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).

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

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