Copyright Infringement – The Conundrum Of Cognizability

Author: Dishti Titus

Introduction

Copyright is a legal right provided to creators (authors) of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. It is a bundle of rights that includes, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work.[1]

Authors invest time and money in creating works which they also exploit for gain. There also exist people who without authorization misappropriate this work for their own personal gain causes losses to the authors.

Copyright protection ensures certain safeguards to the creators in respect of their works which not only safeguards their rights as against others but also helps foster creativity which is beneficial for the economic and social development of a society. Without protection, incentive to create works is lost. Such protection that penalizes also act as a deterrent to unscrupulous activities.

Relevant Provisions

In India, copyrights are governed by the Copyright Act, 1957 (“the Act”). The Act provides for civil remedies such as injunctions, damages, rendition of accounts, delivery, etc. as well as criminal remedies (such as imprisonment, fines, etc.) for the offence of copyright infringement.

Copyright infringement as a criminal offence has been provided for in Section 63 of the Act which states –

“63. Offence of infringement of copyright or other rights conferred by this Act.— Any person who knowingly infringes or abets the infringement of— (a) the copyright in a work, or (b) any other right conferred by this Act 1 [except the right conferred by section 53A], 2 [shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees]: Provided that 1 [where the infringement has not been made for gain in the course of trade or business] the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.] (emphasis added).

…”

The Code of Criminal Procedure, 1973 (“the Code”), the governing legislation for procedure for criminal trials, divides the spectrum of possible punishments for offences against other laws into three categories. On the basis of these categories, such offences are classified into two categories–

1. Cognizable – here a police officer has the power to make an arrest without a warrant and may also commence a preliminary investigation without the permission of a court; and

1. Non- Cognizable – for such offences a warrant is necessitated for a police officer to make an arrest and he/she may not commence an investigation without permission of the court.

The categories as identified by the Code is as follows:

The conundrum of whether the offence of copyright infringement as provided by Section 63 of the Act is cognizable or not has been a long standing one. The issue of classification has arisen owing to the lack of the offence of copyright infringement (as provided under Section 63 of the Act) squarely falling in any of the three categories as laid down by the Code. The point of debate is whether the offence falls within the second category or the third.

Judicial Trends of various Courts in Classification of the Offence

There have been oscillating views on the classification of the offence of copyright infringement by different courts. While some courts have identified this offence as cognizable others have pegged it as non-cognizable.

In Abdul Sathar v. Nodal Officer, Anti-Piracy Cell, Kerala Crime Branch Office & Anr. [AIR 2007 Ker 212], a Single Judge Bench (R. Basant, J.) of the High Court  of Kerala took a similar view as Jithendra Prasad Singh v. State of Assam [2003 (26) PTC 486 (Gau)], and observed that the language of the provisions of Section 63 of the Act and the language of categories in Part II of the First Schedule of the Code clearly point to the conclusion that offences under the said Section 63 which are punishable with  imprisonment for a period of three years and with a fine, the same would fall within second category of offences. Thus, classifying them as cognizable & non-bailable.

In Amarnath Vyas v. State of Andhra Pradesh [2007 Cri LJ 2025], a Single Judge Bench (T. Ch. Surya Rao, J.) ofthe High Court of Andhra Pradesh in its order of December 2006, relying on the judgement of the Supreme Court of India in Rajeev Chaudhry v. State (NCT of Delhi) [AIR 2001 SC 2369], observed “…there has been no provision in the Act which makes offence clearly a ‘non-bailable’ …The expression “punishment for a term which may extend to three years” is certainly not similar to the expression “punishment for three years and upwards” and accordingly classified the offence under Section 63 of the Act as bailable and non-cognizable as it would be covered by the third category of offences.

In State Govt. of NCT of Delhi v. Naresh Kumar Garg[2013 (56) PTC 282 (Del)], a Single Bench (G.P. Mittal, J.) of the High Court of Delhi in March 2013, noted “In Avinash Bhosale v. Union of India, (2007) 14 SCC 325 the Supreme Court held that an offence punishable under Section 135 (1)(ii) of the Customs Act, 1962 (Act of 1962) would be bailable… the interpretation (of the Supreme Court in Avinash Bhosale) of the term imprisonment which may extend to three years or with fine or with both which is for an offence under Section 135(1)(ii) of the Act of 1962 will fully apply in case under Section 63 of the Act”. The Delhi High Court also stated “It would be fruitful to refer to the provision of Section 64 of the Act which empowers a police officer not below the rank of Sub-Inspector to seize the infringing copies of any work. If the offence had been cognizable and non-bailable, there was no necessity to specifically authorize the police officer with the power of seizure.”

Accordingly, applying the interpretation of the Supreme Court of India in Avinash Bhosale and the relevance of Section 64 of the Act, the offence of copyright infringement under Section 63 of the Act was recognized as non-cognizable and bailable. 

In Gurukrupa Mech Tech Pvt Ltd v. State of Gujarat and Ors [(2018) 4 GLR 3324], a Single Judge Bench (J.B. Pardiwala, J.) of the High Court of Gujarat in its order of August 2018, while discussing the decision in State of Andhra Pradesh v. Nagoti Venkataramana [(1996) 6 SCC 409] stated, “The important observations of the Supreme Court are that it is unnecessary for the prosecution to track on and trace out the owner of the copyright to come and adduce evidence of infringement of copyright. The absence thereof does not constitute lack of essential element of infringement of copyright. The observations of the Supreme Court gives a clear indication that the infringement of copyright is a cognizable offence and that the police must show a great deal of tolerance in collection of the evidence.” (emphasis added)

Recently in November 2019, in Anurag Sanghi v. State and Ors. [2020 II AD (Delhi) 314], a Single Judge Bench (Vibhu Bakhru, J.) of the  High Court of Delhi while relying upon the Supreme Court of India’s decision in Bhupinder Singh and Ors v. Jarnail Singh and Anr [AIR 2006 SC 2622] held “… the Supreme Court’s interpretation of the word “punishable” as explained in Bhupinder Singh (supra) is instructive and there is no cavil with the said view. Thus, in cases where an offence is punishable by a term of imprisonment that may extend to a specified period, the maximum term of sentence that can be imposed must be considered for the purposes of classification of the offences for the purposes of Part II of the First Schedule of the Cr.P.C. By applying the aforesaid rationale, there can be no doubt that the offence under Section 63 of Copyright Act would be a cognizable offence …” (emphasis added)

However, in view of the decisions in the aforementioned cases of Avinash Bhosale and Naresh Kumar Garg the single Judge allowed the petition claiming the offence under Section 63 of the Act to be non-cognizable while noting “although, in Avinash Bhosale (supra), the Supreme Court has not indicated any reasons for its conclusion/observation; … its decision is binding on this Court”.

In April 2020,a Single Judge Bench (Sandeep Mehta, J.) of the High Court of Rajasthan in Nathu Ram v. State of Rajasthan [SB Criminal Misc(Pet.) No. 5128/2019], opined that its previous decision in Pintu Dey v. State of Rajasthan & Anr. [2015(3) Cr.L.R. (Raj.) 1291] recognizing copyright infringement as non-bailable did not appear to be lawing down a correct proposition of law. Accordingly, the Court held “Therefore, the following question of law is framed and shall be placed before Hon’ble the Chief Justice for resolution thereof by the Larger Bench:

“What would be the nature of an offence (whether cognizable or non-cognizable) for which imprisonment “may extend to three years” is provided and no stipulation is made in the statute regarding it being cognizable/non-cognizable ?”

Conclusion

In today’s day and age where copyright infringement is rampant, it is imperative that the current catch 22 nature of classification of copyright infringement as cognizable and non-cognizable by different courts by brought to finality.

On one hand, determination of the offence as cognizable and non-bailable may cause panic and fear and consequently stifle creativity and expression owing to the harsher procedure as opposed to non-cognizable offences. There would be a constant fear of work being rendered as infringing. Furthermore, if deemed cognizable, parties may misuse the same for causing obstruction and hindrance in another’s business activities and also give unrestrained power to police officials. Bigger companies may also use this to dominate and remove smaller players from the market.

On the other hand, classification as cognizable may also be the needed harshness to act as a deterrent and dissuade unscrupulous activities by parties thereby reducing the current alarming rate of copyright infringement activities. 

For now, Courts continue to take dissenting views on the matter. It is to be seen when the Judiciary will resolve the inconsistent positions on the issue.

[1] Read more at: <https://copyright.gov.in/Documents/handbook.html>  

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP.