This article has been written by Ashutosh Singh, a student of BA.LLB(Hons) at Amity Law School, Amity University, Kolkata. The article analyses the ambiguity around offences being bailable or non-bailable under the copyright and trademark laws in India.
Introduction
Any act of a person/persons that causes infringement of the rights of others, results in harm to others and is dangerous enough that it also affects the society at large is called an offence. Section 2(n) of the Code of Criminal Procedure, 1973, defines an offence as any act or omission made punishable by any law in force at that time and that includes any act for which a complaint may be made under Section 20 of the Cattle-trespass Act, 1871. However, an offence based on nature and gravity can be classified under any of the following types:
- Bailable and non-bailable offence.
- Cognizable and non-cognizable offence.
- Compoundable and non-compoundable offence.
The grant of bail is a matter of right in bailable non-cognizable offences. In such cases, the bail is granted by a police officer who is having custody of the accused or by the court. Some examples are:
- Obstructing a public servant in discharge of his public functions.
- Giving or fabricating false evidence in a judicial proceeding.
Bail is not a matter of right in a non-bailable offence. In such cases, the accused will have to apply to the court, and it will be the discretion of the court to grant/not grant the bail to that applicant. Some examples of non-bailable offence are:
- Act of murder.
- Act resulting in dowry death.
- Attempt to murder.
On a closer look at the offences mentioned above, one wonders if copyright and trademark offences can be put in the same category as other non-bailable offences. Let us begin by understanding a few things about copyright and trademark law in India.
Copyright in India
Copyright is a legal right that is given to a creator of any original work by law. It can be for any sound recordings, cinematograph films, dramatic, musical, literary, and other artistic works, like songs, novels, books, paintings, poems, musical pieces, etc. So, having copyright prevents the unauthorized use of the original work, which includes communication to the public, reproduction, translation, and other forms of adaptation.
The Indian Copyright Act, 1957 governs the subject of copyright in India. It is intended to protect the creativity of every poet, musician, writer, painter, poet, lyricist, sculptor, etc. Given below are the rights which are conferred on the owner or author of a work under Section 57 of the Copyright Act, 1957.
- The right to reproduce a work.
- The right to issue and communicate copies of the work to the public.
- The right to perform work in public.
- The right to make a sound recording or a cinematograph film concerning a work.
- The right to translate a work.
- The right to adapt a work of any kind.
- The author has the right to sell or rent a work even if he has already rented or given the work for sale at an earlier period in the case of computer programs.
Generally, it is said that the first owner of the copyrighted work is the author. Based on a work registered, the copyright owner may be a producer (in the case of cinematograph film and sound recording), photographer (photograph), composer, (musical work). In the case of dramatic, artistic, or literary work which is produced by an author during his/her employment, the employer is the one who reserves the right to be the first owner. But, if there is an agreement and contract then it may not be applicable.
Copyright owners have been given the freedom to assign wholly or partially the copyright to any person but subject to limitations. The copyright can be assigned by authorising an agent or in writing, by specifying the period, the payable amount of royalty, if there is any, to the author or his legal heirs. The assignment can be extended, terminated, or revised on mutual terms which are to be agreed upon by both parties. If there is no time mentioned, then it will be deemed to be 5 years from the date of assignment, which will be applicable across India.
Copyright infringement
Section 51 of the Copyright Act, 1957
Section 51 says that a work is considered to be copyright infringed when:
- A person has obtained a license without the permission of the copyright owner, or Registrar of Copyright or has breached the condition of the licence which was granted or any other conditions imposed by the authority under the Act:
- If the person has violated the exclusive right of the copyright owner, or
- If the person has the work used for communication to the public which amounts to infringement of the copyrighted work, except if he or she is not aware or had no reasonable ground to believe that such communication to the general public does amount to infringement of the copyright, or
- When a person,
- Makes a sale for hire, sells or lends it for hire by way of trade display of the infringed copyright, or
- It is distributed for trade which affects the owner of the copyright or
- It is exhibited in public through trade, or
- It is imported into India any infringed copy of work except one copy of any work, for the domestic or private use of the importer. If a cinematograph film has reproduced a dramatic, literary, artistic, or musical work it will be a copyright infringement.
What does not amount to copyright infringement
An act that involves ‘fair use’ of a work, does not amount to infringement. However, the domain of ‘fair use’ can be debated and it depends on the court’s decision in each case which varies in facts and circumstances. For example, if the copyrighted work is used for study, research, report, review, legislation, etc. without the authorization of the owner then it will still not amount to copyright infringement.
Exceptions to Infringement under Section 52 of The Copyright Act, 1957
Personal or private use, which includes research, review, or criticism of a particular work or any other work, the reporting of current affairs, and events that include reporting, or a lecture delivered in public are exceptions as mentioned in Section 52 of the Act.
Remedies for copyright infringement
Civil remedies
Civil remedies provide for a lot of things like damages, injunctions, delivery and destruction of the infringed copies, rendition of accounts and damages for conversion of the copies.
Criminal remedies
The Act also says that if there is the abetment of infringement or an intentional infringement of the copyright in a work then it would be considered a criminal act. The criminal remedies for copyright infringement include:
- Punishment of imprisonment is less than 6 months but can extend to three years.
- Fines which will not be less than Rs. 50,000 and which may extend to Rs. 200,000.
- The search and seizure of the infringed goods include plates, which consist of moulds, blocks, negatives, duplicating equipment, transfers, or any other device used or which may intend to be used for reproducing copies of the work or printing it.
- The infringing copies or plates are to be delivered to the copyright owner.
Indian law dealing with copyright
In 1957 the Indian Copyright Act was first passed, after a few amendments being made in 1983. So, keeping in mind the latest developments in technology, specifically in the field of computers and digital technologies, a new amendment Act was made which was called the Copyright (Amendment) Act, 1994. It was passed and it made the Copyright Law of India one of the toughest in the world.
The definition of “Computer Program” was also included in its ambit. It explains a lot of things clearly and simply like the user’s right to make backup copies, the copyright holder’s rights, the position on rental software’s, and the hefty punishment and fines on Copyright infringement on software. The act also says that it is illegal to make or distribute infringed copyrighted software without proper authorization from the author. The main changes in the new amendment Act were that the “Literary work” would also include “computer” and “computer program”.
Offences under the Copyright Act, 1957
|
Offence |
Original Act, 1957 |
1984 Amendment |
1994 amendment |
|
Section 63: Infringing or abetting the infringement of the copyright in a work/any other right conferred by the Act, knowingly. |
Imprisonment for a maximum term of one year, and/or fine.
|
Imprisonment for a minimum term of six months and a maximum of 3 years, and/or fine from Rs. 50,000 to Rs. 2,00,000. |
Discretion about the punishment was vested with the court to impose a less severe sentence/fine for adequate and special reasons which were to be mentioned in the judgment. |
|
Section 63A: Repeated Conviction under Section 63.
|
Original Act did not have this.
|
Minimum sentence and/or fine was increased to 1 year and Rs. 1 lakh respectively in cases of subsequent convictions. Discretion about the punishment was vested with the court to impose a less severe sentence/fine for adequate and special reasons which were to be mentioned in the judgment. |
Like it did in the case of the first conviction, it qualified the said discretion of the court about the punishment which was vested with the court to impose a less severe sentence/fine for adequate and special reasons which were to be mentioned in the judgment. However, in the case of subsequent convictions, it would be exercised only when the infringement had not been made for gain in the course of trade or business. |
|
Section 63B: Specific to Computer Programme (or software) in common parlance. |
Original Act did not have this.
|
Imprisonment for a minimum term of 7 days and maximum period of 3 years, and/or fine from Rs. 50,000 to Rs. 2,00,000. |
Discretion has been vested with the court to not impose any sentence and to levy a maximum fine of Rs. 50,000/- when the infringement had not been made for gain in the course of trade or business. |
|
Section 64: Power to seize infringing copies.
|
Seizure by a Police officer not lower than the rank of Sub-Inspector with or without warrant provided cognizance has been taken by Magistrate under Section 63. |
A seizure can be done even before cognizance, though the requirement of mere ‘appears to be infringing’ has been escalated to ‘satisfaction of infringement’.
|
|
|
Section 65: Making or possessing plates. |
Imprisonment extending to a maximum term of one year, and/or fine. |
Imprisonment for a maximum period of 2 years and fine. |
|
Statutory ambiguity over the criminal classification of copyright infringement
If a violation of intellectual property rights is proved under Sections 51 and 52 of the Copyright Act, then it will be a Copyright infringement. What would not constitute a copyright infringement is given under Section 52 of the Copyright Act. So, to understand copyright infringement and its legal implications, we must also understand the limitations, rights, and legal consequences. The punishment for the offence is given in Section 63 of the Act, 1957. There are several statutes, which specify offences and mention them as non-bailable, cognizable, or bailable, etc like the Money Laundering Act of 2002 or the Trademarks Act of 1999. But no such specifications are given of the offence of copyright infringement in the Copyright Act, which therefore leaves the interpretation of the same open to the courts. So, when the specific classification is not there then, the provisions of the Code of Criminal Procedure, 1973 (CrPC) are required to be made as it provides the classification for the offence which are cognizable or non-cognizable, irrespective of the statute under which the offence might be committed.
It would be pertinent to refer also to the provision of Section 64 of the Copyright Act which empowers a police officer, not below the rank of Sub-Inspector to seize/confiscate the copies of any work which are infringing and observed that if the offence had been cognizable and non-bailable, why was there a necessity to specifically authorize the police officer with the power of seizure.
Classification of the offences in Part II of First Schedule of the Criminal Procedure Code, 1973 in cases of offences under other laws, is as follows:
|
Category of offence |
Penalty for offence |
Cognizability |
Bailability |
|
I |
Punishable with death, Imprisonment for life, Imprisonment for more than 7 years. |
Yes |
No |
|
II |
Punishable with imprisonment for 3 years and upwards but not more than 7 years. |
Yes |
No |
|
II |
Punishable with imprisonment for less than 3 years or with a fine only. |
No |
Yes |
According to Section 63 of the Copyright Act, 1957, imprisonment for a minimum term of six months and a maximum of 3 years, and/or fine from Rs. 50,000 to Rs. 2,00,000 is given for offences of copyright in India. The catch seems to be in the expression “ up to a maximum of 3 years”. If the punishment is up to 3 years then according to the classification of the offences in the First Schedule of the Criminal Procedure Code, 1973, the offence becomes cognizable and non-bailable. If the penalty for the offence is less than 3 years then the offence may be considered non-cognizable and bailable.
Judicial trends of various courts in the classification of the offence
There have been fluctuating views about the classification of the offence of copyright infringement by different courts. While some courts have recognized that this particular offence is cognizable and non-bailable, others have seen it as non-cognizable and bailable.
Bailable and non-cognizable
Amarnath Vyas v. State of Andhra Pradesh (2006)
A single-judge bench of the High Court of Andhra Pradesh in the case of Amarnath Vyas v. State of Andhra Pradesh (2006) relied on the judgment of the apex court and said in its order of December 2006, in Rajeev Chaudhry v. State (2001), that there was no provision in the Act which made the said offence a non-bailable one. The court further added that “punishment for a term which may extend to three years” is not similar to “punishment for three years and upwards” and consequently classified the offence under Section 63 of the Act as bailable and non-cognizable. This was expressed because the offence would be covered by the third category of offences.
State Govt. of NCT of Delhi v. Naresh Kumar Garg (2013)
The classification under Section 63 of the Copyright Act has remained unclear. This issue has been raised in this case by the Rajasthan H.C which referred it to a larger bench. Referring to the Avinash Bhosale case, (2007), in this case, held that the offences under Section 63 of the Copyright Act were non-cognizable and boilable and allowed the petition.
Non-bailable and Cognizable
Abdul Sathar v. Nodal Officer & Anr. (2007)
A Single Judge Bench of the Kerala High Court in the case of Abdul Sathar v. Nodal Officer & Anr. (Anti-Piracy Cell, Kerala Crime Branch Office) (2007) had a similar viewpoint as in the case Jithendra Prasad Singh v. The State of Assam. It was observed in both the cases that the language used in Section 63 of the Copyright Act, 1957 in category Part II of the First Schedule of the Code of Criminal Procedure, 1973 clearly says that the offences under the said provision which is punishable with an imprisonment of 3 years, with fine, will fall within the second category of offences which will therefore classify them as cognizable and non-bailable.
Suresh Kumar v. the Sub Inspector of Police (2007)
The Kerala High Court in Suresh Kumar v. The Sub Inspector of Police (2007), decided on the question of whether copyright infringement is a cognizable offence, where an arrest can be made without a warrant. The court held that Section 63 of the Copyright Act, 1957, is punishable with imprisonment for 3 years, and under these circumstances, the offence has to be held to be cognizable.
In today’s age of information and technology, there is a very thin line between infringement and original creativity which may at times get blurred progressively. The debate on the cognizability of the offences under the Copyright Act is never-ending and until it is settled, the uncertainty over the rights of parties, procedure of investigation, and rights of the accused, will continue to remain the same. Therefore, it is important that the Supreme Court provides some clarity on the issue and settles it once and for all.
Jitendra Prasad Singh v. the State of Assam (2002)
The question raised in this case, of the Guwahati High Court, was whether the offence was punishable under Section 63 of the Copyright Act, 1957 is a bailable offence?
While considering the above question, the court said that it is very important to note that the alleged offence by the petitioner was covered by Section 63 of the said Act and it was punishable with imprisonment for a term, which could extend up to three years. By Part II, contained in Schedule 1 to CrPC, an offence under the other special law, if punishable with imprisonment for less than three years or with a fine only, is non-cognizable, but bailable. However, if the offence is punishable with imprisonment for three years and upward but not more than seven years, the same shall be non-bailable. The confusion and debate revolve around the expression ‘punishable with imprisonment for a term, which may extend up to three years’. Different courts have interpreted this differently. This is distinctly different from the expression ‘if punishable with imprisonment for less than three years’. This means that the imprisonment can be for a term as long as three years, or the offence is punishable with imprisonment for a period, which is less than three years. Viewed from this angle, the offence under Section 63 of the said Act is a non-bailable offence. The provisions of Section 438, CrPC. can, therefore, be applied, if need be.
Trademark
Trademark is one of the elements of Intellectual Property Right and it is represented by the symbol ® (registered trademark), ™ (trademark) distinctive sign, or an indicator which are used by business organizations, individuals, or other legal entities. A trademark is also used to identify a product or service by the consumers so that they can distinguish one company’s products or services from the other. The trademark examples are usually a word, name, logo, phrase, design, symbol, image, or a combination of all these elements. There are also non-conventional trademarks that consist of a mark that does not fall into this standard category. A trademark is also used with services rather than of products, it may also be called a service mark.
Trademark infringement
A trademark infringement is an unauthorized usage of a mark that is deceptively similar or identical to a registered trademark. Deceptively similar means when a consumer looks at a mark, it is likely to confuse him/her for the origin of goods or services of another product.
A trademark infringement takes place when a trademark used by an individual or organization/company, is similar to the registered trademark of another organization/company. The popular ways a trademark test is conducted for testing infringement are:
- Close similarity to a mark and the associated products and/or services to a prior registered trademark and its related products and/or services.
- The use of a logo/mark should have a high chance of creating a similarity confusion with a registered trademark among the customers.
There are primarily three types of common trademark infringements as mentioned below:
- Application of a false trademark is a process of manufacturing, packaging, or processing any kind of product or service with an unauthorized trademark.
- Distributing products with false trademarks is the process of dealing with or selling any product or service that has a false or an unauthorized trademark.
- False claim of trademark registration claiming a falsely registered trademark.
Laws and rules governing trademark in India
There is a lot of enthusiasm in the Indian judiciary regarding the protection of trademarks, which has extended its protection under the trademark laws to domain names which can be seen in the landmark cases of Tata Sons Ltd. v. Manu Kosuri & Ors (2001), as well as Yahoo Inc. v. Akash Arora (1999).
India has been a common-law country for a long time and it not only follows a codified law but also common law principles. It provides for both infringement and passing off actions against the violation of the trademark. Section 135 of the Trademarks Act, 1999 recognizes both infringements and passing off actions.
The Trademarks Act, 1999 protects trademarks in India. The newly enacted Trade Marks Rules 2017 and the said Act form a widespread governing regime. The Trade Marks Office (TMO), has also issued guidelines like the Trade Mark Manual which govern several aspects of trademark law.
The Trademark Act gives the rules which deal with the protection, registration, and penalties that are against trademark infringement. A trademark is given a global status of intellectual property. There are many organizations all around the world which undertake the task to protect intellectual properties like trademarks.
Treaties and conventions to which India is a signatory to and which has been adopted into our national law, are:
- WIPO Madrid Agreement concerning, International Registration of Marks 1891 (Madrid Agreement).
- WIPO Protocol Relating to the Madrid Agreement concerning, International Registration of Marks 1989 (Madrid Protocol).
- TRIPS Convention.
Remedies under Trademark Act, 1999
The Indian Trademark Law caters to civil, criminal, as well as administrative remedies for action against infringement, dilution, passing off of a trademark.
Civil remedies
Under the Trademarks Act, 1999, a lawsuit may be initiated for passing off or for infringement depending on whether the trademark is registered, pending registration, or unregistered. In civil remedies, it is very cumbersome and troublesome to determine the damages based on potential losses or actual losses suffered and hence the owners don’t take so much trouble and are ready to forfeit their claim. But to remedy that, the Indian courts have now started imposing financial penalties in the form of damages to ensure that intellectual property rights are not violated. Some of the civil remedies are:
Interlocutory/ Temporary/ Ad-interim Injunction
An unrestricted relief that is offered to the Plaintiff, barring action by a party to a lawsuit until the clearance of the suit. It is preventing one person from doing a particular activity or task through the judicial process. Mareva Injunction is again a kind of interim injunction that is granted to restrain the defendant from disposing of their assets until the trial ends or the judgment is delivered.
Anton Piller Order
When this remedy is passed, it permits the plaintiff to enter the premises of the defendant and inspect relevant documents and articles and take or remove copies of them for safe custody. This is permitted to ensure that relevant documents and infringing articles are not cleared or destroyed by the defendant.
John Doe Order
It is an order issued by a court to search and seize against unnamed or unknown defendants, that is why the name John Doe. Damages are granted to the plaintiff to compensate for losses suffered because of the acts of the defendant.
Accounts of profit
When the defendant is asked to hand over to the plaintiff the actual amounts of profits made due to the infringing activities then it is called accounts of profit remedy.
Civil remedies against trademark infringement should be very effective but awarding heavy punitive damages only is not enough. The challenge here is how to make the recovery of the damages from the infringing party. The courts in India have become more lenient and grant large damages but they seldom address the latter problem of recovering the sum from the other side and this doesn’t give strength to the remedy offered.
Criminal Remedies
Under Chapter XII which deals with offences and penalties, the Trade Marks Act, 1999 also provides for criminal remedies against infringement and passing off. The relevant sections are Section 103 and 104. For the effective implementation of the provisions relating to infringement and/or passing off of the trademark the Trade Marks Act, 1999 like the Copyright Act 1957 provides for search and seizure powers of the police under Section 115. However, Section 115(4) of the Trade Marks Act, 1999, has provision for invoking the powers of police, for search and seizure, but only after obtaining the opinion of the Registrar of Trademarks to ascertain the similarity between the infringing mark and the mark of the complainant which has to be complied with before the police can carry out the search and seizure.
Anant Tukaram Teke And Others v. the State Of Maharashtra, 2018
In this case, the complainant (Vishal s/o. Vilasrao Kulkarni) is a businessman who sells tea by packing it in polythene packets. The tea has a registered trademark. The complainant asserts that the applicants (Anant Tukaram Teke And Others) are also in similar business and the pack of their tea is spuriously similar to the pack of the complainant. The complainant contends that he has earned a certain reputation by being in business for the last 35 years, and the customers who were purchasing tea from the complainant are being duped because of the applicant’s deceptive packaging similarity on the packet to that of the complainant. It is contended that due to such activity of the applicants the sale of the complainant has gone down. Here the provision of Section 110 needs to be kept in mind as the accused is having a certificate under the Copyright Act, 1957. The police based on the F.I.R and powers were given by Section 115(3) and Section 115(4) of the Act, took cognizance of certain offences and used the powers of a police officer for search and seizure. The division bench held that the provision of subsection 4 of Section 115 of the Act is mandatory in nature He submitted that in the present case the opinion of the Registrar was not obtained at the time of conducting the search and seizure.
Protection under Trademark Act
Section 103 and 104 provide for imprisonment which is not less than 6 months that may extend up to 3 years and a fine of not less than Rs. 50,000 which is extended to Rs 2 lakh where there is a false application being made of trademark and selling of the goods to which a false trademark is applied. Section 115 (4) of the Act talks about the power and process of search and seizure which the police have and can search and seize, any product which calls for action against infringement of the trademark. The following sections can be invoked for a remedy under Trade Marks Act, 1999:
Section 103
Any person who has falsified a trademark or falsely applied to a good or service of any trademark will be punished with an imprisonment of not less than 6 months but which may extend up to 3 years and with a fine, not less than Rs. 50,000, which may extend up to Rs. 2,00,000.
Section 104
If any person who has helped an accused in providing, selling, or hiring services of the goods or has such goods for sale or by any other way, the person will be punished with an imprisonment of not less than 6 months, which may extend up to 3 years and with a fine that cannot be less than Rs 50,000, which may extend up to Rs. 2,00,000.
Section 105
According to this Section, any person who has committed any offence which is provided under Section 103 or 104, shall be punished for the second and every subsequent offence, with imprisonment of that cannot be less than 1 year but may extend up to 3 years with a fine cannot be less than Rs. 1,00,000 which may extend up to Rs. 2,00,000. For filing the suit for trademark infringement, the period of limitation is of three years from the date of infringement.
Sanyo Electric Co v. the State of Delhi, (2010)
In the case of Sanyo Electric Co v. State of Delhi (2010), an order was passed by a magistrate regarding a search warrant which was related to a trademark Infringement. This order of the magistrate was challenged, alleging that it violates the requirement of Section 115(4) of the Trademark Act which says that a search warrant shall not be executed until an opinion by the registrar has been obtained by the investigating officer. The High Court of Delhi took the decision that the search warrant which was issued by the court under Section 93 of the Code(CrPC) can be executed without the requirement of the proviso mentioned in Section 115(4) of the Trademark Act. Therefore, depending on the factual substance of a particular case the court may or may not seek the opinion of the registrar.
Exceptions to trademark infringement
The doctrine of ‘fair use’ is given under Section 30 of the Trade Marks Act, 1999 which lays down the following broad conditions:
- Use with honest practices in commercial or industrial matters.
- Use of a mark not in such a way as to take unfair advantage or be harmful to the distinctive character or reputation of the trademark.
Fair use of a trademark by any party, other than the owner, maybe broadly categorized into:
Descriptive fair use
It relates to the use of a registered trademark in a manner that is descriptive concerning the goods or services which show the quality, quantity, intended purpose, geographical origin, value, the time of production, and other characteristics of the goods or services, under Section 30(2)(a) of the Trademark Act. For example, the WD-40 Company uses the term “inhibitor” which was found to be a descriptive fair use of the registered mark.
Nominative fair use
It relates to the use of a registered trademark by any person who has adapted the goods to form part of or to be an accessory, provided it is reasonably necessary to indicate that the goods adapted are compatible with the goods which are sold under the trademark, under Section 30 (2)(d) of the Act. For example, one can refer to the professional basketball team from Chicago, but it is easier and simpler to understand when people say Chicago Bulls. Here, a trademark is used only to describe a thing rather than to identify it by its source. It does not imply any endorsement or sponsorship.
Indian Courts have reinforced the defence of nominative fair use as an exception to trademark infringement by saying that it has limitations in its applicability and is aimed at protecting the rights and interests of the brand owner.
Statutory ambiguity over the criminal classification of trademark infringement
The ambiguity Under Chapter XII which deals with offences and penalties of the Trade Marks Act, 1999 also provides for criminal remedies against infringement and passing off. The relevant sections are Section 103 and 104. For the effective implementation of the provisions relating to infringement and/or passing off of the trademark, the Trade Marks Act, 1999 like the Copyright Act 1957 provides for search and seizure powers of the police under Section 115. However, Section 115(4) of the Trade Marks Act, 1999, has provision for invoking the powers of police, for search and seizure, but only after obtaining the opinion of the Registrar of Trademarks to ascertain the similarity between the infringing mark and the mark of the complainant which has to be complied with before the police can carry out the search and seizure. The offences under the Copyright Act, 1957 and the Trade Marks Act, 1999 are classified as cognizable and non-bailable offences though the same is not provided for in the said Acts as specified in the First Schedule table II of the Code of Criminal Procedure, 1973. The First Schedule table II-Classification of offences (other laws) provides that any offence which is punishable with imprisonment for up to 3 years is a cognizable, non-bailable offense and it is triable by the Magistrate of First Class. Here lies the ambiguity. If the offence is punishable by less than 3 years then is the offence still cognizable and non-bailable?
Piyush Subashbhai Ranipa v. the State of Maharashtra
In this case, Piyush Subashbhai Ranipa v. the State of Maharashtra (2021), in an anticipatory bail application, the Bombay High Court’s learned single judge, rejected the anticipatory bail to the applicant (Piyush Subhashbhai Ranipa) for the various offences punishable for 3 years under Indian Penal Code 1860, the Trademarks Act 1999 and the Copyright Act 1957. An anticipatory bail application was filed by Piyush Subhashbhai Ranipa the accused in this case before the Maharashtra HC because he apprehended arrest in a case of copyright infringement and faking of trademark of the complainant company named Jain Irrigation System.
The HC maintained that the act of the accused also amounted to offence under Section 420 and of the IPC and in this view of the matter, custodial interrogation of the applicant was necessary and hence relief of anticipatory bail could be granted. Justice Sarang V. Kotwal, (2020)l held that the collective offences under Section 63 of the Copyright Act and Section 103 of the Trade Marks Act are non-bailable and cognizable.
Conclusion
The quintessential aim of copyright law is to encourage creativity while enabling access to these creative works to all. With the recent judgement, in this case, Piyush Subashbhai Ranipa v. the State of Maharashtra, (2021), in an anticipatory bail application, the threat of a police arrest and the denial of bail as a right, is discouraging and would indulge in self-censorship by creators for fear that they might end up serving jail time for their actions. Moreover, this would also discourage creative activities which may come under the exceptions to the copyright law and trademark law in India. The ascertaining of whether the said activity comes under an exception or not can happen only at a later stage of a trial. Until such time the threat of being jailed under a cognizable, non-bailable offence will loom large like a hanging sword on the head. For a country like India the majority of the population is still ignorant of the functioning of intellectual property legislation and in such a scenario, the threat of jail and the police having unrestrained power to arrest individuals without a warrant then chance are that it could potentially be used as a weapon for harassment with no remedy of bail for the victims. In today’s age of information and technology, there is a very thin line between infringement and original creativity which may at times get blurred progressively. The debate on the recognizability of the offences under the Copyright Act is never-ending and until it is settled, the uncertainty over the rights of parties, procedure of investigation, and rights of the accused will continue to remain the same. Therefore, it is important that the Supreme Court provides some clarity on the issue and settles it once and for all.
References
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