Legal Service India - Prosecution for Infringement of Copyright under Copyright Act
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Prosecution for Infringement of Copyright under Copyright Act

Written by: Amrendra N. Tripathi - Dhir & Dhir Associates - New Delhi
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Emergence of Copyright

The idea of Copyright protection only began to emerge with the invention of printing, which made it possible for literary works to be duplicated by mechanical processes instead of being copied by hand. This led to the appearance of a new trade - that that of printers and booksellers in England called " Stationers". These entrepreneurs invested considerable sum in the purchase of paper, in buying or building press, and in the employment of labour involving an outlay which could be recouped with a reasonable return over a period of time.

By the end of the Seventeenth Century the system of privileges i.e. the grant of monopoly rights by the Crown was being more and more criticized and the voice of authors ascertaining their rights began increasingly to be heard; and this led in England in 1709 to what is acknowledged to be the first Copyright Statute - "The Statute of Anne".

In the 18th Century there was continuous dispute and litigation over relationship between Copyright subsisting at Common Law and Copyright under the Statute of Anne. This was finally settled by the House of Lords in the case of Donaldson Vs. Beckett in 1774, which ruled that at Common Law the author had sole right of printing and publishing his books, but that once a book was published the right in it were exclusively regulated by the Statute.

Harmonization of Copyright Law and Procedure: Milestones

1886 Berene Convention for Protection of Literary and Artistic Work.
1952 Universal Copyright Convention.
1961 Rome Convention - Performer’s, Producer’s of Phonograms and Broadcasting Organizations.
1971 Geneva Convention - Producer’s of Phonograms against Unauthorized Duplication of their Phonograms.
1972 Brussels Convention - Distribution of Programme - Carrying Signals Transmitted by Satellite.
1996 WIPO Copyright Treaty.
1996 WIPO Performance and Phonogram Treaty.

Copyright Law can be broadly divided into two parts :
I. Copyright Law in the strict sense of the word i.e. in the protection of intellectual creativity; and
II. Law of neighboring rights.

IPR's Criminal Jurisprudence : Changing Scenario:

Sophisticated methods of commission of different crimes adopted by the criminals in any branch of Criminal Law haven't left the field of IPRs untouched. Cracking of websites, hacking of internet, demolishing of security, use of common trade names as domain names without permission from the owners of the same is done regularly and unscrupulously by highly trained professionals in order to make wrongful economic gains at the expense of IPR's of the others.

Cyber Crimes and IPR

Seeing in retrospect, problem of infringement of IPR's was not very acute because there was no photocopiers, no computers, no internet. Now the canvas has changed; the milieu is different.

The IT Act, 2000

It hardly addresses itself to the broader problems of protection and enforcement of IPR. The Act provides for investigation, trial and punishment for certain offences like tempering with the computer source documents, hacking of computer system piracy, etc.

Indian Law dealing with Copyright

The Indian Copyright Act was first passed in 1957. A few amendments were made in 1983 & in 1984. However keeping in view with the latest developments in the field of technology, especially in the field of computers and digital technologies. The new amendment Act called the Copyright (Amendment) Act, 1994 (38 of 1994) was passed and this made Indian Copyright Law is one of the toughest in the world. This included the definition of "Computer Program" also in its ambit. It clearly explains the rights of Copyright holder, position on rentals of software, the rights of the user to make backup copies and the heavy punishment and fines on infringement of Copyright of software. It also make it illegal to make or distribute copies of copyrighted software without proper or specific authorization.

Main Changes in the new Amendment Act
Now "Literary work" includes "computer" and "computer program" also.

Section. 63 of the Act provides for the provision of punishment for infringement of Copyright provided in the Act.
Section. 63A: Enhanced penalty on 2nd and subsequent convictions.
Section. 63B: Any person who knowingly makes use on a computer of an infringing copy of a computer program, shall be punished with imprisonment for a term which shall not be less than 7 days but which may be extend to 3 yrs. and with fine which shall not be less than Rupees 50,000/-, but which may extends to Rupees 2 lacs.
Section. 64 : Power of police to seize infringing copies.
Section. 65 : Any person who knowingly makes, or has in his possession, any plate for the purpose of making infringing copies of any work in which Copyright subsists is punishable with imprisonment which may extends to 2 yrs. and with fine.

What is Infringing Copy?

It means any reproduction, copy or sound recording, as the case may be, made or reported in contravention of the provision of the Act.

Performer's Right

This is conferred by Section 37 of the Copyright Act.

Knowledge of the Accused

This is an essential in criminal proceedings,
In Cheria P Joseph Vs. Prabhakarn AIR 1967 Kar. 234 held that clear and cogent proof of knowledge is necessary to establish the commission of offence.

Burden of Proof is on prosecution.
Section. 65 to 70 of the Act deals with the offences, relating to infringement of Copyright. The Copyright (Amendment ) Act, 1996 enhanced the punishment and provides with imprisonment which may be extended for a minimum period of 6 months to maximum of 3 yrs. And with fine which not be less than Rupees 50,000/-. The court has discretion to reduce the imprisonment and fine as well, in special cases. For 2nd and subsequent convictions the minimum term of imprisonment is enhanced to 1 yr. and minimum fine to Rupees 1 lac.

Computer Program

Any person who knowingly makes use on a computer of an infringing copy of a computer program will be punishable with imprisonment for a term which will not be less than 7 days, but which may extend to 3 yrs. And with fine which will not be less than Rupees. 50,000/-, but which may extend to 2 lacs of Rupees.

Proceedings in matters of Infringement
The Act provides not only Civil but also Criminal remedies, in case of infringement of Copyright, against the infringer. The two remedies are distinct and independent and can be availed of simultaneously.

But in Cheran P. Joseph Vs. K. Prabhakarn Nair AIR 1967 Kar, 234. held that, a criminal court may not give a finding on the question of infringement if the same issue is pending for the decision in a civil suit.

However, a criminal proceeding does not enable the owner to get an injunction i.e. if a convict infringer repeats the infringement the owner will have to initiate a fresh proceedings. So, in such cases it is advisable to initiate Criminal as well as Civil proceeding simultaneously, if the stakes are very high.
In the matters of criminal proceedings the knowledge or mens rea is essential.

Breach of Copyright Vs Theft

If anyone stoles some copyrighted work to copy, then he is liable for infringement of Copyright and not of theft.

Seizing Power
Police officer of the rank of sub- inspector and above has been given the power to seize without warrant, if he satisfied that an infringement or an abetment of, infringement of Copyright in any work has been or likely to be, committed, all infringing copies or plates of the work, wherever found, to be produced before a Magistrate [ Section 64(1) ], as soon as practicable. Even such copies found at the place of retailer may also be seized. Private individuals who might be possessing infringing copies for their private and domestic use, is not covered by the definition of the infringement u/ Sec. 51. Further this provision applies only to infringement of Copyright and not to broadcasting reproduction rights u/Sec. 37 and the performer's right u/ Sec. 38.

Any person having an interest in any copies of the work or plates so seized may within 15 days of such seizure, make an application to the Magistrate for the return of such copies or the plates to him.

Disposal of Infringing Copies or Plates (Sec.66)

The court trying the offence may order that all the copies of the work which appears to be infringing copies or plates, for the purpose of making infringing copies in possession of alleged offender, be delivered up to the owner of the Copyright without any further proceedings, whether the accused is convicted or not.

Jurisdiction (Sec. 70)

No court inferior to that of Presidency Magistrate or a Magistrate of First Class can try an offence under the Act.
An offence can be tried in a court within whose territorial jurisdiction the offence is committed. If the copies are circulated at many places, the offence is committed at every place, where the copies are intended to reach and has in fact reached.

Who Can File Complaint?

Generally speaking anyone can file unless there is a specific provision to the contrary under Sec. 4(2) & 190 of Cr.PC, a Magistrate will be competent to take cognizance of any offence specified in Sec. 190 upon receiving a complaint of facts which constitutes such offence irrespective of the qualifications or eligibilities of the complainant to file a complaint unless contrary provision is made in any Statute.

Procedure after filing of FIR in case of infringement under Copyright Act

1. The investigation of a cognizable offence (as in the case of copyright infringement ) begins when a police officer in charge of a Police Station has reason to suspect the commission of the offence under the Copyright Act, after registering of FIR under Sec. 154 of CrPC. In such cases it is possible hat the suspicion may be based on any other information of the police (Sec. 157(1)).

2. When a reasonable suspicion of the commission of infringement of Copyright exists, the SHO, must immediately send a report of the circumstances creating the suspicion to a Magistrate having power to take cognizance of such an offence on a police report (Sec. 157(1)).

3. The SHO shall then proceed in person, or shall depute his sub-ordinate officer ( not lower the rank of Sub-Inspector) to proceed to the spot, to investigate the facts and circumstances of the case, and to take measures for the discovery and seizure.

Efforts of NASSCOM and BSA
These two are working in tandem to stop the menus of piracy from the society. They have established a special Anti-Piracy (Hotline) in Delhi. This alliance, with the help of the Police and Judiciary appointed Commissioners are carrying out the operations against anti-piracy. They are facilitating police raids against this menus, providing information of infringement.

Note: For speedy and more effective remedy complaint/FIR can be made to special cells established for the purpose in various States viz. Economic Offences Wing of Delhi Police, in Delhi, which conducts raids along with the IPR section of the Crime Branch of Delhi Police

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Important Copyright Judgments
# Eastern Book company v Navin J.Desai
# Godrej Soaps (P) Ltd v Dora Cosmetics Co
# Caterpillar Inc v Kailash Nichani
# Lachhman Das Behari Lal v Padam Trading Co
# Exphar SA & Anr v Eupharma Laboratories Ltd & Anr
# David Pon Pandian v State
# Shree Devendra Somabhai Naik v Accurate Transheet Pvt Ltd
# Ushodaya Enterprises Ltd v T.V. Venugopal
# Khajanchi Film Exchange v state of MP
# Jolen Inc v Shoban Lal Jain
# Lal Babu Priyadarshi v Badshah Industries


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