Crime and copyright infringement

News: The Supreme Court of India, in Knit Pro International v. The State of NCT has ruled that the copyright infringement is a cognisable offence under the Code of Criminal Procedure (CrPC), 1973.

Legal framework for copyright in India

The Indian Copyright Act makes a distinction between commercial and non-commercial infringement.

It allows the courts to impose a sentence of less than six months or a fine of less than Rs. 50,000. The imprisonment may extend up to three years.

The law criminalises those acts which grossly violate a copyrighted work. For example, Bollywood production house faces criminal investigations on the criminal complaints filed by scriptwriters.

What is a cognizable Offence?

It means that the police can begin investigations into allegations of copyright infringement on receiving a complaint. However, in a non-cognisable offence, the police start an investigation only after a judicial magistrate had taken cognisance of the offence and directed the police to initiate an investigation.

Implication of the judgment

Since the offence would be cognisable and non-bailable. Therefore, the copyright owners, especially in the software and music industries, can extort disproportionate licence fees in the name of police threat against potential infringers.

This will take away the right of the accused to post a bail bond with the police. This prevent shifting the responsibility on to the courts for judicial determination on a case-by-case basis.

The decision can pave the way for the police to impinge on civil liberties, like it can have chilling effects on free speech. Further, it can lead to impeding the ease of business and have

What are issues in allowing the police to begin criminal investigations into copyright infringement?

Unlike trademark law, it is not mandatory under the Copyright Act to register copyrights as a necessary precondition in order to enforce the same. A copyright is created the moment a piece of art or music or literature is fixed on a medium, provided it is original.

There can be issues on asserting whether the said piece of art or music or literature is in fact ‘original’.

In case of original content, the use of the copyrighted work is permissible or not, is another question.

If a copyright work is qualified for protection under the Designs Act of 2000. In that case, the copyright protection cannot be claimed under the Copyright Act.

Further, In the very question of determination of copyright infringement, the require the court applies the test of substantial similarity (both qualitative and quantitative) on a case-by-case basis.

The present levels of training and funding of the investigation officers like the average police sub-inspector, to conduct an efficient investigation into copyright infringement is limited.

Argument against making copyright infringement a cognizable offence

The criminalisation of copyright infringement in India should be re-looked. In 1914, the copyright infringement only attracted a monetary fine under the Imperial Copyright Act, 1911. Later, one-year imprisonment was introduced in 1957. Further, the term of punishment was tripled to three years.

The TRIPS do not require criminalising all kinds of copyright infringement. It differentiates between copyright infringement and copyright piracy. All piracy of copyrighted works is an act of infringement, but all infringement cannot be termed as piracy. For example, the criminal measures can be applied against “wilful copyright piracy” on a “commercial scale”.

It is difficult to establish guilt beyond reasonable doubt in copyright infringement cases.

Way Forward

The law should be amended to differentiate between the different acts of copyright infringement and to include the requirement of prior judicial cognisance to start criminal investigation by the police.

Source: The post is based on an article “Crime and copyright infringement” published in the “The Hindu” on 8^th June 2022.