Almost unnoticed, last week, the Delhi High Court issued a momentous order clarifying the scope of police seizure powers under Section 64 of the Copyright Act. In doing so, the Court also strengthened the power of the fair dealing exception by making it an imperative consideration for the police to weigh before effecting seizure.
In Event and Entertainment Management Association v. Union of India, at issue was the constitutionality of a notification issued by the Commissioner of Police which called on all police officers to
“attend to and provide assistance” whenever any complaint “in respect of violation of the provisions of Copyright Act, 1957” was received from any of the three big three copyright bullies : Super Cassettes Industries Limited, Phonographic Performance Ltd and Indian Performance Right Society Ltd.. This virtually amounted to the commandeering of the criminal enforcement system by a few private owners for their own private interests. It enables these companies to summon to themselves the already expansive powers under Section 64 of the Copyright Act.
By way of background, in 1984, Section 64 of the the Copyright Act was amended to give pre-emptive powers to any police officer, not below the rank of a sub-inspector, to seize without warrant all infringing copies of works “if he is satisfied” that an offence of infringement under section 63, “has been, is being, or is likely to be, committed”. Prior to amendment, this power could only be exercised by a police officer when the matter had already been taken cognizance of by a Magistrate.
Prima facie, this is a very sweeping power since its exercise only depends on the “satisfaction” of a police officer. To put matters in perspective, under the Income Tax Act, dealing with the far more serious issue of tax evasion, a search and seizure can only be conducted “where Director of Inspection or Commissioner in consequence of information in his possession, has reason to believe that any person having in possession of any money, etc..” has not disclosed it for purposes of Income Tax.
Returning to the case, the Delhi High Court struck the notification down, as unconstitutional. Justice Muralidhar of the Delhi High Court held:
“To the extent the impugned circular privileges the complaints from SCIL over other complaints from owners of copyright it is unsustainable in law for the simple reason that there has to be equal protection of the law in terms of Article 14 of the Constitution. The police are not expected to act differently depending on who the complainant is. All complaints under the Act require the same seriousness of response and the promptitude with which the police will take action, Likewise, the caution that the Police is required to exercise by making a preliminary inquiry and satisfying itself that prima facie there is an infringement of copyright will be no different as regards the complaints or information received under the Act.”
The Judge also made some welcome remarks on the manner in which complaints under Section 64 were to be handled:
In order that the power to seize in terms of Section 64 of the Act is not exercised in an arbitrary and whimsical manner, it has to be hedged in with certain implied safeguards that constitute a check on such power. Consequently, prior to exercising the power of seizure under Section 64(1) of the Act the Police officer concerned has to necessarily be prima facie satisfied that there is an infringement of copyright in the manner complained of. In other words, merely on the receipt of the information or a complaint from the owner of a copyright about the infringement of the copyrighted work, the Police is not expected to straightway effect seizure. Section 52 of the Act enables the person against whom such complaint is made to show that one or more of the circumstances outlined in that provision exists and that therefore there is no infringement. During the preliminary inquiry by the Police, if such a defence is taken by the person against whom the complaint is made it will be incumbent on the Police to prima facie be satisfied that such defence is untenable before proceeding further with the seizure.(emphasis added)
What’s not to love about Judge Muralidhar (famous inter alia for the Naz Foundation and the Delhi cycle-rickshaw pullers case)?! In one stroke, he has both tempered the severity of Section 64, and renewed the vitality of fair dealing rights in India. Police Officers must now both:
- be prima facie satisfied that there is an infringement of copyright in the manner complained of
- Conduct a preliminary inquiry during which, if the defence of fair dealing is raised, the police officer must be satisfied that such defence is untenable.
I hope this decision receives the wide publicity it deserves since it cuts some very powerful lobbies down to size, and restores to civility one of the most barbarous powers under the Copyright Act.
 Event and Entertainment Management Association v. Union of India (Delhi HC) Order dated 2nd May 2011 . See also Harkauli, S., 2011. HC nullifies police circular on copyright issue. The Pioneer. Available at: http://www.dailypioneer.com/336974/HC-nullifies-police-circular-on-copyright-issue.html [Accessed May 9, 2011]