“Steal ideas, steal facts but do not steal words.”

Dan Poynter

The Copyright Act of 1957 is the primary legislation governing copyright in India. Copyright is one type of Intellectual Property driving a flourishing industry of its own. It is the intellectual property protection accorded to the original literary, dramatic, musical, artistic and cinematographic works of authors. The copyright forbids the unauthorized use of protected works, thereby protecting the monetary interests of the authors. The Supreme Court, in the case of EASTERN BOOK COMPANY V D.B. MODAK[1] observed that “Copyright is a right to stop others from exploiting the work without the consent or assent of the owner of the copyright.” 

WHAT IS COPYRIGHT INFRINGEMENT?

Copyright infringement violates the moral rights of the copyright owner and causes huge economic losses since a copyrighted work is highly revenue-generating in nature. Copyright infringement can occur in various ways and with the advancement of technology the malady of copyright infringement is only getting bigger. Both civil and criminal remedies are available for copyright violations and are independent of each other. Hence a copyright owner can seek both criminal and civil remedies for the infringement of his copyright[2]. Illegal treatments are more efficient than civil remedies. The cases are disposed of quickly and act as a deterrent for future violations as imprisonment has far more severe social consequences than punitive damages.

WHAT CONSTITUTES COPYRIGHT INFRINGEMENT?

Infringement of copyright or any intellectual property for that matter is any kind unauthorised use of the protected intellectual property causing an economic loss for the owner of the said intellectual property. While sec 2(m) of the Copyright Act, 1957 defines what an infringing copy is, sec 51 lays down what actually constitutes a copyright infringement. And sec 52 lays down the exceptions for copyright infringement. The Copyright Act allows the grant of compulsory licenses by the Registrar of Copyrights in the public interest when the owner of the copyright refuses to license his work on reasonable conditions[3]. Other than compulsory licenses, no person shall exploit a copyrighted work without the consent or assent of the copyright owner.

According to sec 51 of the Copyright Act of 1957, when any person, without a license, either granted by the copyright owner or the Registrar of Copyrights or contravenes such license so granted,

(i)  Does anything while the exclusive right to do so rests with the copyright owner, or

(ii) Permits the use of any place, for profit, for the communication of the copyrighted work to the public while such communication would constitute copyright infringement of the work.

What this means is that, not only the person who makes unauthorised use of a copyrighted work is committing the offence of infringement, but also any person who allows the use any place, for profit, for the mere communication of such work to the public. However, he can claim an exemption under this section if he was not aware and had no reasonable ground to believe that such communication to the public was in fact a copyright infringement.

For example,

Person A is not authorised/ licensed to broadcast the film adaptation of author X’s book within the territory of India. The exclusive right of broadcasting the film adaptation of the book, within India, lies with person B.  However, person A goes ahead and broadcasts the film in his YouTube channel as well as screens it for the public by renting a property of his friend, person C while his friend is well aware that person A possesses no license to do so. According to sec 51 of the Copyright Act, 1957, person A is guilty of broadcasting an infringing copy and person C also is guilty of committing copyright infringement as he had permitted, for-profit, the use of his property to communicate to the public an infringing copy.

(iii)  Also, when any person,

§  Makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire any infringing copy, or

§  Distributes an infringing copy either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or

§  By way of trade exhibits an infringing copy to the public, or

§  Imports infringing copies into India would be committing an infringement of copyright. However, importing a single copy of any work for the purpose of private or domestic use does not constitute copyright infringement.

OFFENCES UNDER THE COPYRIGHT ACT, 1957

Remedies for copyright infringement are two-fold, civil as well as criminal remedies. While civil remedies provide compensation to the copyright owner, criminal remedies act as a deterrent for further instances of infringement. Civil remedies are contained in CHAPTER XII while Criminal remedies are contained in CHAPTER XIII.

SEC 63 – INFRINGEMENT OF COPYRIGHT OR OTHER ASSOCIATED RIGHTS:

Section 63 criminalises the infringement of copyright and other associated rights conferred by the Copyright Act except for the right to resale share in original copies under section 53 A. It prescribes imprisonment for a term not less than 6 months which may extend up to 3 years and with a fine, not less than fifty thousand rupees which may extend to two lakh rupees.

According to section 63, any person who knowingly infringes or even abets the infringement of the copyright in a work or any other rights conferred by the Copyright Act except the right to resale share in original copies commits the offence of copyright.

However, the Act gives the Court’s discretion to impose a lighter sentence of fewer than 6 months or a fine of fewer than fifty thousand rupees, if it finds adequate and special reasons to do so in cases where the infringement was not for gain in the course of business or trade.

Also, the construction of a building or other structures which infringes, or if completed would infringe the copyright in any other work is not considered as an offence under section 63.

In JITENDRA PRASAD SINGH V STATE OF ASSAM[4], the High Court held that the offence under section 63 is non-bailable and hence the provisions of section 438 of the CrPC can be applied.

EXISTENCE OF KNOWLEDGE

Section 63 puts emphasis on the knowledge of the crime on the offender. In A K MUKHERJEE V STATE[5], the Delhi High Court held that, 

“A bare perusal of the provision would go to show that emphasis is on the words ‘knowingly infringes…the copyright in a work’.  These words clearly postulate knowledge on the part of the accused that he was infringing the copyright in a work. The mere possibility of his having it known would not suffice. There has to be a clear and conclusive proof of the requisite knowledge. In short, the use of the word ‘knowingly’ in the provision results in requiring MENS REA in the full sense.”

Hence, wherever the word “knowingly” appears knowledge of the crime and mens rea are requisites.

TEST OF INFRINGEMENT

The test of infringement of copyright is not a test of mere likeness in the disputed works. The work which is alleged to have constituted infringement must be a copy of the copyrighted work and not an original treatment of a subject which is open to every other person to work on[6].  A work automatically does not become an infringing copy just because it is similar to the copyrighted work. The similarity between the disputed work and the copyrighted work is irrelevant if it stems from the fact that both the works deal with the same subject or are based on the same source[7].

 When the theme or the plot is the same, the test of infringement lies in determining whether the said theme/ plot has been treated and presented differently in the subsequent work or not. When the theme/ plot which is common to both the works is treated and presented differently in the subsequent work, the subsequent work becomes a completely new work and the question of copyright infringement does not arise[8].

In the landmark case of R G ANAND V DELUX FILMS[9], the Supreme Court clarified that idea, themes, plots, subject matter, historical or legendary facts are not per se copyrightable and they exist in the public domain. In such cases, the infringement of copyright is confined to the expression, manner, form and arrangement of the idea by the author. In such cases, the Courts should see whether there are any fundamental or substantial similarities in the mode of expression of the common idea. If it is proved that the alleged work is a literal or substantial imitation of the copyrighted work with only some minor variations, it constitutes an infringement of copyright. The Supreme Court held that the LAY OBSERVER TEST,  where the infringement allegation is decided based on whether the reader, spectator or the viewer, after having read or watched both the works comes to the unmistakable conclusion that the subsequent work is a copy of the original, as one of the safest and surest ways to decide infringement cases

SECTION 63A – ENHANCED PENALTY ON SUBSEQUENT CONVICTIONS

Section 63A aims to deter repeat offences by a convicted offender. It prescribes a harsher punishment of imprisonment of minimum 1 year which may extend up to 3 years with a fine of minimum 1 lakh which may extend up to 2 lakhs for those who have already been convicted under section 63 and is again convicted under section 63 for the second or subsequent time.

However, the Act gives the Court’s discretion to impose a lighter sentence of less than 1 year or a fine of less 1 lakh rupees, if it finds adequate and special reasons to do so in cases where the infringement was not for gain in the course of business or trade.

This section was inserted in 1984 through the Copyright (Amendment) Act, 1984. This section is not retrospective in effect hence the Court shall not take cognizance of any conviction made before the commencement of the Copyright (Amendment) Act of 1984.

SECTION 63B – USE OF INFRINGING COPY OF COMPUTER PROGRAM

Section 2(ffc) defines computer programme as a set of instructions expressed in words, codes, schemes or in any other form, including a machine-readable medium, capable of causing a computer to perform a particular task or achieve a particular result. Section 2(o) defines ‘literary works’ and lists computer programme as one type of literary work. Hence computer programmes enjoy the same protection as any other literary work.

It can be said that computer programmes are one of the biggest revenue generators in the tech industry. Tech companies and scientists pour millions of dollars into research to create computer programmes which can be later sold or licensed for profit. Copyright in computer programmes is infringed by using pirated or unlicensed versions of the programmes on computers.

In MICROSOFT CORPORATION V K MAYURI[10], the Delhi High Court observed that “The Courts need to take note of the fact that a lot of energy and resources are spent in litigating against those who infringe the trademark and copyright of others and try to encash upon the goodwill and reputation of other brands by passing off their goods/ services as those of that known brand. If punitive damages are not awarded in such cases, it would only encourage the unscrupulous persons to use the pirated software thereby depriving the copyright owner of the revenue to which he is entitled by the sale of a license to use that software.”

Section 63B criminalises the use of the infringing copy of a computer programme by any person who has knowledge that is an infringing copy. It prescribes imprisonment of a minimum of 7 days which can be extended up to 3 years along with a fine of minimum fifty thousand rupees which can be extended up to 2 lakh rupees for any person who uses an infringed copy of a computer programme on a computer with the knowledge that it is an infringing copy.

However, the Act gives the Court’s discretion to impose no imprisonment, imposing only a fine which may extend up to fifty thousand rupees, if it finds adequate and special reasons to do so in cases where the infringement was not for gain in the course of business or trade.

In AUTODESK INC V PRASHANTH DESHMUKH[11], the civil petition was against the unlicensed large scale use of the petitioner’s computer programme by the defendant, Deshmukh on around 40 of his company’s computers for profit. The Court held that 

“A computer software programme purchased by an entity at any given time in the past should currently reflect in the database of the product purchase summary maintained by the plaintiff company. However, in the present case, the database reveals that the defendant was not the recipient of any license granted by the plaintiff for their computer programme, thereby proving that the software installed in the computers of the defendant was not licensed by the plaintiff.”

MICROSOFT CORPORATION V YOGESH PAPAT[12], MICROSOFT CORPORATION V DEEPAK RAVAL[13] and MICROSOFT CORPORATION V KIRAN[14] are some of the other notable computer programme copyright infringement cases decided in India.

SECTION 64 – POWER OF POLICE TO SEIZE THE INFRINGING COPIES

Section 64 empowers any police officer who is not below the rank of a sub-inspector to seize without a warrant all the infringing copies of the work and all plates used for making the infringing copies of the work, if he is satisfied that an offence of infringement under section 63 has been, is being or is likely to be committed. And all infringing copies and plates so seized shall be produced before a Magistrate as soon as practicable.

The law provides recourse to the person whose copies and plates have been infringed. Any person having an interest over the infringing copies and plates seized by the police should make an application to the Magistrate within 15 days of the seizure, for the restoration of the seized items to him. The Magistrate shall hear the pleas of both the applicant and the complainant and after making further inquiry into the case, shall pass such orders on the application as he deems fit.

SECTION 65 – POSSESSION OF PLATES FOR MAKING INFRINGING COPIES

Section 65 prescribes imprisonment which may extend up to 2 years and fine, for any person who knowingly makes or possesses any plate for making infringing copies of any copyrighted work. The term “plates” refers to the plates used to print books in offset printing.

SECTION 65 A – PROTECTION OF TECHNOLOGICAL MEASURES:\

With the advancement of technology the increased presence of copyrighted works in the digital domain possesses the risk of copyright violations through digital means. Copyrighted works such as books, cinematographic films, artistic works, etc are extensively being digitalised to be in pace with the changing world. Digital technology, unfortunately, makes piracy of work easier and cost-effective.

A simple example is the case of piracy of electronic books, popularly known as e-books. When books were in the material form they had to be printed manually to produce infringing copies. But with the advent of e-books, they can easily be screenshot and hundreds of digital copies can be produced and distributed digitally. To counter these kinds of piracy problems, online technological measures like encryption, etc are taken by the copyright owners to protect their works in the digital domain.

Section 65A was inserted by the Copyright (Amendment) Act of 2012 to incriminate any person who circumvents an effective technological measure applied for the purpose of protecting the copyright and any other right conferred by the Copyright Act with the intention of infringing those rights. Such a person shall be imprisoned which may extend up to 2 years along with fine.

EXCEPTIONS TO SECTION 65A:

A complete ban on such activities would be impossible and would do more harm than good. Hence section 65A exempts the following activities which are done with bona fide intention,

(a)   Doing any act for a purpose not expressly prohibited by the Copyright Act, 1957, provided that any person facilitating the circumvention of such technological measures by another person should maintain a complete record of such other person including his name, address and all other relevant particulars necessary to identify him along with the purpose for which he has been facilitated.

(b)   Doing any act necessary for conducting encryption research using a lawfully obtained encrypted copy, or

(c)    Conducting any lawful investigation, or

(d)   Doing any act necessary for the purpose of testing the security of a computer system or a computer network with the authorisation of its owner, or

(e)    Operator, or

(f)    Doing any act necessary to circumvent technological measures intended for identification or surveillance of a user, or

(g)   Taking measures necessary in the interest of national security

SECTION 65B – PROTECTION OF RIGHT MANAGEMENT INFORMATION

Section 2(xa) defines Right Management Information as

(a)   The title or other information identifying the work or performance

(b)   The name of the author or performer

(c)    The name and address of the owner of rights

(d)   Terms and conditions regarding the use of the rights

(e)    Any number or code that represents the information referred to in sub-clauses (a) and (d) but does not include any device or procedure intended to identify the user.

Section 65B prescribes imprisonment which may extend up to 2 years  along with fine, for any person who knowingly,

(a)   Removes or alters any rights management information without authority, or

(b)   Distributes, imports for distribution, broadcasts or communicates to the public, without authority, copies of any work, or performance knowingly that the electronic rights management information has been removed or altered without authority.

SECTION 66 – DISPOSAL OF INFRINGING COPIES AND PLATES

Section 66 provides that the Court which is trying any offence under the Copyright Act, 1957 may, whether the alleged offender is convicted or not, order that all infringing copies of the copyrighted work or all plates, used for purpose of making the infringing copies, in the possession of the alleged offender, be delivered to the owner of the copyright or may make such order as it may deem fit regarding the disposal of such infringing copies or plates.

SECTION 67 – PENALTY FOR TENDERING FALSE ENTRIES

Section 67 prescribes a punishment of imprisonment that may extend up to 1 year or fine or both to any person who,

(a)   Makes or causes to be made a false entry in the Register of Copyrights kept under the Copyright Act of 1957, or

(b)   Makes or causes to be made writing falsely purporting to be a copy of any entry in such register, or

(c)    Produces or tenders or causes to be produced or tendered as evidence any such entry or writing, knowing the same to be false.

SECTION 68 – PENALTY FOR MAKING FALSE STATEMENTS

Section 68 criminalises making false statements for the purpose of influencing or deceiving any authority or officer. It prescribes a punishment of imprisonment which may extend up to 1 year, or fine or both to any person who with a view to,

(a)   Deceive any authority or officer in the execution of the provisions of the Copyright Act of 1957, or

(b)   Procuring or influencing the doing or omission of anything in relation to this Act or any matter thereunder,

makes a false statement or representation knowing it to be false.

SECTION 68A – PENALTY FOR CONTRAVENTION OF SECTION 52A

Section 52A makes it compulsory to display the following particulars while publishing any sound recording or video films,

(a)   Name and address of the person who made the sound recording

(b)   Name and address of the copyright owner of such sound recording

(c)    Year of its first publication

(d)   In case of a cinematographic film which requires certification under Section 5A of the Cinematograph Act, 1952, the certificate from the Board of Film Certification

(e) The name and address of the person who made the video film and a declaration by him stating that he has obtained the necessary license or consent from the owner of the copyright in such work for making such video film

(f) The name and address of the copyright owner of such video film

Section 68A prescribes a punishment of imprisonment which may extend up to 3 years with fine to any person who publishes a sound recording or a video film in contravention of the provisions of section 52A.

SECTION 69 – OFFENCES BY COMPANIES

Section 69 makes the following persons liable when any offence is committed under this Act by a company,

(a)   Every person who at the time of the offence was committed was in charge of the company

(b)   Every person who was responsible to the company for the conduct of the business of the company

(c)    The company which is a legal person shall be deemed to be guilty of such offence and shall be liable to be proceeded against and punished accordingly.

However, this section provides the defence that any person who proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence shall not be liable under this section.

When an offence under this Act has been committed by a company and it is proved that such offence was committed with the consent or connivance of, or is attributable to any negligence on the part of, any manager, director, secretary or other officers of the company, such manager, director, secretary or officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

In J N BAGGA V ALL INDIA REPORTER[15], the Bombay High Court held that when a company commits an offence under this Act, not only the company but every person responsible to the company for the conduct and business is made liable along with the separate liability of the company itself.

SECTION 70 – COGNIZANCE OF OFFENCES

Section 70 provides that no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try offences under this Act.

The question of whether copyright offences are cognizable or non-cognizable has loomed over the Indian Judiciary for quite some time. The Indian Copyright Act, 1957 does not specify whether the offences are cognizable or not cognizable. This classification is done by the Code of Criminal Procedure, 1973. Schedule I of the CrPC contains 2 parts. Part I consists of offences under the Indian Penal Code and Part II consists of offences under other laws. Hence the copyright offences would come under Part II. Part II categorises offences into 3 categories based on the term of imprisonment, as follows-

(a)   Cognizable and non-bailable and triable by Court of Session, if punishable with death, imprisonment for life or for more than seven years.

(b)   Cognizable and non-bailable and triable by Magistrate of First Class, if punishable with imprisonment for three years and above but not more than seven years.

© Non-cognizable and bailable and triable by a Magistrate, if punishable with imprisonment less than years or a fine.

In JITENDRA PRASAD V STATE OF ASSAM[16], the High Court held that copyright violation is a non-bailable offence. However, in AMARNATH VYAS V STATE OF ANDHRA PRADESH[17], the High Court held that copyright violations are bailable and non-cognizable offences. Later the Supreme Court in RAJEEV CHAUDHARY V STATE (NCT) OF DELHI[18], held that the phrase “not less than 10 years” would mean imprisonment for a period of minimum 10 years or more, and is not the same as “may extend to 10 years”. Hence, applying the same to section 63 of the Copyright Act, the phrase “may extend to three years” is not the same as “three years and above”. Thus the offence under section 63 does not come under the category of cognizable and non-bailable offences.

However, section 64(1) empowers a police officer, not below the rank of a sub-inspector to seize the infringing copies and plates without a warrant. It was argued that this provision shows the intention of the Legislature to make offences under the Copyright Act cognizable offences. But the Delhi Court in STATE OF (NCT) DELHI V NARESH KUMAR GARG[19], rejected this view and instead held that, 

“Had the offence of copyright infringement been cognizable and non-bailable, there was no necessity of especially giving the power to seize without a warrant under 64.”

And Section 70 categorically states that no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try offences under this Act. However, this is to be construed that section 70 only aims to restrict the scope of the term “any Magistrate” in category III of Part II of Schedule I of CrPC.

Hence, the offences under the Copyright Act are non-cognizable and bailable offences, triable by a Court not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of First Class, with the special power to seize the infringing copies and plates without a warrant, conferred upon the police.

APPEALS UNDER UNDER COPYRIGHT ACT

The provision for appeals is contained in sections 71 to 73 under CHAPTER XIV of the Copyright Act, 1957.

SECTION 71 – APPEALS AGAINST CERTAIN ORDERS OF MAGISTRATE :

According to section 71, any person aggrieved by an order made under section 64(2) or section 66 may, within thirty days of the date of such order, appeal to the Court to which appeals from the court making the order ordinarily lie, and such appellate court may direct that execution of the order have stayed pending disposal of the appeal.

SECTION 72 – APPEALS AGAINST ORDERS OF REGISTRAR AND APPELLATE BOARD:

Section 72 provides that,

(1)   Any person aggrieved by any final decision or order of the Registrar of Copyrights, may within 3 months from the date of the order or decision, appeal to the Appellate Board.

(2)   Any person aggrieved by any final decision or order of the Appellate Board, not being a decision or order made in an appeal under section 72(1), may within 3 months from the date of such decision or order, appeal to the High Court within whose jurisdiction the appellant actually and voluntarily resides or carries on business or personally works for gain. Provided that no such appeal shall lie against a decision of the Appellate Board under section 6.

(3)   In calculating the period of three months provided for an appeal under this section, the time taken in granting a certified copy of the order or record of the decision appealed against shall be executed.

SECTION 73 – PROCEDURE FOR APPEALS:

The High Court may make rules consistent with the Copyright Act, 1957 as to the procedure to be followed in respect of appeals made to it under section 72.

ENDNOTES

[1] (2008) 1 SCC 1

[2] V S Sharma V Dharma Rao, AIR 1942 Mad 124

[3] Refer sections 31, 31A and 31B of the Copyright Act, 1957

[4] 2003 (26) PTC 486 (Gau)

[5] 54 (1994) DLT 461

[6] Pellegrini V Allegrini, 2 F 2d 610, 612 (WD Pa 1924)

[7] Affiliated Enterprises Inc V Gruber, 86 F 2d 958 (1^st Cir 193)

[8] Caldwell Clements Inc V Cowan Publishing Corporation, 130 F Supp 326 (DC 1955)

[9] (1978) 4 SCC 18

[10] MIPR 2007 (#) 27

[11] ( 2011 (46) PTC 38 (Del.)

[12] 118 (2005) DLT 580

[13] MIPR 2007 (1) 72

[14] MIPR 2007 (3) 214

[15] AIR 1969 Bom 302

[16] (2004) 2 GLR 271

[17] (2007) CRI LJ 2025

[18] (2002) 5 SCC (Jour) 11

[19] CRL.M.C. 3488/2012