Laws pertaining to the film industry differ from other legal subjects, mainly due to the special economic considerations and business practices that influence their development. An important feature of entertainment law is the drafting of diverse entertainment contracts, which primarily deal with artistic control, credit or billing, compensation of artists and the protection and conveyance of intellectual property rights, such as copyrights, performer's rights, trademarks and right to publicity. This Chapter provides a broad overview of the Indian and American legal issues of the two film industries.

Overview of Indian Law

The Ministry of Information and Broadcasting ("MIB") is the apex Indian body that formulates and administers rules, regulations and laws regarding Indian films. The import and export of films along with the development and promotion of the film industry falls within the MIB's mandate. The Film Wing of the MIB consists of, amongst others, the Central Board of Film Certification ("CBFC"), the National Film Development Corporation ("NFDC"), Films Division, and the National Films Archives of India ("NFAI").

Over the years, there have been several pieces of legislation aimed at providing a regulatory framework for the Indian film industry, both at the Central and State government levels. While some of the most important legal provisions affecting this industry are covered under the Cinematograph Act, 1952 and the Copyright Act, (1957), there is a diverse set of other laws that play a great role in the effective functioning of the industry.

(a) Film Certification

The Cinematograph Act, 1952 ("Act")¹⁴⁶ lays down provisions for the certification of cinematograph¹⁴⁷ films for exhibition and for regulating exhibition by means of cinematograph.

(i) Censor Board
For the purposes of sanctioning a certificate to a film for public exhibition, the Central Government has set up the CBFC¹⁴⁸ (commonly known as the Censor Board). Any person who wants to obtain a certificate for a film must make an application to the Censor Board. The Censor Board, upon examination of the application, may sanction the film in a restricted or unrestricted manner, or may not sanction the film at all.¹⁴⁹

Furthermore, the Censor Board may also not certify the film if in its opinion, the film or any part of the film, does not comply with the rules set out in the Act.¹⁵⁰

However, a film may be certified subject to the removal of certain objectionable portions of the film. In such a case, the applicant would need to make a written declaration to the Censor Board stating that the objected portion or portions have been excised from the negative of the film and from all copies thereof.¹⁵¹ The applicant can file an appeal within 30 days of the order of the Censor Board granting or refusing the certificate.¹⁵² Once the film is certified, any changes in the film by means of excision, addition, coloring or otherwise have to be notified to the Censor Board, and a fresh certificate needs to be obtained if necessary.¹⁵³

(ii) Suspension of Film Certificate
The Central Government may also suspend or revoke a certificate granted to the film if it feels that the film is being exhibited in a form other than the one in which it was certified or that the film is being exhibited in contravention of the provisions of the Act or rules framed thereunder.¹⁵⁴

(iii) Penalty Provisions
Provisions are also made under the Act for punishments in cases of violation.¹⁵⁵ Exhibition of films in violation of the certificate by the Censor Board is an offense, and the concerned person is liable to be punished.¹⁵⁶ Additionally, the Act also regulates the exhibition of films on video-cassettes. Any video copy of a cinematograph film or otherwise which is not certified by the Censor Board cannot be exhibited for public viewing. Such exhibition becomes an offense and the concerned party can be penalized under this Act.¹⁵⁷

Issue 1: Whether censorship of films is required in this era of globalization.

The reason for censorship probably lies in India's colonial roots, when the British colonizers wanted cinema to further their colonial policies and preserve their prestige.¹⁵⁸ Constance Bromley, former secretary and manager of the Opera House, a premier film theater in Calcutta, even wrote an inflammatory newspaper article in England about Indian films imperiling the prestige of white women. After independence, British restrictions were replaced by the popularity of communism and socialism and the desire to maintain a nationalistic distinction between Western and Indian film art.

The Supreme Court in a judgment had said that film censorship becomes necessary because a film motivates thought and action and assures a high degree of attention and retention of the sight and sound in the semi-darkness of the theatre with elimination of all distracting ideas. This would have a strong impact on the minds of the viewers and can affect emotions.¹⁵⁹ The Supreme Court has also held that censorship of films, including prior restraint, is justified under the Constitution of India.¹⁶⁰

However, the issue that needs to be addressed is whether a Censor Board is required at all. World over, the censors are relaxing restrictions. Hollywood's production code was abandoned in 1968 when films were granted free speech and expression under the First Amendment. The code was replaced by the age-based rating that still exists today. Similarly, the British Board of Film Classification recently relaxed its restrictions on 18-rated films.¹⁶¹ Critics suggest that censorship is inherently coercive and limits artistic and political expression in Indian cinema.¹⁶² Thus, imposing stringent restrictions on film content could pose issues for globalization of the Indian film industry.