Copyright Infringement is not a Cognizable and Non-bailable offense. It can never be. Period!

Note: This post, for a change, is in the context of a case law rendered by the Karnataka High Court in ANI Technologies Private Limited v. State of Karnataka holding Copyright infringement to be a Cognizable and Non-Bailable offense in Indian law. However, this post is much more than a legal comment on the interpretation resorted to by the High Court. Read on to find out more:

In a recent precedent from the Karnataka High Court, Copyright infringement involving an element of mens rea and qualifying within the contours of Section 63 of the Indian Copyright Act, 1957, has been held, once again, to be a cognizable and non-bailable offense.  Legally, this judgment clearly goes to the teeth of the Delhi High Court’s (J. Bakhru’s) ruling in Anurag Sanghi v. State, where it was clearly held that these offenses have to be non-cognizable and bailable, even if one disagrees, due to the binding Supreme Court precedent in Avinash Bhosale v. Union of India (2007) 14 SCC 325 – where it was clearly held that “up to 3 years”, because of being inclusive of offenses which are punishable for less than 3 years, has to be read to be categorized in Item III of Part 2 of Schedule I to the CrPC. Any other interpretation would lead to a situation where even an offense where the punishment prescribed is less than 3 years, is rendered non-bailable which cannot be permissible as per the stipulation in the schedule. The Karnataka HC has clearly ignored this precedent, and its reliance by the Delhi HC in both Anurag Sanghi (supra) and GNCTD v. Naresh Kumar Garg, rendering the decision clearly per incuriam, i.e., in ignorance of binding law. In any case, the offense of Copyright Infringement being raised to a level of being non-bailable, inspite of other offenses in part I of Schedule 1 of CrPC which are punishable for 3 years (sl. No. 181, 193) being bailable, clearly goes to the teeth of the rationale expended by the Karnataka HC. Further, in case of ambiguity in the statute (the Copyright Act does not specifically mention whether the offense is cognizable or not, and provides punishment up to 3 years, which is sort of a “no-man’s land” and a cause of confusion), the rule of lenity requires an interpretation in favour of the accused to be taken. Therefore, legally speaking the judgment is clearly flawed.

However, this post is not about that.

This post is about how this judgment is extremely unmindful and ignorant of the scheme and provisions of users’ rights, and limitations to copyright which are present within the Copyright Act itself. This post is about reiterating the fact that Copyright is not a natural monopoly, but rather a carefully constrained legal monopoly, which is not unconditional or a ground to curb liberty of citizens whatsoever.

Judgments holding Copyright infringement (whether conclusively determined by a Court of law or not) as a cognizable and non-bailable offense under Section 63 of the Act, have led to quite an uncertainty for those who seek to use Copyrighted works for uses that are protected and are recognized as limitations to copyright and fundamental to speech purposes, deterring them from resorting to practicing permitted speech, and in effect resulting in a chilling effect on culture. After all, the police, while arresting (and curbing liberties) cannot be expected to figure out what is permitted under Section 52 of the Act and what is not, right? How does the police figure out as to whether borderline uses/dealings are limitations to infringement- or infringement? Given that Courts have even held that even commercial uses can be termed as fair use (Super Cassettes v. Hamar Television), there is no reasonable way for Police to prima facie determine as to whether the alleged offense is one that is statutorily protected or not, with its genesis in other fundamental constitutional obligations (reiterated in Wiley v. IIM).

I ask myself (as colloquially used in courts!), can the liberty of an individual, practicing legitimate speech be statutorily curbed in spite of their being a chance that the speech is protected under the same very statute? What if the unlicensed use of copyrighted content by Ola Cabs in the said case before the Karnataka HC could have come within the domains of Section 52 of the Act? Could the police determine the same? Would arresting an individual, in spite of the possibility of the use being within the contours of Section 52 to be determined by the Court, be in any case justiciable?

In effect, in a country like India, with an indigenous culture that is primarily derivative, and dependent on existing inputs to develop further cultural outputs, as a mode of learning as well as a mode of cultural practice (be it qua musical works, the guru-shishya parampara, or many such works where transformative-ness and derivative usage are the core of cultural performance- similar to sampling in hip-hop cultures), more so in cases of religious cultural outputs (which are also infact protectable, shockingly), people who resort to doing the same may be arrested with their liberties being given less of a preference as compared to overarching proprietary claims which often rest with corporate entities which did not put in any “skill and judgment” to deserve such statutory incentives.

Could this ever be the intent of the law?

It is extremely essential for Courts in India to realize the “EQUAL EXISTANCE” of Section 52 in the same very Copyright Act. Yes- the same Act, provides for certain dealings and uses with the works, to be exempt from being termed as infringing, or as the Supreme Court of India has heldnot reproductions that are infringing for the purposes of Section 51 of the Act. Unless and until, a Court of law/ judicial authority clearly comes to the conclusion, at least on a prima facie basis that the use/dealing which is infringing does not come within one of the limitations, arresting anybody or taking cognizance merely by a police officer (not a judicial authority) on the basis of an FIR, would be completely contrary to the purpose of the existence of Section 52 within the scheme of the Act. It is also important for Courts to realize that Copyright is a statutory monopoly conferred to someone who imputes their skill and judgment. As the Supreme Court has held, it is against the general course of our constitutional schema- which discourages monopolies. To regulate and “create a balance”, regulatory safeguards to this monopoly in the form of limitations have been prescribed under Section 52.

Merely because there is an economic loss to companies who now own these copyrights (due to assignments or employment contracts), possible infringements [without a clear legal determination of the same by a judicial court of law (at least a magistrate)] cannot, ever, be a ground to deny liberty and protection qua permitted speeches to people, especially when there is still a chance of penal consequences without there being a need to curb human liberties. Moreover, it is also important to realize that the companies which bank on copyright transfers as the genesis of their business models are in fact legally de-risked and are treated at a higher pedestal than any other business dealing in any other normal (or essential) commodity. This is merely because of their “investment” in products of skill and judgment, and not their creation of the same. Therefore, to have them cry out loud in the case of every ‘possible’ infringement, and to ask courts to arrest individuals committing acts, which may or may not be infringement (until determined by courts) can never be desirable policy.

Section 52 is an equal right/ freedom, and not something to be overlooked. In fact, it is the section that renders the Copyright Act constitutional, and in fact saves it from being vulnerable to unconstitutionality under the Indian Constitutional schema. Courts ought to be mindful of the same while dealing with cases of alleged infringement under the Copyright Act, 1957.

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