What is Copyright and when it becomes a criminal offense?
To understand this question, we must know the legal provisions.
COPYRIGHT ACT 1957
WHAT IS COPYRIGHT?
Meaning of said term is given under Section 14 of the Act.
[14. Meaning of Copyright.— For the purposes of this Act, “copyright” means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:—
(a) in the case of a literary, dramatic or musical work, not being a computer programme,—
(i) to reproduce the work in any material form including the storing of it in any medium by electronic means; (ii) to issue copies of the work to the public not being copies already in circulation; (iii) to perform the work in public, or communicate it to the public; (iv) to make any cinematograph film or sound recording in respect of the work; (v) to make any translation of the work; (vi) to make any adaptation of the work; (vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);
(b) in the case of a computer programme,— (i) to do any of the acts specified in clause (a); 1 [(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme: Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.]
(c) in the case of an artistic work,— 2 [(i) to reproduce the work in any material form including— (A) the storing of it in any medium by electronic or other means; or (B) depiction in three-dimensions of a two-dimensional work; or (C) depiction in two-dimensions of a three-dimensional work;] (ii) to communicate the work to the public; (iii) to issue copies of the work to the public not being copies already in circulation; (iv) to include the work in any cinematograph film; (v) to make any adaptation of the work; (vi) to do in relation to adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);
(d) in the case of a cinematograph film,—
[(i) to make a copy of the film, including— (A) a photograph of any image forming part thereof; or (B) storing of it in any medium by electronic or other means;]
[(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the film;]
iii) to communicate the film to the public; (e) in the case of a sound recording,— (i) to make any other sound recording embodying it 1 [including storing of it in any medium by electronic or other means]; [(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording;] (iii) to communicate the sound recording to the public.
- Offence of infringement of copyright or other rights conferred by this Act.— Any person who knowingly infringes or abets the infringement of—
(a) the copyright in a work, or
(b) any other right conferred by this Act 1
[except the right conferred by section 53A],
[shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees]:
Provided that [where the infringement has not been made for gain in the course of trade or business] the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.]
Explanation.— Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offense under this section.
[63A. Enhanced penalty on second and subsequent convictions.— Whoever having already been convicted of an offence under section 63 is again convicted of any such offence shall be punishable for the second and for every subsequent offence, with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that 4 [where the infringement has not been made for gain in the course of trade or business] the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than one year or a fine of less than one lakh rupees:
Provided further that for the purposes of this section, no cognizance shall be taken of any conviction made before the commencement of the Copyright (Amendment) Act, 1984 (65 of 1984).
PROVISIONS OF CR.P.C.
PART II OF THE FIRST SCHEDULE OF THE CR.P.C.
II – CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS
Offense Cognizable or non-cognizable Bailable or non-cognizable and by which court it is triable.
If punishable with death, imprisonment for life, or imprisonment for more than 7 years Cognizable Non-bailable Court of Session If punishable with imprisonment for 3 years and upwards but not more than 7 years.
Cognizable Non-bailable Magistrate of the first class If punishable with imprisonment for less than 3 years or with fine only by Non-cognizable Bailable Any Magistrate.
In M/s Knit Pro International Vs The State of NCT of Delhi & Anr.
Code of Criminal Procedure, 1973; Part II of First Schedule – If the offense is punishable with imprisonment for three years and onwards but not more than seven years the offense is a cognizable offense. Only in a case where the offense is punishable for imprisonment for less than three years or with a fine only the offense can be said to be non-cognizable. [Rakesh Kumar Paul vs. State of Assam, (2017) 15 SCC 67 Distinguished]
Appellants were violating the intellectual property rights of a family concern namely M/s Indeutsch International who has filed a civil suit Suit no. 240 of 2012 before this Hon’ble Court against the defendants in which an ex- parte injunction was granted vide against use of CHEVRON PATTERN TRADEMARK.
The Appellant continued to violate said order. Pursuant to which an FIR was registered.
Following which, the appellant in the above matter Knit Pro ( supra) filed an application under Section 156(3) Cr.P.C. and sought directions from the learned Chief Metropolitan Magistrate for the registration of FIR against respondent No.2 herein for the offenses under Sections 51, 63 and 64 of the Copyright Act read with Section 420 of the IPC. The learned CMM allowed the said application and directed the concerned SHO to register the FIR under the appropriate provision of law. That pursuant to the said order, FIR came to be registered with PS Bawana. That thereafter respondent no.2 herein – the original accused filed the present petition before the High Court with a prayer to quash the criminal proceedings on various grounds. The original writ petitioner–accused at the time of hearing prayed to quash the criminal proceedings on the sole ground that the offense under Section 63 of the Copyright Act is not a cognizable and a non-bailable offense.
By the impugned judgment and order the High Court has allowed the said writ petition and has quashed the criminal proceedings and the order passed by the learned CMM passed in Criminal Application under Section 156(3) Cr.P.C. by holding that the offense under Section 63 of the Copyright Act is a non-cognizable offense.
In Intelligence Officer, Narcotics Control Bureau vs. Sambhu Sonkar, AIR 2001 SC 830, it is specifically observed and held by this Court that the maximum term of imprisonment that is prescribed for the said offense, cannot be excluded for the purpose of classification of the offense.
FINAL CONCLUSION ON THE ISSUE:
Thus, it was held that, for the offense under Section 63 of the Copyright Act, the punishment provided is imprisonment for a term which shall not be less than six months, but which may extend to three years and with a fine. Therefore, the maximum punishment which can be imposed would be three years. Therefore, the learned Magistrate may sentence the accused for a period of three years also. In that view of the matter considering Part II of the First Schedule of the Cr.P.C., if the offense is punishable with imprisonment for three years and onwards but not more than seven years the offense is a cognizable offense.
Only in a case where the offense is punishable by imprisonment for less than three years or with a fine only the offense can be said to be non-cognizable.
Additional Sessions Judge Lokesh Kumar Sharma dismissed the anticipatory bail plea of Shailender Singhal. The court directed him to join the investigation as and when required by the Investigation Officer (IO). The court dismissed the application after hearing the submissions made by the counsels for the accused and the complainant. It was alleged that the accused made certain changes in the book without informing the complainant Advocate Tarun Narang.
WHEN IT BECOMES AN OFFENSE?
A publisher is not the owner of the copyright unless (a) there is an agreement in writing (b) the writer, the author is paid for the assignment of the copyright.
If there are a series of editions of each title then every new edition is a new creation and for each edition, there must be an agreement and assignment charges for every subsequent edition.
In absence of either author is the real owner of the copyright.
If the publisher violates and prints without consent either in his name or in name of a fictitious author then both are liable under this criminal provision if an FIR is lodged.
23rd December 2022