Delivery of Infringing Copies in Copyright Case

The issue involved in this article is in respect of infringing copies to be handed over for the lawful custody. The question is to whom the custody of infringing copies, after the police seize them, should be given, whether it is given to the accused or to the owner of Copyright in case of infringement of Copyright. Let me discuss it in detail.

When an offence infringement of Copyright is committed, the police, not below the rank of sub-inspector, has power to seize the infringing copies without warrant after being satisfied that such an offence has been or is likely to be committed. Subsequently, any person,  who has interest in such seized copies or plates, may make an application for restoring such seized copies to the Magistrate within the span of fifteen days.

The provisions of law referred  for the issue involved area  sections 63,64,66 of the Copyright Act,1957 read with sections 102, 451,452 and 457 of Code of Criminal Procedure, 1973(Cr.P.C.).

Let me enlighten these provisions of law one by one for better understanding and justification.

Section 63 of the Copyright Act is a penal provision which speaks that any person who knowingly infringes or abets the infringement of the Copyright in a work or any other right conferred by Copyright Act shall be published in accordance with the punishment provided in Section 63, 63A or 63B as the case may be.

Section 64 (1)of the Copyright provides power to any police officer, not below the rank of sub-inspector,  to seize the infringing copies without warrant and produces the same before Magistrate.

Section 64(2) of the Copyright is in respect of an application to be made  to Magistrate by any person having internet in any seized copies for restoring the same to him within fifteen days. Further, the Magistrate, having heard both the applicant and complainant and making further necessary inquiry, shall pass and Order as he deems fit.

Section 66 of the Copyright Act provides that the court trying any offence under Copyright Act may order that all copies of the work or all plates in the possession of the accused, be delivered to the owner of the Copyright irrespective of the fact such accused is convicted or not. 

Section 102 of Cr.P.C. says about the power of the police officer to seize property.  Section 102(1) says that any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.  Section 102(3) says the custody of property is given to the person on his executing a bond undertaking to produce the property before the Court as and when required when the property seized is such that it cannot be conveniently transported to the Court or where there is difficulty in securing proper accommodation for the custody of such property.

Section 451 of Cr.P.C.says that in case of custody and disposal of property pending trial, any criminal court may pass an Order for the proper custody of such property. 

The terms ' proper custody of such property' is essential to be understood in respect of infringing copies or plates under the Copyright Act.

Explanation of Section 451 of Cr.P.C speaks about 'property'  which includes (a) property of any kind or document which is produced before the Court or which is in its custody. (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence. 

Section 452 of Cr.P.C. speaks about an Order of a criminal court for disposal of property at conclusion of trial. Section 452(5) is important as it talks about the term " property" which includes in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.

Section 457 of Cr.P.C says about the procedure by police upon seizure of property. It also says that Magistrate may make such Order as he thinks fit for the disposal or delivery of such property to the person entitled to the possession thereof. Section 457(2) of Cr.P.C. speaks that if the person entitled to the possession of such property is known, the Magistrate may order for the delivery of property to him subject to condition, if any or if no known person is there, proclamation of property is made.

Having discussed the legal scenario, in my view the terms "proper custody of such property" mentioned in Section 451 of Cr.P.C.  should be read with the terms " infringing copies  in the possession of the alleged offender, be delivered up the owner of the Copyright" of Section 66 of the Copyright Act 1957. The plain reading of Section 451 of Cr.P.C. with Section 66 of Copyright Act emerges out that proper custody of property must be custody of owner of the Copyright and not the possession  of alleged offender for property and therefore, when the accused applies for the possession of property under the offences of Copyright Act, Section 66 of the Copyright Act is directly applied and for the application of Section 66, it is not necessary to establish by the complainant i.e. owner of Copyright that the offences under Copyright Act have been made after conducting entire Trial. In other words completion of  trial for an offence under Copyright Act is not condition precedent under section 451 of Cr.P.C. or under Section 66 of the Copyright Act as the word 'trying' is mentioned along with the terms ' the alleged offender is convicted or not' is written in Section 66. If it seems prima facie that there is allegation of offence under Section 63 of Copyright, or offence has been made or likely to be made, and police has seized infringing copies, in my opinion, Court or Magistrate as the case may be, should first consider the provisions of Section 66 of the Act before passing any order on an application for restoring the infringing copies or plates. Further, the terms" person entitled to the possession" in Section 457(1) and " if the person so entitled is known, the Magistrate may order the property to be delivered to him..." mentioned in Section 457(2) of Cr.pc means a Copyright owner in the case of offence of infringement of Copyright under Section 63 read with 64 and 66 of Copyright Act. The words " person entitled" don't indicate the alleged offender in a case of Copyright. It indicates the lawful title of the property and therefore, property seized by police for the offence of infringement of Copyright  should not be released or delivered to the alleged offender. 

In support of my opinion, I reply upon the judgement of Hon'ble Delhi High Court in the case of  Flower Tobacco Company vs. State & anr. reported in 30 (1986) DLT 158 paragraph nos. 17 to 19. However,  Hon'ble Supreme Court in a case of Sunderbhai Ambalal Desai vs.. State of Gujarat reported in 2002 Supp(3) SCR 39 has taken different view for releasing the seized property, discussing the provisions of Section 451 of Cr.P.C. This case before SC was not related to infringement of copyright. 

The question is whether the Special Act prevails over the procedural Act.  Section 64 of the Copyright Act and Section 102 of Cr.P.C give police power to seize the property.  Whether Section 64 prevails over Section 102. When the intention of Legislature is to give special provisions with regard to the special safeguard in the form of Special Statute i.e. Copyright Act., the general provisions become substitute.  In Gobind Sugar Mills Ltd. v. State of Bihar, (1999) 7 SCC 76, Hon'ble Supreme Court has observed that "while determining the question whether a statute is a general or a special one, focus must be on the principal subject-matter coupled with a particular perspective with reference to the intention of the Act. With this basic principle in mind, the provisions must be examined to find out whether it is possible to construe harmoniously the two provisions. If it is not possible then an effort will have to be made to ascertain whether the legislature had intended to accord a special treatment vis-à-vis the general entries and a further endeavour will have to be made to find out whether the specific provision excludes the applicability of the general ones. Once we come to the conclusion that intention of the legislation is to exclude the general provision then the rule "general provision should yield to special provision" is squarely attracted."

Another question is whether the police seizes the property under Section 64 of the Copyright Act or under Section 102 of Cr.P.C. when the offence is made or is likely to be made for infringement of copyright. Section 64 differentiates than Section 102 in respect of (1) the designation of police officer (2) without warrant , police can seize the property. however, no such criteria is mentioned in Section 102 of Cr.P.C. Therefore, in my opinion, whenever, there is an offence under Section 63 of the Copyright Act, Section 64 of the Act is applicable and not Section 102 of Cr.P.C.

Further in the latest judgement delivered by Hon'ble Gujarat High Court on 3/8/2018 in the cases R/CRIMINAL MISC.APPLICATION NO. 15682 of 2017, R/CRIMINAL MISC.APPLICATION NO. 15685 of 2017 and  R/CRIMINAL MISC.APPLICATION NO. 15686 of 2017 before Hon'ble Gujarat High Court, the issue involved in this article has been justified Hon'ble Gujarat Court. The  facts of these three cases are same as the issue involved and parties to the cases are same and similar and therefore, a common order has been passed by Hon'ble Court.  The brief factual matrix of these cases is that the complaint, being copyright holder/owner of the artistic work of the industrial drawings entitled as "Zero Efficient Discharge Coal Gasification System of the machines   has filed an F.I.R. against the accused alleging the accused has stolen the said drawings and reproduce them for manufacturing machine. The sections involved in the F.I.R. are section 63, 64 of the Copyright Act and Section 114 of IPC. Consequently, the police seized and sealed the machine  within the premises of the accused. The accused filed an application under section 451 of Cr.P.C. read  section 64(2) for restoring the machine to him. The complainant produced written objections against that application stating that the machine should not be restored to the accused but it should be delivered up to the complainant as the complainant is the owner of the copyright. The learned Chief Judicial Magistrate rejected the application of the complainant which is also confirmed by learned Sessions Court and therefore being dissatisfied by the order of both the courts below, the complainant filed Criminal Revision Application before Hon'ble Gujarat High Court  challenging the orders passed by the Court below.  Hon'ble Gujarat High Court allowed the CRA filed by the complainant with the reasoned order and an important issue pertaining to the intellectual property law, especially copyright law has been adjudicated. The cardinal points of the judgement of Hon'ble Gujarat High Court are as under:

In paragraph No.44 of the judgment, Hon’ble Court has opined that the drawings reproduced in material form are considered as infringing copy and it is further opined that “the machines constitute copies of the work and therefore, were liable to be seized till final disposal of the trial.”

In paragraph No.64 of the judgment, it is further observed that “a design which falls under the domain of an artistic work as per definition given under Section 2(c) of The Copyright Act, 1957 will have to qualify all requisites criteria of copyrightability such as originality of the expression and creativity.  Artistic work is excluded under Section 2(d) of The Designs Act, 2000 and thereby warranting only one type of protection i.e. design copyright protection.”      

 In paragraph No.67 of the judgment, the court of the view that reproduction is an exclusive right vested with the original owner of the copyright in a work and therefore, the legislative intent could not have been to curtail the right of the owner.  Further, while discussing Section 15 of The Copyright Act, the bar of protection of the artistic work under The Copyright Act as per section 15(2) is discussed in paragraph No.67 of the judgment.  The Court is of the view that the applicability of Section 15(2) is on the basis of the statement made by the applicant in respect of registration of a copyright in a work.  The court is of the view that if the work is not result of industrial process and if it is result of art or hand-made work, section 15(2) is not applicable.    

In paragraph No. 75 of the judgment, Hon’ble Gujarat High Court is of  the  opinion that machine involved in the case is an infringing copy and therefore it is liable to be seized by the police and the order of removal of the said machine is erroneous.  

 Further in paragraph No. 76 of the judgment, discussing the possibilities of reproduction of the drawing in view of Section 15 of the Copyright Act, the  Hon’ble Court held that  “The Revisional Court erred in its decision because it failed to anticipate the possibility of anticipate the possibility of multiple reproduction of the drawings in a three dimensional form. Such reproductions would then lead to the present application becoming infructuous as the drawings would then lose their copyright as per section 15(2) of the Copyright Act, 1957.”

Further in sub-paragraph 3 of paragraph No.80 of the judgment, the court has observed that the Magistrate has not conducted any enquiry as regards the ‘copies of the work’ which is the requirement of Section 64(2) of The Copyright Act, 1957.  In paragraph No.80(5) of the judgment, it was observed that Section 15(2) of The Copyright Act, 1957, was not invoked as per the facts that only 12 units of the impugned machine were sold till date and not 50, therefore, invocation of section 15(2) does not arise.  

 In paragraph No.80(6) of the judgment, the Hon’ble Gujarat High Court has observed that the applicant was not in a position to place on record the facts of manufacturing 12 units as the Magistrate declines to conduct the enquiry.  As per paragraph No.80(7) of the judgment, it was held that the industrial drawing is registered as artistic work as per the copyright registration certificate and it is not a design that is why it is outside the boundary of the provisions of  The Designs Act, 2000.  Section 48 of The Copyright Act is in support of this opinion expressed by Hon’ble Gujarat High Court.  

In paragraph No.104(5) of the judgement, Hon’ble Gujarat High Court has held that “the Magistrate erroneously restored the copies of the work to the respondents.  The machine should be handed over to the applicant herein.”  The respondents were accused and the applicant was complainant.  It is further observed in paragraph No.105 of the judgement, after considering the provisions of The Copyright Act, 1957, The Designs Act, 2000 and Code of Criminal Procedure.  The machine should be delivered to the person who is entitled to the possession thereof and in the present case, the complainant-applicant is entitled for the same.   In paragraph No.107 of the judgement, the Court is of the view that as machine is fixed within factory premises of respondent Nos.2 & 3, the police is directed to affix the seal on the machine involved in the case and the respondent Nos.2 & 3 are not entitled in law to use the said machine.   

While concluding, I must welcome the judgement of Gujarat High Court as (1) the issue of custody of infringing copies  and (2) the issue pertaining to application of section 15 of the Copyright Act, 1957 are discussed at length because many times section 15 comes on way in cases related to engineering drawings. Mere defence of section 15 is not enough without producing any evidence. My opinion is that as per section 66 read with section 64 (2) of the Copyright Act along with section 451 of the code of criminal procedure, the infringing copies which are in possession of the offender,  have to be delivered up to the person who is owner of the copyright. It is pertinent to note here that SLP is pending before Hon'ble Supreme Court challenging the order passed by Gujarat High Court.

Chirag Bhatt

IP Lawyer

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