Home » India’s Decriminalization Bill and What It Means For IP (Part I)

India’s Decriminalization Bill and What It Means For IP (Part I)

On December 22, 2022, the Jan Vishwas (Amendment of Provisions) Bill was introduced in India’s lower house of parliament. This bill aims to decriminalise minor offences across 42 statutes. A few IP laws have also come under this bill, specifically the Copyright Act 1957, the Patents Act 1970, the Trademarks Act 1999, and the Geographical Indication of Goods Act 1999.

The Bill was introduced to promote innovation and to encourage India to be a global economic hub. The proposed Bill aims to reduce excess judicial intervention and eradicate the fear of harsh punishments to enable greater ‘Ease of Living and Doing Business’ in India.

How Does This Bill Affect Copyright Laws in India?

The Bill aims to remove Section 68 of the Copyright Act. Section 68 penalises with imprisonment, persons who make false statements to deceive or influence any authority or officer.

The Copyright Act, of 1957 contains eight sections that make copyright infringement a criminal offence; Sections 63, 63B, 68A and Sections 65, 65A, 65B, 67 and 68. Such criminalization of copyright infringement has been debated over for a long time by different Indian High Courts.

This has been further fuelled by the latest decision by the Supreme Court in Knit Pro International v. The State of NCT where the apex court determined that copyright offences shall be deemed to be cognizable and non-bailable, which essentially means that police officers can investigate the case without any order from the judicial magistrate. The accused in such cases cannot demand bail as a matter of right.

The debate surrounding this judgement has been because the offence and the penalty have been found to be disproportionate to each other. Offences which are punishable by imprisonment up to three years are non-cognizable and generally bailable. Hence in these circumstances holding the above-mentioned sections makes it more difficult to obtain bail from the police and even minor irregularities can be punished harshly.

In this context only removing one section and allowing the rest of the criminally punishable sections to exist defeats the purpose of the Bill. Instead, it could have first classified the offences according to their degree and period of imprisonment. Only those with punishment for more than 3 years should have been criminalised.

The Bill has allowed greater bargaining power to the copyright owners who can use these sections to establish unfair and expensive license terms. Such criminalization restricts creativity and allows the copyright owners to determine the licensing rate.

The Bill should have differentiated between the acts of piracy and copyright infringement. The difference between the two is in the intention and degree. Acts of piracy should have been criminalized while matters of infringement could have been dealt with by fines.

How Does This Bill Affect Geographical Indications and Trademarks?

The Bill has reduced the punishment for falsely representing a trademark as registered from imprisonment to fines. Similarly, Section 42 of the GI Act also has been followed to reduce the quantum of punishment for false representation of GI.

It is unclear why Section 140 of the Trademark Act needs to be omitted. This section is primarily to prevent imported goods to enter the Indian markets without being trademark registered or when there is reason to believe that the trademark acquired is not guanine.

Another common concern is omitting Sections 109 of the Trademark Act and 44 of the GI Act which punished persons who knowingly produce false entries in the register as evidence.

AuthorDipanwita Chakraborty, Associate Trainee at PA Legal.

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