Criminal Liability under Section 63 of the Indian Copyright Act, 1957: Statutory Architecture, Judicial Construction, and Emerging Contours

Criminal Liability under Section 63 of the Indian Copyright Act, 1957: Statutory Architecture, Judicial Construction, and Emerging Contours

1. Introduction

Section 63 of the Copyright Act, 1957 (hereinafter “the Act”) constitutes the fulcrum of criminal enforcement of copyright in India. It criminalises knowing infringement of copyright or any other right conferred by the Act, prescribing imprisonment of not less than six months—extendable to three years—and a fine of not less than ₹50,000—extendable to ₹2,00,000, subject to judicial discretion in non-commercial infringements. While the section has existed since 1957, its interpretation has evolved in tandem with technological advances and shifts in criminal procedural law. Recent jurisprudence, notably Knit Pro International v. State (NCT of Delhi)[1], has re-ignited debate on the cognisable and non-bailable character of the offence, prompting a re-examination of the doctrinal and practical contours of Section 63.

2. Statutory Framework

2.1 Text of Section 63

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 …[2]

2.2 Placement within the Act

Chapter XIII (Sections 63–70) enumerates criminal offences, complementing the civil remedies under Chapter XII. The dual-remedy structure underscores the Legislature’s intent to protect copyright both as a proprietary interest and as a societal interest warranting penal sanctions.

2.3 Interaction with the Code of Criminal Procedure, 1973 (“CrPC”)

The Act is silent on cognisability and bailability. Consequently, Part II of the First Schedule to the CrPC governs: offences punishable with imprisonment “for three years and upwards but not more than seven years” are cognisable and non-bailable. The maximum term under Section 63 (three years) thus becomes pivotal to classification, a point that has divided High Courts but has now been conclusively settled by the Supreme Court.[1]

3. Elements of the Offence

3.1 Actus Reus: “Infringement”

“Infringement” imports the expansive definition in Section 51, encompassing unauthorised reproduction, communication to the public, importation, sale, and other dealings in infringing copies. Section 63 therefore piggybacks on the civil definition but overlays a mens rea requirement (“knowingly”). The offence is result-oriented: actual prejudice to the right-holder is unnecessary; the act of infringement suffices.[3]

3.2 Mens Rea: “Knowingly” or “Abets”

Courts have consistently demanded proof of knowledge or wilful blindness. In Syed Asifuddin v. State of Andhra Pradesh[4], the High Court held that re-programming mobile handsets to bypass network locks constituted knowing infringement of the copyright subsisting in the source code. Conversely, mere possession of infringing copies without knowledge may shield an accused.[5]

3.3 Penalty Structure and Judicial Discretion

The proviso enables courts to impose lesser sentences where infringement is non-commercial, aligning sentences with culpability and proportionality principles (Article 14, Constitution). However, the minimum-sentence clause circumscribes discretion, reflecting Parliament’s intention to deter piracy.[2]

4. Cognisability and Bailability: The Jurisprudential Trajectory

4.1 Divergent High Court Views

  • Non-cognisable Thesis: Naresh Kumar Garg (Delhi HC, 2013) held that because Section 63 prescribes imprisonment “which may extend to three years,” the offence falls under Item 3 of Part II (punishable with imprisonment “up to three years”), rendering it non-cognisable and bailable.
  • Cognisable Thesis: Kerala, Karnataka, Assam and other High Courts interpreted “three years” as falling within the category “three years and upwards but not more than seven years,” hence cognisable and non-bailable (Suresh Kumar[6]; ANI Technologies[7]).

4.2 Supreme Court’s Resolution in Knit Pro

The Supreme Court unanimously endorsed the cognisable view, reasoning that:

  • Item 2 (“three years and upwards”) includes offences where the maximum sentence is exactly three years; the word “upwards” qualifies the minimum, not the maximum.[1]
  • Legislative intent to provide effective enforcement would be frustrated if police could not investigate without a magistrate’s order.
  • Section 64 authorises warrant-less seizure by police, presupposing cognisability.

Consequently, the FIR quashed by the Delhi High Court was restored, reaffirming that offences under Section 63 are cognisable and non-bailable.[1]

5. Technological Adaptation of Section 63

5.1 Computer Programs and Source Code Protection

In Syed Asifuddin, the Court declared a cell phone to be a “computer,” holding that unauthorised re-configuration infringes the copyright in the embedded software. The judgment extends Section 63’s reach to digital environments, reinforcing that technological neutrality underpins copyright protection.[4]

5.2 Video Piracy and Cinematograph Films

State of A.P. v. Nagoti Venkataramana[8] confirmed that unauthorised exhibition or sale of video-cassettes without compliance with Section 52-A particulars is punishable, even absent proof of copyright ownership. Although the Supreme Court ultimately converted the conviction to Section 68-A, it endorsed the prosecution’s foundation under Section 63, illustrating the section’s utility against video piracy.

5.3 Broadcasting and Digital Streaming

While the Supreme Court’s twin decisions in Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd.[9] centred on licensing and compulsory licences, the Court reiterated that unauthorised communication to the public attracts Section 63 liability, foreshadowing its application to over-the-top (OTT) streaming and simul-casting.

6. Procedural Nuances Post-Knit Pro

6.1 Investigative Powers

Police may now register FIRs suomotu for copyright offences. Section 64 empowers seizure of infringing copies sans warrant, harmonising investigative authority with constitutional safeguards under Articles 21 and 22 (prompt production before a magistrate).

6.2 Bail Jurisprudence

Although non-bailable, offences under Section 63 attract the liberal bail principles outlined in Satender Kumar Antil (2022). High Courts increasingly direct magistrates to grant bail where custodial interrogation is unnecessary (Nitesh Garg v. State of U.P.[10]). Nonetheless, courts remain cautious where organised piracy syndicates are involved.

6.3 Compounding and Quashing

Section 63 is non-compoundable under Section 320 CrPC. Yet, High Courts exercise inherent powers under Section 482 to quash proceedings on compromise, balancing private interests and public policy (Sunil Kumar v. State of Haryana[11]). The practice, though pragmatic, raises normative concerns about deterrence.

7. Critical Evaluation

7.1 Alignment with International Norms

The TRIPS Agreement (Art. 61) mandates criminal procedures for wilful copyright piracy on a commercial scale. Section 63, with its stringent penalties and cognisable status, positions India in compliance. However, the wide net risks ensnaring minor, non-commercial infringements, exacerbating criminal justice burdens.

7.2 Mens Rea and Over-Criminalisation

The “knowingly” requirement theoretically limits liability, but practical proof often relies on presumptions (e.g., volume of infringing copies). A calibrated approach—perhaps statutorily distinguishing commercial piracy from de minimis infringements—would promote proportionality.

7.3 Interplay with Civil Remedies

Parallel civil and criminal actions may proceed, yet overlapping fact-finding can yield inconsistent outcomes. A statutory stay mechanism, akin to Section 10 CPC, could avoid duplication without diluting enforcement.

8. Conclusion

Section 63 has matured from a modest penal provision to a potent anti-piracy instrument. The Supreme Court’s pronouncement in Knit Pro has settled the cognisability debate, energising police-driven enforcement. Simultaneously, jurisprudence such as Syed Asifuddin and Nagoti Venkataramana demonstrates the section’s adaptability to evolving technologies. Going forward, legislators and courts must balance robust protection of creative industries with safeguards against over-criminalisation, ensuring that Section 63 continues to serve both justice and innovation.

Footnotes

  1. Knit Pro International v. State (NCT of Delhi) & Anr., (2022) 10 SCC 1.
  2. Copyright Act, 1957, s. 63.
  3. Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey & Ors., (1984) 2 SCC 534.
  4. Syed Asifuddin & Ors. v. State of A.P. & Anr., 2005 SCC OnLine AP 1100.
  5. K.C. Bokadia v. Dinesh Chandra Dubey, 1995 SCC OnLine MP 23.
  6. Suresh Kumar v. Sub-Inspector of Police, 2007 KLT 363.
  7. ANI Technologies Pvt. Ltd. v. State of Karnataka, 2021 SCC OnLine Kar 5304.
  8. State of A.P. v. Nagoti Venkataramana, (1996) 6 SCC 409.
  9. Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30.
  10. Nitesh Garg v. State of U.P. & Anr., 2022 SCC OnLine All 1984.
  11. Sunil Kumar & Anr. v. State of Haryana & Anr., 2024 PHHC 12092.