Reconsidering the Criminalization of Copyright Violation in India: Evaluating the Cognizable and Non-Bailable Regime

Abstract

Following several divergent judicial pronouncements, the Supreme Court of India finally held the offence of copyright violation u/s 63, Copyright Act, 1957, to be cognizable and non-bailable in Knit Pro International v State of NCT of Delhi, (2022) 10 SCC 221. The judgement, however, neither addresses the inconsistent judicial approaches that it apparently resolved, nor considers the potential effects of such a high-severity classification. Addressing the same, this paper explores the foundational justifications behind criminalizing copyright violation in India. It argues that criminalizing copyright violation as a cognizable and non-bailable offence may jeopardize individuals’ fundamental rights and the balance between the rights of creators and users. It also demonstrates how Indian courts have become trapped in a vicious cycle with the misuse of criminal copyright remedies leading to impoverished jurisprudence on the subject. The paper contextualizes the discourse within the broader global framework by comparing the Indian regime with those prevalent in foreign jurisdictions. It concludes with the recommendation to retain the criminalization of copyright violation in India, but as a non-cognizable and bailable offence.