Criminal Remedies For Copyright Infringement: A Comparative Look At India's Old And New Criminal Legislations

Bharatiya Nyaya Sanhita, 2023 vs. Indian Penal Code, 1860

The Bharatiya Nyaya Sanhita, 2023, brings a more focused approach to criminalizing copyright infringement, contrasting with the Indian Penal Code, 1860, which dealt with such issues indirectly.

The IPC addressed copyright infringement primarily through sections related to cheating (Section 420) and forgery (Sections 463 to 471). These provisions could be applied to intellectual property violations but were not specifically tailored for copyright infringement, leading to enforcement ambiguities. Punishments for copyright infringement under the IPC were not clearly defined, often leading to inconsistent enforcement. The general provisions allowed for imprisonment ranging from six months to three years and fines, depending on the nature and severity of the offense.

The Bharatiya Nyaya Sanhita or BNS has enhanced the definition of theft. Further punishments have been enhanced for criminal misappropriation of property, criminal breach of trust, and cheating.

Dishonest Misappropriation of Property

Under the BNS Section 314, dishonest misappropriation of property is now subject to a minimum punishment of six months' imprisonment. The offence is punishable with both imprisonment and a fine, unlike the IPC, which allowed for imprisonment or fine or both, indicating an increased emphasis on imprisonment.

Criminal Breach of Trust

Sections 406 – 409 of the IPC, pertaining to criminal breach of trust, are consolidated into Section 316 of the BNS. The maximum term of imprisonment for criminal breach of trust has been increased from three years under the IPC to five years under the BNS.

Cheating

Sections 417, 418, and 420 of the IPC, which deal with various forms of cheating, are now unified under Section 318 of the BNS. The maximum imprisonment for cheating is increased from one year under the IPC to three years under the BNS. For the offence of "cheating with knowledge that wrongful loss may ensue to a person whose interest the offender is bound to protect," the maximum imprisonment is increased from three years under the IPC to five years under the BNS.

This enhancement of penalties reflects contemporary economic realities and offers a stronger deterrent against copyright infringement offences.

Bharatiya Nagarik Suraksha Sanhita, 2023 vs. Code of Criminal Procedure, 1973

The Bharatiya Nagarik Suraksha Sanhita, 2023, provides enhanced procedural mechanisms for dealing with copyright infringement compared to the Code of Criminal Procedure, 1973.

Investigation and Prosecution

The CrPC offered a broad framework for the investigation and prosecution of criminal cases, including copyright infringement. However, it lacked specific procedures tailored to intellectual property crimes, often leading to challenges in effectively addressing these issues.

The BNSS introduces detailed and specific procedures for investigating copyright infringement cases. This includes enhanced guidelines for police investigations, ensuring they can effectively gather evidence and build cases against infringers. The new provisions aim to streamline the process, reducing delays and improving the efficacy of enforcement actions.

Example, for offences including copyright offences, the BNSS now allows for the registration of an FIR at any police station for cognizable offences, regardless of the location of the crime, through the concept of 'Zero FIR.' Previously, victims of serious offences had to visit the jurisdictional police station to lodge complaints, even if unable to do so. This issue was addressed by the Apex Court's judicial introduction of 'Zero FIR,' which the BNSS now formally incorporates. After a Zero FIR is filed, the police station where it was lodged will transfer it to the appropriate jurisdictional police station for investigation. Cl. 173(1) of BNSS states that Every information relating to the commission of a cognizable offence, irrespective of the area where the offence is committed may be given orally or by electronic communication and if given to an officer in charge of a police station…”. This is a crucial development, given the shifting nature of copyright infringement and when time is of essence in nabbing the infringer.

Again, the BNSS significantly enhances the Magistrate's authority to attach properties identified as 'proceeds of crime,' including any property obtained directly or indirectly through criminal activity. These powers apply regardless of the nature of the offence and whether the property is movable or immovable. A Magistrate can now attach property, even on an ex parte basis, upon an investigating officer's application stating the property's criminal origins. This provision also empowers the distribution of proceeds to affected individuals, marking a substantial difference in the existing procedure.

Search and Seizure

The CrPC allowed for search and seizure operations, but these provisions were often outdated, particularly when dealing with digital piracy. The lack of specific guidelines for handling digital evidence created significant enforcement challenges.

The BNSS provides clear guidelines for handling digital evidence and conducting searches in digital environments, making it more effective in combating modern forms of piracy. This includes procedures for the identification, seizure, and preservation of digital evidence, which are critical for successful prosecutions in today's digital age.

As per Cl. 185 of the BNSS to curb illegal searches, seizures, and evidence tampering, the BNSS requires audio and video recordings during these operations, preferably using a mobile phone. This includes recording the preparation of the list of seized items and the signing of these lists by witnesses. Recordings must be forwarded to the Magistrate within 48 hours of the search or seizure.

Bharatiya Sakshya Adhiniyam, 2023 vs. Indian Evidence Act, 1872

The Bharatiya Sakshya Adhiniyam, 2023, addresses the gaps in the old Indian Evidence Act, 1872, particularly concerning the admissibility of digital evidence.

Admissibility of Evidence

The IEA struggled with the admissibility of electronic evidence, a critical gap in an era where digital piracy and online copyright infringement are rampant. This often created hurdles for right holders in proving their cases.

The BSA explicitly recognizes electronic records and digital evidence, providing a robust framework for their admissibility in court. Section 57 of the BSA classifies electronic records as primary evidence. Documentary evidence encompasses information stored electronically, which can be printed or stored on optical or magnetic media from single or multiple computers. The BSA grants electronic records the same legal status as paper records, extending the definition to include data stored in semiconductor memory or communication devices like smartphones and laptops. This includes emails, server logs, locational evidence, and voicemails. This modern approach ensures that the law keeps pace with technological advancements and the evolving nature of intellectual property crimes.

The transition from the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872, to the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023, and the Bharatiya Sakshya Adhiniyam, 2023, marks a significant evolution in the legal framework addressing copyright infringement in India. The new legislation provides more explicit, robust, and contemporary remedies and enforcement mechanisms, reflecting the advancements in technology and the changing landscape of intellectual property crimes. These reforms offer better protection for copyright holders, ensuring that their rights are effectively safeguarded against infringement in the digital age. The modernization of penalties, specific guidelines for handling digital evidence, and streamlined procedures for obtaining legal remedies are key improvements that enhance the efficacy of the criminal justice system in dealing with copyright infringement. As India continues to advance technologically, these new laws will play a crucial role in protecting intellectual property and fostering a culture of respect for creators' rights.

Lakshmidevi Somanath is a Senior IP Counsel & Former Judge, IPAB, GoI. Views are personal.