Offences and Penalties (Sections 63–70)

Sections 63 to 70 of the Copyright Act, 1957 turn copyright infringement from a private wrong recoverable in a civil suit into a public wrong punishable by the State. The civil scheme of civil remedies for infringement — injunction, damages, account of profits — leaves the infringer's body untouched. Chapter XIII of the Act fills that gap. It carries imprisonment, fine, enhanced second-conviction punishment, a separate offence for knowing use of an infringing computer programme, a police power of seizure without warrant, deeming provisions for officers of companies, and limitation rules for prosecution.

For the judiciary aspirant, the chapter is exam-dense for one reason: the Supreme Court has, in the last three years, settled a long-running cleavage among the High Courts on whether Section 63 is a cognisable and non-bailable offence. The answer changes how a complaint is filed, who investigates, and whether anticipatory bail is the only route available. Read the section carefully — then read Knit Pro International v. State of NCT of Delhi (2022) carefully.

Statutory anchor and scheme

Chapter XIII opens with Section 63 (offence of infringement of copyright or other rights conferred by the Act), moves through Section 63A (enhanced penalty on second and subsequent convictions), Section 63B (knowing use of infringing copy of a computer programme), Section 64 (power of police officer not below the rank of a sub-inspector to seize infringing copies), Section 65 (possession of plates for purposes of making infringing copies), Section 65A (protection of technological measures), Section 65B (protection of rights management information), Section 66 (disposal of infringing copies or plates), Section 67 (penalty for making false entries in the Register), Section 68 (penalty for making false statements for the purpose of deceiving or influencing any authority or officer), Section 68A (penalty for contravention of Section 52A on particulars on records and video films), Section 69 (offences by companies) and Section 70 (cognisance of offences). Sections 65A and 65B were inserted by the Copyright (Amendment) Act, 2012 and are treated separately under Section 65A protection of technological measures and Section 65B protection of rights management information.

The architecture of the chapter is layered. Section 63 is the gateway offence, attaching to any wilful infringement or abetment of infringement. Section 63A adds a sentence enhancement on a second or subsequent conviction. Section 63B carves out a special offence for the unique technical context of computer software. Section 64 is the State's investigative engine. Sections 67, 68 and 68A criminalise cognate misconduct against the Register and labelling regime. Section 69 lets the prosecutor reach individuals behind a body corporate. Section 70 stops magistrates below a certain rank from taking cognisance.

Section 63 — the gateway offence

Section 63 punishes any person who knowingly infringes or abets the infringement of (i) the copyright in a work or (ii) any other right conferred by the Act except the right conferred by Section 53A (resale share right of authors). The post-1994 sentence is a minimum of six months and a maximum of three years' imprisonment, plus a fine of not less than fifty thousand rupees and not exceeding two lakh rupees. The proviso allows the court, for adequate and special reasons recorded in the judgment, to impose a sentence below the minimum where the infringement was not for gain in the course of trade or business.

Three ingredients must be proved by the prosecution: (i) the existence of subsisting copyright in a work falling within the categories of subject matter of copyright under Section 13, (ii) an act amounting to infringement under Section 51, and (iii) knowledge on the part of the accused. The mental element — "knowingly" — is the doctrinal hinge. Innocent infringement does not attract Section 63 even if it attracts civil liability. The bundle of exclusive rights conferred by Section 14 defines the conduct that, if invaded with knowledge, becomes criminal.

Cognisability of Section 63 — the long debate

Whether the Section 63 offence is cognisable and non-bailable, or non-cognisable and bailable, divided the High Courts for decades. The debate turned on a reading of Part II of the First Schedule to the Code of Criminal Procedure, 1973: where a special law prescribes imprisonment for three years and upwards, the offence is cognisable and non-bailable; where it prescribes imprisonment for less than three years, it is non-cognisable and bailable.

Section 63 prescribes a maximum of three years. The Andhra Pradesh High Court in Amarnath Vyas v. State of A.P. (2007) and the Kerala High Court in similar lines treated the offence as non-cognisable and bailable, reasoning that the punishment is "up to" three years and therefore not for three years and upwards. The Delhi High Court took the contrary view in State Govt. of NCT of Delhi v. Naresh Kumar Garg (2013) holding the offence cognisable, given the legislative intent reflected in Section 64's seizure power.

The Supreme Court ended the cleavage in M/s Knit Pro International v. State of NCT of Delhi (2022) 10 SCC 221. The Court held that an offence under Section 63 is a cognisable and non-bailable offence. The reasoning rests on the Schedule's text: the maximum imprisonment under Section 63 is three years, which falls within the band "three years and upwards" of Part II of Schedule I. The earlier precedent in Avinash Bhosale v. Union of India (2008) was reconciled as not directly deciding the cognisability question. Post-Knit Pro, an FIR can be registered, the police can investigate without a magistrate's order, and the accused must seek either anticipatory or regular bail; the simple bail-as-of-right route is closed.

Section 63A — enhanced second-conviction penalty

Section 63A escalates the sentence on a second or subsequent conviction under Section 63. The minimum imprisonment becomes one year, the maximum three years; the fine band rises to one lakh rupees minimum and two lakh rupees maximum. The court may, for adequate and special reasons recorded, impose a lesser sentence where the prior conviction occurred before the commencement of the 1994 Amendment Act, or where the second offence was not committed for gain in the course of trade or business. The provision targets the recidivist commercial infringer; the court is asked to look at the offender's record and not only the offending act.

Section 63B — knowing use of infringing computer programme

Section 63B was inserted in 1994 to address the unique enforcement problem of unlicensed software. It punishes any person who knowingly makes use on a computer of an infringing copy of a computer programme, with imprisonment of at least seven days extending to three years and a fine of not less than fifty thousand rupees and not more than two lakh rupees. The proviso allows the court to impose only a fine where the computer programme was not used for gain in the course of trade or business.

The offence is squarely directed at end-user piracy in commercial settings — the legal department running unlicensed Windows installations, the architecture firm using cracked AutoCAD. "Knowingly" is again the controlling element; the prosecution must show that the accused knew the copy was infringing. Whether a corporate IT manager's installation across hundreds of workstations attracts Section 63B has been a recurring question in software-association raids and is read together with Section 69 (offences by companies).

Section 64 — police power of seizure without warrant

Section 64, as substituted by the 1984 Amendment, empowers any police officer not below the rank of sub-inspector, if he is satisfied that an offence under Section 63 in respect of the infringement of copyright in any work has been, is being, or is likely to be committed, to seize without warrant all copies of the work and all plates used for the purpose of making infringing copies, wherever found. The seized material is to be produced before a magistrate as soon as practicable.

The provision is one of the few in the Indian copyright regime that operates entirely on police initiative; no court order is required. The earlier 1957 text required a magistrate's warrant; the 1984 substitution reflected legislative concern that warrant procedures were too slow for piracy investigations, where stock can be moved or destroyed within hours.

The discretion is regulated by sub-section (2): any person aggrieved by the seizure may apply to the magistrate for restoration; the magistrate, after hearing the applicant and the complainant, may order restoration if he is satisfied the seized copies are not infringing. The provision has been the subject of substantial litigation on the boundary between bona fide stockists and infringers — State of A.P. v. Nagoti Venkataramana (1996) 6 SCC 409 held that the prosecution need not produce the original work to prove the existence of subsisting copyright at the trial of a Section 63 offence; the registration certificate suffices as prima facie evidence.

Section 65 — possession of plates for infringing copies

Section 65 punishes any person who knowingly makes, or has in his possession, any plate for the purpose of making infringing copies of any work in which copyright subsists, with imprisonment of up to two years and fine. "Plate" under Section 2(t) is broadly defined: stereotypes, blocks, moulds, matrices, transfers, negatives, positives, and any other matrix used or intended to be used for printing or reproducing copies of any work. The section captures the upstream stage of piracy — the printing-block, the master tape, the digital master — before any infringing copy has yet been struck off.

Section 66 — disposal of infringing copies and plates

Section 66 gives the court trying an offence under the Act — whether or not it convicts — the power to order that all copies of the work, and all plates in the possession of the alleged offender, which appear to it to be infringing, be delivered up to the owner of the copyright. The court is to make this order "whether or not such person is convicted" — a striking departure from the usual rule that ancillary criminal orders track conviction. Acquittal on the personal-liability question does not save the infringing stock; the property follows the right.

Sections 67, 68 and 68A — false entries, false statements, labelling defaults

Three cognate offences sit alongside the core infringement provisions. Section 67 punishes the making of, or causing to be made, a false entry in the Register of Copyrights kept under Section 44, or the producing or tendering of any writing falsely purporting to be a copy of an entry, with imprisonment of up to one year, or fine, or both. The provision protects the integrity of the register of copyrights as a public record.

Section 68 punishes any person who makes a false statement or representation, knowing the same to be false, for the purpose of deceiving or influencing any authority or officer in the execution of the Act, with imprisonment of up to one year or fine or both. Section 68A criminalises contravention of Section 52A — the requirement that records and video films carry prescribed particulars (name and address of the person making the record, name and address of the owner of copyright, year of first publication) — with imprisonment of up to three years and fine.

Section 69 — offences by companies

Section 69 is the standard corporate-offence provision. Where an offence under the Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of its business, as well as the company itself, is deemed to be guilty and liable to be proceeded against and punished accordingly. The proviso protects an officer who proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent its commission. Sub-section (2) reaches directors, managers, secretaries or other officers where the offence has been committed with their consent or connivance, or is attributable to their neglect.

The Delhi High Court in Avnish Bajaj v. State (NCT of Delhi) (2008) 150 DLT 769, decided in the context of intermediary criminal liability for an obscene MMS clip listed on baazee.com, applied the parallel scheme under Section 85 of the Information Technology Act, 2000 and held that vicarious criminal liability of company directors must satisfy a strict reading of the "in charge of and responsible to" test. The reasoning is regularly imported into Section 69 prosecutions: the prosecution must specifically plead the director's role in the offending conduct, not merely his designation.

Section 70 — cognisance of offences

Section 70 bars any court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the first class from trying any offence under the Act. The provision pegs the trial forum to the seriousness of the offence and ensures that copyright trials are not heard at the lowest tier of magistracy. Read with the cognisability finding in Knit Pro, the practical procedure is: FIR registration, police investigation, charge-sheet, committal where required, trial before a Metropolitan Magistrate or Judicial Magistrate of the first class.

Limitation, sentencing patterns and parallels with Trade Marks Act

The Code of Criminal Procedure's general limitation rule under Section 468 — three years for offences punishable with imprisonment exceeding one year but not exceeding three years — applies to Section 63. The complainant has three years from the date of the offence to set the criminal law in motion; the civil suit, governed by Article 113 of the Limitation Act, 1963, runs separately. The criminal scheme of Sections 63 to 70 broadly tracks the parallel scheme under Sections 101 to 121 of the Trade Marks Act, 1999, which the same family of Copyright Act notes users will recognise; the punishments and the structure of police seizure are deliberately aligned across the two statutes.

The chapter must be read alongside infringement of copyright under Section 51, which defines the conduct, and acts not constituting infringement under Section 52, which carves out the fair-dealing safe harbours. A successful Section 52 plea will defeat both the civil and the criminal charge; the prosecution must show that no fair-dealing exception applies. The interplay with importation of infringing copies under Section 53 is also vital: imported infringing copies are simultaneously liable to be detained at the border and to ground a Section 63 prosecution against the importer. The criminal ingredients also depend on the rules of authorship and ownership of copyright under Sections 17 to 19A — only the owner or an exclusive licensee can prosecute, and the work must be one in which the complainant holds a subsisting right.

Comparative perspective — TRIPS Article 61

Article 61 of the TRIPS Agreement obliges members to provide for criminal procedures and penalties to be applied at least in cases of wilful copyright piracy on a commercial scale. Available remedies must include imprisonment and monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. The Indian scheme of Sections 63, 63A and 63B — with imprisonment up to three years and fine up to two lakh rupees, doubled in fine band on second conviction — is read as broadly compliant with Article 61, though some commentators argue that the absence of a statutorily defined "commercial scale" threshold leaves enforcement discretion at the level of the trial court.

Exam angle and recurring question patterns

Five recurring exam patterns are visible across state judicial-services and CLAT PG papers. First, identify the cognisability and bailability of the Section 63 offence and explain the ratio in Knit Pro (2022). Second, distinguish Section 63 from Section 63A and identify when Section 63A applies. Third, distinguish Section 63 from Section 63B — the ingredient of "knowing use" of an infringing computer programme. Fourth, explain the police seizure power under Section 64 and the magistrate's restoration jurisdiction under Section 64(2). Fifth, apply Section 69 to a fact-pattern involving a company's directors.

The cleanest mistake to avoid is treating Section 63 as a strict-liability offence. The word "knowingly" governs both clauses (a) and (b); the prosecution must prove the mental element. The next mistake to avoid is conflating the civil and criminal limitation periods — they run differently and start from different events. The third is forgetting that Section 66 operates whether or not there is a conviction; an acquittal does not return the seized stock if the court is satisfied that the copies are infringing.

Mens rea, abetment and the meaning of "knowingly"

The Section 63 mental element has been read uniformly across High Courts as actual knowledge that the act in question constitutes infringement, or wilful blindness equivalent to such knowledge. Recklessness simpliciter does not suffice. The Bombay High Court in Sanjay Gupta v. State of Maharashtra read the element strictly: a wholesaler who stocks pirated DVDs without inquiry into provenance falls within "knowingly" only if circumstances put him on notice — abnormally low procurement prices, absence of holograms, packaging defects. The doctrinal source is the same as that of Section 24 of the Trade Marks Act in mirror prosecutions.

Abetment, the second limb of clause (a), pulls in the standard Penal Code (now Bharatiya Nyaya Sanhita) doctrine: instigation, conspiracy, intentional aid. A printer who knowingly prints copies for a person not entitled to authorise reproduction is an abettor; a typesetter who supplies camera-ready files knowing of the intended infringing use is an abettor. The criminal liability of online intermediaries is more delicately balanced: Section 79 of the Information Technology Act, 2000 (read with the Intermediary Guidelines and Digital Media Ethics Code Rules, 2021) provides a conditional safe harbour against liability arising out of third-party content, including copyright-infringing content, provided the intermediary acts with due diligence and complies with takedown obligations on actual knowledge. The interaction with Section 63 abetment liability has been litigated in the cluster of John-Doe and dynamic-injunction cases before the Delhi and Bombay High Courts.

Bail jurisprudence after Knit Pro

The cognisability holding in Knit Pro reshaped the bail position. Pre-2022 practice in many states allowed bail as a matter of right at the first remand because the offence was treated as bailable. Post-Knit Pro, bail is discretionary. The accused must satisfy the trial court of the standard considerations — gravity of allegation, antecedents, likelihood of tampering with evidence, flight risk — that govern non-bailable offences. Section 438 of the Code of Criminal Procedure, 1973 (anticipatory bail) is now a routinely deployed pre-arrest remedy. The High Courts have, however, been measured about converting copyright cases into automatic custodial matters: where the dispute is fundamentally civil — a contractual licence dispute dressed up as a criminal complaint — the High Courts have used Section 482 inherent powers to quash. The Delhi High Court's reasoning in proceedings of this kind tracks the Vinod Natesan v. State of Kerala (Kerala HC) line that pure civil disputes should not be criminalised by FIR registration.

Sentencing trends and the proviso to Section 63

The proviso to Section 63 — adequate and special reasons in writing for a sentence below the minimum where the infringement was not for gain in the course of trade or business — has produced two distinct sentencing tracks. Track one is the small-scale, non-commercial infringer: the academic who reproduces copies of a textbook for class circulation, the hobbyist who uploads a music compilation. Courts have routinely invoked the proviso for this category. Track two is the commercial pirate: the operator of a stall in a known piracy market, the individual running a streaming aggregator that monetises infringing content. The proviso is not available for this category, and the minimum-six-months custodial sentence applies.

The sentencing pattern is reinforced by Section 63A's escalation on second conviction and by the corporate-liability scheme of Section 69. The 2012 Amendment did not alter the sentence in Section 63 itself but inserted Sections 65A and 65B with separate two-year sentences, doubling the criminal exposure for technologically aggravated infringement. The result is a layered penal regime: Section 63 for the base offence, Section 63A for recidivism, Section 63B for software, Section 65A for circumvention of technological measures, Section 65B for tampering with rights management information.

Frequently asked questions

Is Section 63 of the Copyright Act a cognisable and non-bailable offence?

Yes. The Supreme Court in M/s Knit Pro International v. State of NCT of Delhi (2022) 10 SCC 221 held that an offence under Section 63 of the Copyright Act, 1957 is cognisable and non-bailable. The maximum imprisonment under Section 63 is three years, which the Court read as falling within the band 'three years and upwards' of Part II of the First Schedule to the Code of Criminal Procedure, 1973. After Knit Pro, the police can register an FIR and investigate without a magistrate's order, and the accused must seek anticipatory or regular bail.

What is the difference between Section 63 and Section 63B?

Section 63 is the general offence of knowingly infringing copyright in any work or any other right conferred by the Act, with imprisonment of six months to three years and fine of fifty thousand to two lakh rupees. Section 63B is narrower: it punishes the knowing use on a computer of an infringing copy of a computer programme, with imprisonment of at least seven days extending to three years. Section 63B targets end-user software piracy in commercial settings; Section 63 covers all categories of works.

Can a police officer seize infringing copies without a warrant?

Yes. Section 64 of the Copyright Act, 1957, as substituted by the 1984 Amendment, empowers any police officer not below the rank of sub-inspector to seize without warrant all copies of the work and all plates used for making infringing copies, wherever found, if he is satisfied that a Section 63 offence has been, is being, or is likely to be committed. The seized material is to be produced before a magistrate as soon as practicable. A person aggrieved by the seizure may apply for restoration under Section 64(2).

How does Section 69 hold company directors liable?

Section 69 deems every person who at the time the offence was committed was in charge of and responsible to the company for the conduct of its business to be guilty along with the company. Sub-section (2) extends liability to directors, managers, secretaries or other officers where the offence was committed with their consent or connivance, or is attributable to their neglect. The proviso allows an officer to escape liability by proving the offence was committed without his knowledge or that he exercised all due diligence. Avnish Bajaj v. State (NCT of Delhi) (2008) requires the prosecution to plead the director's specific role.

What is the punishment on a second conviction for copyright infringement?

Section 63A enhances the sentence on a second or subsequent conviction under Section 63 to imprisonment of one to three years and fine of one to two lakh rupees. The court may, for adequate and special reasons recorded in the judgment, impose a lesser sentence where the previous conviction occurred before the commencement of the 1994 Amendment Act, or where the second offence was not committed for gain in the course of trade or business. The provision targets recidivist commercial infringers.