Cognizable offences are offences for which the Police may arrest without a warrant whereas for Non-Cognizable offences the Police Officer should possess a warrant before arresting an accused person as per the definitions prescribed in the Criminal Procedure Code, 1973.
The Criminal Procedure Code, 1973 in accordance with Part II of the First Schedule also prescribes the period of punishment as follows:
● If punishable with death, imprisonment for life, or imprisonment for more than 7 years.
● If punishable with imprisonment for 3 years and upwards but not more than 7 years
● If punishable with imprisonment for less than 3 years or with fine only.
This Schedule to the Cr.P.C. classifies the offences as Cognizable or Non-Cognizable offences. Herein, the first two categories are considered as cognizable offences and non-bailable whereas the last category is considered as Non-cognizable offences and bailable.
Section 63 of the Copyright Act which treats copyright infringement as a crime, the issue of categorization of the offence as a cognizable or non-cognizable offence arises because offences for copyright infringement are punishable with imprisonment for a term ‘not less than six months but which may extend to three years’ with a fine.
Section 63 of the Copyright Act states as follows:
Offence of infringement of copyright or other rights conferred by this Act.—
Any person who knowingly infringes or abets the infringement of—
(a) the copyright in a work, or
(b) any other right conferred by this Act 1 [except the right conferred by section 53A],
[shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees]
: Provided that [where the infringement has not been made for gain in the course of trade or business] the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.]
Explanation.— Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section
Therefore, the prescribed punishment of imprisonment which may extend to 3 years as per Section 63, does not fall under any particular classification in the First Schedule to the Cr.P.C. On account of this ambiguity various Courts have taken differing stances.
However, recently the Karnataka High Court has cleared the air around this issue by holding that offences under Section 63 of the Copyright Act are cognizable and that the Police can register FIR on receipt of complaint from the aggrieved person.
Brief Facts of the Case
The petitioners before the Karnataka High Court in the case were ANI Technologies Private Limited more commonly known as Ola or Ola Cabs. The respondent was Lahari Recording Company, one of the well known record labels in India. Ola cabs offer a feature in their cabs/taxis with television/display sets that are fixed to the headrest of the front seat where popular songs are played. This feature is known in the as Ola play offered through their Ola Prime cabs. Lahari Recording Company contended that the music videos and songs in which they own music copyrights were being commercially exploited by Ola Prime cabs under the feature Ola play without licensing/obtaining the rights from them. They registered a complaint before the Additional Commissioner of Police alleging offences punishable under Sections 63 and 64 of the Copyright Act, 1957 to which Ola Cabs approached the Court calling in question registration of FIR against them under Section 63 of the Copyright Act.
Parties Submissions:
Ola Cabs submitted that Section 63 of the Act was a non-cognizable offence and the Police had no jurisdiction to investigate the matter. Further, they claimed that the complaint does not make out any offence of copyright infringement as the entire complaint shows that complainant believes that its copyright was violated and in criminal jurisprudence there had to be evidence and documentation and not just the belief of the complainant.
Lahari Recording Company contended that Section 63 was a cognizable offence as the offence is punishable for a period up to 3 years and any offence punishable upto 3 years in terms of Schedule to the Code of Criminal Procedure, 1973 becomes a cognizable offence. Further, they submitted that commercial exploitation of the copyright that is owned by them cannot be permitted as Ola Cabs have entered into agreements with other network entities and procured copyright licenses from them for uploading their playlists on Ola Play.
Findings of the Court
The Court took into account the Objects and reasons for making amendment to the Copyright Act in 1984 and observed that Section 63 of the Act, when it was initially promulgated prescribed punishment for the offence of infringement of the copyright to be punishable with imprisonment, which extended to one year or fine or both. Therefore, the maximum punishment prescribed then was one year. In order to effectively combat the menace of piracy prevalent in the country and the consequential losses suffered by Copyright owners due to such infringement. Section 63 was amended by the Amending Act of 1984 wherein the period of imprisonment for the offence of copyright infringement was enhanced from one year to three years.
Further the Court referred to Section 155 of the Criminal Procedure code which pertains to information as to non- cognizable cases and investigation of such cases by the Police. The Court also observed that if the offences narrated in penal provisions either under the Copyright Act or under any enactment are said to be cognizable, there should be no ambiguity with regard to the jurisdiction of the Police to entertain the complaint and register a FIR or investigate into the matter. Also in cases where penal provisions do not clearly indicate whether the offences are cognizable or non-cognizable, the dispute will have to be resolved by referring to Schedule-II to the Cr.P.C.
Relying on a catena of judgments passed by various Constitutional Courts and based on the analysis of the Act, the Court held that if the imprisonment is capable of being imposed for a maximum period of exactly three years, then such offences would be cognizable and non-bailable. Therefore, the offences punishable under Section 63 of the Copyright Act were held to be cognizable and the Police can register FIR on receipt of complaint from the aggrieved parties.
The Court while observing that maximum punishment is to be considered for offences, clarified that even if a separate provision under Section 64 of the Copyright Act which depicts power of search and seizure by the Police is also found in the statute, it does not take away cognizability of the offence punishable under Section 63 of the Act. In a given case, the competent criminal Court can sentence an offender under Section 63 of the Act to three years imprisonment. Exact three years is a possibility in a given circumstance. Therefore, the offence under Section 63 of the Act would fall under Item No.2 of Schedule II of the Cr.P.C. Thus contention of the Petitioners that the offence under Section 63 of the Act is non-cognizable and the registration of FIR by the Police of a non-cognizable offence without approval of the Magistrate , was rejected by the Court.
The Petitioners also submitted that there could not be vicarious liability in criminal law and the offence committed by the Company should not be saddled upon Directors of the Company. However, the Court rejected this contention by referring to Section 69 of the Copyright Act which deals with the Offence by the Company makes the Directors of the Company also liable for the offence of copyright infringement. The Court also observed that the office bearers of Ola Cabs have entered into agreements with other entities. i.e., Radio Valla Network Private Limited wherein the playlists uploaded on Ola Play is subject to copyright license procured by them. Therefore, the contention of the Directors of the Company that they were not aware of the ramification of Sections 63 and 64 of the Act was not accepted by the Court.
When it comes to Section 63 of the Copyright Act the Courts have time and again taken conflicting stands with regard to the cognizability of the offence. The Karnataka High Court by holding that offences under Section 63 of the Copyright Act are cognizable has introduced clarity to the whole issue and has in effect bolstered the rights of copyright owners who can swiftly take action against the infringers of their rights by filing a complaint.
This article has been authored by Ms. Neha Uppin.