PRECAUTIONS TO BE TAKEN WHILE MAKING AN AUDIO-VISUAL CONTENT- PART 2

In Part 1 of my post, I had covered the precautions to be taken while making an audio-visual content from trademark and copyright perspective which included registration of film titles, issues relating to trademark and passing off in audio-visual content, registration of script and precautions to be taken to avoid copyright infringement.

In this part, I shall be covering precautions to be taken from the perspective of other miscellaneous laws.

• USE OF NAMES AND EMBLEMS:

While using names and emblems as part of the audio-visual title or in relation to the business, care should be taken to ensure that none of the names and emblems fall within the restricted category provided under the Emblems and Names (Prevention of Improper Use) Act, 1950 and State Emblems of India (Prohibition of Improper use) Act, 2005

Emblems and Names (Prevention of Improper Use) Act, 1950 –

It is an Act to prevent the improper use of certain emblems and names for professional and commercial purposes.

Section 3 of the Act prohibits improper use of certain emblems and names as specified in the Schedule to the Act. The Section restricts any person from using for the purpose of any trade, business, calling or profession, or in the title of any patent, or in any trade mark or design, any name or emblem specified in the Schedule or, any colorable imitation thereof without the previous permission of the Central Government or of such officer of Government as may be authorized in this behalf by the Central Government.

Section 5 of the Act prescribes for penalty for contravention of Section 3 with fine, which may extend to five hundred rupees.

The Schedule includes names and emblems of United Nations Organization, WHO, Indian National Flag, the names “Ashoka Chakra” or “Dharma Chakra” or the pictorial representation of Ashoka Chakra as used in the India National Flag or in the official seal or emblem of the Government of India or of any State Government or of a Department of any such Government, etc.

State Emblems of India (Prohibition of Improper use) Act, 2005

This Act prohibits any person to use the state emblem of India or any colourable imitation thereof in any manner which tends to create an impression that it relates to the Government or that it is an official document of the Central Government, or as the case may be, the State Government, without the previous permission of the Central Government or of such officer of that Government as may be authorised by it in this behalf.
Further, the Act prohibits use of the emblem for the purpose of any trade, business, calling or profession or in the title of any patent, or in any trade mark or design, except in such cases and under such conditions as may be prescribed. The Act also restricts any competent authority from registering a trademark or design which bears the emblem or from grant patent in respect of an invention which bears a title containing the emblem.

The State Emblem of India is an adaptation from the Sarnath Lion Capital of Asoka which is preserved in the Sarnath Museum.

The motto “Satyameva Jayate” – Truth alone triumphs – written in Devanagari script below the profile of the Lion Capital is part of the State Emblem of India.

The audio-visual content should at all times be in compliance with the aforesaid Acts.

In the case of Manoranjan Santosh Roy v/s Mr. Aamir Khan & Ors, a Public Interest Litigation was filed before the Bombay High Court [ read order here], wherein the petitioner objected to the use of the logo ‘Satyamev Jayate’ in the program aired on Star TV and contended that the same was in contravention of the State Emblems of India (Prohibition of Improper Use) Act, 2005. The Petitioner further objected to the words ‘Satyamev Jayate’ being painted on the ‘Ashok Chakra’ in contravention of the Emblems and Names (Prevention of Improper use ) Act, 1950. However, the Bombay High Court dismissed the petition on the ground that the respondents had not made any pictorial representation of ‘Ashok Chakra’ nor had used the name of Ashok Chakra. The Court further agreed with the contention of the Respondents that the expression ‘Satyamev Jayate’ is publici juris and hence its use cannot be objected.

• PRODUCT PLACEMENTS:
While there are no specific laws in India governing product placements of goods/ services in audio-visual content analogous to FCC Rules and Communications Act in the USA or the OFCOM code in UK, which specify rules and regulations for product placement, certain goods/ services should not be shown in audio-visual content in India.

i) Tobacco: Section 5 of The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA) prohibits advertisement of cigarette and other tobacco products. Section 22 of COTPA prescribes penalty for contravention of Section 5 (a) in the case of first conviction, with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or with both, and (b) in the case of second or subsequent conviction with imprisonment for a term which may extend to five years and with fine which may extend to five thousand rupees. Rule 9 of Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004 (as amended in 2011) prohibits display of the brands of cigarettes or other tobacco products or any form of tobacco product placement; close- ups of tobacco products and tobacco products packages. Further, promotional materials and posters of films and television programmes should not depict any tobacco products or their usage in any form.

Recently some film and television makers faced legal issues due to advertising of tobacco products which can be viewed in articles here and here.

ii) Alcohol: Rule 7(2)(viii)(a) of the Cable Television Networks Rules, 1994 states that: “No advertisement shall be permitted which promotes directly or indirectly production, sale or consumption of cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants.
Provided that a product that uses a brand name or logo, which is also used for cigarettes, tobacco products, wine, alcohol, liquor, or other intoxicants, may be advertised on cable services subject to the following conditions that-

(i) the story board or visual of the advertisement must depict only the product being advertised and not the prohibited products in any form or manner;
(ii) the advertisement must not make any direct or indirect reference to prohibited products;
(iii) the advertisement must not contain any nuances or phrases promoting prohibited products;
(iv) the advertisement must not use particular colours and layout or presentations associated with prohibited products;
(v) the advertisement must not use situations typical for promotion of prohibited products when advertising the other products.

iii) Further professional services such as services of Chartered Accountants, Company Secretaries, Cost Accountants, Lawyers, Medical practitioners is not permitted to be advertised.

iv) The Transplantation of Human Organs Act, 1994 prohibits any advertising inviting persons to supply, offering to supply, any human organ for payment.

v) The Drugs and Magical Remedies (Objectionable Advertisements) Act, 1954 prohibits advertisement of magical remedies of diseases and disorders.

vi) The Prize Chits and Money Circulation Schemes (Banning) Act, 1978 prohibits advertisements relating to prize chit and money circulation schemes.

• ANIMAL WELFARE LAWS

The Prevention of Cruelty to Animals Act, 1960 makes provisions for setting up of the Animal Welfare Board of India to ensure that animal welfare laws in the country are diligently followed. The Board requires the following compliances for the use of animals in Films/Ad Films/TV Shows-

No Objection Certificate for Films/Ad Films in which performing animals are used:
Animal Welfare Board of India (‘AWBI’) screens application under Performing Animals Rules of Films / Ad Films for issuing No Objection Certificate for the films / ad films, in which performing animals are used in two stages.

All application forms can be obtained from the following link: http://awbi.org/?q=node/40

The procedure for obtaining the NOC from from AWBI for using Performing animals in films, ad-films, tele-serials etc can be viewed in the following link: http://awbi.org/awbi-pdf/simpleprocedures.pdf

Under the Cinematograph (Certification) Rules, 1983, Rule 21 (bb), a declaration is to be made by the producer that no cruelty is caused to any animals during the shooting of a film produced in India.

Similarly under the CBFC Guidelines 2 (iii) (c) framed by the Central Government under Section 5 B (2) of the Cinematograph Act, 1952, CBFC is required to ensure that scenes depicting the cruelty to or abuse of animals are not shown needlessly.

Case law: In a petition filed by People for Ethical Treatment of Animals (PETA) v Union of India & Ors [Writ Petition (PIL) (Lodging) No. 2490 of 2004] seeking directions for the use of animals in films, the Bombay High Court issued certain directions:
“In all cases where an applicant for certification of a film for public exhibition states that an animal has been used in the shooting of a film CBFC should require the production of a certificate from the Animal Welfare Board certifying that the provisions of the Performing Animals (Registration) Rules, 2001 have been adhered to. Such a certificate shall be filed with the application for certification of a film for public exhibition and, in any event, before the film is certified for public exhibition;
Animal Welfare Board shall expeditiously within a period of two weeks of the submission of an application containing all the necessary particulars, process all applications for the grant of certificates for certifying compliance with the Rules.
CBFC shall take steps to publish and/or circulate the aforesaid requirements in an appropriate manner to the concerned trade bodies.”

• USAGE OF NATIONAL FLAG AND NATIONAL ANTHEM

The Prevention of Insults to National Honour Act, 1971 is an Act to prevent insults to national honour.

Section 2 deals with insults to Indian National Flag and Constitution of India and provides as under–
Whoever in any public place or in any other place within public view burns, mutilates, defaces, defiles disfigures, destroys, tramples upon or otherwise brings into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof, shall be punished with imprisonment for a term which may extend, to three years, or with fine, or with both.
Explanation 1. – Comments expressing disapprobation or criticism of the Constitution or of the Indian National Flag or of any measures of the Government with a view to obtain an amendment of the Constitution of India or an alteration of the Indian National Flag by lawful means do not constitute all offence under this section.
Explanation 2. – The expression “Indian National Flag” includes any picture, painting, drawing or photograph or other visible representation of the Indian National Flag, or of any part or parts thereof, made of any substance, or represented oil any substance.
Explanation 3. – The expression “public place” means any place intended for use by, or accessible to, the public and includes any public conveyance.

Section 3. Prevention of singing of Indian National Anthem, etc.-
Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbance to any assembly engaged in such singing shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.

Flag Code:
Flag Code of India, 2002, has been divided into three parts. Part I of the Code contains general description of the National Flag. Part II of the Code is devoted to the display of the National Flag by members of public, private organizations, educational institutions, etc. Part III of the Code relates to display of the National Flag by Central and State governments and their organisations and agencies.

Thus, scenes involving national flag and national anthem should be in accordance with the aforementioned laws.

• CHILD PARTICIPATION

In the event the audio-visual content involves participation of child artist or minors, apart from seeking parental consent, the content of such project should also comply with ‘Guidelines to Regulate Child Participation in TV Serials, Reality Shows and Advertisements 2010-2011 issued by the National Commission for Protection of Child Rights (NCPCR) to safeguard the participation of children in an adult oriented industry. These Guidelines can be viewed here.

The Audio-visual content for television broadcast also need to comply with Program Code and Advertising Codes under Cable Television Network Rules, 1994 regarding children.

For instance, Rule 6 of the Cable Television Network Rules, 1994 provides:
No programme should be carried in the cable service which:-
(l) Denigrates children;
(4) Care should be taken to ensure that programmes meant for children do not contain any bad language or explicit scenes of violence.
(5) Programmes unsuitable for children must not be carried in the cable service at times when the largest numbers of children are viewing.

Depiction of pre-natal diagnosis (sex determination of an unborn child) is banned in India. Hence, it should not be shown in any form whatsoever.

Section 3 of The Child Labour (Prohibition and Regulation) Amendment Act, 2016 prohibits employment of children in any occupation and process.

Section 3 reads as under:
(1) No child shall be employed or permitted to work in any occupation or process.
(2) Nothing in sub-section (1) shall apply where the child— (a) helps his family or family enterprise, which is other than any hazardous occupations or processes set forth in the Schedule, after his school hours or during vacations;
(b) works as an artist in an audio-visual entertainment industry, including advertisement, films, television serials or any such other entertainment or sports activities except the circus, subject to such conditions and safety measures, as may be prescribed:
Provided that no such work under this clause shall effect the school education of the child.

Thus, it is of utmost importance that the provisions of the aforementioned Acts and Rules are adhered to while making an audio-visual content involving participation of children.

• INTERMEDIARY GUIDELINES, 2011–

Section 2 (w) of the IT Act, defines an intermediary with respect to any particular electronic records, as any person who on behalf of another person receives, stores or transmit that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web – hosting service providers, search engines, online payment sites, online – auction sites, online- market places and cyber cafes.

These guidelines put an obligation on the intermediary to exercise due diligence while discharging its duties. The intermediaries are required to publish the rules and regulations, privacy policy and user agreement for access or usage of the intermediary’s computer resource by any person and the same shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that:
a) belongs to another person and to which the user does not have any right to;
b) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
c) harms minors in any way;
d) infringes any patent, trademark, copyright or other proprietary rights;
e) violates any law for the time being in force;
f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
g) impersonates another person;
h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;
i) threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.

Thus, for audio-visual content which is shown on digital platforms, care should be taken that the Intermediary Guidelines are adhered to.

• CONTENT REGULATION:
With the rising number of content-based litigations, content makers should be mindful of the fact that in India certain content may have penal implications. Some of the applicable provisions with respect to content regulation are provided below:

Indian Penal Code, 1860:

• Section 292 – provides for imprisonment between two to five years and fine of two thousand to five thousand rupees for sale or distribution of obscene literary works.
• Section 293– provides for imprisonment between three to seven years and fine between two thousand to five thousand rupees for sale, distribution, circulation to any person under the age of twenty years any obscene object as mentioned in Section 292.
• Section 294– provides for punishment with imprisonment for a term which may extend to three months or with fine or both for anyone who to the annoyance of others does any obscene act in public place or sings, recites or utters any obscene song, ballad or words, in or near any public place.
• Section 295A– provides for punishment with imprisonment upto three years or fine or both to anyone who with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class.
  The number of cases under Section 295A have been on a rise in India. My post on ‘IPRMENT HIGHLIGHTS 2017’ covers a list of such cases which took place in 2017 under the heading ‘HURTING RELIGIOUS (& OTHER) SENTIMENTS’. –
• Section 298 provides for imprisonment upto one year or with fine or both to anyone who with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places, any object in the sight of that person.
• Section 500- provides for punishment with imprisonment for a term upto two years or with fine or both to anyone who defames another
• Section 509 provides for punishment with simple imprisonment upto one year or fine or both to anyone intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman.

The Indecent Representation of Women (Prohibition) Act, 1986

Section 3 of the Act provides for prohibition of advertisements containing indecent representation of women.

Section 4 provides for prohibition of publication or sending by post of books, pamphlets, etc., containing indecent representation of women.

Section 6 prescribes penalty for person who contravenes the provisions of section 3 or section 4 shall be punishable on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and in the event of a second or subsequent conviction with imprisonment for a term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lakh rupees.

The Arms Rules, 2016
The Arms Rules, 2016 which supersedes the Arms Rules, 1962 contain certain provisions which specifically address the procurement of a licenses for arms and ammunitions to be used in cinematographic productions.

Rule 8 of the 2016 Rules expressly allows the possession of arms and ammunitions for inter alia, theatrical performance, historical re-enactment, cinematograph or television production only, provided such use does not involve manufacture of any arms or ammunition (including explosives and fireworks).

Further Rule 42 states that a licence for acquisition, possession, carrying or use of arms and ammunition may be issued in Form III to applicants for the following purposes, namely :
(i) theatrical performances and of rehearsals for such performances;
(ii) in the production of films;
(iii) in the production of television programmes;
(iv) the organisation and holding of historical re-enactments;
(v) signaling for starting races or athletic meets.

The application for a licence under Rule 42 would have to be submitted along with the following documents/details, namely:
(i) an undertaking confirming that the applicant shall not resort to conversion of firearms replica and blank firing firearms into firearms;
(ii) proof to the satisfaction of the licensing authority that the applicant is an actual user or a contractor for providing such arms or ammunition on hire for theatrical performances, in the production of films / television programmes, the organisation and holding of historical re-enactments;
(iii) description of security measures pertaining to safe custody of arms or ammunition to be implemented by the applicant;
(iv) an undertaking that the applicant or the person to whom the arms are given on hire, shall not use live ammunition;
(v) details of the place where the records in respect of the issuance of arms or ammunition will be kept for inspection by the licensing authority or by any Police Officer not below the rank of an Inspector.

SELF REGULATORY GUIDELINES OF IBF-

The Indian Broadcasting Foundation (IBF) was established in 1999 to promote the interests of the Indian television industry. IBF has approved ‘Self Regulatory Guidelines Redressal Mechanism’ for all non-news channels, including general entertainment, children, special interest channels irrespective of the medium/platform of transmission. Under the Guidelines, a content categorisation system is provided which prescribes detailed guidelines in respect of the subjects such as crime and violence, sex, obscenity and nudity, horror and occult, drugs, smoking, tobacco, solvents and alcohol, religion and community, harm and offence and general restrictions which are to be adhered to. The Guidelines deal with the Programme Classification System and specifically provide that the category, Generally Accessible (G), i.e. programmes which are suitable for unrestricted viewing by all viewers and/or under Parental Guidance, can be scheduled for telecast at all times. Only such content which falls under the category, Restricted Access (R), i.e. programmes which may not be suitable for children and young viewers, should be scheduled between 11 pm to 5 am.

These Guidelines should be adhered to for all television programmes.

APPROVALS/ CLEARANCES REQUIRED BY FOREIGN FILM MAKERS FOR SHOOTING IN INDIA:

The Ministry of Information and Broadcasting has provided for a step by step guide for clearances required by foreign film makers for shooting in India. These can be viewed at the following link: http://mib.gov.in/sites/default/files/flm1.pdf.

Firstly, the producer intending to shoot a film in India needs to apply for an approval in his/her own country at the Indian Embassy.

After getting an approval from the Indian Embassy in the respective country, approval from various ministries and/or departments may also be required.

For instance:
• Approval from the Ministry of Environment and Forest,  in case of film shooting for wild life in jungles and then from the state forest department.
• Approval from the Archaeological Survey of India (ASI)/ state government archaeological department in case of film shootings at monuments which are controlled by the ASI.
• Approval from the Ministry of Railway needs to be sought if the shooting is done at the Railway Station or the producer is hiring a train for film shooting and then obtain a State Railway Zone.
• Approval from the Ministry of Civil Aviation and the Ministry of Defense for the purposes of aerial photography.

OTHER PRECAUTIONS:

• Disclaimers– adequate disclaimers should be given at the beginning of the programme/ film to the extent possible covering issues which may be deemed controversial or invite objections. For instance, ‘The film is a work of fiction/ hybrid of fact and fiction. Resemblance to any character living or dead is purely co-incidental. The Film does not intend to hurt the sentiments of any caste, community, race, gender, etc.’
• Permissions/ NOC from real life characters– If the project is based on any real-life personalities, then adequate rights should be obtained from such persons or their legal heirs. Please refer to the section on ‘Contract Gyan’- Life Rights Agreement
• Protection of right to privacy– Right to privacy is a fundamental right under the Constitution. Care must be taken that the right to privacy of any individual is not violated by the audio-visual content.
• Adherence to Cable Television Network Regulation Act and Rules particularly Programme Code and Advertising Code , Cinematograph Act and Rules, Information Technology Act and Rules, Self Regulation Guidelines of the IBF and other content regulations as may be applicable depending on the platform on which the content is exploited.
• Adequate anti-smoking and anti-tobacco disclaimers should be given where the content involves tobacco use. Scenes glorifying alcohol should not be shown.
• Content creators should refrain from making any direct slanderous, inflammatory or derogatory remarks on any individual/ entity.
• Care should be taken that the content does not hurt the religious sentiments of any group. For instance, there have been several cases under Section 295-A of the IPC, where remarks have been made by characters against Maharishi Valmiki (referring him to turn into a saint from a dacoit) or where fun has been poked at any deity or disrespect shown to any god/ goddess.
• Where content is based on historical or mythological events, authentic sources should be used and reference of the same should be given.

Currently the internet space in India is unregulated, television space self regulated and feature film space completely regulated. However, with the advent of numerous digital streaming platforms in India, it is likely that the digital sector may soon be subject to some form of regulation. It would therefore be prudent for all content creators to abide by the relevant laws governing public policy in India.

P.S. The list of precautions is only illustrative and not exhaustive.