Reading of the above penal provisions of Sections 63, 63-B and 64 of the Copyright Act clearly show that a person knowingly making use of a computer by infringing copy of a computer programme shall be criminally liable. It is well settled that provisions relating to penal provisions are required to be interpreted strictly. Now if there is no registration of copyright by its owner and such owner of a copyright is not known to the infringer due to non- registration of the copyright he still would be held criminally liable under these provisions. To make a person liable criminally, it will have to be shown that such a person was fully knowing about the owner of the copyright and that he indulged in infringing the said copyright despite knowing the ownership thereof. If registration is not made and published in the official gazette such infringer cannot be expected to be aware nor can he be attributed knowledge about the ownership of the copyright of a particular copyright owner and in that event the criminal Court would not be able to convict such a person. That may lead to chaotic situations. Similarly, reading of Section 64 regarding power of police to seize shows that police officer will have to get himself satisfied that a particular person (complainant) is the owner of copyright and he will be so satisfied if such a copyright is registered. When both the complainant and the alleged infringer claim that their product was launched first and that their copyright work was made first, in the absence of registration under Section 44 of the Act, how the police officer will be satisfied to proceed to take cognizance. The police officer in that case would not be able to move an inch to effect seizure of the alleged infringing copies. After all 49 fa1076.11.odt the provision regarding seizure is another serious act, which infringes upon the privacy of a person. Hence, the word 'may' used in Section 45 of the Act will have to be read as 'shall' having regard to the scheme of the Act of which all material provisions have been quoted and analyzed by me.
Bombay High Court
Dhiraj Dharamdas Dewani vs. Sonal Info. Systems Pvt. Ltd. on 6 March, 2012
Bench: A. B. Chaudhari
Citation : 2012 (3) MH. L. J. 888
