermore, intellectual property law provisions should be enhanced to protect content creation from exploitation. Censorship guidelines have to be reviewed and amended as per the need of the time. Online content, when charged, is neglected by the users, and thereupon is increasing the number of internet users having the access to unlicensed content. A behavioural change should be made at the fundamental level in the user’s attitude towards the pay-and-use system. As long as the exploited areas are taken care of with the needed upgradation in the legal provisions, we shall perhaps be in a better and sustainable position in the growth and development of the industry.
[iii] 1950 AIR 129, 1950 SCR 605
[v] (CS (OS) 276/2008)