Holding

The offence constitutes a contravention of Section 68-A of the Copyright Act, 1957, and does not require identification of the copyright owner; a fine of Rs.10,000 suffices.

Summary

The State of Andhra Pradesh prosecuted N. Venkatramana, a video shop owner, for possessing 90 video cassettes that lacked the statutory particulars required under Section 52-A of the Copyright Act, 1957. The trial court convicted him under Section 63, imposing six months' imprisonment and a fine of Rs.3,000, a sentence affirmed by the Sessions Judge but later set aside by the High Court. On appeal, the Supreme Court examined whether the omission of Section 52-A particulars constituted infringement and whether the copyright owner must be identified to establish an offence. It held that the contravention falls under Section 68-A, which penalises non‑compliance with Section 52-A, and that identification of the owner is not a pre‑condition for liability. The Court also affirmed that video films are cinematographs under the Cinematograph Act, 1952. Accordingly, the conviction was altered to Section 68‑A and a fine of Rs.10,000 was imposed, with default imprisonment of three months, and the appeal was allowed.

Issues considered

Whether failure to display the particulars mandated by Section 52-A amounts to infringement of copyright.
Whether identification of the copyright owner is essential to establish an offence under Section 63 or Section 68-A.
Whether a video cassette is a "cinematograph" within the meaning of the Cinematograph Act, 1952.
What is the appropriate penalty for contravention of Section 52-A – imprisonment or fine.

Legislation cited

Cinematograph Act, 1952s. 2(c), s. 2(d)
Copyright Act, 1957s. 2(m)(ii), s. 3, s. 4, s. 44, s. 48, s. 51, s. 52-A, s. 63, s. 68-A

Subjects

copyright infringementvideo piracySection 52-ASection 63Section 68-Acinematographpenal statute interpretationfine versus imprisonment

Judgment

A STATE OF ANDHRA PRADESH
v.
NAGOTIVENKATARAMANA

AUGUST 20, 1996

B [K RAMASWAMY AND G.B. PATTANAIK, JJ.]

Copyright Act, 1957: Sections 2(m) (ii), 3, 4, 44, 48, 51, 52-A and 63.

Copyiight-Video shop-Respondent keeping vaiious cassettes of
c Telugu English and Hindi cinematograph films for hire and sale to
pub/ic---Cassettes not containing the particular envisaged under Section 52-A
of the Act-Charge for offence under Section 52-A read with Section 63---Gon-
victio1t-:Trial Court imposing sentence of six months and fine of Rs.
3, 000-Affimzation of conviction and sentence by Appellate Court-Acquittal
D by High Court-Appeal refen-ed by State-Held the offence would fall under
Section 68-A-lllstead of imposillg a sentence of impiisonment, sentence of
fine of a sum of R.s. 10,000 would meet the ends of justice-Absence of
particulars on video films as mandated under Section 52-A constitutes infr-
ingement of copylight-ldentiftcation of the owner of the Copy1ight is not a
pre-condition for violation of Section 63 or 68-A-Object of amending the
E copy1ight Act explained.

Cinematograph Act, 1952 Section 2(c)(d) Video film is a
cinematograph.

Ba/winder Singh v. Delhi Administration, AIR (1984) Del. 379, referred
F to.

Interpretation of Statutes-Penal provisions-Interpretation and con-
struction of

G CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1644-45 of 1996.

From the Judgment and Order dated 17.9.90 of the Andhra Pradesh
High Court in Cr!. R.P. No. 665/89 and Cr!. R.C. No. 666 of 1989.

H G. Prabhakar for the Appellant.
812
STATEv. N. VENKATARAMANA 813

D. Prakash Reddy for Mrs. Rani Chhabra for the Respondent. A

The following Order of the Court was delivered :

, ... Leave granted.

Shri Prakash Reddy, learned counsel for the respondent has raised B .
an interesting .question, of law in this case. The admittep facts are that the
Inspector of Police, Urban Police ·Station, Tena!~ Guntur District of
Andhra Pradesh had in a raid on December 23, 1986 seized 90 cassettes
of various cinematograph films in Telugu, Hindi and English under a
panchnama attested by PW-2 from the video library belonging to the C
respondent and laid the charge-sheet for an offence under Section 52-A
read with Section 63 of the Copyright Act, 1957 (for short, the "Act") as
amended in 1984. The Trial Court after adduction of evidence of PWs-1
to 3 and production of Exs. P-1 and M0-1 convicted the respondent under
Section 63 of the Act for minimum sentence of six months and also
imposed a fine of Rs. 3,000. In default, he was directed to undergo simple D
imprisonment for a further period of one month. On appeal, the Sessions
Judge, Guntur confirmed the same. In Criminal Revision No. 665/89 and
CRC No. 666/89 the High Court of Andhra Pradesh by judgment dated
September 17, 1990 acquitted the respondent of the offence. Thus these
appeals by special leave. E

The facts as found and not in dispute are that the respondent had
kept in his shop by name Video City, various cassettes numbering 90 in
Telugu, English and Hindu cinematograph films exhibiting the same either
for hire or sale to the customers. The question, therefore, is : whether the
respondent has committed infringement of a copy right or deemed infr- F
ingement thereof. The Statement of Objects and Reasons to Amendment
Act 65 of 1984 reads as under :

"Piracy has become a global problem due to the rapid advances in
technology. It has assumed alarming proportions all over the world G
and all the countries are trying to meet the challenge by taking
stringent legislative and enforcement measures. The problem of
piracy and the necessity for taking sufficient anti-piracy measures
were also voiced by Members of Parliament at the time of the
consideration of the Bill to amend the Copyright Act, 1957, last
year, H
814 SUPREME COURT REPORTS (1996] SUPP. 4 S.C.R.

A 2. Mainly there are three types of piracy, namely, piracy of the
printed word, piracy of sound recordings and piracy of
cinematograph films. The object of the pirate in all such cases is
to make quick money and avoid payment of legitimate taxes and
royalties. In respect 'of books, it is estimated that four hundred to
five hundred titles are pirated every year in India and on each of
B
the pirated titles, the loss to the Government in the form of tax
evasion amounts approximately to Rs. 11,0UO. Apart from books,
recorded music and video cassettes of films and TV programmes
~re reproduced, distributed and sold on a massive scale in many
parts of the world without any remuneration to the authors, artists,
c publishers and producers concerned. The emergence of new tech-
niques of recordings, fixation and reproduction of audio program-
mes, 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
D
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
parlors have also sprung up all over the country and they exhibit
such ftlms recorded on video tapes by charging admission fees from
E 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.

3. The Bill provides, among other things, for the following
amendments to the Act, namely :
F
(i) to increase the punishment provided for the infringement of
the copyright, namely imprisonment of three years, with a
minimum punishment of imprisonment of six months, and a
fine upto Rs. 2 lakhs, with a minimum of Rs. 50,000;
G (ii) to provide for enhanced punishments in the case of second
and subsequent convictions;

(iii) to provide for the declaration of the offence of infringement
of copyright as an economic offence so that the period of
H limitation provided for in the Code of Criminal Procedure,
STATE v. N. VENKATARAMANA 815

1973, for offences will not be applicable to this offence; A

(iv) to specifically make the provisions of the Act applicable to
video films and computer programmes;
. (v) to require the producers of records and video films to display
certain information in the records, video films and containers B
thereof."

Section 2(m) (ii) defines "infringing copy" to mean, in relation to a
cinematographic film, a copy of the film made on any medium by any
means. Section 3 defines "publication" to mean making a work available to C
the public by issue of copies or by communicating the work to the public.
Section 4 envisages when work is not deemed to be published or performed
in public. It provides that except in relation to inftingement of copyriglit, a
work shall not be deemed to be published or performed him public,
without the licence of the owner of the copyright. The permission of the
owner for publication is mandatory when it is sought to be brought home D
to the person violating the publication of performed in public. It excludes
the application of infringement of a copyright from the purview of Section
4. Chapter X deals with registration of copyright. Section 44 envisages that
there shall be kept at the Copyright Office a register in the prescribed form
to be called the Register of Copyrights in which may be entered the names E
or titles of works and the names and addresses of authors, publishers and
owners of copyright and such other particulars as may be prescribed. The
entries under Section 48 in the register of copyrights shall be prima facie
evidence of the particulars entered therein a documents purpoTting to be
copies of such entries therein, or extracts therefrom certified by the
Registrar of Copyrights and sealed with the seal of the Copyright Office F
s/Jal/ be admissible in evidence in all couTts without fuTther proof or produc-
tion of the oiiginal. Section 51 in Chapter XI deals with infringement of
copyrights. It provides, among other things, that a copyright in a work shall
be deemed to be infringed when any person makes for sale or hire, or sells

- or lets for hire, or by way of trade displays or offers for sale or hire any G
inftinging copies of the work. Section 52-A deals with particulars to be
included in sound recordings and video films. Sub-section thereof (2)
provides thus :

"(2) No person shall publish a video film in respect of any work
unless the following particulars are displayed in the video film, H
•
•
•
816 SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

A when exhibited, and on the video cassette or 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
B Certification under Seetion 5-A
. . 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 of consent from the owner of the copyright in such work
c for making such video film; and

(c) the name and address of the owner of the copyright in such
work 11 •

Section 63 in Chapter XIII provides for penalty thus :
D
"63. Offence of infringement of copyright or other right is con-
ferred by this Act: - Any person who knowingly infringes or abets
the infringement of -

(a) the copyright in a work, or
E
(b) any other right conferred by this Act except the right conferred
by Section 53-A,

shall be punishable with imprisonment for a tera which shall not
be less than six months but which may extend to three years and
F with fine which shall not be less than fifty thousand rupees but
which may extend to two lakh rupees :

Provided that where the infringement has not been made for
gain in the course of trade or business the court may, for adequate
and special reasons to be mentioned in the judgment, impose a
G sentence of imprisonment for a term of less than six months or a
fine of less than fifty thousand rupees.

Explanation. - Construction of a building or other structure which
infringes or which, if completed, would infringe the copyright in
H some other work shall not be an offence under this section."
STATE v. N. VENKATARAMANA 817

Further amendment with regard to sentence of fine came to be made A
by Amendment Act 38 of 1994 with which we are not presently concerned.

Section 68-A provides for penalty for contravention of Section 52-A.

. It reads that any person who publishes a sound recording or a video film
in contravention of the provisions of Section 52-A, shall be punishable with B
imprisonment which may extend to three years and shall also be liable to
fine.

A reading of these provisions does indicate that infringement of a
copyright or deemed infringement of a copyright or publication of a work
without the permission of the owner are offences under the Act. The c
question is : whether identification of the owner of the copyright is a
pre-condition for violation of the provisions of Section 63 or 68-A, as the
case may be? The finding of the High Court and ably sought to be
supported by Shri Prakash Reddy is that unless the owner is identified and
he comes and gives evidence that he had a copyright of the video film which D
was sought to be in violation of Section 52-A or Section 51 of the Act, there
is no offence made out by the prosecution and that, therefore, the convic-
tion and sentence of the respondent is not valid in law. He contends that
Section 4 expressly excludes publication of the work to be published. The
identification of the owner being an essential element to prove the offence
of infringement of copyright, the prosecution has failed to establish the E
same. In construction of the penal statute strict construction should be
adopted and in that perspective tl. . benefit of doubt given by the High
Court is well justified and does not warrant interference.

It is true that in the interpretation of penal provisions, strict construe- F
tions is required to be adopted and if any real doubt arises, necessarily the
reasonable benefit of doubt would be extended to the accused. In this case,
the question arises : whether such a doubt has arisen? The object of
amending the Copyright Act by Amendment Act 65 of 1984, as note above,
was to prevent piracy which became a global problem due to rapid advan-
ces in technology. The legislature intended to prevent piracy and punish G
the pirates protecting copyrights. The law, therefore, came to be amended
introducing Section 52-A. Thereafter, the piracy of cinematograph films
and of sound recording etc. could be satisfactorily prevented. Moreover
the object of the pirate is to make quick money and avoid payment of
legitimate taxes and royalties. The uncertified films are being exhibited in H
818 SUPREME COURT REPORTS (1996] SUPP. 4 S.C.R.

A a large scale. Mushrooming growth of video parlours has sprung up all over
the country exhibiting such films recorded on video tapes by charging
admission fee from the visitors. Therefore, apart from increasing the
penalty of punishment under law it also provides the declaration on the
offence of infiringement and video films to display certain information on
the recorded video films and containers thereof. Section 52-A thus has
B
incorporated specifications of the prints in sub-section (2) thereof. The
construction of Sections 52-A, 51, 63 and 68-A should be approached from
this perspective. It would be further profitable to read the relevant
provisions of the Cinematograph Act, 1952 in this behalf. Section 2( c)
defines "cinematograph' tffinclude any apparatus for the representation of
c moving pictures or series of pictures. Section 2( d) (d} defines "films" to
mean a cinematograph film. The question, therefore is : whether video film
is a cinematograph? It is settled view that vide6 tapes come within the
expression "cinematograph" in view of the extended definition in Section
2(c) which includes apparatus for the representation of moving pictures or
D series of pictures as copy of the video should be created in respect of a
cinematograph under the Cinematograph Act which gives protection to the
purchasers of the cinematograph if they are registered under Chapter X
of the Act. Section 44 gives the right of registration and once the entries
have been made by operation of Section 48 the entries in the register of
copyrights shall be prima facie evidence of the copyright and the entries
E therein are conclusive without proof of the original copyright which must
be taken to have been created in respect of the video tape.

In Ba/winder Singh v. Delhi Administration, AIR (1984) Delhi 379 a
Division Bench of Delhi High Court had also held that both video and
television are cinematographs. Licences for giving their public exhibition is
F
necessary under the Cinematograph Act in spite of their having commercial
licences under the Telegraphs Act.

It is true that there is no specific charge under Section 52-A. The
charge was under Section 51 read with Section 63 of the Act. In view of
G the above finding and in view of the findings of the courts below thai the
respondent was exhibiting the cinematograph films in his Video City for
hire or for sale of the cassettes to the public which do not contain the
particulars envisaged under Section 52-A of the Act, the infringement falls
under Section 51(2) (ii) or Section 52-A of the Act. The former is punish-
H able under Section 63 and the latter is punishable under Section 68-A of
STATEv. N. VENKATARAMANA 819

the Act. In view of the above findings of the courts below, the offence A
would fall under Section 68-A of the Act. It would, therefore, be unneces-
sary for the prosecution to track on and trace out the owner of the
copyright to come and adduce evidence of infringement of copyright. The
absence thereof does not constitute lack of essential element of infringe-
ment of copyright. If the particulars on video films etc. as mandated under
B
Section 52-A do not find place, it would be infringement of copyright.

In our view, on the facts in this case, the offence would fall under
Section 68-A of the Act. Accordingly, the conviction of the respondent is
altered to one under Section 68-A. There would be no prejudice to the
respondent. In view of the facts and circumstances, we are of the opinion C
that instead of imposing a sentence of imprisonment, sentence of fine of a
sum of Rs. 10,000 would meet the ends of justice. Therefore, the conviction
and sentence ordered by the trial Court as confirmed by the appellate
Court are modified to one of conviction under Section 68-A. The respon-
dent is sentenced to pay a fine of Rs. 10,000. In default, he should undergo
rigorous imprisonment for a period of three months. Even if he does not D
pay the fine and undergoes the sentence, the State is at liberty to recover
the fine from the respondent

The appeals are accordingly allowed.

T.N.A. Appeals allowed. E