Debate on nature of offence of copyright infringement

By Subhajit Banerji, Saikrishna & Associates
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Section 63 of the Copyright Act, 1957, lays down the punishment for copyright infringement. Section 64 of the act empowers the police to “seize infringing copies” without a warrant. While from a copyright law perspective these provisions seem unambiguous, there is a debate as to the nature of the criminal offence under the act.

Judicial determinations

High courts in India have differed on whether copyright infringement is a “bailable” offence, i.e. one for which the police can grant bail. For “non-bailable” offences, a bail application must be made to a magistrate.

Subhajit Banerji
Subhajit Banerji

Gauhati High Court in Jitendra Prasad Singh v State of Assam (2003) held that the offence under section 63 is “non-bailable”. The court’s reasoning was that the offence could be punishable by up to three years in prison.

Andhra Pradesh High Court in Amarnath Vyas v State of Andhra Pradesh (2006) held to the contrary, noting that 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 relying on the Supreme Court’s interpretation of “imprisonment which may extend to” in section 386 of the Indian Penal Code in Rajeev Chaudhary v State of Delhi (2001).

The Supreme Court observed in Avinash Bhosale v Union of India (2007) that an offence under section 135(1)(II) of the Customs Act, 1962, which is punishable with imprisonment for a term “which may extend to three years or fine or with both”, was bailable. Importing the reasons of the Supreme Court, Delhi High Court in State Govt of NCT of Delhi v Naresh Kumar Garg arrived at the same conclusion. While this may seem fitting, the construction of the Copyright Act being completely different from that of the Customs Act could have been a factor considered by Delhi High Court.

Kerala High Court in Suresh Kumar v The Sub Inspector of Police (2007) adjudicated on the question whether copyright infringement is a cognizable offence, i.e. one for which an arrest can be made without a warrant. The court held that “Section 63 … is clearly punishable with imprisonment for 3 years and in these circumstances the offence has to be held to be cognizable”.

Delhi High Court in Naresh Kumar Garg rejected an anticipatory bail application on the premise that copyright infringement is bailable. The court observed 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 cognizable and non-bailable, there was no necessity to specifically authorize the police officer with the power of seizure.”

Thus, the judicial discourse seems disconnected and to add to the divergent views of the various courts, Delhi High Court in Naresh Kumar Garg in 2012 disagreed with the determination of Kerala High Court and affirmed theratio in Amarnath Vyas.

Legislative intent

The joint committee for the Copyright Bill presented in the Rajya Sabha in 1956 stated in relation to section 64 that in its opinion “such a provision is necessary in the interest of authors and publishers particularly in cases of wholesale and deliberate acts of piracy”. Therefore, the intent of the legislature was clearly to eradicate piracy.

The aim of section 64 is only in furtherance of section 63 so that the effect of section 63 is not diluted. Delhi High Court may have erred in observing in relation to section 64 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 cognizable and non-bailable, there was no necessity to specifically authorize the police officer with the power of seizure”.

The power for the police to seize infringing material without a warrant could also be drawn from the fact that infringing goods are deemed to be the property of the copyright owner, as provided under section 58 of the act.

Conclusion

Studies have linked intellectual property piracy to organized crime. In the UK, the IP Crime Report, 2013, stated that “79% of respondents identified that the IP criminals they encountered and dealt with were linked to networks of criminality that involve other forms of criminal activity”. Also, the World Health Organization found in 2014 that 10% of all pharmaceutical drugs in the world and 60% of drugs in developing nations are counterfeit. It cannot be denied that piracy is a current threat. Therefore, it is imperative that offences under section 63 of the act are rendered cognizable and non-bailable so that the law enforcement authorities are able to combat piracy effectively.

Subhajit Banerji is an associate at Saikrishna & Associates. The views expressed in this article are personal.

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