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
Harmonization of Copyright Law and
Procedure : Milestones
1886 Berene Convention for
Protection of Literary and Artistic Work.
1952 Universal Copyright
1961 Rome Convention
Producerís of Phonograms and Broadcasting Organizations.
1971 Geneva Convention - Producerís
of Phonograms against Unauthorized Duplication of their
1972 Brussels Convention
Distribution of Programme - Carrying Signals Transmitted by
1996 WIPO Copyright Treaty.
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
II. Law of neighboring
IPR's Criminal Jurisprudence : Changing
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
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"
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
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
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
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.
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
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
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
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.
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
Disposal of Infringing Copies or Plates
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
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
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