8 July 2020

Comments: Proposing to De-Criminialise Copyright Offences

NOTE: These comments have not been edited, double-checked, or proof-read. They are based on first impressions of the law, and may be re-thought.


Contents

I.       Introduction.. 1
II.     Concerns about Criminal Provisions. 1
            1.      The Specificity of Offences
            2.      Definitional Issues
            3.      Enforcement Processes
            4.      Sentencing Guidelines
            5.      Mens Rea and the Commission of Offences
III.    Limitations to the De-Criminalisation Process. 11


(References to the Copyright Act are references to the Indian Copyright Act, 1957.)



I.                  Introduction

Indian criminal law relating to offences contemplated by its copyright statute does not appropriately address infringement: amongst other issues, it lacks nuance, is not always clear, and does not necessarily require that a person intend to commit a crime to be held guilty of it. Due to the textual ambiguity and doctrinal concerns inherent in the statute – the 1957 Copyright Act – proposals to address the deficiencies in Indian copyright law are not untimely. However, to be meaningful, they must employ a chisel and not a sledgehammer to:
  • Decriminalise minor offences; 
  • Ensure that no offence can be committed without there being an intention to do so;
  • Ensure that the possibility of imprisonment does not arise merely on possessing the equipment which may be used to violate copyright; and 
  • Provide clarity about exactly what constitutes a crime.
These comments aim to explore how the listed aims could be achieved. They begin with an analysis of the law as it stands and why it gives rise to concerns, continue with an interpretation of how international law could constrain the amendment of domestic law, and include a discussion of how criminal copyright law could be rationalized.



II.               Concerns about Criminal Provisions

Chapter XIII of the Indian Copyright Act, 1957, contains provisions that deal with criminal offences, and Section 39A makes some of the provisions of Chapter XIII applicable to the performer's right and to the broadcast reproduction right. The table below describes the offences contemplated by Chapter XIII of the statute and their applicability:

No. 
Offences & Section Numbers  
Applicability
1
63. Offence of infringement of copyright or other rights conferred by this Act. 
Copyright, moral rights, performer's right, broadcast reproduction right and, possibly, the 'right to continuing royalties' (but not the artist's resale right)
2
63A. Enhanced penalty on second and subsequent convictions.
Copyright, moral rights, performer's right, broadcast reproduction right and, possibly, the 'right to continuing royalties' (but not the artist's resale right)
3
63B. Knowing use of infringing copy of computer programme to be an offence.
Copyright 
4
64. Power of police to seize infringing copies.
Copyright, Performer's right, Broadcast reproduction right
5
65. Possession of plates for purpose of making infringing copies.
Copyright, Performer's right, Broadcast reproduction right
6
65A. Protection of technological measures.
Copyright, Performer's right, Broadcast reproduction right
7
65B. Protection of Rights Management Information.
Copyright, Performer's right, Broadcast reproduction right
8
66. Disposal of infringing copies or plates for purpose of making infringing copies.
Copyright, Performer's right, Broadcast reproduction right
9
67. Penalty for making false entries in register, etc., for producing or tendering false entries.
Copyright
10
68. Penalty for making false statements for the purpose of deceiving or influencing any authority or officer.
Chapter XIII Offences
11
68A. Penalty for contravention of section 52A.
Copyright
12
69. Offences by companies.
Offences under the Copyright Act

The final provision in Section 70 of the Copyright Act, 1957, deals with the cognizance of offences, and states: "No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act."

1.      The Specificity of Offences

Sections 63 and 63A

Offences which fall within the purview of the Copyright Act and punishments which may be levied when they are committed are dealt with in broad terms in Sections 63 and 63A which also make provision for enhanced and diminished punishments in certain circumstances.

Section 63 (read with Section 39A) penalizes persons who knowingly infringe or abet the infringement of copyright in works (unless the infringement lies in the construction of a building), the performer’s right, the broadcast reproduction right, or any other right conferred by the statute except the artist’s resale right conferred by section 53A. The scope of Section 63 is ill-defined: it does not, for example, specify if the rights of eligible authors of underlying works in cinematograph films and sound recordings to receive continuing royalties (introduced into the statute through an amendment in 2012) would, if violated, fall within the ambit of ‘any other right conferred by this Act’, with such a violation constituting a criminal offence. In the case of continuing royalties, this lacuna is a particular concern as the statute does not identify exactly who is liable to pay continuing royalties due to which the target of the law’s punitive arm would be unidentified without the support of contractual agreements – where they had been signed – specifying who would be liable to pay continuing royalties.

The Copyright Act does not limit itself to stating that only the violation of statutory rights would be considered to be criminal – it is therefore reasonable to interpret it to mean that the violation of so-called special or moral rights listed in Section 57 of the statute would constitute a criminal offence despite the fact that the right to attribution is more a right to claim attribution than a right to be attributed at the outset. This potentially leads to an anomalous situation where a person may eligible to be attributed but (a) the person in a position to accord attribution is under no obligation to attribute but, nonetheless (b) upon failing to be attributed, a person with the right to claim attribution may invoke civil and criminal law. Analogous concerns also exist in relation to the performer’s right: the right was restructured in 2012. It had earlier been contained entirely within Section 38 of the Act. However, in 2012, Section 38 was culled to simply mention the existence of the performer’s right and its term, and two new provisions were introduced: Section 38A pertaining to the ‘exclusive right of performers’ and Section 38B pertaining to the ‘moral rights of the performer’ – since neither of the new provisions specifically refer to the performer’s right, if the statute were interpreted to mean that they would together form the performer’s right, it is conceivable that Section 63 (along with its penal implications) would apply to any violations of the rights of performers. Notably, Section 38A begins with:
“Without prejudice to the rights conferred on authors, the performer’s right which is an exclusive right subject to the provisions of this Act to do or authorize for doing any of the following acts in respect of the performance or any substantial part thereof…” [Emphasis added.]
The insertion of the word ‘which’ could support the argument that Sections 38A and 38B together form the performer’s right as the word seems to indicate that Section 38A does not so much lay down the law by itself but narrates a version existing law, presumably that which is already contemplated by Section 38 but which, in result of the 2012 amendment, now remains unspoken. If this were the interpretation accorded to the rights of performers, it would result in Section 57 and Section 38B rights being treated in an analogous manner for the purpose of levying criminal liability under Section 63 (or not doing so).

Unfortunately, it is not clear how performers’ and authors’ moral rights would ultimately be interpreted if the task were left to the judiciary which would be forced to make the best of a less than ideal situation caused by unclear drafting. So too is the case of continuing royalties. Therefore, in order to bring specificity to the law, it would be prudent to make the necessary amendments to the Copyright Act so that there are no doubts about exactly what constitutes a criminal offence under Section 63 of the statute. This could be achieved by providing an exhaustive list of offences within the provision itself rather than resorting to an indicative list which merely criminalized ‘any other right conferred by this Act, except the right conferred by section 53A’, explained that constructing a building or other structure which would infringe the copyright in a pre-existing work would not be an offence under the provision, and then expected a reference to be made to Section 39A to attempt to construct an understanding of the extended applicability of Section 63.

2.      Definitional Issues

Sections 2(t), 63, 63A

Along with specifying which acts would be considered offences under copyright law, it is also necessary to specify exactly what constitutes such acts and what the law aims to target. In this regard, there are two clear lapses in the Copyright Act relating to the definition of infringement and the equipment used to commit infringement.

The term ‘commercial infringement’ is not defined in the Copyright Act although Chapter XIII of the Copyright Act certainly contemplates commercial infringement and levies enhanced punishments against those who engage in it. Considering the implications of engaging in commercial infringement, it would be prudent to insert into the statute an exhaustive definition of the term or, at the very least, a clarification either limiting its applicability to ‘infringement where the infringed work is itself the essential object of the infringement’ or excluding ‘the use of an infringing copy of a protected work for commercial purposes’ from the purview of the term. Doing so would help to differentiate between businesses whose purpose was infringement and those which merely used an infringing copy of a work – a ‘pirated’ copy of software, perhaps – to conduct their core business which had nothing to do with infringement.

Further, the term ‘plate’ is used to describe the equipment used to commit infringement, a hangover from an earlier time. It is defined in Section 2(t) of the Copyright Act in non-exhaustive terms which raise concerns since, when infringement either occurs or is suspected to have occurred, plates may be seized. The nature of the definition, however, is so broad that it could result in an alleged infringers entire communications infrastructure being seized whether or not it was actually used to commit infringement. It would therefore be worth narrowing down either the scope of the definition or excluding from the purview of seizures plates which were not used exclusively (or at least overwhelmingly) for the purpose of committing infringement.

3.      Enforcement Processes

Sections 64, 65

Section 64 of the Copyright Act grants the police powers to seize infringing copies in its title. However, a close reading of the first sub-section of the provision reveals that the powers of the police are far wider than the title of the provision suggests.

The provision does not require an empowered police officer to have anything beyond satisfaction that a Section 63 offence in respect of infringement ‘has been, is being, or is likely to be’ committed prior to acting. Thus, the police officer is not required to have any sort of firm evidence or even to record what his satisfaction is based on – a wide power with little in the way of accountability made ever more concerning by the fact that the provision envisages offences in three timelines: past perfect, present continuous, and conditional future. Effectively, an empowered police officer who thinks its likely that copyright infringement may be committed in the future could swing into action with the backing of Section 64 of the Copyright Act alone.

Once a police officer swings into action, he does not need a warrant to seize all copies of the work which concerns him, and all plates used to make infringing copies of the work, wherever they are found, without a warrant. The seizure of copies of the work may not be limited to infringing copies, the possibility of plates being seized now, with the evolution of technology, means that the entire communications infrastructure of a suspected infringer could be seized. And although seizures must be produced before a magistrate as soon as practicable, there is no deadline within which seizures must be so placed before a magistrate.

While it is true that persons who have an interest in seizures may make a restoration application to the magistrate within fifteen days of the seizure, it is undeniable that the process of enforcing copyright, even before infringement may have actually occurred, accords extremely wide powers to the police. It would probably be prudent to amend the law so that a warrant is ordinarily necessary for seizures above a specified value, so that there is a deadline within which seizures must be placed before a magistrate, and so that there are clear guidelines indicating not only which police officers are empowered to act but also in what circumstances they may do so.

Not only does Section 64 envisage police acting prior to the commission of infringement but so too does Section 65 of the Copyright Act which deals with the possession of plates to make infringing copies.

Section 65 criminalizes infringement which may be planned but which has not been committed. It is not clear why the provision is necessary at all when entering into a conspiracy to commit a crime may be separately addressed, and no coherent rationale is provided for making punishable a mere plan to commit infringement. The provision reeks of an attempt to control the speech of a once-colonized people, and is difficult to justify in an independent republic.

4.      Sentencing Guidelines

Sections 63, 63A, 63B, 65A, 65B, 67, 68, 68A

Section 63 of the Copyright Act provides the punishment for Copyright infringement while Section 63A provides for an enhanced penalty on second and subsequent convictions. In relevant part, the two provisions read as follows:
"63. Any person who knowingly infringes or abets the infringement of— [….] 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 judgement, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.
63A. Whoever having already been convicted of an offence under section 63 is again convicted of any such offence shall be punishable for the second and for every subsequent offence, with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than one lakh 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 one year or a fine of less than one lakh rupees: Provided further that for the purposes of this section, no cognizance shall be taken of any conviction made before the commencement of the Copyright (Amendment) Act, 1984."
In reading Sections 63, 63A and 63B of the Copyright Act (the last of which deals with the knowing use of infringing copy of computer programme), it is obvious that the legislature recognizes that not all offences are equal: there are provisions made for the imposition of enhanced and diminished sentences. However, there are no statutory mandates requiring that specific offences be treated in a specific manner – the courts have the discretion to decide how to proceed with sentencing. The lacuna poses concerns regarding the uniformity of sentencing in addition to which there also exist concerns about the proportionality of sentences.

In a country where public understanding of copyright law is limited, to say the least, it would perhaps be prudent not to raise the possibility of imprisonment should an individual commit infringement privately. Similarly, if an individual were to commit non-commercial infringement that had no discernible effect on the market value of protected content – the making of a dozen copies of a photograph to share in a book club, for example – it seems entirely disproportionate to have the individual face the prospect of imprisonment. Common sense would suggest that a fine (perhaps coupled with mandatory attendance of a course, possibly online, explaining the basics of copyright law, if possible) would adequately address the harm done.

On the other hand, there also exist strong indications that there are established links between organized crime and commercial infringement. As such, depending on the role which a person played in a commercial infringement operation, especially if it involved selling infringing copies of works or communicating protected works to the general public without authorization, punishments could be enhanced to include the possibility of both hard fines and imprisonment.

Neither of these suggestions regarding the gradation of punishments is alien to the ethos of the Copyright Act which reflects them in both Sections 63 and 63A, not to mention Section 63B. However, they are not immutable statutory mandates. While developing detailed sentencing guidelines would probably be best achieved in subordinate legislative, it may be prudent to lay down broad guidelines in the statute itself which entirely preclude the possibility of imprisoning individuals for engaging in non-commercial infringement regardless of which provision of Chapter XIII of the Copyright Act defines the relevant offence. Doing so would help ensure both uniformity and proportionality in the enforcement of copyright law.

Further, specifically with reference to Section 63A, the provision begins by saying: "63A. Whoever having already been convicted of an offence under section 63 is again convicted of any such offence shall be punishable for the second and for every subsequent offence,…"

Two concerns immediately arise in relation to Section 63A: firstly, there is no time gap within which a second or subsequent offence must be committed for an enhanced penalty to become applicable and, secondly, the provision does not clearly specify that the enhanced penalty would become applicable only on the commission of the same offence. The effect of these omissions is that there would be a lifelong Damocles sword hanging over anyone who once committed an offence contemplated by the Copyright Act, and that the sword could fall upon the commission of an entirely different offence – given the range of content which copyright law protects and the wide spectrum of exclusive rights that rights owners enjoy, it is not difficult to envisage such a scenario emerging.

There may be good reason to categorize both offences and time-gaps with reference to whether or not the infringing activity were commercial, perhaps assigning a shorter time-gap in cases where the initial offence involved non-commercial infringement. Once again, as in the case of grading initial offences and sentences, it may be prudent to leave the details of the scheme to subordinate legislation. For this to be realizable, it would be prudent to amend Section 63A of the Copyright Act to specifically envisage the making of such a scheme and to allow subordinate legislation to be framed in addition to replacing the words ‘any such offence’ with ‘the same offence’ in Section 63A to limit the scope of the provision.

5.      Mens Rea and the Commission of Offences

Section 63 (and 63A, in consequence), 63B, 67(a), 67(b)

Considering the links between commercial infringement and organised crime, it is not beyond the realm of the possible that those who control such operations would force others into executing the actual infringement. In such cases, for example, if a trafficked person were forced into committing an act which would amount to infringement, it would seem unconscionable, on the face of it, to levy against such a person a punishment although the individual may well have known that the act amounted to infringement.

Unfortunately, the of the Copyright Act does not limit itself to penalising those who commit offences with the intention of doing so. Section 63, which describes the offence infringing copyright or other rights conferred by the Copyright Act, specifies that persons would commit an offence if they were to knowingly infringe or abet infringement.

Further, the textual layout of Section 67 suggests that it is an offence to make or cause to be made either ‘a false entry in the Register of Copyrights kept under this Act’ or ‘a writing falsely purporting to be a copy of any entry in such register’, while the text of Section 68A makes publishing a sound recording or a video film in contravention of the provisions of Section 52A – which describes the particulars to be  included in included in sound recordings and video films such as the names of the producers and copyright owners – a punishable offence.

The offences relating to providing incorrect information about protected content are particularly concerning as they are strict liability offences even though it is possible to commit them entirely inadvertently – not only is authorship never fully settled but also: chains of title, particularly in relation to composite works, can be extremely complex. Consequently, were criminal sanctions to be levied whenever an offence occurred, it could easily result in criminalizing persons who had no intention of providing incorrect information or dealing with protected content in bad faith considering how difficult it can be to definitively establish the ownership of protected content since their ostensible ownership and claimed authorship is always open to challenge.

It would therefore be advisable to limit the scope of the offences contemplated by Chapter XIII to those offences which are committed intentionally, and not just knowingly. In no case does there appear to be justification for criminalizing acts which are committed neither knowingly nor intentionally. Addressing these issues could be achieved by simply inserting an umbrella provision into Chapter XIII of the Copyright Act stating: “No act which falls within the parameters of any offence described by this Chapter shall be considered an offence unless it is executed with the intention of committing the offence.”


III.           Limitations to the De-Criminalisation Process

India is fettered by its treaty commitments in the decriminalization of copyright law. However, the fetters are loose: TRIPS deals with them in Article 61 which lays down minimum requirements. 

With regard to copyright, criminal law is required to come into play only in cases of willful copyright infringement on a commercial scale. This indicates that criminal copyright law is not necessary where infringement is committed without the intention of committing a crime. Further, a plain reading of the Article indicates that criminal provision is not mandatory unless the infringement itself is on a commercial scale; using infringing content or works for commercial purposes does not fall within the scope of acts in respect of which criminal law must necessarily come to bear. 

Copyright infringement must be treated at par with offences of a similar gravity and be sufficient to have a deterrent effect under TRIPS although no guidance is provided within Article 61 regarding how to assess whether either of these mandates has been followed. Remedies are required to include the possibility of monetary fines and/or imprisonment (both following the mandates of similar treatment and deterrence) as well as to include, in appropriate cases, the possibility of 'seizure, forfeiture and destruction of the infringing goods and of any materials and implements' predominantly used to commit infringement. 

There is very little doubt that Indian law currently extends the scope of criminal copyright law far beyond what TRIPS demands of it. It would therefore not violate India's international commitments to whittle down and rationalise the criminal law provisions in its copyright statute assuming, of course, that in doing so it was cognizant of the mandates of TRIPS regarding willful infringement on a commercial scale.  


This post "Comments: Proposing to De-Criminialise Copyright Offences" is by Nandita Saikia and was first published at IN Content Law. To discuss the possibility of reproducing or using the post in any way, please contact the author via eMail.