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Tuesday, November 30, 2010

CBFC Certification Mandatory : Delhi High Court

Justice Muralidhar
The Delhi High Court has held that manufacturers, distributors or sellers of cinematograph films, will first submit the DVDs/ VCDs to the Central Board For Film Certification (CBFC) for certification and this rule will apply prospectively and not to the films which have already been produced. 

Thirty six petitioners, including T-series, who are producers, manufacturers, and sellers, and also replicators for music companies holding copyright in audio-visual materials, including devotional and religious songs in many regional languages, approached the court seeking to quash CBI cases against them for selling songs recorded on video compact discs (VCDs) and digital video discs (DVDs), without having CBFC certification. 

The VCDs and DVDs were labeled 'only for private viewing' and does not come under the CBFC certification, the petitioners contended. 

Justice S Muralidhar in his order passed yesterday said, 'Petitioners before this Court who are manufacturers and/or distributors or sellers of cinematograph films, each of them will adhere to the law as explained in this judgment and any film which is hereafter made by them will, before being sold or offered for sale or distributed by them to the public in DVD, VCD or any electronic or other format, be first submitted to the CBFC for certification. It is for the CBFC to decide whether it wants to increase its machinery to ensure that such certification takes place expeditiously. 

It is also for the Union Of India (UOI) to decide whether a film containing only religious or devotional material would require to be exempted from certification under Section 9 of the CG (Cinematograph Act, 1952) and on what terms, the court held. 

The court allowed the CBI to proceed with the prosecutions already launched in accordance with law and warned that the present judgment will apply prospectively and will not be used by the CBI to register any fresh cases in respect of the films already produced and offered for sale or distributed to public by any of the Petitioners, the court held. 

The CBI and the law enforcement machinery of the GNCTD will be free to proceed against any of the petitioners if they act hereafter in contravention of the law, the court added. 

The case pertains to 36 writ petitions filed in 2007 after raids were conducted by the police on the shops from where DVDs and VCDs similar to the ones being manufactured and sold by the petitioners were seized and prosecution launched against several persons for violation of Section 52A(2)(a) of the Copyright Act, 1957 (CR Act). 

The contention of the petitioners is that since they are themselves the manufacturers and sellers and, therefore, the holders of the copyright in respect of the material in these DVDs and VCDs, they were not required to obtain certification under Section 5-A of the CG Act, and consequently they cannot be prosecuted under Section 52A(2)(a) of the CR Act. 

The prayers in these writ petitions, filed in 2007 were more or less of a declaratory nature seeking that their films sought to be sold in the form of DVDs and VCDs and which are meant for private viewing do not require certification by the CBFC under Section 5-A CG Act, the court observed, and said such a declaration is sought with a view to avoiding prosecution under the CR Act.

The Court concluded as under;

62. The upshot of the above discussion is that: (a) Once a film is made or produced in a DVD or VCD or any other format and is made available or distributed to the public or offered for sale to the public, it will amount to publication of such film within the meaning of Section 52A(2)(a) of the CR Act.
(b) In the context of the present petitions, at the point where a member of the public, to whom the Petitioners films on DVD or VCD is made W.P.(C) No. 2543 of 2007 & batch Page 52 of 56 available, plays it on an equipment and views such film, whether in the confines of a private space or otherwise, prior certification of that film in terms of Section 5-A CG Act would become necessary, since for the purposes of Section 52A(2) of the CR Act the film is exhibited at that point.
(c) The maker or the distributor of a film made available to the public by sale or otherwise is expected to anticipate the exhibition of such film by such member of the public subsequently and to ensure therefore that the film bears a certificate under Section 5-A CG Act. (d) Whether such film, if it contains purely religious or devotional songs, should be exempted from the certification is a matter for the Government of India to take a decision on in exercise of its powers under Section 9 CG Act. However, absent such exemption under Section 9 CG Act, it must be held that the films being produced and manufactured by the Petitioners, even if they contain purely religious or devotional songs as claimed by them, would require prior certification by the CBFC under Section 5-A CG Act. The absence of such certificate in the film itself when it is exhibited will attract the violation of Section 52A(2)(a) CR Act.
Find the entire Judgment here

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