The Offence of Infringement

In one line

Knowing infringement is a crime carrying at least six months in prison and at least fifty thousand rupees, and the Supreme Court has held it cognizable and non-bailable.

In the wording a student can write in an exam: section 63 of the Copyright Act, 1957 provides that any person who knowingly infringes or abets the infringement of the copyright in a work, or any other right conferred by the Act 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.

Why the law has this at all

Because civil remedies do not reach a pirate. A person selling counterfeit discs from a pavement has no assets to satisfy a decree and no address for a summons.

Because seizure needs a criminal power. Section 64 lets the police seize infringing copies without a warrant, and that power depends on section 63.

And because infringement on a commercial scale is theft in substance. TRIPS article 61 requires criminal procedures and penalties at least for wilful copyright piracy on a commercial scale.

The provision itself

The offence. "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 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."

The proviso. "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."

The 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."

Broken down

"Knowingly". The mental element. An innocent infringer commits no offence, however clearly he infringes for civil purposes.

"Infringes or abets the infringement". Abetment is expressly included, so a person who supplies the means or procures the act is within the section.

Clause (b) reaches Chapter VIII. Any other right conferred by the Act includes the broadcast reproduction right and the performer's right, and section 39A applies section 63 to them.

Except section 53A. The resale share right is expressly excluded, so failing to pay an artist's resale share is not an offence.