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July 6, 2022

Comment: Does Criminalization Of Copyright Infringement Stifle The Growth Of New Creations?

Author: Former Intern - Mehak Jain

The criminalization of copyright infringement, in particular its classification as a cognizable and non-bailable offence, has been a widely debated issue over the past few years. Different High Courts have rendered varying statutory interpretations and verdicts that have been at loggerheads with one another. While the most recent stance of the Supreme Court has been that of deeming the same as cognizable and non-bailable, the author opines that this is too harsh a penalty to be imposed and can have a stifling effect on the growth of new creations.

For a law that has one of its fundamental objectives to be that of promoting and fostering creativity, the criminalization of such acts can have a clampdown on the creative process. An environment saturated with the constant fear of incarceration along with the absence of a right of bail will have the effect of instilling fear in the minds of the creator. This translates into an inability for the creator to express themself freely and can inevitably lead to self-censorship, thereby thwarting creativity.

Classification of copyright infringement as cognizable and non-bailable additionally has the potential of being misused by the government and interested private players as a means of censorship. Commonly used critique pieces such as jokes, videos, and parodies are often used to criticize the happenings and affairs of a state. However, parties against whom the criticism may be directed could passively have the power to shut down contrary opinions simply by engaging in frivolous, excessive, and unreasonable infringement claims. This results in a chilling effect on free speech which thereby affects creativity.

Further, copyright can be weaponized to vindicate non-copyright interests, i.e., interests which fall foul of the intended purpose of copyright. These interests include retaliation for some perceived wrongdoing or protection of reputation. Since there is no right to bail, it is a potential weapon of harassment in the hands of the police and shall exacerbate the cause of vulnerable groups the most. Such stringent classification, when assessed in a country such as India, where people are barely aware of the intellectual property rights vested in the works can lead to selective targeting of vulnerable groups and harassing them into silence.

Accordingly, criminalization gives rise to free speech concerns and consequently impacts creativity. This, when coupled with the threat of weaponization of copyright as a tool to silence criticism, or as means to harass the vulnerable, make a compelling argument against classifying copyright infringement as cognizable and non-bailable. The author thereby hopes for a shift towards the same.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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