Criminal laws for copyright infringement in India
Criminal penalties for copyright infringement in India are outlined in the Copyright Act of 1957, the Criminal Procedure Code of 1973 and the Information Technology Act of 2000. Although criminal penalties’ basic outlines in the above legislations are based on the Copyright Act of 1914, the definitions are far more comprehensive, the penalties more severe, and the extent of the lacunae more limited. The Act's purview includes fines and sentences for criminal offenses, seizures, injunctions, and the duties of several authorities in these matters. However, in the era of OTT and other forms of media, the Act's breadth is no longer adequate, and it has to be revised again to decrease the burden of infringement cases.
The nature of criminal offenses under Indian copyright law
India's copyright legislation provides both civil and criminal remedies, although civil remedies are more commonly sought for infringement. Several provisions of the Indian Copyright Act, including Sections 63, 63B, 65, 65A, 65B, 67, 68, and 68A, provide criminal penalties for copyright infringement. In a few cases, these allow for up to three years in jail (which is the limit for non-cognizable offenses, where police officers cannot proceed without a warrant). In India, the question of whether copyright infringement is a non-cognizable or cognizable offense continues to be debated. The Indian Copyright Act of 1957 does not specify which offenses are punishable. The Code of Criminal Procedure of 1973 details the same.
The Copyright Act must strike a balance between the rights of creators and the rights of the public, while the deterrent impact of criminal prosecution (as opposed to a civil action) is still debated. Furthermore, worries about a surge in police powers to arrest and investigate without a warrant or prior approval from a magistrate, such as the smothering of fair usage and the use of the rules to harass innocent users, have yet to be addressed. In an age where censorship frequently takes the shape of copyright infringement claims, every effort to define the kind of criminal action that can be brought under the Act is only beneficial. Since the scope of offenses under copyright law are broad and could potentially ruin livelihoods, adding an extra degree of caution by demanding a warrant or approval from a magistrate can better protect the rights of innocent people. Since University of Oxford v. Rameshwari (2016) 16 DRJ (SN) 678 regarding fair use in creating course packs at Delhi University, copyright law in India has been scrutinized more closely in recent months. By making criminal action more difficult to access for plaintiffs, courts acknowledge the need to safeguard fair use rights while preserving plaintiffs' rights by not completely closing the door to criminal action. This will give the Indian copyright regime more legitimacy in the medium and long term as one based on fairness and justice.
Landmark Indian judgements on criminal prosecution of copyright infringement
Abdul Sathar v. Nodal Officer, Anti-Piracy Cell AIR 2007 Ker 212
The character of a crime punished under Section 63 of the statute was called into question in this important decision. The petitioner questioned whether the offense being cognizable was lawful. Since there were no prior precedents, the court relied on the provisions of the Code of Criminal Procedure, which separates the three degrees of offenses based on their punishments in Part II of the Code of Criminal Procedure. As a three-year jail sentence punishes violations under Section 63 of the Copyright Act, they come within Category 2 (the category of offenses for which a sentence of seven years or less is imposable) and are cognizable.
Juhu Jagruti Trust and Others v. The State of Maharashtra 2016 SCC OnLine Bom 4723:
This case was significant because it demonstrated the relevance of Section 482 of the Code of Criminal Procedure, particularly in the context of a copyright-related FIR. Despite the petitioner's apology, the respondent filed a criminal case against him for playing his music without copyright. The petitioner thus invoked a clause of the Code of Criminal Procedure ancillary to the Copyright Act to have the FIR dismissed, which the court did when it took cognisance of the case.
India: Is decriminalization a better-suited path?
To begin with, contrary to the Government's goals of decriminalizing other crimes, decriminalizing copyright infringement would remove a strong disincentive for infringers, undermine the copyright law, and discourage investment in the creative industries. Criminal enforcement has a substantial deterrent effect on copyright infringement, as seen by global experience in the entertainment industry, with infringing websites shutting down whenever a pirate site is prosecuted and taken down.
Decriminalizing copyright infringement will not only encourage copying/content-theft/misappropriation but also harm the creative business and the whole IP industry. It should not be considered, especially given the prevalence of counterfeits and piracy. According to Irdeto, a global pioneer in digital platform security, piracy costs the Indian media and entertainment business $2.8 billion each year, with India being among the top five nations for peer-to-peer downloading. According to a 2019 IFPI (International Federation of the Phonographic Industry) IMI (Indian Music Industry) analysis, the Indian music business loses roughly Rs. 1,000 crore per year due to piracy, accounting for 67 per cent of the market, whereas the global piracy average is 27 per cent. While no statistics are available for the most prominent M&E industry - broadcast TV signals, book publishers are said to lose $400 million per year, with approximately 20-25 per cent of all books sold in India being pirated.
The Copyright Act 1957's decriminalization of copyright infringement charges may violate India's international treaty obligations. Further, decriminalizing copyright infringement offenses will push India further away from the required standard of protection under TRIPS Article 61, as determined recently by the WTO Panel, which interpreted the phrase "shall provide for criminal procedures and penalties to be applied" to mean that the conception of a formal written law that criminalizes wilful mass piracy is insufficient; Members must actively implement such "criminal procedures and penalties to be applied".
The rationale for treating conduct as criminal
Determining whether conduct warrants criminal penalties is sometimes confused with broader motivations for punishment, such as preventing future crimes, stigmatizing criminals, expressing community values, exacting revenge, etc. While defining behaviour susceptible to criminal sanctions and explaining those sanctions are not entirely different things, punitive considerations do not address why conduct is declared illegal in the first place. What exactly are we hoping to prevent? Which offenders do we wish to label as criminals? What ideals are being communicated? What actions are worthy of retribution? Who should be reformed, and why should they be reformed? Two philosophical views, as well as other combinations of the ideas, suggest that the choice to prosecute is founded on moral and harm evaluations of the action in question. Morality and harm are connected and overlap in meaningful ways; for example, irrational behaviour that causes grave injury is frequently considered immoral. In conclusion, a decision to criminalize conduct that used to be only subject to civil remedies relies on recognising some component of harmfulness or immorality, regardless of how one interprets the concepts of harm and morality.
This research raises a significant concern in assessing the change from civil liability to criminal punishment for personal use infringement: What activity should be illegal? The responses to this question are problematic, based on the idea that we penalize detrimental or unethical activity. The moral consensus against such usage is shaky, and the harm rationale provides only a flawed premise for prosecution. Treating personal use infringement as a criminal act may not be an effective strategy to safeguard the interests of copyright holders and achieve the aims of copyright legislation, given existing community opinions. We would have a unique challenge if newer criminal laws were effective in preventing personal use violations. However, the grounds for creating the legislation in the first place — to execute national objectives of fostering creative expression – may be undermined by an effective criminal statute. Infringement laws that punish infringement as theft convey that information and knowledge should not be exploited without permission. Creatives who accept this message may limit their skill and suppress their urge to produce new ideas and products in the long run, discouraging creative endeavor and limiting future innovation.
The goal of copyright legislation in most nations is to encourage the advancement of information and learning. The United States Copyright Act allows creators of original works of authorship certain restricted rights, known as monopoly rights, to attain this purpose. However, copyright owners' rights are restricted and subject to rights provided to users of copyrighted works under the Act. The balance between the rights of copyright owners and the rights of users of copyrighted works must not be skewed too much in favor of copyright owners if copyright law continues to achieve its constitutional aim.
The Relevance of Criminal Law in Intellectual Property Law Research by Ajay K. Sharma and Dipa Dube