Copyright Infringement is Cognizable and Non-Bailable Offence- Supreme Court

“If a creative person steals your idea, he’s killing his creative ability, if he steals your art, he’s killing his art, if he makes it available to the world, it won’t create the impact you could have created, because it wasn’t from the right source.” – Michael Bassey Johnson

WIPO defines copyright as a right that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculptures, and films, to computer programs, databases, advertisements, maps and technical drawings. Copyright infringement is the unauthorized use of a copyrighted work, such as the right to reproduce, distribute, display, or perform the protected work, or to create derivative works. Anyone who copies another person’s work without the author’s permission is guilty of infringement. Section 63 of the Copyright Act, 1957 (the “Act”) states that anyone who knowingly infringes or aids in the infringement of copyright work commits a criminal offence.

Section 51 (LINK) of the Act outlines that “when a copyright is infringed” which is r/w Section 63 of the Act which provides the Offence of infringement of copyright and prescribes the punishment;

“Any person who knowingly infringes or abets the infringement of—

(a) the copyright in a work, or

(b) 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 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 less than six months or a fine of less than fifty thousand rupees.]”

Infringement of copyright is a criminal offence under Section 63 of the Act. However, in order to determine whether it is a cognizable offence or not, the First Schedule of the Criminal Procedure Code of 1973, which categorizes the offences, must be consulted. The Schedule is divided into two sections. Part I deals with offences under the Indian Penal Code, while Part II deals with offences under other laws. As a result, the offence committed under the Act would be covered by Part II.

Offence Cognizable or Non-Cognizable Bailable or Non-Bailable Trial by
If punishable with death, imprisonment for life, or imprisonment for more than 7 years
Cognizable
Non-Bailable
Court of Session
If punishable with imprisonment for 3 Years, and upwards but not more than 7 Year
Cognizable
Non-Bailable
Magistrate of First Class
If punishable with imprisonment for less than 3 Years or with Fine only
Non-Cognizable
Bailable
Any Magistrate

Cognizable and Bailable offences with virtue of The Code of Criminal Procedure, 1973 is defined under Section 2(a) and 2(c) respectively. Where;

2(a) “bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offence” means any other offence; (link)

2(c) “cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;

 

CASE ANALYSIS

 

Background

The aggrieved filed an application under Section 156(3) Cr.P.C., requesting directions from the Chief Metropolitan Magistrate (CMM) for the registration of a FIR against the accused for violations of Sections 51, 63, and 64 of the Copyright Act, as well as Section 420 of the IPC. The learned CMM granted the application and directed the concerned SHO to register the FIR in accordance with the applicable legal provisions. Thereafter, a writ petition under Article 226 of the Indian Constitution was filed as an appeal against the order of the CMM. The Delhi High Court allowed the said writ and quashed the criminal proceedings and FIR.

The principal controversy involved in this petition was whether the said offence is cognizable.

It was observed in the Supreme court that, while holding that the offence under Section 63 of the Copyright Act is a non-cognizable offence, the High Court did not properly appreciate this Court’s decision in the case of Rakesh Kumar Paul vs. State of Assam, (2017) 15 SCC 67 and misinterpreted the said judgment. In Rakesh Kumar Paul vs. State of Assam, it was held that, “if the offence is punishable with imprisonment for three years and onwards but not more than seven years the offence is a cognizable offence. Only in a case where the offence is punishable with imprisonment for less than three years or with fine only the offence can be said to be non-cognizable.” Further, in the case of Intelligence Officer, Narcotics Control Bureau vs. Sambhu Sonkar, AIR 2001 SC 830, the Supreme Court specifically observed and held that “the maximum term of imprisonment prescribed for the said offence cannot be excluded for the purpose of classifying the offence”.

The Supreme court also adjudged that, for the offence under Section 63 of the Copyright Act, the punishment provided is imprisonment for a term which shall not be less than six months but which may extend to three years and with fine. Therefore, the maximum punishment which can be imposed would be three years. Therefore, the learned Magistrate may sentence the accused for a period of three years also. In that view of the matter considering Part II of the First Schedule of the Cr.P.C., if the offence is punishable

with imprisonment for three years and onwards but not more than seven years the offence is a cognizable offence. Only in a case where the offence is punishable for imprisonment for less than three years or with a fine can the offence be said to be non-cognizable.

Thus, the offence under Section 63 of the Copyright Act, which is punishable by imprisonment for three years and a fine, falls into the second category of offences, which is punishable by imprisonment “for three years and upwards but not more than seven years.” Therefore, offence of infringement of a copyright is a cognizable and non-bailable offence.

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