Does Copyright Infringement Warrant A Warrant?

Copyright is comparatively a modern field, the infringement of which is enlisted as a crime under CrPC and a separate legislations for Copyrights. The article discusses which of these offences are bailable and which are not and also talks about the conflicts of opinion between different high courts through their respective case laws.

“Copyright law has got to give up its obsession with ‘the copy.’ The law should not regulate ‘copies’ or ‘modern reproductions’ on their own. It should instead regulate uses–like public distributions of copies of copyrighted work i.e. copyright infringement-that connect directly to the economic incentive copyright law was intended to foster.”
― 
Lawrence Lessig

Introduction

Copyright is a kind of intellectual property the importance of which has increased enormously in this era of modernization where rapid changes are taking place in the field of printing, entertainment, film, media and music, and computer industries.

Copyright law confers upon the owner of the work a bundle of rights in respect of reproduction of the work and the other acts which enables the owner to get financial benefits by exercising such rights. If any of these rights relating to the work is carried out by a person other than the owner without the license of the owner or a competent authority under the act, it constitutes an infringement of copyright in the work. Since copyright is granted for a limited period, there will be no infringement if the reproductions of the work or other acts concerned are carried out after the term of the copyright has expired. The exclusive rights conferred on the owner depends on the nature of the work in which copyright subsists. Accordingly, the type of acts which will constitute infringement will also depend on the nature of work. Section 51 defines infringement of copyright generally. Section 52 defines a long list of acts which do not constitute an infringement of copyright. These are in nature of exceptions to the exclusive rights conferred upon the copyright owner. They also serve as defences in an action for infringement of copyright.

The exclusive right granted under the Act extends also a translation or adaptation of the work or to a substantial part thereof. Thus copyright will be infringed if the substantial part of the work was reproduced. What amounts to a substantial part of work will depend on the circumstances of the case.[1]

Section 63 of the Copyright Act,1957 nexus with the Code of Criminal Procedure Code, 1973

Any person who copies others work without consent of the author is liable to be punished for infringement. Under the Section 63 of the Copyright Act, 1957 (the “Act”) any person who knowingly infringes or abets the infringement of the copyright in any work commits a criminal offence which runs as under:

  1. Offence of infringement of copyright or other rights conferred by this Act– Any person who knowingly infringes or abets the infringement of;
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(a) the copyright in a work, or

(b) any other right concerned by this Act, except the right conferred by Section 53A 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 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 fewer than six months or a fine of fewer than fifty thousand rupees.

In the light of the mentioned provision, which is an offence under the said Act is punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine. Also, the offence under Section 63B of the Act of 1957 is punishable with imprisonment for a term which shall not be less than seven days but which may extend to three years and with fine. Evidently, the offence falling under Section 65 of the Act of 1957 is punishable with imprisonment which may extend to two years.

The scheme of the classification of the offences in the First Schedule of the Criminal Procedure Code, 1973 in cases of offences under other laws, is as under:

CATEGORYOFFENCECOGNIZABLE /NON-COGNIZABLEBAILABLE/ NON-BALIABLETRAIL BY
IIf punishable with death, imprisonment for life, or imprisonment for more than 7 years.CognizableNon-BailableCourt of session
IIIf punishable with imprisonment for 3 years and upwards but not more than 7 yearsCognizableNon-BailableMagistrate of first class
IIIIf punishable with imprisonment for less than 3 Years or with Fine only.Non-CognizableBailableAny Magistrate

The punishment for the offence made under the Section 63 of the Act is imprisonment which cannot be less than 6 months but which may extend to 3 years. The Code of Criminal Procedure, 1973 rests that if the offence is punishable “by imprisonment for three years and upwards but not more than seven years”, the procedural law runs that the offence will be cognizable and non-bailable however if any offence is punishable with imprisonment of fewer than 6 months then it is a non-cognizable offence. Therefore, in such circumstances, the offence committed under Section 63 has to be held cognizable and non-bailable.

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Conflicting views of the High Courts

The High Courts which held that this offence will be a non-cognizable and bailable offence includes the Rajasthan, Delhi, Andhra Pradesh, and Telangana High Courts, whereas the Assam and Kerala High Courts rest with the contrary view.

In Jitendra Prasad Singh v. State of Assam[2] the court while considering that whether the offence punishable under Section 63 of the said Act is a bailable offence? with respect to the provisions of Section 63 of the Copyright Act, 1957, I.A. Ansari, J. was of the clear view that the offence punishable under Section 63 of the Act is a ‘non-bailable’. Learned Judge observed that the punishment prescribed for a term which may extend to three years would include in itself, inter alia the term for less than three years. Apparently, the learned Judge proceeded on the assumption that because the third category of classification has not clearly been attracted, the second category would automatically attract.[3]

In Amarnath Vyas vs State Of A.P[4]  the court clearly stated that there may be certain other class of offences which may fall in between Classification II and Classification III of second part of Schedule-I of CrPC but merely because they are not falling squarely within the domain of Classification III, they cannot automatically be treated as included in Classification-II. By default, they cannot be considered as coming within the purview of Classification II.

It is submitted that as per the law laid down by Hon’ble Supreme Court in Rajeev Chaudhary v. State (N.C.T.) of Delhi[5] where the court defined the expression “not less than” would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more. Under Section 386 punishment provided is imprisonment of either description for a term which may extend to 10 years and also fine. That means imprisonment can be for a clear period of 10 years or less. Hence, it could not be said that minimum sentence would be 10 years or more.” and as it has been laid down in Amarnath Vyas’s case[6], the expression “imprisonment for a term which may extend up to 3 years” would not come within the expression “imprisonment for 3 years and upwards”. Therefore, the offence punishable under sections 63, 63B and 65 the Act of 1957 cannot be considered as a cognizable offence.

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In a lately decided case of State Govt. of NCT of Delhi vs Naresh Kumar Garg[7] the court elucidated the main question that, “Whether the offence punishable under Section 63 of the Copyright Act, 1957 (the Act) is bailable or non-bailable?” Here also the Court relied on a judicial decision of the Gauhati High Court in Jitendra Prasad’s case where the offence under Section 63 of the Act was held to be cognizable and non-bailable. The court was of the view that 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 non-cognizable and bailable, there was no requirement to specifically authorize the police officer with the power of seizure.

Conclusion

In the recent case of Deshraj v. State of Rajasthan[8], the Rajasthan High Court on 28th April 2017 held that the police does need a warrant to take action against a person accused of copyright infringement since it is a ‘non-cognizable’ offence. It has, however, only added to one side of a seemingly dichotomous, age-old debate: Is copyright infringement a non-cognizable offence or a cognizable one? In simple language, does the police require a warrant to proceed against an accused infringer, or can they act without one?

This is, as stated above, a welcome judgment; especially for those who believe that making copyright infringement a cognizable offence can act like a gag of sorts, and sacrifice access to information and negatively affect creative endeavors. The intersections of copyright law and free speech have been covered extensively by us in the past, especially relevant in the ‘digital era’, where censorship often takes the shape of copyright infringement claims. The possibility of being arrested under a cognizable, non-bailable offence at a time where an infringement claim is a ‘multi-purpose’ tool can also produce a chilling effect at a worrying level.[9]

Also read Special Remedies against Infringement of Copyright

[1] Justice P.S.Narayana,”Intellectual Property Rights”, 3rd Ed., 2004

[2] 2003 (26) PTC 486 (Gau)

[3] Amarnath Vyas vs State Of A.P (Parah 9)

[4] 2007 CriLJ 2025

[5] (2001) 5 SCC 34

[6] supra

[7] 2011(46)PTC114(Del)

[8] Order dated 28th April, 2017

[9] https://spicyip.com/2017/05/does-copyright-infringement-warrant-a-warrant.html