In a recent order, a Mumbai Magistrate Court acquitted the accused in a copyright infringement case after 37 years! Discussing this and other similar instances, SpicyIP Intern Aditi Agrawal writes on the state of affairs in enforcing criminal remedies against copyright infringement allegations. Aditi is a final-year B.A., LL.B (IPR Hons.) student at The ICFAI University, Dehradun.
Enforcing Criminal Remedies Against IP Infringement in India: A Long Road to Justice?
By Aditi Agrawal
Punishment should not be inflicted “where it is needless: where the mischief may be prevented, or cease of itself, without it: that is, at a cheaper rate.”
-Jeremy Bentham, An Introduction to the Principles of Morals and Legislation
In a remarkable illustration of the challenges plaguing IP enforcement in India, a copyright infringement case finally met its end in December, 2024 after an astounding 37-year journey, which Sunil Jose astutely pointed out as emblematic of our IP enforcement challenges. The case dating back to 1987 was disposed of, nearly after four decades after its initiation—not with a judgement on merits, but because there was not sufficient evidence to even frame charges against the accused.
The 37-Year Odyssey of a Case That Went Nowhere
The case was instituted by the National Film Development Corporation Ltd. (NFDC) who alleged an unauthorized reproduction and circulation of foreign feature films by Parakat Vasu Krushnan Nair. The accused was prosecuted under Section 63 (which prescribed the punishement for infringement of copyright or other rights conferred by the Act) and Section 68 (a) (which penalizes making false statements to deceive an authority) of the Copyright Act, 1957.
The case could best be described as a courtroom ghost story as it seemed to lack interest from all sides. Summons issued to witnesses, including the investigating officer, were returned unserved as no one was found at the provided addresses. The accused, a veritable phantom in the proceedings, remained conspicuously absent, prompting the issuance of a non-bailable warrant and even a proclamation against him. Yet, the prosecution seemed equally uninterested, offering no new leads or fresh evidence to push the case forward. Eventually, leaving the Court with no choice but to close the evidence and directed that any seized property related to the case be destroyed.
In a similar case, Sunil John Fernandes, arrested in 1991 for possessing pirated video cassettes, was prosecuted under Section 63 and Section 68A of the Act for infringing copyrights of reputed companies by preparing duplicate video cassettes for sale without license granted by the owner of the Copyrights or the Registrar of Copyrights. However, despite the lengthy proceedings, which lasted over three decades, the prosecution failed to establish his guilt due to lack of sufficient evidence, leading to his acquittal finally in 2024.
The trajectories of the Nair and Fernandes cases raise pressing questions about the efficiency of criminal remedies in copyright law and the state of IP enforcement in India.
Is Criminal Prosecution Even Justified?
These cases reflect a sad state of affairs where alleged copyright infringers are subjected to the criminal prosecution, often without sufficient evidence. The criminal provisions under Section 63 and 68 (a) of the Copyright Act, 1957., were intended to deter willful and malicious infringement. However, the application of these provisions often appears disproportionate, particularly in cases where the intent to infringe or harm is unclear or where the evidence fails to meet the standards required in criminal trials.
On this blog, various discussions on the broader issue of criminalizing copyright infringement has been a recurring theme, including those by Nikhil where he criticized the criminalization due to the potential of weaponizing copyright to punish or retaliate for some perceived wrongdoing, and Praharsh highlighting the problematic idea of criminalizing copyright infringement (a point also emphasized in discussions here, here and here), particularly when it involves isolated allegations instead of large-scale piracy.
We need to remind ourselves that it is the intellectual property rights that should be protected, and not the exploitation of individuals and entities in the guise of IP protection. As noted by Kimberlee Weatherall, criminal liability in copyright law should be invoked only in exceptional cases: instances involving deliberate, large-scale commercial exploitation or sustained activities that directly undermine the markets of copyright holders. This can be backed by the utilitarian theories that denote the idea that criminal sanctions are appropriate only as a last resort.
The Burden of an Overburdened Judiciary
In a country like India, where the judicial system is already overburdened with over five crore pending cases (out of which 70 percent of these cases amounts for criminal ones) and a significant number of undertrial prisoners remain in custody, the use of criminal remedies for copyright disputes becomes even more questionable. Should copyright holders consider civil remedies as a more viable option, given the predominantly civil nature of most copyright claims? For instance, the Jharkhand Hight Court in Paras Kumar Choudhary vs The State of Jharkhand quashing the criminal proceedings, suggested that a party can resort to the court of civil jurisdiction if the nature of the case warrants so. Nonetheless, as discussed by Praharsh the Karnataka High Court in M/s. New Sultan Beedi Works v. State of Karnataka clarified that the Copyright Act provides for both civil and criminal remedies and the outcome of both are independent of each other.
Cases like Nair and Fernandes highlight the deep-seated issues in India’s IP enforcement framework, particularly questioning the justification for criminal remedies in copyright infringement cases. Though the Copyright Act provides for criminal prosecution, these cases underline the disproportionate application of such remedies, especially when the intent and scale of infringement are ambiguous or trivial.
However, recent developments offer a glimmer of hope pertaining to IP enforcement. The IP Division of the Delhi High Court has proven highly effective, disposing of over 60% of transferred IPAB cases and 2,026 fresh cases between January 2023 and June 2024, reducing overall pendency. Extending this model to other High Courts could significantly improve IP case resolution and enforcement efficiency across India, as it would not only ensure more proportionate responses to IP violations but also prevent the unnecessary criminalization of minor infringements.
As Bentham wisely noted, punishment should not be inflicted “where it is needless” – a principle that seems particularly relevant given the current state of IP enforcement in India. The focus must remain firmly on protecting intellectual property rights rather than weaponizing them for the exploitation of individuals and entities under the guise of IP protection.
The author would like to thank Praharsh and Swaraj for their valuable input on this piece.