Intellectual Property RightsCognizability And Non Bailability Of The Copyright Infringement

November 28, 20220


Copyright is a type of Intellectual Property Protection (hereinafter referred to as “IPP”) provided by the law to the authors of literary and artistic works which includes dramatic, musical, and aesthetic works, cinematographic films, and sound recordings. Copyright protects the way ideas are expressed instead of the ideas themselves. It includes the rights to reproduce, communicate, adapt, and translate the work. The nature of the protected work determines the extent to which the protection is to be   given by copyright law.

The term “copyright” describes a collection of exclusive rights granted to the owner of copyright under Section 14 of the Act. All original works of literature, art, music, theatre, cinematography and sound recording are protected by copyright laws.

After the printing press was established in the 15th century and enabled for the replication of literary works, the concept of copyright protection became widely accepted.With the development of information technology and advances in the fields of digital printing, communication, and entertainment, copyright has gained attention due to the increased interest in the subject. The International Copyright Order of 1999 (hereinafter referred to as “Copyright Order”), the Copyright Act of 1957 (hereinafter referred to as “Copyright Act”) and the Copyright Rules of 2013 (hereinafter referred to as “Copyright Rules”), all regulate copyright protection in India.


Understanding the rights, restrictions, and penalties related to copyright infringement is necessary to comprehend its legal ramifications. Section 14 of the Copyright Act, defines the term Copyright as under:

“14. Meaning of copyright. —For the purposes of this Act, “copyright” means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely: —

(a) in the case of a literary, dramatic or musical work, not being a computer programme, —

(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;

(ii) to issue copies of the work to the public not being copies already in circulation;

(iii) to perform the work in public, or communicate it to the public;

(iv) to make any cinematograph film or sound recording in respect of the work;

(v) to make any translation of the work;

(vi) to make any adaptation of the work;

(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);

(b) in the case of a computer programme, —

(i) to do any of the acts specified in clause (a); 2[(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme: 2[(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme\:” Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.]

(c) in the case of an artistic work, —

(i) to reproduce the work in any material form including depiction in three dimensions of a two-dimensional work or in two dimensions of a three-dimensional work;

(ii) to communicate the work to the public;

(iii) to issue copies of the work to the public not being copies already in circulation;

(iv) to include the work in any cinematograph film;

(v) to make any adaptation of the work;

(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);

(d) in the case of a cinematograph film, —

(i) to make a copy of the film including a photograph of any image forming part thereof;

(ii) to sell or give on hire or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;

(iii) to communicate the film to the public;

(e) in the case of a sound recording, —

(i) to make any other sound recording embodying it;

(ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording, regardless of whether such copy has been sold or given on hire on earlier occasions;

(iii) to communicate the sound recording to the public. Explanation. — For the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation.”

In other words, Copyright is the owner’s exclusive right to perform or permit the performance of certain acts relating to the creation of its original work viz, literary, artistic, dramatic, etc.

Copyright Infringement is defined under Section 51 of the Copyright Act and Section 63 of the Copyright Act stipulates the punishment for copyright infringement which includes imprisonment, which may extend to three years.

Section 57 of the Act recognizes two categories of moral rights which includes the author’s right to claim authorship of the work and the right to prevent others from doing the same and the author’s right to prevent or sue for damages if the said work is altered, copied, or otherwise changed in any way that might endanger the author’s reputation or honour.

According to the Copyright Act, the owner owns negative rights, which give him the ability to forbid others from using his creations in specific ways and to seek damages for the violation of that right. The owner is granted two different sorts of rights under this Act i.e. economic rights and moral rights.

The economic rights allow the author to profit financially from their work or production, by wholly or partially transferring rights to third parties, the creators can receive royalties. The adaptation, distribution, public performance, and public exhibition of work rights are the most frequently granted economic rights to copyright owners.

Even after the attribution of copyright work to others, whether wholly or partially, the copyright law always protects the author in the event of moral rights. Moral rights gives an author the right to have his name attached to the work and defend himself against any defamatory actions taken concerning the work that would harm the author’s reputation. As a result, these rights defend and uphold authors’ reputations and goodwill.


The issue of classifying an offense as cognizable or non-cognizable emerged due to the absence of specific language under Section 63 of the Copyright Act. Moreover, Section 70 of the Copyright Act states that a Court that isn’t a Metropolitan Magistrate or a Judicial Magistrate of the First Class (hereinafter referred to as “JMFC”) cannot prosecute an offense under the Act. Therefore, it could be argued that a violation of the Act qualifies as a cognizable offense.

According to the Criminal Procedure Code,1973 (hereinafter referred to as “CrPC”), an offense under the Copyright Act would have been triable by any Magistrate and not only by a Metropolitan Magistrate or a JMFC, if it had been non-cognizable in nature. However, Section 64 of the Copyright Act also gives police the authority to confiscate all copies of a work that violates copyright without a warrant and present them for examination.

The High Court of Bombay in Piyush Subhashbhai Ranipa v. The State of Maharashtra [Anticipatory Bail Application No. 336 of 2021], held that the violation of Sections 103 of the Trademarks Act,1999 and Section 63 of the Copyrights Act are both cognizable and non-bailable offences.

In the case of M/s Knit Pro International v. The State of NCT of Delhi & Anr., [Criminal Appeal No. 807 of 2022] the Appellant company produced knitting needles, filed three lawsuits against Anurag Sanghi, a company that produced goods and breached Knit Pro’s copyright. Anurag Sanghi filed a request to quash the FIR under Section 482 of the CrPC in the Delhi High Court praying that the offense was both non-cognizable and bailable, so the complaint ought to have been brought before the jurisdictional Magistrate. The High Court upheld the application stating that the offenses under Section 63 are non-cognizable.

The Appellant claimed that Section 63 does not fall under this category because the penalty can be increased to three years. The Appellant filed an appeal against the said Order before the Supreme Court, arguing that this category only applies when the punishment is less than three years or a fine alone.

The Supreme Court in this landmark judgement held that only crimes punishable by a sentence of less than three years or by a fine alone are non-cognizable and bailable. The “unambiguous” language of Part II of the First Schedule of the CrPC raises no questions because the maximum penalty under Section 63 is three years in prison and a fine. The Supreme Court consequently determined that it is a cognizable and non-bailable offense.


The Supreme Court’s judgment is extensively known and appreciated as it made sure that the authors’ IPR were well safeguarded and acknowledged. The decision will in-still a sense of fear in the minds of copyright infringers, who would stay away from committing the offense due to the constant pressure of facing harsh penal consequences, since copyright infringement is a cognizable and non-bailable offense. The police now have the authority to detain the criminals even before requesting a warrant from the Court. Since the investigation will move quickly and the accused will be brought to justice right away, this will save a lot of time and prevent additional pain and damage to the author.

However, along with the pros of the Supreme Court’s ruling, there are some issues with it as well. Firstly, in cases where the police cannot intervene without prior judicial approval, the copyright owners may intimidate the violators by invoking police action to collect excessive license costs. The accused no longer has the choice of filing a bail bond with the police since the crime has been declared cognizable and non-bailable, which places the obligation of making a case-by-case judicial determination on the courts.

Allowing the police to conduct criminal investigations into copyright infringement has drawbacks. This is so that a copyright can be enforced even if it hasn’t been registered, as required by the Copyright Act. Any time an original work of art, music, or literature is fixed on a medium, a copyright is formed. It could be challenging to determine whether the claimed creation of art, music, or literature is truly “original.” Even if originality is assumed to be beyond dispute, it remains to be seen whether using a work protected by copyright complies with all the pre-requisites of Section 52 of the Copyright Act restrictions and exceptions to copyright infringement.


Copyright infringement is a severe and punishable offense. It has been deemed a cognizable and non-bailable offense by the Supreme Court, which is an exceptional ruling. Safeguarding and preventing any type of impersonation or cheating, protect the interests of the copyright holders. The ruling is a clear warning to those who believe it is simple to invade someone else’s IP without suffering any implications.

However, it also can unavoidably lead to negative outcomes and gives police an excessive amount of authority to violate civil liberties, make it difficult for them to conduct business, and restrict people’s freedom of expression. The legislature must introduce the required adjustments because the Courts can only interpret laws and have little authority.

– Team AMLEGALS assisted by Ms. Ishita Jaiswal (Intern)

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