Infringement of Copyright: Will giving Intellectual Property Rights a Criminal Connotation Combat Freedom of Speech?

Legally speaking, the automatic protection of creative artistic, theatrical, musical, and literary works is referred to as copyright. Infringement of copyright happens when a third party infringes on the rights of the copyright holder by utilising the copyright holder’s work without the copyright holder’s consent.

IP owners often face the difficult decision of whether to pursue civil or criminal action, or both, in an effort to discourage infringers and the rackets or channels through which they operate. Regarding the legal procedure, owners of intellectual property must consider a variety of concerns, including, ‘Would the police be willing to record the FIR if the complainant asked them to do so?’, ‘Will the police conduct an impromptu search at the house of the infringer?’, ‘Will the suspect be taken into custody by the police?’, etc.

In this article, we will discuss about a recent ruling that was delivered by the Honorable Supreme Court of India about the Cognizance of Copyright Infringements. This judgement has put an end to the ongoing debate oscillating between Copyright infringement being a cognizable or non-cognizable offence due to different positions adopted by High Courts in India. The article will further highlight the effect of the judgment in the copyright regime.

The dichotomy created by conflicting High Court rulings:

The Kerala High Court and the Guwahati High Court decided that Section 63 of the Copyright Act should be cognizable since its maximum sentence is 3 years in jail. In 2007, the former High Court of Andhra Pradesh (in Hyderabad) concluded that Copyright violations are non-bailable and cognizable according to Section 70 of the Copyright Act.

The Delhi High Court in Naresh Kumar Garg relied on the Supreme Court’s judgement in Avinash Bhosale, in which the Supreme Court had demonstrated that offences punishable as per Section 135(1)(ii) of the Customs Act, 1962 will be bailable because it is subject to punishment with imprisonment for a term ‘which may extend to three years or fine or with both’ Since the penalty in both sections is the same, the Delhi High Court said they may be read together.  In 2019, the Delhi High Court in Anuragh Sanghi v State & Ors. quashed an FIR ruling that such offences are bailable and non-cognizable.


According to Section 70, an infringement of copyright cannot be prosecuted by a court with a lower level of authority than that of a metropolitan magistrate or judicial magistrate of first class. If the violation of copyright was non-cognizable, then any magistrate may try the case; it would not have to be tried by a metropolitan or first-class magistrate. In the case of Nathu Ram, the High Court of Rajasthan referred the issue to a larger bench and asserted that had the intention of legislature not been to render Copyright infringements as a cognizable offence, it would not have provided police officers with special powers to confiscate all infringing copies of the unauthorised work without a warrant under Section 64.

Settling of Issue:

The Supreme Court has now settled the issue and has put to rest the Saga of conflicting High Court Judgments. The Apex Court in its recent verdict in the case of Knit Pro International v. State of NCT of Delhi, by clarifying the nature of the legislation and its intention and holding copyright infringements to be a cognizable and non-bailable offence. Let us now discuss the Supreme Court case in detail.

Facts of the case:

Following the submission of an application to the Chief Metropolitan Magistrate in accordance with Section 156(3) of the Criminal Procedure Code, the appellant made a request that a First Information Report (FIR) be lodged against the respondent-accused for contraventions of Sections 51, 63, and 64 of the Copyright Act in conjunction with Section 420 of the Indian Penal Code. Following the CMM’s granting of the applicant’s request, the FIR was subsequently filed. After that, the accused brought a writ case before the Delhi High Court seeking dismissal of the criminal proceedings, on the ground that the offence under Section 63 of the Copyright Act is a non-cognizable and bailable. The motion was denied, and the criminal proceedings continued. The FIR was set aside by the High Court after it determined that the writ petition should be allowed. The case was further appealed in the Hon’ble Supreme Court.

Ruling of the Court:

The court noted that Section 63’s maximum punishment is three years, so the Magistrate may sentence the accused to three years. Non-cognizable offences are those punishable by less than three years in prison or a fine. No ambiguity exists in Part II of the First Schedule.


To begin with, the Supreme Court made no attempt to answer the it’s ruling in Rajeev Chaudhary v. State (N.C.T.) of Delhi. The judgement was made in the context of Section 167 of the CrPC, and it decided that the crime of extortion, which stipulates “imprisonment of either description for a time which may extend to 10 years,” will not be included in the phrase “imprisonment for a term of not less than 10 years.”

The Supreme Court’s dependence on selected precedents to strengthen its argument has a harmful impact on free speech as a consequence of its ruling. When artists worry about being arrested and losing their assets in the absence of a bail bond, they may be tempted to restrict their work. The extension of criminal prohibitions relevant to intellectual property rights inhibits the development of new ideas and freedom of speech, particularly when courts tend to encourage interpretations that widen the criminalisation of IP legislation.

When section 63 is elevated to a cognizable and non-bailable offence, police have the right to make arrests and limit freedom without a court ever deciding whether or not the usage in question is an infringement. The provisions of Section 52 of the Copyright Act that address exceptions and restrictions to copyright protection are weakened by this. Can a suspected infringer rely on the police to determine whether or not their usage is legal under Section 52? Furthermore, there appears to be no reasonable way for law enforcement officials to determine whether use is impeding or permissible there under Copyright Act in light of judgements of the High Court pronouncing the American four-factor test of fairness being applicable or doctrines laying that even commercial uses to be potentially “fair.”

In Event and Event Management Association v. Union of India, the Delhi High Court held that even while confiscating goods, if a Section 52 defence is taken, police officers should pacify themselves that such defence is unsupportable, given that seizure can be effected without a warrant and without immediate cognizance by a magistrate in Section 64 as opposed to arrest. Can judicial institutions restrict citizens’ rights based on their interpretation of the law? Article 19 of the Indian Constitution is the original source for the Section 52 purposes that are permitted.


The Copyright Act was carefully crafted to strike a balance, so the possibility of prosecuting people for utilising works for legal purposes appears at odds with the objective of the legislation. Keeping even one legitimate user in court detention, despite the use being knowingly lawful in the end, might greatly discourage exempted purposes like criticism or study. Allowable uses of works in criticism, research, etc., were supposedly encouraged.

Author: Debayan Samanta – a student of KIIT School Of Law (Bhubaneswar), in case of any queries please contact/write back to us via email or at Khurana & Khurana, Advocates and IP Attorney.

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