The Kerala Excessive Court docket in O. P. Ashraf v The State of Kerala and Others[1] (could be accessed right here) has held that the prosecution couldn’t set up the required elements which represent copyright infringement underneath Part 51(a) of the Copyright Act, 1957, and subsequently the Excessive Court docket has now put aside the conviction of a person for allegedly promoting faux audio cassettes.
On this article, we’ll look at the reasoning behind the Court docket’s conclusion. As a result of at a primary look, it might appear that such actions would have been meant as restricted underneath the Copyright Act, 1957, by the legislators.
Background
The current petition was filed by the accused as a prison revision petition difficult the judgment handed by the Judicial First Class Justice of the Peace and confirmed by the Classes Court docket, Thalessery, Kerala. The judgement by the decrease courts had convicted the prosecution underneath Sections 51(a) and 52A learn with Part 63 of the Copyright Act, 1957. The accused now contested these findings by means of this prison revision petition.
The accused was caught and arrested on 10th October 2001 (loopy to suppose how lengthy proceedings go on in India) at roughly 4:00 PM whereas participating within the sale of alleged counterfeit audio cassettes (music bought as cassettes with out permission of the copyright proprietor) on the footpath in entrance of a constructing, situated in Kannur, Kerala. The sale of those music cassettes was alleged to represent a violation of the Copyright Act, 1957, particularly in regards to the unauthorized replica and distribution of copyrighted works.
An investigation was carried out by the police. Primarily based on the findings arrived at throughout this investigation, a remaining report was submitted, resulting in the trial and conviction of the accused. The decrease courts discovered that the proof introduced by the prosecution was adequate to ascertain the fee of the alleged offenses. Nevertheless, the accused contested this conclusion and argued that the prosecution had did not show the important parts of the offenses underneath Sections 51(a) and 52A of the Copyright Act.
Related Sections of the Copyright Act
Earlier than moving into the evaluation given by the Court docket, it is very important perceive underneath what provisions of the Copyright Act, 1957, had been the costs positioned by the prosecution:
Part 51(a) states that if somebody, with out permission, makes use of or permits using any work (may very well be music, movies, books, and many others.) and subsequently makes use of the rights which got to a copyright proprietor underneath the Copyright Act, then the copyright is taken into account to be infringed.
However, Part 52A requires sound recordings and video movies to show key particulars. Sound recordings should embody the producer’s title and handle, the copyright proprietor’s title and handle, and the 12 months of first publication. Video movies should present the Movie Certification Board’s certificates (if relevant), the producer’s title and handle with a licensing declaration, and the copyright proprietor’s title and handle.
Evaluation of the Court docket
The prosecution allegation is that faux audio cassettes had been bought by the accused. The prosecution alleges that the accused bought cassettes containing audios recorded with out the licence or authority granted by the proprietor of the copyright with whom the unique proper to so is vested.
The Court docket began by analysing the necessities of every part, and the related particulars given underneath associated sections. It was noticed that to draw an offence underneath Part 51, the prosecution has to ascertain that the cassettes contained audio information regarding any of the topics talked about in Part 2(m).
Be aware: Part 2(m) offers the definition of an “infringing copy”. An “infringing copy” is any unauthorized replica of: (i) literary, dramatic, musical, or creative works (excluding movies), (ii) cinematograph movies on any medium, (iii) sound recordings with an identical content material, or (iv) broadcasts or performances captured in sound or movie the place rights apply.
The Court docket additionally famous that the accounts of witnesses had been diverse. Whereas some witnesses stated that the accused was promoting faux cassettes, an impartial witness on the scene denied any such exercise being carried out.
Judgement
The Court docket held that the prosecution’s proof reveals the police seized 38 cassettes however lacked data of their contents or the copyright holder. The Court docket stated that the prosecution “didn’t verify who the copyright holder was or whether or not the copyright holder had retained any unique proper or whether or not licence had been granted as talked about in Part 51 of the Act”.
Thus, the Court docket held that the prosecution had did not show the weather required for an offense underneath Part 51(a) learn with Part 63.
The Court docket additional held in relation to Part 52A, that in an effort to show this offense, the prosecution should present that the accused printed a sound recording with out displaying required particulars, such because the producer’s title and handle, copyright proprietor’s particulars, and the 12 months of first publication. The prosecution had did not show if the cassettes containing the sound recordings lacked such particulars.
The trial and Classes Courts neglected these key factors, that the important parts required underneath these sections weren’t confirmed, making the conviction unreasonable and liable to be put aside.
Conclusion
The explanation for the Court docket’s determination appears to be as a result of there have been many laches and failures by way of the proof submitted by the prosecution. There was no correct data of whether or not the sound recordings contained within the audio cassettes had been really infringing copies or in the event that they had been sound recordings that had been created by the accused himself, or licensed on the market. With out such essential proof, there are numerous potentialities which couldn’t be ignored.
Additional, as a consequence of this failure to supply proof that the cassettes contained any explicit sound recording, the authorized requirement to showcase the copyright proprietor’s title and handle, and the 12 months of first publication, underneath Part 52A, additionally was not correctly established.
As a consequence of this main lapse of offering proof, a observe which might in any other case be thought of as copyright infringement, was not confirmed. There are numerous different instances the place offering faux or copied content material with out applicable licensing and permission was thought of copyright infringement. This train of producing and promoting CDs, cassettes and different bodily information containing songs with out applicable license from the document labels could be termed as “bodily piracy” or counterfeiting.[2]
In EBC Publishing Pvt. Ltd. v. Mother and father Accountability,[3] a go well with was filed by EBC in opposition to the sale of counterfeit copies of its books. The Delhi Excessive Court docket restrained the defendants from immediately or not directly promoting or dealing in merchandise and books underneath the commerce marks ‘EBC’ and ‘Jap Ebook Firm’.
Due to this fact, any occasion of counterfeiting, whether or not it’s songs, books, or movies, would undoubtedly be thought of as copyright infringement underneath Part 51 of the Copyright Act, if the important parts are sufficiently confirmed.
Finish Notes
[1] Crl. Rev. Pet 866 of 2022.
[2] https://www.ifpi.gr/physical_en.html.
[3] CS(COMM) 434/2024.
Picture generated on Dall-e
