The question of whether the offence of copyright infringement under the Copyright Act, 1957 (the “Copyright Act”) is a cognizable offence or a non-cognizable offence, has long been debated and addressed varyingly by different High Courts over the years. Recently, the Hon’ble Rajasthan High Court (“Rajasthan HC”) in the case of Nathu Ram & Ors. v State of Rajasthan[1] had the occasion to consider this question once again, and in doing so, opted to refer the same to a larger bench for settling the issue, thereby bringing this debate to the fore once again. This article shall analyse relevant statutory provisions and jurisprudential developments in order to understand how courts have dealt with the issue.

Statutory ambiguity over criminal classification of copyright infringement  

Copyright infringement pertains to the violation of someone’s intellectual property rights, specifically provided under Section 51 of the Copyright Act. Section 52 of the Copyright Act further describes acts which would not constitute copyright infringement. In order to understand copyright infringement and the legal implications of the same, one must understand the rights, limitations, and legal repercussions associated with the same. Under the provisions of the Copyright Act, a copyright refers to an exclusive right available with the owner to do or to authorise doing of acts prescribed in relation to the work[2]. A copyright subsists in, inter alia, literary work, dramatic work, musical work and cinematographic work. Section 63 of the Act inter alia provides that the penalty for the offence of copyright infringement shall include imprisonment, which may extend to three years.

While several statutes, such as the Trademarks Act, 1999 and Prevention of Money Laundering Act, 2002, specify the offences mentioned therein as cognizable and non-bailable or otherwise, the Copyright Act makes no such specifications with respect to the offence of copyright infringement, thereby leaving the interpretation of the same open to the courts. In the  absence of specific classification, reference to the provisions of the Code of Criminal Procedure, 1973 (“CrPC”) is required to be made as the same provides guidance on classification of an offence as cognizable or non-cognizable, irrespective of the statute under which such an offence might be committed.

Cognizable offences are those for which a police officer may make an arrest without a warrant.[3] A non-cognizable offences are those for which a police officer has no authority to arrest without a warrant.[4] Further, Part II of the First Schedule to the CrPC prescribes a guideline for classification of offences under statutes other than the Indian Penal Code, 1860 (“IPC”). The same provides, inter alia, that if the offence is punishable with imprisonment for 3 years and upwards but not more than 7 years, then it is a cognizable and a non-bailable offence. Further, it provides that if the offence is punishable with imprisonment for less than 3 years or with fine only, then the same is a non-cognizable and bailable offence. The cognizability of an offence determines the procedure to be followed by the investigation authorities for investigation of such offenses.

Originally, the Copyright Act provided for a maximum imprisonment for a period of 1 (one) year for the offense of infringement. However, by way of the Copyright Amendment Act, 1984, Section 63 of the Act was amended to provide for a maximum imprisonment of up to 3 (three) years. A corresponding amendment was made to Section 64 of the Act to provide for powers to the police officer to arrest without a warrant. The said amendment was necessitated to curtail the increasing instances of piracy. However, the Copyright Act does not provide whether the offences under the Act are cognizable.

Jurisprudential debate  

The problem of classification in respect of Section 63 of the Copyright Act arises due to the absence of specific language regarding its cognizability or non-cognizability. The Hon’ble Kerala High Court in Abdul Sathar vs Nodal Officer[5] as well as the Hon’ble Guwahati High Court in Jitendra Pratap Singh vs State of Assam[6] held that the offence envisaged under Section 63 of the Copyright Act ought to be cognizable given that its maximum term of punishment is imprisonment for 3 years. Similarly, the erstwhile High Court of Andhra Pradesh at Hyderabad, in Amarnath Vyas v State of A.P.[7] held that the offences under the Copyright Act are bailable in nature and observed that under Section 70[8] of the Copyright Act, the offences are cognizable in nature. In contrast, the Hon’ble Delhi High Court in State Govt. of NCT of Delhi v Naresh Kumar Garg[9] held that the offences under the Copyright Act are non-cognizable and bailable. Further it also observed that since the term of punishment for the offence may not always be the maximum stipulated term of 3 years, the legislature intended the offence to be non-cognizable in nature. In addition, it observed that since the police has been given explicit powers under Section 64 of the Copyright Act to seize the infringing copies of any work, the offences under the Copyright Act are non-cognizable and bailable.

Section 70 of the Copyright Act as it stands today, provides that an offence under the Act shall not be tried by a court inferior to a metropolitan magistrate or a judicial magistrate of first class. It may, therefore, be argued that an offence under the Act ought to be considered a cognizable offence. If such an offence was non-cognizable in nature, then in accordance with the CrPC, an offence under the Copyright Act would have been triable by any magistrate and not just a metropolitan magistrate or a judicial magistrate of first class. However, at the same time, Section 64 of the Copyright Act also provides powers to the police to seize all copies of the work infringing a copyright without a warrant and present the same before the magistrate. Accordingly, in the case of Nathu Ram & Ors. v State of Rajasthan[10], the  Rajasthan HC, while referring the question to a larger bench, opined that the Copyright Act as amended, would not have provided for special powers to the police officer to seize all copies of the work infringing a copyright without a warrant if it did not intend the offence of infringement to be a cognizable offense. This view has re-ignited the debate on whether copyright infringement is a cognizable or non-cognizable offense and the same remains to be settled.

 Why this issue needs to be settled sooner than later  

It is evident that the issue of classification of the offence contained within Section 63 of the Copyright Act remains ambiguous. While the issue has once again been re-opened by the Rajasthan HC by referring the said question to a larger bench, the time is ripe for the judiciary to settle this once and for all. In today’s information age and social media, the lines between original creativity and infringement are getting increasingly blurred. Until this debate on the cognizability of the offences under the Copyright Act is settled, ambiguity over the procedure of investigation and the rights of the parties, including that of the accused, will remain. Therefore, it is important that first the larger bench of the Hon’ble Rajasthan HC, and then possibly the Hon’ble Supreme Court provide due clarity and settle this issue once and for all.

1] S.B. Criminal Misc. (Pet.) No. 5128/2019, order reserved on March 5, 2020.

[2] Section 2(y) of the Act.

[3] Section 2(c) of the CrPC.

[4] Section 2(n) of the CrPC.

[5] AIR 2007 Ker 212.

[6] (2004)2 GLR 271

[7] 2007 Cr LJ 2025.

[8] Section 70: Cognizance of offences – No Court inferior to that of [a Metropolitan Magistrate or a judicial magistrate of the first class] shall try any offence under this Act.

[9] 2013 SCC OnLine Del 1142.

[10] S.B. Criminal Misc. (Pet.) No. 5128/2019, order reserved on March 5, 2020.