Copyright is an exclusive legal right vested in the owner of a work which maybe an artistic, literary, dramatic, musical, cinematograph piece or any other. It’s a unique Intellectual Property Right as it protects one’s work without registration, and is born from the point of creation. Hence, registration though advisable, is not compulsory. Though it’s easier to prove ownership and the date of creation of a registered work. The need to prove the same arises the moment there is an allegation of infringement, which occurs when a person uses another’s work without his authorisation. The offence of copyright infringement is provided under Section 63 of the Copyright Act, 1957. However, there is no clarity about whether this a cognizable offence or a non-cognizable offence. This article aims to shed light on this issue and classify the offence as per judicial pronouncements.
Key Words: Copyright infringement, First schedule, Criminal procedure code, non-cognizable, bailable
There is an ongoing debate on whether Section 63 of the Copyright Act, 1957 establishes a cognizable and non-bailable offence or vice versa. The Section lays down the punishment for the offence of copyright infringement. Various High Courts have pronounced varied decisions on this issue. Some have determined that the offence under this Section is cognizable whereas the others have made determinations to the contrary.
In this regard, Courts have continually attempted to interpret the First Schedule, of the Criminal Procedure Code (CrPC). It lays down three categories into which offences are classified according to their punishment. Despite multiple decisions on this controversy, some ambiguity still exists.
Section 63, titled as the “offence of infringement of Copyright or other rights conferred in this Act, states that a person who knowingly infringes or abets the infringement of (a) the copyright in a work or (b) any other right conferred under the act would be held punishable.” The punishment thus laid under the act is that of “imprisonment for a term which shall not be less than 6 months but may extend up to three years and with fine which shall not be less than fifty thousand rupees but may extend up to two lakh rupees.”
To understand the position of the offence under Sector 63 of the Act, it is essential to first examine the three categories under the First Schedule of the CrPC:
- The first category consists of offences that are “punishable with death, imprisonment for life, or imprisonment for 7 years. These are cognizable and non-bailable offences.”
- The second category consists of the offences that are “punishable with imprisonment of 3 years and upwards but not more than 7 years. These are cognizable and non-bailable offences.”
- The third category consists of offences that are “punishable with imprisonment for not less than 3 years or with fine only. These are non-cognizable and bailable offences.”
The point of tussle between the decisions of the various High Courts remains the classification of the offence and whether it would fall under the second category or the third.
The Timeline of Cases:
- Cases holding the offence of copyright infringement to be cognizable-
The first case that was decided on this classification was that of Jitendra Prasad v. State of Assam, 2004. The Court held that the offence under Section 63 would fall under the second category of offences as per the First Schedule. The reasoning behind their judgment was based on the punishment prescribed under the Section. They held that since the Section awards imprisonment of up to 3 years, it would definitely be covered under the second category and hence be a non-bailable offence.
The next decision in this regard was pronounced in the case of Abdul Sathar v. Nodal Officer,Anti-Piracy Cellpronounced by the Kerala High Court, 2007. The question before the Court was whether the offence of copyright infringement under Section 63 is a cognizable one or not? Following the footsteps of the previous decision, the Court in this case also started by interpreting the First schedule of the CrPC. It was held that the punishment prescribed for the offence of copyright infringement is provided as “imprisonment for a period of 3 years” which is why it would fall under the second category of offences.
- Cases holding the offence of copyright infringement to be non-cognizable-
The first case pronounced under this facet was delivered by the High Court of Andhra Pradesh in the case of Amarnath Vyas v. State of Andhra Pradesh, 2007. This High Court’s decision was conflicting from that of the High Courts in Assam and Kerala in the previously mentioned cases. It was held that the offence under Section 63 would be non-cognizable and bailable as it would be covered under the third category of offences. The Court pronounced this decision by relying on the judgment delivered by the Apex Court in the case of Rajeev Chaudhary v. State (NCT of Delhi). In aforementioned case, the Supreme Court held that the expression –imprisonment “for a term that may extend to 10 years” could not be equated with- imprisonment “for a term of not less than 10 years”. In the former, 10 years could be the maximum punishment awarded to someone guilty of that offence, however, in the latter, 10 years is the minimum punishment that could be awarded.
The next case in the timeline is the case of State Govt. of N.C.T of Delhi v. Naresh Kumar Gargdecided by the Delhi High Court in 2013. While deciding the case, the Court relied on the judgment of the Apex Court in the case of Avinash Bhosle v. Union of Indiawhere Section 135 (1)(ii) of the Customs Act, 1962 was under interpretation. The impugned Section provides the term of punishment as “imprisonment for a period which may extend to three years or fine or both”. The Court held the offence to be bailable as it was covered under the third category and not the second. The Delhi High Court drew a parallel between the term of punishment provided under Section 135(1)(ii) of the Customs Act and that as provided under Section 63 of the Copyright Act. This is because both prescribe a similar term of punishment that is imprisonment which may extend to three years which is why the rationale applied by the Supreme Court would hold well even in the present case. The Court also recognised that had the offence been cognizable there wouldn’t have been the need for Section 64 which explicitly gives Police the power to seize infringing copies (if any).
The most recent case on this controversy is the case of Deshraj v. State of Rajasthan, 2017. The High Court followed the decisions pronounced in the cases of Amarnath Vyasand Naresh Kumarwhere the Courts followed the rationale of the Supreme Court in the cases of Rajeev Chaudharyand AvinashBhosle. The Court recognised that some offences may not completely fall under either the second or third category but that doesn’t imply that the offence would be taken under the second category by default. The offences would have to be interpreted individually first. Therefore, the Court held that since the phrases “imprisonment may extend to 3 years” and “imprisonment of 3 years and upwards” cannot be equated, they are not the same. The Court thereby quashed the FIR that took cognizance against the petitioner.
After reading the plethora of cases pronounced regarding this issue, it is clear by the latest judgments that the offence of copyright infringement has been held to be non-cognizable and bailable. The Supreme Court may not have pronounced a decision on this particular issue, but it has heard matters on similar controversies and their rationale in such decisions have guided the High Courts in the current matter.
In light of the above analysis, it can be concluded that according to the interpretation of the First schedule, Part II of the CrPC, the offence under S. 63 would fall under the third category of offences. However, it is imperative to understand that in case of copyright infringement if the police spend time to obtain an arrest warrant against the infringer, the owner may suffer a lot of damage by then. This is because, in offences pertaining to copyright infringement time is of the essence; and lack a deistical treatment by state authorities would lead to considerable damage to the owner. Therefore, determining the offence to be non-cognizable would be of serious detriment of the owner of a copyright. However, for that to change there must be some modification in the wordings of the punishment prescribed under Section 63. Without definitive legislative wording in this regard, Courts would have to keep considering the offence to be non-cognizable in nature.
To understand the importance of recognizing copyright infringement as a cognizable offence we need to first look at a hypothetical example. Artwork can be protected as a copyright but if it’s not registered (which is the case with most drawings of an artist) it becomes difficult to prove ownership and hence difficult to protect. There can be a scenario wherein a person draws a unique abstract design and uploads it on his social media account (which is becoming very prevalent these days). Since he posted it on a public domain, anyone can copy it which would be okay as long as it is not being used commercially. However, what if a person uses the drawing and gets it printed on t-shirts and starts selling those t-shirts online? Even if the owner of the drawing comes across the platform, he will have to approach the police and they’ll have to seek a warrant to arrest the infringing party. Till the time the person is arrested and restrained from using the drawing, the owner would have suffered huge losses. Anyone who purchased the t-shirts would believe the design to be that of the infringer and he would take all the credit that is rightfully the owner’s, especially under his moral rights. Therefore, it’s not only a question about monetary losses but also one’s rightful moral rights.
More importantly, it should be seen as a cognizable offence to set a deterrent for the public. People have a very relaxed attitude towards offences that come under the category of non-cognizable offences as opposed to those that are cognizable. This has been the driver of the rampant copyright infringement that one sees online, especially in social media, today. Therefore, to prevent the continuation of such practices, it is critical to determine this offence to be cognizable in nature.
Author: Ambika Chaudhary
ALL INDIA LEGAL FORUM