OFFENCE OF INFRINGEMENT OF COPYRIGHT UNDER SECTION 63 OF THE COPYRIGHT ACT IS A NON BAILABLE COGNIZABLE OFFENCE-A CASE STUDY
Name of the Case-
Knit Pro International vs State of NCT of Delhi
Point of Discussion –
Whether Infringement of Copyright Is a Cognizable and Non Bailable offence?
Introduction-
Nick Harkaway, The Blind Giant
“Piracy is robbery with violence, often segueing into murder, rape and kidnapping. It is one of the most frightening crimes in the world. Using the same term to describe a piece of twelve-year-old swapping music with friends, even thousands of songs is evidence of a loss of perspective so astounding that it invites and deserves the derision it receives.”
Michael Bassey Johnson;
“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 .”
Copyright infringement is the use of copyrighted work such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works without the permission of the author.
Section 63 in the Copyright Act, 1957
The offence of infringement of copyright or other rights conferred by this Act.—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] 2[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 fewer than fifty thousand rupees.]
Explanation.—Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section.
The appellant had filed an application under Section 156(3) Cr.P.C. and sought directions from the Chief Metropolitan Magistrate for the registration of FIR against the respondent- accused of the offences under Sections 51, 63 & 64 of the Copyright Act read with Section 420 of the IPC.
The court noted that the maximum punishment which can be imposed under Section 63 would be three years and therefore, the 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 by imprisonment for less than three years or with a fine only the offence can be said to be non-cognizable. The language of the provision in Part II of First Schedule is very clear and there is no ambiguity whatsoever.”
Case Laws-
Amarnath Vyas v. State of Andhra Pradesh 2 [2007 CRI LJ 2025 rejected the decision in the above-mentioned case and opined that the offence of copyright Infringement is bailable and non -cognizable.
The Court found that the expression “punishment for a term which may extend to three years” under the Act is certainly not similar to the expression “punishment for three years and upwards” of the Criminal Procedure Code and relied on the findings of Rajeev Chaudhary case.
State Govt. of NCT of Delhi vs Naresh Kumar Garg 5 2011(46)PTC114(Del) on March 20, 2013, where the main question was, “Whether the offence punishable under Section 63 of the Copyright Act, 1957 (the Act) is bailable or non-bailable?”
Here also the Court relied on a judicial decision of the Gauhati High Court in Jitendra Prasad Singh v. State of Assam 2003 (26) PTC 486 (Gau) where the offence under Section 63 of the Act was held to be cognizable and non-bailable.
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