Crl.M.C. No. 6577 of 2018 (In CC 252/2017, Chief Judicial Magistrate, Manjeri)

## **N THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA, 1942** ## **Crl.MC.No.6577 OF 2018** **IN CC 252/2017 OF CHIEF JUDICIAL MAGISTRATE ,MANJERI** **CRIME NO.1458/2015 OF Manjeri Police Station , Malappuram** ## **PETITIONERS/ACCUSED** **1 SIRAJUDHEEN AGED 26, S/O.MUHAMMED HAJI, MAANJERI HOUSE, VANNAVANGAD, NELLIKUTH POST, MALAPPURAM DISTRICT. 2 ANSAR, AGED 26, S/O.ALAVI, PALLIYALIL HOUSE, PAPPINIPARA, MANJERI POST, MALAPPURAM DISTRICT.** **BY ADV. SRI.E.C.AHAMED FAZIL** ## **- RESPONDENTS/STATE COMPLAINANT & VICTIMS** **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 032. 2 THE SUB INSPECTOR OF POLICE, MANJERI POLICE STATION, MALAPPURAM DISTRICT-676 321.** ## **OTHER PRESENT:** ## **SRI.D.CHANDRASENAN (Sr.P.P)** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 6.11.2020, THE COURT ON 19.11.2020 PASSED THE FOLLOWING:** Crl.M.C.6577/2018 2 ## **ORDER** ## Dated : 19[th] November, 2020 ## **M.R. Anitha, J.** 1. This petition has been filed under Sec.482 Cr.P.C to quash the proceedings in C.C.252/2017 on the files of Chief Judicial Magistrate, Manjeri. Petitioners are accused in crime No.1458/2015 of Manjeri police station. 2. Prosecution case is that on 6.10.2015 at 12.45 noon in room No. 20/281 at Seethi Haji bus terminal, Manjeri, (in the name and style 'HI TEN TWO') first petitioner/first accused with the 2[nd] petitioner/2[nd] accused as salesman without the knowledge or consent of CW8 in violation of Copyright Act, 1957 (hereinafter referred as the 'Act') copied the cinemas, KL 10 and Bahubali while copyright is subsisting, using computers and connected equipments and thereby committed the offence punishable under Sec.51 r/w 63 of the Act. 3. Notice was issued to the respondent. Respondent appeared through the learned Senior Public Prosecutor Sri. D.Chandrasenan. Heard both sides. Crl.M.C.6577/2018 3 4. According to the learned counsel for the petitioners, the offence as alleged against the petitioners will not stand. The respondent has not produced any document to prove that there exists copyright over the alleged items and there is an owner for copyright of those works. It is also his contention that the owner of the copyright is not made a witness and he also claims that a similar case has been discharged by the Chief Judicial Magistrate, Manjeri as per Annexure-A4 order. 5. The learned public prosecutor on the other hand would contend that copyright exists with respect to the CDs of the films seized from the shop of the petitioners and the witness has also been cited to prove the case. 6. Annexure-A2, copy of the final report, would show that the offence alleged is under Sec.51 r/w 63 of the Act. It will be useful in this context to extract Sec.51 of the Act When copyright infringed – Copyright in a work shall be deemed to be infringed - - (a). when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a Crl.M.C.6577/2018 4 competent authority under this Act - - (i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or (ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or - (b) when any person- - (i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or (ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or (iii) by way of trade exhibits in public, or (iv) imports into India, any infringing copies of the work: Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work, for the private and domestic use of the importer. 7. So on going through the above there will not be any doubt to the proposition that whenever it is found that any person without a licence granted by the owner of the copyright or Crl.M.C.6577/2018 5 the Registrar of copyrights under this Act does any act which is exclusively conferred upon the owner of the copyright or makes for sale or hire, or displays or offers for sale or hire any infringed copies of the work, the offence would be attracted. Here the allegation against the petitioners is that the petitioners herein without the knowledge or consent of CW8, without any permit or licence copied and sold the CDs of 'KL10' and 'Bahubali' movies. So prima facie the copying of the works and display for sale with out licence would be an offence under sub-clause (b) of Sec.51. 8. Sec.2(m) of the Act says in sub-clause (ii) what is an infringement of copy ## “infringing copy” means - (i).......... - (ii) in relation to a cinematographic film, a copy of the film made on any medium by any means; 9. A copy of the film made through computer and other devises seized by the detecting officer from the shop run by the first petitioner/first accused as the owner and second petitioner as salesman would show prima facie that the CD seized are infringed copies of the film 'Bahubali' and 'KL10'. Here the contention of the learned counsel for the petitioners is that Crl.M.C.6577/2018 6 there is no document produced by the respondent to prove that the CDs seized are protected/or registered under the provisions of the Act and further that owner of the copyright if any, is not arrayed as witness. It is also contended that the Registrar of the copyright has not been arrayed as witness and what is produced is only an undertaking from the Kerala Film Producers Association which would not substantiate the case of the prosecution. The statement of Kerala Film Producers Association is produced as Annexure-A5. Annexure-A5 is a letter issued by M.Rejnith, Secretary of the Association to the SHO stating that during the relevant period copyright is subsisting with respect to 'KL10' and 'Bahubali' movies. ## 10. In this context it is relevant to have a look at Sec.13 of ## the Act which reads as follows : Works in which copyright subsists – (1) Subject to the provisions of this section and the other provisions of this act, copyright shall subsist throughout India in the following classes of works, that is to say, - - (a) original literary, dramatic, musical and artistic works; - (b) cinematograph films; and - (c) sound recording. - (2) Copyright shall not subsist in any work specified in sub-section - (1), other than a work to which the provisions of section 40 or section Crl.M.C.6577/2018 7 41 apply, unless - (i). in the case of published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India; (ii) in the case of an unpublished work other than work of architecture, the author is at the date of the making of the work a citizen of India or domiciled in India; and (iii) in the case of work of architecture, the work is located in India. 11. Chapter IV of the Act is captioned as 'Ownership of Copyright and the Rights of the Owner'. Section 17 of Chapter IV is relevant in this context to be extracted. The relevant portion reads as follows: - “ **17. First owner of copyright.** -Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein:” 12. From the above it can be deducted that statutorily copyright subsist throughout India with respect to cinematograph films. S.17 of the Act provides that the author of the work shall be the first owner of copyright subject to the provisions of this Act. Petitioner has no case that he is the author of the work. So whenever such films are copied or published or displayed for sale, the infringement of copyright would prima facie comes into play. The petitioners Crl.M.C.6577/2018 8 has no case that they have got the licence from the owner to take copies of works in question or to sell the same. The contention of the learned counsel is that in order to prove prima facie that there is infringement of copyrights of the films, it should be proved that copyrights of the films are registered under Secs 44 and 45 of the Act and there is a copyright owner with respect of this works. The learned counsel drew my attention to Sec.48 of the Act and would contend that the register of copyrights or extracts of entries are prima facie evidence to prove copyright ownership. But no such register of copyrights or its extracts has been produced by the prosecution to prove that there is a copyright owner. 13. Secs. 44 and 45 of the Act comes under Chapter X which deals with registration of copyright. Sec.44 deals with register of copyrights and Sec.45 says about the entries in register of copyrights. But when Sec.13 of the Act provides that with respect to cinematograph films copyright shall subsist throughout India, a further requirement to prove its registration as provided under chapter X will not be required at this stage. Moreover, S.17 of the Act provides that the author of the work is the first owner of the copyright. The allegations against the petitioners is that they have copied the two films using the computer and other equipments kept Crl.M.C.6577/2018 9 in the shop. It will come under infringing of copy as defined under S.2(m)ii of the Act. The petitioners also could not produce any prima facie material to prove that they have got any permission or licence to take copies or sell the copies of the works from the owner. So by taking in aid of Secs 44 and 45 of the Act, the petitioners are not entitled to get the quashment of the proceedings. 14. It is relevant in this context to quote Zahir Ahmed v. Azam Khan [1996 KHC 2706] wherein while dealing with Section 63 of the Act and Infringement of copyright it has been held that there is nothing to indicate under Section 63 and Section 55 to make registration compulsory for availing the remedy provided under the Sections. It is also discussed that Indian Copyright Act, 1914 did not make any provision for Registration of Copyrights. The provision for Registration of Copyright has been made in S.44 and S.45 of the Copyright Act, 1957. The object behind the enactment of S.44 of the Act was not to make registration compulsory or mandatory for the purpose of enforcement of copyright. An option was only provided thereunder. It is, therefore, not obligatory for an author to get the copyright registered under S.44 of the Act for the purpose of acquiring rights conferred by it. It is further held that registration only raises a presumption that the person whose name is entered in the Crl.M.C.6577/2018 10 Register of Copyrights under S.45 of the Act is the actual author. Section 48 of the Act provides that the registration of copyright shall be prima facie evidence of the particulars entered therein and shall be admissible in evidence in all Courts without further proof for production of the originals. It is also held that if the legislature intended to make the requirement of registration mandatory, the language of S.44 would invariably have been different. The same could have been on the lines of S.69 of the Partnership Act. But there is no provision in the Act depriving an author of the rights conferred by the Act on account of non-registration of the copyright. 15. It is also relevant to quote Fr. Thomas v. State of Kerala [2017 (1) KLT 735] wherein while dealing with Section 63 of the Act, a question arose whether registration of copyright is _sine qua non_ for prosecution and it was held that proprietor of an unregistered copyright can institute and prosecute a criminal prosecution under Section 63 of the Copyright Act, if it is infringed. It is also held that registration of copyright is not mandatory and it is optional. So without any further discussion, it can be concluded that the relief sought by the petitioners to quash the proceedings pending against them in view of the fact that the alleged infringed copies of the cinematograph films is not proved to be registered under the Crl.M.C.6577/2018 11 provisions of the Copyrights Act and that the Registrar of Copyrights or the owner of the copyright are arraigned as witnesses etc. is not sustainable in law. 16. In the result, the Crl.M.C. is found to be devoid of merit and hence dismissed. Sd/- **M.R.ANITHA Judge** Mrcs/9.11. Crl.M.C.6577/2018 12 ## **APPENDIX** ## **ANNEXURES** ## **ANNEXURE A1:** **TRUE COPY OF FIRST INFORMATION REPORT IN CRIME NO.1458 OF 2015 OF MANJERI POLICE STATION, MALAPPURAM DISTRICT.** **ANNEXURE A2: CERTIFIED COPY OF FINAL REPORT IN CRIME NO.1458 OF 2015 OF MANJERI POLICE STATION, MALAPPURAM DISTRICT.** **ANNEXURE A3: TRUE COPY OF MEMORANDUM OF EVIDENCE IN CRIME NO.1458 OF 2015 OF MANJERI POLICE STATION, MALAPPURAM DISTRICT.** - **ANNEXURE A4: TRUE COPY OF ORDER DATED 09.01.2017 IN CCNO.29 OF 2016 PASSED BY CHIEF JUDICIAL MAGISTRATE COURT, MANJERI.** **ANNEXURE A5: TRUE COPY OF TESTIMONIAL NO.KFPA/197/20162017 DATED 19.12.2016 ISSUED BY SECRETARY, KERALA FILM PRODUCERS ASSOCIATION.**