Copyright law in India allows for both civil and criminal remedies in case of infringement, though civil remedies are most often applied. Several sections under the Indian Copyright Act prescribe criminal sanctions, including Ss. 63, 63B, 65, 65A, 65B, 67, 68, and 68A. In several cases, these allow for imprisonment up to 3 years (which is the limit for non-cognisable offences). Police officers, in the case of cognisable offences, can proceed without a warrant, while a warrant is required in the case of non-cognisable offences.

In India, the debate over whether copyright infringement is a non-cognisable offence or a cognisable offence has raged on for decades. The Indian Copyright Act, 1957 does not lay down which offences will be deemed cognisable, this is done by the Code of Criminal Procedure, 1973.

In a recent judgment of the Rajasthan High Court, Deshraj v State of Rajasthan and Anr[1] , a person accused of offences under sections of the Copyright Act had filed a petition under S. 482 of the Code seeking to quash proceedings against him initiated under the Act.

Deshraj considered the judgments of the Supreme Court in Rajeev Chaudhary v State (NCT) of Delhi[2], and the Andhra Pradesh High Court in Amarnath Vyas v State of AP[3]. In Rajeev Chaudhary, the Supreme Court held that the phrase “not less than” would mean imprisonment for a period of ten years or more, and not cover those offences where imprisonment would extend (emphasis added) to a period of ten years. In the case of Amarnath Vyas, the court, relying on Rajeev Chaudhary, held that the term “extend up to ten years” could not be said to be equated with “ten years or more”.

Therefore, the court held that offences carrying a punishment of “imprisonment for a term which may extend up to three years” would not come within the expression “imprisonment for three years and upwards”. Therefore, the offences punishable under Ss. 63, 63B, and 65 of the Act could not be said to be cognisable offences, all of which carry imprisonment up to three years.

Under S. 64 of the Act, any police officer, not below the rank of sub-inspector, if he is satisfied that an offence under S. 63 (infringement of copyright) is being committed, or is likely to be committed, may seize without warrant (emphasis added), all copies of the work, and all plates used for the purpose of making infringing copies of the work. Such wide ranging powers can potentially seriously impede a person’s right to ply their trade. However, it is necessary in order to investigate cases of infringement, while maintaining the element of surprise.

The Copyright Act has necessarily to maintain a balancing act between the rights of creators and the rights of users, and the deterrent value of criminal action (as compared to civil action) remains debatable. Further, the concerns that arise with an increase in powers of police to arrest and investigate without a warrant, without prior permission from a magistrate, such as a consequent stifling of fair use, and the use of the provisions to harass legitimate users, have not yet been addressed. Therefore, in an age where censorship can often take the form of copyright infringement claims, any attempt to clarify the nature of criminal action that can be taken under the Act is only a good thing.

By adding an additional layer of caution by adding the requirement of a warrant, or permission from a magistrate, rights of innocent persons can be better protected, since the offences under copyright law are wide ranging, and can potentially end livelihoods. Copyright law in India has received increased scrutiny in the last months, since the judgments popularly called the Rameshwari[4] judgments, involving the creation of course packs in the University of Delhi, and the concept of fair use. Therefore, by making criminal action tougher to access for plaintiffs, courts are acknowledging the need to protect the rights of fair users, while maintaining the rights of plaintiffs by not closing the door to criminal action in totality. In the medium and long term, this will give the Indian copyright regime further credibility, as one built on fairness and justice.