COPY RIGHT INFRINGEMENT IS A COGNIZABLE AND NON BAILABLE OFFENCE

[Mr. M. GOVINDARAJAN]

Introduction

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending on the work.

Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. Creativity being the keystone of progress, no civilized society can afford to ignore the basic requirement of encouraging the same. Economic and social development of a society is dependent on creativity. The protection provided by copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create.

Copy right infringements

Section 51 of the Act provides that the following are some of the commonly known acts involving infringement of copyright-

• making infringing copies for sale or hire or selling or letting them for hire;
• permitting any place for the performance of works in public where such performance constitutes infringement of copyright;
• distributing infringing copies for the purpose of trade or to such an extent so as to affect prejudicially the interest of the owner of copyright ;
• public exhibition of infringing copies by way of trade; and
• importation of infringing copies into India.

Infringement – criminal?

Section 63 of the Act provides that any person who knowingly infringes or abets the infringement of-

• the copyright in a work, or
• any other right conferred by this Act except the right conferred by section 53A,

shall be punishable with imprisonment for a term which shall not be less than 6 months but which may extend to 3years and with fine which shall not be less than Rs.50,000/- but which may extend to Rs. 2 lakhs.  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 6 months or a fine of less than Rs.50,000/-.

The explanation to this section provides that construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section.

Section 63A provides that whoever having already been convicted of an offence under section 63 is again convicted of any such offence shall be punishable for the second and for every subsequent offence, with imprisonment for a term which shall not be less than 1 year but which may extend to 3 years and with fine which shall not be less than Re.1 lakh but which may extend to Rs.2 lakhs.  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 one year or a fine of less than Rs.1,00,000/-.

Power of seizure

Section 64 of the Act provides that any police officer, not below the rank of a sub-inspector, may, if he is satisfied that an offence under section 63 in respect of the infringement of copyright in any work has been, is being, or is likely to be, committed, seize without warrant, all copies of the work, and all the plates used for the purposes of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable be produced before a Magistrate.  Any person having an interest in any copies of a work, or plates seized may, within fifteen days of such seizure, make an application to the Magistrate for such copies, or plates being restored to him and the Magistrate, after hearing the applicant and the complainant and making such further inquiry as may be necessary, shall make such order on the application as he may deem fit.

Offence  - cognizable offence?

The issued to be discussed in this article is whether the offences under the Copyright Act are cognizable and non bailable offence.

The Supreme Court in M/S KNIT PRO INTERNATIONAL VERSUS THE STATE OF NCT OF DELHI & ANR. [2022 (5) TMI 979 - SUPREME COURT]  held that the offences under the Copyright Act are cognizable and non bailable offences. 

In the above case the appellant filed an application under section 156(3) of the Criminal Procedure Code.  The application has been filed before the Chief Metropolitan Magistrate.  The application sought directions of the Court for the registration of First Information Report (FIR)  against the respondent No. 2 under sections 51, 63 and 64 of the Copyright Act read with Section  420 of the Indian Penal Code.  The application of the appellant was allowed by the Court and directed the concerned SHO to register the FIR under the appropriate provision of law. 

The FIR was registered according to the orders of the Court.  The respondent no. 2 filed a writ petition before the High Court with the prayer to quash the FIR.  The respondent No.2 contended before the High Court that the offence under Section 63 of the Copyright Act is not a cognizable and non bailable offence.  The High Court allowed the writ petition by quashing the criminal proceedings and order passed by the Chief Metropolitan Magistrate. 

Against the order of High Court the appellant filed the present appeal before the Supreme Court.   The appellant submitted the following before the Supreme Court-

• The High Court has committed a grave error in observing and holding that the offence punishable under Section 63 of the Copyright Act is a non cognizable offence and it does not fall within Part II of the First Schedule of the Cr.PC.
• The High Court has not properly appreciated the decision of this Court in the case of Rakesh Kumar Paul Versus State of Assam - 2017 (8) TMI 1526 - Supreme Court and has misinterpreted the said judgment.
• The maximum term of imprisonment that is prescribed for the said offence, cannot be excluded for the purpose of classification of the offence.
• For the offences under Section 63 of the Copyright Act, the punishment shall be imprisonment for a term which shall not be less than 6 months but which may extend to 3 years.
• The punishment of three years can be imposed for the said offence.  Therefore that Part II of the First Schedule of the Cr.P.C. would be applicable.
• Only in a case where the offence punishable with imprisonment for less than 3 years or with fine only offence shall be non cognizable.
• Therefore the High Court has committed a grave error in quashing the FIR while holding that the offence under Section 63 of the Copyright Act is a non cognizable offence.

The respondent submitted the following before the Supreme Court-

• The High Court has not committed any error in holding that the offence under Section 63 of the Copyright Act is a non cognizable offence.
• In the alternative  if the Supreme Court  holds that the offence under Section 63 of the Copyright Act is a cognizable offence, in that case, the matter  may be remanded to the High Court to decide the writ petition on merits on other grounds, as no other grounds were pressed into service.

The Supreme Court considered the submissions of the parties to the present appeal.  The issue to be considered by the Supreme Court is as to whether, the offence under Section 63 of the Copyright Act is a cognizable offence as considered by the Trial Court or a non cognizable offence as observed and held by the High Court.

The Supreme Court observed that if any offence is punishable with imprisonment for 3 years and upwards but not more than 7 years is cognizable and non bailable offence and the offence is triable by Magistrate First Class.  For   offence under Section 63 of the Copyright Act the punishment provided is imprisonment for a term which shall not be less than 6 months but which may extend to 3 years and with fine.  Therefore the maximum punishment which can be imposed by Magistrate is 3 years.   Only in a case where the offence is punishable for imprisonment for less than 3 years or with fine only the offence can be said to be non cognizable.  The language of the provision in Part II of First Schedule is very clear and there is no ambiguity whatsoever.

The Supreme Court held that the High Court has committed an error in quashing and setting aside the criminal proceedings and FIR.  The Supreme Court set aside the order of High Court.