Nature of Offence under Section 63 of Copyright Act- Cognizable and Non-Bailable?

The Copyright Act, 1957 defines penalties and provisions related to copyright infringement in India which are primarily outlined in various sections of the Act. Some of the key provisions that cover penalties and infringement under copyright law in India, include:

1. Section 51: This section deals with copyright infringement and specifies what constitutes infringement, including actions such as reproduction, adaptation, distribution, and public performance without authorization.
2. Section 63: This section specifies the penalties for copyright infringement. It deals with the punishment for offences related to infringement of copyright.
3. Section 63A: This section addresses the punishment for knowingly infringing the rights of the author or the owner of the copyright.
4. Section 63B: It outlines the punishment for the knowing use of infringing copies of computer programs.
5. Section 65: This section details the power of the police to seize infringing copies.

The aforesaid provisions within the Indian copyright law provide the legal framework for penalties and actions against copyright infringement in India. However, this article specifically deals with Section 63 in light of various judgments, as discussed below.

IS OFFENCE UNDER SECTION 63 OF COPYRIGHT ACT COGNIZABLE AND NON-BAILABLE?

The judgement of the Hon’ble Supreme Court in the case of M/s Knit Pro International v. The State of NCT of Delhi [2022 10 SCC 221] resolved the contentious issue of whether offences under Section 63 of the Copyright Act are cognizable or non-cognizable. In the said case, an FIR was sought to be registered against the accused under several provisions including, inter alia, Section 63, which was denied by the Delhi High Court, asserting that Section 63 offence was non-cognizable.

In appeal, the Supreme Court deliberated on Section 63 and concluded that offences under this section are both cognizable and non-bailable, basing its decision on the maximum imprisonment term of three years as stipulated in Section 63 and the guidelines in the First Schedule of the CrPC. The Court highlighted discrepancies in previous High Court rulings on this matter but didn’t extensively address them.

Previously, High Courts such as Kerala and Assam High Courts had also considered Section 63 offences as cognizable. In the case of Abdul Sathar v. Nodal Officer, Anti–Piracy Cell, [AIR 2007 Ker 212], the Kerala High Court noted that an offence under Section 63 of the Copyright Act can be considered cognizable based on similar reasoning as articulated by the Supreme Court in the Knit Pro Case.

Likewise, in the case of Jithendra Prasad Singh v. State of Assam [2003 (26) PTC 486 (Gau)], the Gauhati High Court emphasized that the wording of “punishable with imprisonment for a term not less than six months but which may extend to three years” in contrast to “if punishable with imprisonment for less than 3 years” in Section 63 of the Copyright Act implies the possibility of a three-year penalty. Consequently, it was ruled that an offence under Section 63 of the Copyright Act can be deemed cognizable.

However, on the other hand, in the case of State of NCT of Delhi v. Naresh Garg [2013 (56) PTC 282 (Del)], the Delhi High Court drawing reference from the Avinash Bhosale v. Union of India [(2007) 14 SCC 325] case, had arrived at the conclusion that an offence under Section 63 of the Copyright Act is classified as non-cognizable. The court relied on Section 64 of the Copyright Act, which grants the power to seize infringing copies to a police officer, not below the rank of Sub-Inspector. The Delhi High Court inferred that if the legislative intent were to categorize the offence under Section 63 as cognizable and non-bailable, there would have been no need to explicitly authorize police officers with the power of seizure under Section 64.

The Andhra Pradesh High Court also had the opportunity to adjudicate upon this aspect and in fact, presented a highly nuanced perspective, while dealing with the case of Amarnath Vyas v. State of Andhra Pradesh. In this case, the Court neither explicitly categorised Section 63 offences as non-bailable nor fully aligned them with the cognizable category. Refusing to explicitly classify offences under Section 63 as ‘non-bailable,’ the court reasoned that the provision not distinctly falling under the third category (bailable and non-cognizable) and does not automatically place it within the second category (non-bailable and cognizable). Notably, the court also referenced Section 70 of the Copyright Act, emphasizing that no court below that of a Metropolitan Magistrate or a Judicial Magistrate of the first class should try any offence under this Act.

Conclusion

Although, the Supreme Court missed an opportunity to address the conflicting judgments of various High Courts on the matter, the ruling not only reached the correct conclusion but also resolved the confusion which resulted as a consequence of the conflicting judgements of various High Courts. The Supreme Court’s decision in the Knit Pro case aligns harmoniously with the statutory framework of the Copyright Act and CrPC, and it complies with India’s commitments under the TRIPS Agreement.

While the Supreme Court has provided a definitive stance on this issue, the authors express curiosity regarding potential parliamentary or judicial endeavors to alter this position in the future. Given that copyright offences involve a wide spectrum of stakeholders, ranging from large corporations to individual artists, the authors advocate for parliamentary action to enshrine this judgment in statute. This could involve amending Section 63 directly or introducing an additional section, fostering consistency and clarity in the legal framework as Section 115(3) of the Trademarks Act specifically provides that acts of infringement will be cognizable however, Section 63 of the Copyright Act does not clarify in the Act itself as to whether the offences committed under the act are cognizable or non-cognizable.