COPYRIGHT AND TRADEMARK OFFENCES –BAILABLE OR NOT?

INTRODUCTION

Last year, the Bombay High Court was faced with a dispute question of law while hearing an anticipatory bail application. The bail application was enter in retaliation to a criminal report registered, et cetera, under Section 63 of the Copyright Act and Section 103 of the Trade Marks Act.

The formost  issue conveyed by the court was whether these offences are bailable in nature or non-bailable. The court ruled on the set of the later, possessions these offences to be non-bailable. In this post, I shall study this order and post it in the context of its indication for free speech in the country.

Background

The above mentioned sloutions deal with the neglect  of copyright and trademarks respectively. Both of them authorized punishment of “not less than 6 months but which may extend to 3 years” in summation to the fine.

The First Schedule of the Code of Criminal Procedure (‘CrPC’) provides for a 3 category codification of offences as bailable or non-bailable in obedience with the prescribed punishment.

The second category in this codification states that offences “punishable with imprisonment for 3 years, and uphill  but not more than 7 years” are non-bailable.

The third classification, on the other hand, states that offences “punishable with imprisonment for less than 3 years or with fine only” are bailable in nature.

As the offences of copyright and trade marks have a maximal possible punishment of 3 years, it has exceed to a uncertainty as to which type they will fall under (see earlier posts on the blog here and here for more detailed context).That being the case , different high courts have arrived contrasting conclusions on this. While Andhra Pradesh High Court and Delhi High Court (here and here) have confined these offences to be bailable payable to the hope of less than 3 years of punishment, they have been confined to be non-bailable by Gauhati High Court, Kerala High Court (here and here), and Rajasthan High Court, in light of the possibility of a 3 year punishment.

The Order

In the happenings before the Bombay High Court, the State conformed that “this issue is no more res-integra” as different courts have confined that offences punishable with up to 3 years of imprisonment are non-bailable in nature.

The court supported with this analysis by relying upon a series of its faster decisions dealing with the avoidance of Insults to National Honour Act, 1971, the avoidance of Corruption Act, and the M.R.T.P. Act, 1966, where the codification was decided based on the largest possible punishment.

It also mentioned  to the recent Division Bench decision of the Rajasthan High Court in Nathu Ram v. State of Rajasthan, where on a recommendation it was confined that offences for which imprisonment “may enlarge to 3 years” would fall in the second category, and through non-bailable and cognizable.

Missed Points

The above judgments of the Bombay High Court selectively observe only authorities helping the final outcome arrived at by it, and avoiding the authorities that reach at a contrary result. Two particularly applicable arguments raised in these orders that were not observed by the court are as follows.

First, the judgement of the Supreme Court in Rajeev Chaudhary v. State (N.C.T.) of Delhi (‘Rajeev Chaudhary’) has not been communicated. The decision was contributed in the context of Section 167 of the CrPC and the court confined that “imprisonment for a term of not less than 10  years” will not include the offence of shakedown that provides “imprisonment of either narration for a term which may expand to 10 years”. This has been dignified by the Delhi High Court by considering that the vocabulary of the classification of offences in the First Schedule is “materially different” to the term “not less than” used in Section 167.

The Rajasthan High Court similarly dignified this decision considering it to be “in different context”. This, however, involves a argument that does not consider the specific wording of the First Schedule. To reiterate, it uses the term “punishable with imprisonment for 3 years, and uphills  but not more than 7 years.” (emphasis supplied). There is a conscious use of the term ‘and’ in the classification. This probably implies that the worried offence must be punishable for 3 years and above, and not hardly 3 years. A different explanation would provide the term ‘and’ redundant. If the outlook of the courts classifying these intellectual property offences in the second classification were correct, then the term ‘and’ would have to be rather read as an ‘or’ which cannot be the case here.therfore, if the use of ‘and’ is observed deliberate, this makes the solution in line with that in Rajeev Chaudhary since the effective analysis of both provisions is the same. This analysis should be favored, as rightly pointed out by the Andhra High Court, in light of the fact that criminal provisions are essentials to be interpreted strictly.

Second, the Supreme Court judgement in Avinash Bhosale v. Union of India has not been discussed. This was delivered in relation to Section 135(1)(ii) of the Customs Act, 1962. It authorizes for a punishment of “imprisonment which may extend to 3 years” (identical to the intellectual property offences being discussed in this study). The apex court had confined this to be a bailable offence. As the vacabulary of both the copyright and the trademark offences is identical, this explanation would squarely apply to them and they must be observed as bailable. A similar outlook  was also taken by the Delhi High Court.

In light of the non-consideration of the beyond Supreme Court decisions, it obliges that the Bombay High Court order might be reviewed per incursion and not good law.

Impact on Free Speech

Ownership of copyright and trademark offences to be cognizable and non-bailable in nature has a extremely high impact on freedom of speech and expression in the country. 6 particular issues need contemplation in this regards.

Dissuading Creativity

First of all, as Bhavik rightly argues, the extract of copyright law is to spur creativity and facilitate entry to works. With the warning of a police arrest and the absence of bail as a right, maker  would indulge in self-censorship lest they might need to serve jail time for their actions. This is particularly correct in the modern day hostile environment in the country where makers are regularly targeted for their content. Particularly, there has recently been an riase in what are known as SLAPP litigation (‘strategic lawsuit against public participation’) where several cases have been filed against makers such as comedians.

Silencing Criticism

Secondly, this will also lead to abolishment in criticize of unfair practices or government’s policies for fear of retaliation. This is because copyright law in the present day is being used as a means of censorship by both individual players and the government. The excessive and unreasonable copyright infringement claims raised by WhiteHateJr to shut down all negative remark are an example of the former. The latter can be notice from recent reports hinting towards false command of copyright infringement by the Bangladesh government to take down content criticizing the government’s functioning. This would, thus, further reduce the already decreasing  boundaries of free talk in the country.

Hampering fair use

Thirdly, this would also discourage carrying out activities which can be covered within the omission to the copyright law as provided in Section 52. This is because the determination of whether the worried activity falls under the exception or not will happen only at a later stage of trial. Until such determination takes place, the warning of being booked under a cognizable, non-bailable offence and thereby the possibility of serving jail time overshadow  large.

For instance, consider an person who runs a photocopying shop in Delhi where they photocopy entirety of books for the aid of students of a adjacent university. If a copyright infringement suit is filed against them invoking Section 63, then there is a high possibility that they will not be conflict guilty for the same in light of the D.U. Photocopy judgment. However, until the court rules so, the person can be potentially arrested and put behind bars without any gulity of theirs.

Trademark Bullying

Fourthly, even in circumstance of trademarks, similar regard persist. As the recent Big Basket-Daily Basket dispute indicates, big players frequentally indulge in trademark bullying to drive smaller players out of the market or to make their business suffer. If such method are resorted to, then legitimate trade mark owners also are revealed to the threats of being booked by a cognizable, non-bailable offence.

A determination of whether there was indeed any neglect or not, or even whether the original mark itself is a generic mark and hence not protected, will only take place later during the trial.

The situation is damaged by the absence of a consistent principle-based approach taken by Indian courts while dealing with issues such as likelihood of confusion. This further raises the probability of harassment being suffered by legitimate trade mark holders.

Redundancy of Differentiated Culpability Model

Fifthly, it must be noted that each the legislations grant for differentiated punishment levels in that punishment of less than 6 months of imprisonment could also be charged in adequate and special coincidence. The Copyright Act to this end, specifies that a forerunner to this is that the “infringement has not been made for gain in the course of trade or business”.

Hence, both the legislations conceive that certain actions are at a lower level of culpability than others and should be treated liberally. This provision of lesser fine, however, would become redundant if the offence is considered a cognizable, non-bailable one. This is because in such situations the process itself would be highly challenging and agonizing even if the last punishment awarded is minimal. This is because the alleged offender  would need to undergo unreasonable prison time at the whims of the police, thereby probably hardship more than what the punishment would have subjugated them to.

Impact on Vulnerable Groups

Lastly, this has appropriate implications for a country like India where the most of the population is unaware of the functioning of intellectual property legislations. In such a scheme, if police is given unbridled power to arrest individuals without warrant and if bail for the same is made difficult, it could definitely be used as a gun for harassment with no available remedy for the victims.

The huge extent of possible intellectual property violations in India and the lack of interpretive purity on their defenses just sets up a system where vulnerable category can selectively be targeted. It could, thereby, become a mild version of sedition laws with even the particular players with high social capital being able to unduly harass their attacker.

Conclusion

              The constant deepeing of the scope of criminal provisions regarding intellectual property rights poses imporant challenges to the growth of both orginallity and freedom of speech in the country. If this is combined with making these offences as cognizable and non-bailable, it further establish  the problems posed by this criminalisation.

It resais suppplementary questions about the shaky fields on which criminalisation of intellectual property rights raises as likely the harms sought to be decreased are countered by much higher harms that are arising by criminalisation in the first place.

It is, thus, hoped that a shift almost decriminalisation of intellectual property offences takes place soon. Additionally, it is compulsory that some certainty is offered in the interpretive exercise involving the analysis of offences under the CrPC, particularly for those offences that do not rigidly fall within the ambit of any of the ethical  categories.

written by:

Tanu Priya.