The copyright Act has been enacted to check the piracy so that fruit of the labour put by the author or the copy right owner may be enjoyed by the author or the owner and not by the pirates.


Rajasthan High Court
Girish Gandhi And Etc. vs Union Of India (Uoi) And Anr. on 27 September, 1996
Equivalent citations: AIR 1997 Raj 78
Author: Verma
Bench: B Arora, J Verma


1. Both the writ petitions involve similar facts and law, challenging the vires of various Sections of the Copy Right Act, therefore, are being decided together.

2. The facts are similar, therefore, the facts are being taken from D. B. Civil Writ Petition No. 660/89 (Girish Chandani v. Union of India). The petitioner is carrying the business of keeping library of Video Cassettes, T.Vs. and V. C. Rs. for letting them on hire to the customers for viewing them at their homes. The petitioner submits that even though he is keeping Video Cassettes which are duly certified, films of which the copy rights are sold by the producers to the copy right holders and were prepared after obtaining necessary licence and consent from the owner of the copy right and he purchases video cassettes from the market which are again supplied by either the producer or the copy right holder or the persons having necessary licence and consent from the owner of the copy right holders etc., he still apprehends that powers under Section 64(1) can be invoked against the him Without any necessity.

3. Even though, no overt act has been taken or initiated against the petitioner but still because of the provisions of Section 64 of the Copy Right Act, 1957, the petitioner has filed this writ petition, apprehending that in case the provisions of Section 64 are not declared ultra vires on the ground of arbitrariness and for, the reason that no guidelines have been provided in the said Section as to check the police officer concerned in seizing the cassettes from the video parlour. The petitioner would suffer harassment and unnecessary litigation, if the provisions of Section 64 of the Act are allowed to remain intact and not declared ultra vires. In the writ petition, the petitioner had also challenged Section 19, Section 52A and Section 64 but the arguments have been confined to the challenge of Section 64 only and no arguments are addressed on other Sections of the Copy Right Act, 1957.

4. The petitioner apprehends that provisions of Section 64 itself gives arbitrary and naked powers without any guidelines to the police officer to seize any material from the shop and thus, drag the video owners to the litigation. He has given instances in the petition that police officer usually demands for video cassettes to be given to them free of charge for viewing it at their homes and in case, on any reason either the video cassette is not available or it is not given free of charge, there is likelihood that police officer shall misuse his powers and try to seize the material for prosecution under the various provisions of the Act, therefore, prays that Section 64 of the Act may be declared ultra vires. Section 64 of the Copy Right Act, 1957 reads as under: –

64. “Powers of Police to seize infringing copies : (I) Any Police Officer, not below the rank of a sub-inspector may, 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, seize without warrant, all copies of work, and all plates used for the purpose of making infringing copies of the work, wherever found, all copies and plates so seized, shall, as soon as practicable, be produced before a Magistrate.

(2) Any person having an interest in any copies of work seized under Sub-section (1) may, within fifteen days of the such seizure, make an application to the Magistrate for such copies being restored to him and the Magistrate after hearing the applicant and the complainant and making such further inquiry, as may be necessary, shall make such order on the application, as he may deem fit.”

5. Before discussing the matter any further, it shall be necessary to go through the scheme of the Copy Right Act along with their aims and objects to the Original Act, 1957 and significant amendments made in the years 1984, 1992 and 1994. For the purpose of this case, amendment of 1984, Amending Act 65 of 1984 shall be relevant to quote. The objects and reasons of the Act 65 of 1984 were for the reason that “Piracy has become a global problem due to the rapid advances in technology. It has assumed alarming proportions all over the world and all the countries are trying to meet the challenge by taking stringent legislative and enforcement measures. The problem of piracy and necessity for taking sufficient anti-piracy measures were also voiced by the Members of Parlia-ment at the time of the consideration of the Bill to amend the Copyright Act, 1957 last year. Apart from books, recorded music and video cassettes of films and TV programmes are reproduced, distributed and sold on a massive scale in many parts of the world without any remuneration to the authors, artists, publishers and producers concerned. The emergence of new techniques of recordings, fixation and reproduction of audio programmes, combined with the advent of video technology have greatly helped the pirates. It is estimated that the losses to the film producers and other owners of copyright amount to several crores of rupees. The loss to Government in terms of tax evasion also amounts to crores of rupees. In addition, because of the recent video boom in the country, there are reports that uncertified video films are being exhibited on a large scale. A large number of video parlours have also sprung up all over the country and they exhibit such films recorded on video tapes by charging admission fees from their clients. In view of these circumstances, it is proposed to amend the Copyright Act, 1957, suitably to combat effectively the piracy that is prevalent in the country.”

6. Section 2(d) defines “author” of dramatic work; musical wbYk; the composer; artist in photography; photographer and in relation to cinematograph film, the producer etc. etc. The cinematograph film has been defined in Section 2(f) as “any work of visual recording on any medium produced through a process from which a Moving image may be produced by any means find includes a sound recording accompanying such visual recording arid “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films”. The “exclusive licence” has been defined as a licence which confers on the licensee any right comprised in the copy right work and in sub-section (m) of Section 2 infringement of the copy (right) has been defined. Section 13 in Chapter III of the Act prescribes the classes of work in which cases, the. copyright shall subsist. This includes cinematograph as well. In Section 14 copyright means, the. exclusive right subject to the provisions of this Act to do or authorise the doing of any of the Act mentioned therein and Section 14(d) mentions that “to make a copy of the film falls under the copy right”. Section 18 authorises assignment of the copyright and Section 19 mentions the mode of such assignments. Chapter V prescribes some of the terms for obtaining the copyright whereas Chapter VI prescribes the licence to be given for copyright, Chapter VII even gives the right to registered societies to avail of the copyright. The copyrights are required to be registered under Chapter X of the Act.

7. Chapter XI deals with infringement of copy rights. Section 51 provides as to when copy right is infringed or deemed to be infringed and Section 52 provides the instances where the copyright is not infringed. Section 51 of the Act reads as under:-

“51. 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 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 work 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.”

8. Section 52 provides the instances where the Acts do not constitute an infringement of the copyright. Section 52A makes it a mandatory for displaying the particulars in regard to sound recording etc. i.e. name and address of the person who is the author, the name and address of the owner of the copyright and in regard to video film. It is specifically mentioned in sub-section (2) of Section 52A that the work of cinematograph is to be certified for exhibition under the provisions of the Copyright Act and the name and address of the person who has made the video films etc. is to be displayed. Section 52A reads as under:-

“52-A Particulars to be included in (sound recordings) and video films :- (i) No person shall publish a (sound recording) in respect of any work unless the following particulars are displayed on the sound recordings) and on any container thereof, namely;

(a) the name and address of the person who has made the (sound recording);

(b) the name and address of the owner of the copyright in such work; and

(c) the year of its first publication, (2) No person shall publish a video film in respect of any work unless the following particulars are displayed in the video film, when exhibited, and on the video cassette or any other container thereof, namely :-

(a) if such work is a cinematograph film required to be certified for exhibition under the provisions of the Cinematograph Act, 1952 (37 of 1952), a copy of the certificate granted by the Board of Film Certification under Section 5A of that Act in respect of such work;

(b) the name and address of the person who has made the video film and a declaration by him that he has obtained the necessary licence or consent from the owner of the copyright in such work for making such video film; and

(c) the name and address of the owner of the copyright in such work.”

9. Chapter XII, Sections 54 to 62 provide several civil remedies against infringement of copyright to the authors and to the owner of the copyright. Sections 63, 63A and 63B provides punishments for infringement of copyright. Section 64 as reproduced above authorises the police officer not below the rank of sub-inspector on his satisfaction that an offence under Section 63 has been, is being or is likely to be committed, seize without warrant all copies of the work and plates etc. etc. and to produce it before the Magistrate. Section 64(2) entitles the person having interest to move the Magistrate within 15 days of such seizure for the copies to be restored to him and the Magistrate after hearing the applicant and the complainant and after making any inquiry, if necessary shall make the required order. Such is the scheme of the Copyright Act.

10. To support the contention of the petitioner that the powers vested in the Sub-J Inspector of Police under Section 64(1), to seize the video cassettes, is arbitrary, without any guidelines and without providing any safeguards to the video cassettes owner, learned counsel is mainly relying on AIR 1974 SC 348, AIR 1967 SC 1895, AIR 1962 SC316, AIR 1978 SC 1613, AIR 1954 SC 415 and AIR 1950 SC 163.

11. Learned counsel for the respondents, Mr. Vineet Mathur has vehemently submitted and defended the vires of the Section. It is averred by him that the proper guidelines can be found and are available in the scheme of the Act itself. According to the learned counsel for the respondents, the aims and objects for enacting the said provisions of the law, necessitates the seizure as provided in Section 64 of the Act. He has also submitted that as no over act has been alleged by the petitioner in his writ petition, and in such situation, no declaratory decree can be obtained by invoking the jurisdiction under Articles 226 and 227 of the Constitution of India. He has submitted that if and when, any action is taken against the petitioner and in the opinion of the petitioner that the impugned action would be arbitrary, mala fide or infringing the provisions of law, the petitioner is free to challenge the same in the competent Court of jurisdiction. In any case, safeguards have been provided in the Act itself, according to him, the powers are not arbitrary and the Act has been enacted to check the piracy of the video cassettes. No instances of the misuse of the powers have been cited by the writ petitioner. Only on the apprehension, no writ is likely to be issued; it is contended by him.

12. In AIR 1974 SC 348 (Pooranmal v. Director of Inspection of Income-tax), Sections 132 and 132A of Income-tax Act were under considerations. Learned counsel for the petitioner relies on the provisions of Section 132 of the Income-tax Act, where it is provided that 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, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been disclosed for the purpose of the Indian Income-tax Act, 1922 (XI of 1922), or this Act (hereinafter in this section referred to as the undisclosed income or property) he may authorise any Deputy Director of Inspection, Inspecting Assistant Commissioner, Assistant Director of Inspection or Income-tax Officer (hereinafter referred to as the authorised officer) to:- (i) enter and search any building or place where he has reason to suspect that such books of account, other documents, money, bullion, jewellery or other valuable article or thing are kept; (ii) break open the lock of any door, box, locker, safe, almirah or other receptacle for exercising the powers conferred by Clause (i) where the keys thereof are not available; (iii) seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing found as a result of such search…………

13. Learned counsel submits that in the present case also provisions ought to have been and should have been, that on any information in the possession of the police inspector, seizure could be made. Absence of such provision according to him is violative of Article 14 of the Constitution of India and is hit by doctrine of arbitrariness. Only because in the Income-tax Act where investigations are to be made for the purpose of concealment of tax, raid can be made only on the information received and in the possession of the Authorities, it cannot be said that the provisions of the Act in hand are arbitrary. The above cited authority is not applicable to the present case as it is distinguishable on facts and law.

14. Learned counsel also relies on AIR 1967 SC 1895 (M/s. Devi Das Gopal Krishnan v. State of Punjab), wherein dealing with Sections 5 and 4 of the Punjab General Sales Tax Act, 1948, the provisions of Sections were struck down by the Apex Court on the ground that the uncontrolled power was conferred on the Government to levy every year on the taxable turn over of a dealer, a tax at such rates as the said Government might direct. Under that Section the Legislature practically effected itself in the matter of fixation of rates and it did not give any guidance either under the section or under any other provisions of the Act as to the amount of tax to be levied. This is not the situation in the present case. This authority is not helpful to the counsel.

15. In AIR 1962 SC 316 (The Collector of Customs v. Nathella Sampathu Chetty), the Apex Court was ceased with the matter whether Section 178(A) of the Sea Customs Act was violative of Article 19(1)(f) and (g) and of Clauses 5 and 6 Article 19 of the Constitution of India and whether there were reasonable restrictions on the fundamental rights under Article 19. Section 178(A) of the Sea Customs Act provided that anything to be liable for confiscation under the Act may be seized in any place in India either upon land or water, or within the Indian Customs Waters, by any officer of Customs or other person duly employed for the prevention of smuggling. Section 181 of the Act provided that anything is seized or any person is arrested under the Act, the officer or other person making such seizure or arrest shall, on demand of the person incharge of the thing so seized, or of the person so arrested, give him a statement in writing of the reasons for such seizure or arrest. The Hon’ble Supreme Court after going through the scheme of the Act and other provisions held that Section 178(A) was constitutionally valid. The preliminary requirement of Section I78(A) that officer should entertain complete “a reasonable belief that goods seized were smuggled” was satisfied in the present case. The writ petitions were dismissed. This authority cited by the learned counsel does not help him in any way.

16. The other authority relied by the petitioner in regard to cognizance of the offence is AIR 1978 SC 1613 (R. G. Anand v. M/s. Delux Films) wherein after going through the facts of infringement of copyright in the judgment of the trial Court and the High Court and to determine whether or not in a particular case, violation of copyright has been taken place, certain principles were laid down. R. G. Anand’s case was the case of violation of copyright arisen out of a suit and while enunciating certain principles, it was held that safest test to determine whether or not, there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works, is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. The appeal before the Hon’ble Supreme Court was dismissed. No vires of any Act was involved in the case.

17. The other authority relied by the learned counsel i.e. AIR 1954 SC415 (Wazir Chand v. State of Himachal Pradesh) has no bearing to the facts of the present case. That was the case where the police had seized some goods under no authority of law at the instance of Jammu and Kashmir Police.

18. Similarly, the other authority relied upon by the learned counsel i.e. AIR 1950 SC 163 (Rashid Ahmed v. The Municipal Board, Katrana) is not at all applicable to the present case. That was a case where the petitioner had been prohibited to carry out the trade in the municipal area. Such are not the facts in the present case.

19. To oppose the contention of the petitioner, the respondent, to support his submission, that in absence of any overt act by the authorities, no writ lies and that the petitioner has no locus standi, has relied upon AIR 1955 SC 367 (Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta) wherein writ had been filed to challenge the discrimination between one class of British subject and another. It was held that the petitioner was not British subject and so is not a member of the only class that could claim to be aggrieved on this score. It was held that the petitioner not having been aggrieved, cannot file the writ petition under Article 32 of the Constitution of India.

20. Learned counsel has also relied on AIR 1989 SC 206 (Sub-Divisional Officer v. Dr, Mehar Singh) for the proposition that Section cannot be declared invalid on the ground of being violative of Article 14 of the Constitution of India as it does not contain any guidelines. It was held by the Hon’ble Supreme Court that :-

“Section 244 contains sufficient guidelines to act thereunder. It is true that Section 244, by itself, does not in express words spell out the circumstances in which a notification issued under Section 241 or an order under Section 242 may be cancelled or modified. But Section 244 should not be read or construed in isolation from the rest of the chapter dealing with this subject-matter. The provisions that a notified area will exercise only such powers as are entrusted to it by the State Government under Section 242 and that only such provisions of the Act as the State Government considers fit can be applicable to a notified area show that the principal consideration is the economic and administrative viability of the particular unit to look after its own local affairs. If the area develops further and further and proves viable and self sufficient economically and efficient administratively, it may be eventually converted into a municipal area. If on the other hand, the area does not come up to the expectations, is not financially solvent or is administratively weak, the status quo ante may have to be restored. If Section 244 is read in this context and background, it will be very clear that it is intended as a power enabling the Government to go forward or backward in the process of this evolution depending upon the circumstances of each case.”

“Thus, if one considers that Sections 241 to 244 form a compact group of Sections of the Act which deal with a particular topic and if one bears in mind the contents of Sections 241 to 244, it will be clear that the power of cancellation or modification is not an arbitrary and unguided one but is one intended to be exercised in the light of the implementation of the notification in a particular local area having regard to the main principle and purpose behind Section 241. It is, therefore, not correct to say that Section 244 contains no guidelines whatever or that the guidelines admittedly discernible in Section 241 cannot be read into Section 244 also,”

21. In AIR 1971 SC 1511 (Manoharlal Bhogilal Shah v. State of Maharashtra) the provisions of Section 187-A of Sea Customs Act which empowered the officer to make a complaint to the Court, was held to be intra-vires. It was held that: –

“Even if any policy or guidelines have to be found they can certainly be discovered from the object, purpose and scheme of the Act. The preamble reads : “Whereas it is expedient to consolidate and amend the law relating to the levy of Sea Customs duties it is enacted as follows.” Chapter IV deals with prohibitions and restrictions on importation and exportation and Chap. V, with levy of and exemption from customs duties. Elaborate provisions have been made to ensure that goods do not escape the levy of duty and that the prohibitions and restrictions which have been imposed on importation and exportation are rigidly enforced. Chapter XVI provides for offences and penalties and Section 167 therein is an omnibus section which contains 81 items dealing with offences and penalties. Chapter XVII contains procedural provisions relating to offences, appeals etc. Section 187-A appears in this Chapter.”

22. Learned counsel has also relied upon Full Bench decision, AIR 1951 Nagpur 58 (Sheoshankar v. State Government of Madhya Pradesh), wherein it was held that advisory opinions or declaratory judgments on the constitutionality of legislation cannot be given apart from some concrete injury or controversy. Thus, where a petitioner applies under Article 226 for a writ of mandamus directing the State Government not to enforce against him the C. P. and Berar Prohibition Act, 1938 or some sections thereof and to withdraw and cancel certain rules and notifications thereunder and it was found that he had not done any act under the Act nor was any action taken under the Act to ‘his detriment and that there was no demand and refusal of a permit under the Act to him, hence, writ petition was not maintainable.

23. Number of other authorities have also been cited by the learned counsel for the respondent on the same points as enunciated above, and therefore, they are not being reproduced here. There shall be no use in multiplying on the same points.

24. To our mind, the writ petition can be dismissed on the ground that no injury has been caused to the petitioner, no overt act has been taken against the petitioner and only because to the statutory provision made in Section 64, enabling a police officer to seize the material which contravenes the copyright, the writ is not liable to be issued. We would have dismissed the writ petition on this score itself, but we have thought it necessary to deal with the matter in detail in regard to the validity of Section 64 itself. Section 64 clearly mentions that police officer is to seize the material, if he so satisfied. But what does the word “satisfaction means”. It is in borne that police officer will not act until and unless he has got some type of information on which information he is satisfied and his satisfaction shall be objective. It cannot be imagined that only because, Section 64 empowers the police officer to seize the material to his satisfaction, that he would act mala fide or arbitrary. If he does so, there is ample remedies available in the appropriate Courts and the aggrieved person is always free to safeguard his interest in this respect by resorting the legal remedies. The power given to the police officer is not at all arbitrary. He is to report the matter to the Magistrate and the Magistrate, on the application being made by the aggrieved person, shall return the material, if it is proved that no infringement of the copyright was involved. The copyright Act has been enacted to check the piracy so that fruit of the labour put by the author or the copy right owner may be enjoyed by the author or the owner and not by the pirates. To make it more workable, the Act itself gives proper guidelines in Chapter XI of the Copyright Act. Section 51 as reproduced above, gives the instances where the copyright is deemed to have been infringed. Section 52 provides that no copyright is infringed in the circumstances mentioned in the said Section. A duty has been cast on the person dealing with sound recordings and video films to maintain a complete record and to display the particulars, names and address of the person who has made sound recording, i.e. the author name and address of the owner; of the copyright; and the year of its publication. Similarly, in regard to video films, it has been provided that it requires to be certified in exhibition under the provisions of Cinematograph Act etc. etc. The names and address of the person who had made the video film and declarations etc. etc. are to be displayed. If a police officer thinks that there is infringement of the copyright as per provisions of the Act, he is to, at the time of seizure, satisfy himself that video films and sound recordings being kept by the person concern contains particular on it as provided under Section 52(a) and therefore, the guidelines are provided in the Act itself. It cannot be said that Section 64 is to be read in isolation. The other provisions of the Act in Sections 51, 52, 52(a) and 64(2) do contain guidelines and safeguards which prescribe the procedure in seizing the material as per satisfaction of police officer.

25. Apart from above, Section 64 sub-clause 2 provides the safeguards when the person aggrieved can make an application to the Magistrate within 15 days of such seizure by the police officer for restoring the seized copies to him. It cannot be said that provisions of Section 64 infringe any of the rights of the petitioner. There are ample safeguards and guidelines provided in the Act itself.

26. For the reasons mentioned above, we hold that until and unless, some injury is caused to the petitioner, the petitioner cannot move an application under Articles 226 and 227 of the Constitution of India for issuance of writ petition only on the apprehension. Section 64 is not invalid and does not hit the Article 14 or any other Articles of the Constitution of India. It is also not arbitrary for the reason that guidelines and safeguards are provided under Sections 51, 52 and 52A and Section 64(2) of the Copyright Act, coupled with the fact that it is expected of the police officer that he would not act arbitrarily and his satisfaction shall always based on some material or knowledge and he shall only proceed for action under Section 64 in a bona fide manner and not for making a roving inquiry.

27.    In    the    result, both    the    afore-
mentioned writ petitions are dismissed. No order as to costs. 

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