Search and Seizure Process in Copyright Infringement Cases under Indian Law

The process of search and seizure in copyright infringement cases in India is primarily governed by the Copyright Act, 1957. This is supplemented by the procedural frameworks laid out in the Code of Civil Procedure, 1908 (CPC) for civil actions, and the newly enacted Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) for criminal proceedings, which replaced the Code of Criminal Procedure, 1973 (CrPC).

This legal structure enables copyright holders to address infringement of their protected works, such as unauthorized reproduction, distribution, or sale of literary, musical, artistic, or dramatic works, as well as cinematograph films and sound recordings. The specific procedure—whether civil or criminal—determines the nature of the search and seizure, from court-ordered injunctions to police-led raids.

Process of Search and Seizure in Copyright Law Cases in India

Identification and Verification of Infringement

The process is initiated when a copyright owner or their authorized representative identifies suspected infringement. This can involve:

• Physical Infringement: Discovering pirated physical goods such as books, DVDs, CDs, or other tangible copies of the copyrighted work.
• Digital Infringement: Detecting unauthorized online distribution, streaming, or hosting of copyrighted content, including software, films, music, or e-books.

Initial Evidence Gathering

The rights holder gathers preliminary evidence to substantiate the claim. This may involve:

• Purchasing samples of pirated products.
• Taking screenshots, creating video recordings, or collecting URLs of infringing websites.
• Documenting the source and nature of the unauthorized sales or distribution.
• Verifying their own copyright ownership through registration documents.

This evidence forms the basis for subsequent legal action, whether a civil suit seeking a court-ordered search or a criminal complaint filed with law enforcement.

Filing a Complaint

Copyright owners can pursue a civil suit under Section 55 of the Copyright Act, 1957, by filing a complaint in a competent court (such as a District or High Court). This action aims to secure remedies including injunctions to halt infringement, monetary damages, and the seizure of infringing materials.

Section 55 of the Copyright Act, 1957

This section outlines civil remedies for infringement, allowing copyright owners to:

• Seek injunctions
• Claim damages
• Request an accounting of profits

A key exception prevents liability for damages if the defendant was unaware of the copyright, though injunctions and profit-sharing remain available. The section also presumes the named individual on a published work is its author or publisher and gives courts discretion over legal cost allocation.

Criminal Complaint for Large-Scale or Commercial Infringement

For serious infringements, a criminal complaint can be initiated under Sections 63 and 64 of the Act. Wilful infringement is classified as a cognizable offense, carrying potential penalties of up to seven years of imprisonment and monetary fines.

Section 63 of the Copyright Act, 1957

Defines criminal copyright infringement. Penalties include:

• Imprisonment from six months to three years
• Fines from ₹50,000 to ₹2,00,000

Courts can impose lighter sentences for non-commercial infringements. Notably, construction of an infringing building or structure is not an offense under this section.

Section 64 of the Copyright Act, 1957

Grants police officers of sub-inspector rank or higher the power to:

• Seize infringing copyright materials and related production plates without a warrant
• Present all seized items immediately to a magistrate

Section 64(2) also allows any interested party fifteen days to apply to the magistrate for restoration of these items. The magistrate must hear both the applicant and the complainant before making a decision.

Essentials of a Complaint

A meticulously prepared complaint for search and seizure must include:

• Compelling proof of copyright ownership (ideally a Section 45 registration for prima facie evidence)
• Clear and specific evidence of the infringement (e.g., pirated materials, unauthorized online content, transaction records)
• Precise details about the infringer’s activities, identity, and location

Section 45 of the Copyright Act, 1957

Establishes a voluntary process for copyright registration. Applicants must:

• Apply to the Registrar of Copyrights with a prescribed form and fee
• Include a statement if the work is intended for use with goods or services
• Provide a certificate from the Registrar of Trade Marks stating that no identical or similar trademark has been registered by another party

The Registrar of Copyrights has discretion to conduct an inquiry before making a final entry into the register.

Application for a Search and Seizure Order

Search and seizure orders are legal procedures used to inspect, search for, and seize evidence of infringement in both civil and criminal cases. However, the process and requirements for obtaining these orders differ significantly between the two types of proceedings.

In civil cases, copyright owners can apply for an Anton Piller order, a non-statutory judicial remedy that allows them to enter the defendant’s premises to gather evidence. To obtain this order, the applicant must demonstrate a strong prima facie case of copyright infringement, a serious risk of irreparable harm, and a clear likelihood that the infringer may destroy or dissipate the evidence. Due to the element of surprise, Anton Piller orders are often issued ex parte, without hearing the defendant.

In criminal cases, the police have the power to seize infringing copies and related plates or materials under Section 64 of the Copyright Act, 1957. This power is exercised when a police officer, no lower in rank than a sub-inspector, is satisfied that an offense under Section 63 (criminal infringement) is being, has been, or is likely to be committed. The copyright owner typically initiates this process by lodging a First Information Report (FIR) with the police, which triggers an investigation that may lead to a raid and seizure of the infringing goods.

In summary, search and seizure orders are essential tools in protecting copyright owners from infringement. The process for obtaining these orders varies between civil and criminal cases, with civil cases involving Anton Piller orders and criminal cases involving police action. The primary objective of these orders is to prevent the destruction or concealment of crucial evidence before the defendant is formally notified of the lawsuit or investigation.

Execution of the Search and Seizure

In civil cases, following the granting of an Anton Piller order, the court typically appoints an independent Local Commissioner, often a practicing advocate, to oversee the search and seizure. Accompanied by representatives of the copyright owner and, if necessary, law enforcement for security, the Commissioner proceeds to the specified premises, such as a warehouse or factory, to conduct the raid.

The scope of seizure in civil matters is extensive, including all infringing copies of the copyrighted work, the machinery, equipment, and plates used for their production, and relevant documents or electronic records that serve as evidence of illegal activities. A detailed inventory, known as a panchnama, is meticulously prepared on-site, usually with independent witnesses, and subsequently submitted to the court. The alleged infringer is generally permitted to observe the search, ensuring transparency and due process.

Conversely, in criminal cases, police officers conduct raids based on a filed First Information Report (FIR) or utilize their powers under Section 64 of the Copyright Act. During these operations, they seize infringing materials and may also arrest the accused, as copyright infringement under Section 63 is classified as a cognizable offense.

All items seized in criminal investigations are meticulously sealed, inventoried, and securely stored as evidence. This evidence is critical for the ongoing criminal prosecution and will eventually be presented before a magistrate to support the charges.

Management of Seized Evidence

Securing and Cataloguing

All seized materials, regardless of whether they originate from civil or criminal actions, are meticulously catalogued, sealed, and securely stored in designated locations, such as police stations or court-approved warehouses. This rigorous process is essential to maintain the chain of custody and prevent any allegations of tampering or spoliation of evidence.

Handling of Digital Evidence

Specific protocols govern the handling of seized digital devices, such as computers, servers, and external hard drives. These devices typically undergo forensic analysis by qualified experts to authenticate data, retrieve deleted files, and generate comprehensive reports for use as evidence in court.

Reporting to the Court

The authority responsible for the seizure is obligated to report its actions to the court. In civil cases, the Local Commissioner submits a detailed report outlining the entire search process and an exhaustive inventory of all seized items. Conversely, in criminal cases, police officers submit a similar report to the magistrate, as mandated by procedural law, along with the physical seized items.

Ultimately, this stringent process guarantees the preservation and legal admissibility of evidence, enabling its effective use in proving cases of copyright infringement.

Legal Proceedings and Remedies

Key Provisions of the Copyright Act, 1957

The Copyright Act of 1957 establishes a comprehensive legal framework for addressing instances of copyright infringement.

Civil Remedies for Copyright Infringement

• Section 51 defines infringement: This includes unauthorized actions like reproduction, distribution, and public performance of copyrighted works.
• Section 55 outlines civil remedies: Copyright owners can seek injunctions, monetary damages, and an accounting of the infringer’s profits.
• Section 58 declares infringing materials as copyright owner’s property: This allows for the seizure and destruction of infringing copies and the plates used to create them.

Criminal Penalties for Copyright Infringement

• Section 63 designates knowing or wilful infringement as a criminal offense: Such violations are punishable by both imprisonment and fines.
• Section 64 grants police officers (Sub-Inspector rank or higher) specific authority: They can seize infringing copies and related materials without a warrant if they believe an offense is being committed or is likely to be committed.

Copyright Board

Section 11 of the Copyright Act, 1957, mandates the Central Government to establish a body known as the Copyright Board, composed of a Chairman and two other members. The Act specifies that the Chairman must be a current or former High Court Judge, or someone qualified for such a position. It also stipulates that the salaries, allowances, and other service conditions for the Chairman and members will be prescribed, with a guarantee that these terms cannot be altered to their disadvantage after their appointment. Additionally, the Central Government is authorized to appoint a secretary and other necessary staff for the board to function effectively, following consultation with the Chairman.

Practical Considerations

Role of Local Commissioners

Local Commissioners play a crucial role in ensuring fairness and transparency in civil cases. As independent court officers (often advocates), their impartiality guarantees that actions like search and seizure are executed strictly according to court orders. This greatly reduces the risk of disputes and allegations of misconduct, with the commissioner’s report serving as an unbiased account of the process and the evidence seized.

Piracy in the Digital Space

The rise of digital infringement necessitates more sophisticated legal tools. Courts frequently issue “John Doe” or “Ashok Kumar” orders — injunctions against unidentified infringers — to prevent the pre-release piracy of films and other content. These orders can direct Internet Service Providers (ISPs) to block websites hosting infringing material. This approach is often rooted in the procedural powers of the Code of Civil Procedure and is reinforced by takedown mechanisms under the Information Technology Act, 2000, and its rules, which obligate intermediaries to remove unlawful content upon notice.

Challenges in Enforcement

Despite the robust legal framework, enforcement encounters significant practical challenges. Infringers often operate with a high degree of anonymity and sophistication, employing techniques such as hiding evidence, operating across multiple jurisdictions, or rapidly shifting their operations to new digital platforms. To be effective, both the judiciary and law enforcement must act with extreme speed and coordination to secure evidence before it can be destroyed, relocated, or deleted. The complexities of digital forensics also present a significant hurdle, requiring specialized expertise to handle and analyze electronic evidence.

Anton Piller Orders and John Doe Orders

Anton Piller orders and John Doe orders are strong legal instruments used in India, particularly in cases involving intellectual property and copyright infringement.

An Anton Piller order is a court injunction that allows the plaintiff to enter the defendant’s premises without prior notice and search for evidence to prevent the destruction of incriminating material. This order is granted when the plaintiff presents a strong case and the potential damage is significant. It requires strict safeguards, such as supervision by an independent solicitor and no forced entry.

A John Doe order, on the other hand, is a pre-emptive search and seizure order issued against unknown defendants involved in copyright violations, often in cases of large-scale piracy or online infringement. The identities of the infringers are not known, as in cases of mass distribution of pirated DVDs or digital content.

Both orders aim to quickly stop widespread infringement and preserve evidence, but they must be regulated by courts with procedural safeguards to prevent abuse. These orders are widely used by Indian courts, especially the Delhi High Court, for enforcing copyright in the digital age.

Court Judgments

M/s Knit Pro International vs. The State of NCT of Delhi (2022)

On May 20, 2022, the Supreme Court of India issued a key judgment clarifying that wilful copyright infringement offenses under Section 63 of the Copyright Act, 1957, are “cognizable” and “non-bailable.” This means police can arrest an accused person without a warrant, and bail is not an automatic right. The Court specifically resolved previous legal inconsistencies, confirming that these offenses remain cognizable even if the maximum punishment is up to three years, as per the Criminal Procedure Code (now Bharatiya Nagarik Suraksha Sanhita, 2023).

Pine Labs v. Gemalto (2023)

The 2023 Pine Labs v. Gemalto case significantly clarified digital intellectual property rights under the Copyright Act. It affirmed that both source and object code of software are “literary works” eligible for copyright protection, and any unauthorized use constitutes infringement. This ruling crucially strengthens legal safeguards for computer programs, enabling developers to protect their intellectual property.

Super Cassettes Industries Ltd. v. Music Broadcast Pvt. Ltd. (2012)

This case clarified that radio stations broadcasting copyrighted music must obtain a separate license for “communication to the public” under the Copyright Act, 1957. The ruling affirmed that any distinct public use of copyrighted work, including radio, requires specific authorization, thereby strengthening copyright owners’ rights and ensuring fair compensation.

R.G. Anand v. Deluxe Films (1978)

This landmark case fundamentally shaped Indian copyright law by distinguishing between an idea and its expression. The Supreme Court ruled that copyright protects only the unique expression of an idea, not the idea or theme itself. Therefore, mere similarities in plot or theme do not constitute infringement; only “substantial and fundamental” copying of the actual form of expression does. This crucial ruling prevents theme monopolies, fostering creativity and competition.

Eastern Book Company v. D.B. Modak (2008)

The Court clarified originality in Indian copyright law for legal publications. While raw judicial judgments are public domain, publisher-added elements like headnotes, editorial notes, and unique paragraph numbering are copyrightable. It introduced the “modicum of creativity” test, holding that such additions, requiring skill and judgment beyond mere mechanical effort, are original works. This decision moved Indian law away from the “sweat of the brow” doctrine.

Indian Performing Right Society Ltd. v. Eastern India Motion Pictures Association (1977)

This pivotal judgment defined the ownership of musical works within films. The Court ruled that once a composer or lyricist assigned their work for a cinematograph film, the producer became the first owner of that work’s copyright as part of the film. This meant original creators generally did not retain residual rights to royalties for public performance of their music. This ruling was later largely reversed by the 2012 Copyright Act amendment.

Academy of General Education v. B. Malini Mallya (2009)

This case redefined joint authorship under the Copyright Act. The Supreme Court mandated that joint authors must have contributed through a collaborative creative process with a clear, shared intent to co-author. Mere contributors or editors, lacking explicit co-authorship intent, cannot claim joint author status. This ruling is vital for clarifying collaborator rights and ownership, particularly in academic publishing.

Krishika Lulla v. Shyam Vithalrao Devkatta (2016)

This ruling reaffirmed the idea-expression dichotomy in copyright. The Court clarified that short phrases, slogans, and film titles are generally not copyrightable due to their lack of originality, reinforcing that protection applies only to substantial, original expressions, not mere ideas or common phrases.

Najma Heptulla v. Orient Longman Ltd. (1988)

This case set rules for copyright on translated works. The Supreme Court decided that a simple, word-for-word translation, especially of a work already freely available, doesn’t automatically get its own copyright. To be copyrighted, a translator must add significant skill, effort, and judgment, like their own interpretations or creative touches. This ensures a simple language change doesn’t unfairly control the original work and promotes genuine creative effort in adaptations.

Conclusion

The Indian legal framework for addressing copyright infringement, rooted in the Copyright Act of 1957, provides a robust and multifaceted approach to search and seizure. It empowers copyright holders to pursue both civil and criminal remedies to protect their intellectual property. Through civil actions, owners can obtain Anton Piller orders to discreetly gather evidence and seize infringing materials, while criminal complaints can trigger police-led raids and arrests under Section 64 of the Act.

While this system offers powerful tools for combating piracy—particularly with the use of “John Doe” orders to tackle digital infringement—it also incorporates crucial safeguards like judicial oversight and the right to property restoration to prevent abuse. Ultimately, the successful enforcement of these provisions hinges on swift and coordinated action by rights holders, the judiciary, and police to overcome the increasing sophistication of infringers in both the physical and digital realms.