Supreme Court elevates copyright infringement to a serious non-bailable offense
On May 20, 2022, in a judgment relating to copyright law, the Supreme Court of India ruled that offenses under Section 63 of the Copyright Act (1957) are recognizable and cannot be guaranteed. The court heard the case of The Knit Pro International v NCT State of Delhi and Anr (Criminal Appeal 807, 2022), in which he elevated copyright infringement to a more serious offense than tampering and cheating, which are not recognizable. The decision is significant as the issue of copyright infringement being a recognizable infringement or not and a bailable or non-bailable offense has been debated among high courts across India.
The quantum of penalty provided for in Article 63 of the Copyright Law must “not be less than six months but may be up to three years”. Under the Code of Criminal Procedure (1973), an offense likely to be known is one for which “a police officer may arrest without a warrant”, while for an unrecognized offense “a police officer may not arrest without a warrant”. In addition, offenses punishable by imprisonment for less than three years or only a fine are classified as non-punishable and subject to bail. Offenses punishable by imprisonment for three years or more (but not more than seven years) are punishable and non-bailable. Since Section 63 of the Copyright Act contains the word “may” [extend to three years]high courts have taken divergent views on the exact categorization of the tort of copyright infringement.
Interestingly, the Supreme Court’s view in the case under discussion is contrary to its decision in a 2007 case with a similar factual matrix. In Avinash Bhosale vs Indian Union (14 SCC 325, 2007), the Supreme Court held that an offense punishable under section 135(1)(ii) of the Customs Act (1962) would be subject to bail. The wording of the aforementioned article is similar to Article 63 of the Copyright Law prescribing a penalty of “imprisonment for up to three years”. Since the wording of the two statutes is identical, this earlier interpretation should have applied in this case. The Supreme Court, however, relied on its observation in Intelligence Officer, Narcotics Control Bureau vs. Sambhu Sonkar (AIR 2001 SC 830), where it held that the maximum term of imprisonment prescribed for an offense cannot be excluded for purposes of classification of the offence.
Recent decisions of the High Courts of Rajasthan (Nathu Ram vs State of Rajasthan, DB Crl, 1/2020), Mumbai (Piyush Subhashbhai Ranipa vs Maharashtra StateRequest for early release 336 DE 2021), and Karnataka (ANI Technologies Pvt Ltd v State of Karnataka, written request 32942 of 2017, GM-RES) are already consistent with the findings of the Supreme Court and treat infringements under Section 63 of the Copyright Act as cognizable and non-dischargeable.
Copyright infringement is by no means a trivial offence. This interpretation, however, tends to severely restrict creative freedom. The possibility of being arrested under a recognizable, non-bailable copyright infringement offense can have a chilling effect on content production. A rights holder’s allegation of infringement would have enough weight to make those who produce new material vulnerable to censorship, or simply discourage them from creating. A convicted non-dischargeable felony charge can become a wayward weapon in the hands of local law enforcement. It is important to keep in mind that acts of copyright infringement are, in many cases, arguable and defensible under the many exceptions permitted under Section 52 of the Copyright Act. copyright (e.g. fair use). On the other side of the coin, this may well be the tool needed by copyright owners to deal with rampant piracy in India. An imminent threat to commit a non-bailable offense may prompt an infringer to cease the abuse without waiting for a criminal complaint to be filed against him. The real impact of the decision will therefore take time to be felt.