Supreme Court elevates copyright infringement to a serious non-bailable offence

On 20 May 2022, in a judgment relating to copyright law, the Supreme Court of India ruled that offences under Section 63 of the Copyright Act (1957) are cognisable and non-bailable. The court was hearing the case of The Knit Pro International v State of NCT of Delhi & Anr (Criminal Appeal 807, 2022), in which it elevated copyright infringement to a more serious offence than forgery and cheating, which are non-cognisable. The ruling is significant as the question of copyright infringement being a cognisable or non-cognisable and a bailable or non-bailable offence has been debated between high courts across India.

The quantum of punishment provided under Section 63 of the Copyright Act must “not be less than six months but which may extend to three years”. Under the Criminal Procedure Code (1973), a cognisable offence is one for which “a police officer may arrest without a warrant”, while, for a non-cognisable offence, “a police officer shall not arrest without warrant”. Further, offences punishable with imprisonment for less than three years or only a fine are categorised as non-cognisable and bailable. Offences punishable with imprisonment for three years or more (but no longer than seven years) are cognisable and non-bailable. Since Section 63 of the Copyright Act contains the word ‘may’ [extend to three years], high courts have taken divergent views on the exact categorisation of the offence of copyright infringement.

Precedent

Interestingly, the Supreme Court’s view in the case under discussion is contrary to its ruling in a 2007 case with a similar factual matrix. In Avinash Bhosale v Union of India (14 SCC 325, 2007), the Supreme Court held that an offence punishable under Section 135(1)(ii) of the Customs Act (1962) would be bailable. The language of the aforesaid section is similar to Section 63 of the Copyright Act prescribing punishment of “imprisonment which may extend to three years”. As the language of both statutes is identical, this earlier interpretation should have applied in the case at hand. The Supreme Court, has, however, relied on its observation in Intelligence Officer, Narcotics Control Bureau v Sambhu Sonkar (AIR 2001 SC 830), where it held that the maximum term of imprisonment that is prescribed for an offence cannot be excluded for the purpose of classification of the offence.

Recent decisions of the high courts of Rajasthan (Nathu Ram v State of Rajasthan, DB Crl, 1/2020), Bombay (Piyush Subhashbhai Ranipa v The State of Maharashtra, Anticipatory Bail Application 336 OF 2021), and Karnataka (ANI Technologies Pvt Ltd v State of Karnataka, writ petition 32942 of 2017, GM- RES) are already in line with the Supreme Court findings and treat offences under Section 63 of the Copyright Act as cognisable and non­bailable.

Conclusion

Copyright infringement is by no means a trivial offence. This interpretation, however, has the tendency to clamp down heavily on creative freedom. The possibility of being arrested under a cognisable, non-bailable offence for copyright infringement can produce a chilling effect on content production. A rights holder’s claim of infringement would bear enough teeth to make those producing new material vulnerable to censorship, or simply discourage them from creating. A non-bailable cognisable offence accusation may become a capricious weapon in the hands of local law enforcement. It is important to bear in mind that acts of copyright infringement are, in many cases, debatable and defendable under the many exceptions allowed under Section 52 of the Copyright Act (eg, fair use). On the other side of the coin, this may well be the tool necessary for copyright owners to confront rampant piracy in India. A looming threat of committing a non-bailable cognisable offence may influence an infringer to cease misuse without waiting for a criminal complaint to be lodged against it. The true impact of the ruling will therefore take time to become apparent.