Copyright Infringement- A Cognizable or A Non-Cognizable Offence?

The article is an attempt to highlight the loophole in the existing provisions establishing copyright infringement a cognizable offence. It doing so it explains the meaning of Copyright infringement, Cognizable offence and Non-cognizable offence. The article throws light on the conflicting decisions of the various High Courts of India on the same and thus emphasizes the need to remove these ambiguities in the existing Copyright Infringement Law in India.
Estimated Reading Time: 7 minutes

Introduction

The increasing globalisation and the rapid proliferation of technology have led to an increasing need for the protection of copyright. The infringement of copyright happens when the person makes use of the copyrighted work in his reproduction, distribution, display or through performance of the protected work without the consent of the author. Section 63 of the Copyright Act provides that any person who knowingly infringes or abets the infringement of the copyright in any work commits a criminal offence[1]. The Copyright Act initially provided for the maximum imprisonment for a period of one year in case of infringement. But due to increasing cases of copyright infringement, Section 63 was amended and now it provides for the maximum punishment of upto three years. Section 64 was also amended to give powers to the police officers to arrest without a warrant in case of infringement[2]. But there is nothing in the Act to specify if the offences under the Act are cognizable or non-cognizable offences.

Meaning of Cognizable and Non-Cognizable Offence

Offences for which the police officers can make an arrest without a warrant are cognizable offences[3]. Part II of the First Schedule of the Criminal Procedure Code provides for a guideline having classification of offences. It provides that when the imprisonment for any offence is three years and upwards but not more than seven years, then the offence is a cognizable and a non-bailable offence. If the imprisonment prescribed is less than three years or fine, then the offence is a non-cognizable and a bailable offence. In such circumstances, the issue arises for classification of the offences whose punishment does not exactly fall within any of the category as set out in the code as in the case of infringement of Copyright. There is a conflict of opinions of various courts on this issue. 

HIGH COURTS’ VIEWS: 

There is a conflict of opinions among various High Courts of India as far as this question is concerned and they have been oscillating between the two positions. 

In Abdul Sathar v. Nodal Officer, Anti Piracy Cell[4], the Kerela High Court was faced with the question whether offence under section 63 of the Copyright Act is cognizable or not. The court held that the offence envisaged by section 63 falls within Classification II of Part II of the First Schedule and is cognizable, due to its maximum term of punishment being imprisonment for 3 years.  Similar decision was given by the Gauhati High Court in the case of Jitendra Prasad Singh v. State of Assam[5]. Here also, the court laid emphasis on the maximum term of imprisonment provided under section 63 which happened to be a period of three years.

Contrary to this, there are several High Courts which have held the offence under section 63 to be non-cognizable. In Amarnath Vyas v. State of Andra Pradesh[6], the Andra Pradesh High Court held that the penal provisions have to be construed strictly. It also stated that merely because the offence does not fall under classification III, one cannot bring the offence directly into the ambit of classification II. It observed that the expression ‘imprisonment for a term which may extend upto three years’’,  would not come squarely within the expression ‘imprisonment for three years and upwards’ and thus held the offence to be non-cognizable.

Similarly, in the State government of NCT of Delhi v. Naresh Kumar Garg[7], the Delhi High Court considered the above Andra Pradesh High Court judgment and held that the offence under section 63 is a non-cognizable offence.  The Rajasthan High Court in the case of Deshraj v. State of Rajasthan[8] also analysed the offence under section 63 of the Copyright Act and relied on the above two judgments to hold that the said offence is punishable with a maximum punishment of imprisonment of three years and that does not make it to fall under classification II of the First Schedule and therefore held it to be a non-cognizable offence.

In another recent judgment by the Delhi High Court in the matter of Anurag Sanghi v. State and Others[9], the court held that the offence of copyright infringement under section 63 of the Copyright Act is a non cognizable offence. Herein, the court, in its obiter, observed that for the classification of offence as a cognizable or a non-cognizable offence, the maximum term of sentence that can be imposed must be considered, which in the present case under section 63 would render the offence to be cognizable. 

But despite this obiter, the court relied on the Supreme Court decision in the case of Avinash Bhosale v. Union of India[10] and its own judgment in the case of State Government of NCT of Delhi v. Naresh Kumar Garg [11] wherein the courts have held that the offence punishable by imprisonment upto three years is a non-cognizable and a bailable offence. The Delhi High Court noted that the Supreme Court has not indicated any cogent reasons for its conclusion/observation but it nonetheless, went ahead with these two decisions and admittedly quashed the FIR against the plaintiff while holding the offence to be non-cognizable. 

These four decisions by the three high courts are based on the two Supreme Court decisions. In the case of Avinash Bhosal[12], the Supreme Court  has held that Section 135(1)(ii) of the Customs prescribes a punishment by imprisonment that may extend to three years does not fall in classification II and thus it is a non-cognizable and a bailable offence. In Rajeev Choudhary v State of NCT Delhi, the court was considering section 368 of the Indian Penal Code and section 167 of the Criminal Procedure Code. It held that the words ‘may extend to ten years’ cannot be equated with‘not less than ten years’ or ‘ten years or more’. The Delhi High Court has also specifically stated in State Govt of NCT Delhi v Naresh Kumar Garg that the decision in Avinash Bhosale has impliedly overruled the earlier decisions by the Gauhati and Kerala high courts. 

Very recently, the Rajasthan High Court in the case of Nathu Ram and Others v. State of Rajasthan[13], has referred the decision of the classification of offences under section 63 of the Copyright Act and section 91(6)(a) of the Rajasthan Land Revenue Act 1956 to a larger bench. There is an identical provision in both these acts in respect of punishment wherein the phrase reads ‘which may extend to three years’. The court referred it to a larger bench because it felt that the previous decisions failed to lay down a correct proposition of law. The Rajasthan High Court was of the view that the amended Copyright Act, if it did not warrant for the copyright infringement to be cognizable offence, it would not have given powers to the police to seize all copies of the work leading to infringement. The Court has however not provided cogent reasons for re-determination by a larger bench. The court has only made a bare statement that the current position of law is not correct.  This issue has again brought in the limelight this debate about cognizability and still the issue needs to be settled[14].

CONCLUSION

The entire procedure of the investigation and the rights of the parties are dependent upon the offence being classified as either cognizable and non-cognizable. Until the issue of cognizability is resolved, ambiguity will continue to remain about the process of the entire investigation. In today’s age, the instances of copyright infringement have increased many folds and thus, now when the issue has been referred to a larger bench, it becomes all the more important for the judiciary to settle this matter once and for all. 

The high courts are presumably navigating through the muddy waters and in that light, the Rajasthan High Court’s decision to refer the decision to a larger bench is a welcomed move. It has to be kept in mind that determination of offence to be cognizable offence has its own consequences. Firstly, the creative endeavours may be restricted to a great extent and the punitive approach of arrest without warrant may serve a retributive purpose by deterring further creativity. Thus, it can only be hoped that the judiciary pays as much attention to the purpose of the Copyright Act as much as it pays to the language of the provisions to ensure that the creativity is not compromised at any cost.


[1] Indian Copyright Act 1957 § 63.

[2] Indian Copyright Act 1957 § 64.

[3] The Code of Criminal Procedure 1973 § 2(c).

[4] Abdul Sathar v. Nodal Officer, Anti Piracy Cell, AIR 2007 Ker 212.

[5] Jitendra Prasad Singh v. State of Assam ,(2004)2 GLR 271.

[6] Amarnath Vyas v. State of Andra Pradesh , 2007 Cr LJ 2025.

[7] State government of NCT of Delhi v. Naresh Kumar Garg , 2013 SCC OnLine Del 1142.

[8] Deshraj v. State of Rajasthan ,S.B. Criminal Misccellaneous (Petition) No. 5224 / 2016.

[9] Anurag Sanghi v. State and Others ,W.P. (Crl.) 3422/2018 and Crl. M.A. 35858/2018.

[10] Avinash Bhosale v. Union of India, (2007) 14 SCC 325.

[11] Supra Note 7.

[12] Supra Note 10.

[13] Nathu Ram and Others v. State of Rajasthan, S.B. Criminal Misc. (Pet.) No. 5128/2019, order reserved on March 5, 2020.

[14] Ibid.

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