Copyright Enforcement. Tool Kit POLICE HANDBOOK

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1 Too Kit POLICE HANDBOOK

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5 Foreword Copyright is a right given by aw to creators of iterary, dramatic, musica and artistic works and producers of cinematograph fims and sound recording s. Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. Indian copyright aw is one of the strongest and best in the word. Creativity being the keystone of progress no civiized society can afford to ignore the basic requirement of encouraging its growth and progress. Economic and socia deveopment of a society is directy inked to creativity. The protection provided by copyright to the creative productions of writers, artists, designers, dramatists, musicians, architects and producers of sound recording, cinematograph fims and computer software, creates an atmosphere conducive to creativity, which induces them to create more, and motivates others to create. It is in this context that the enforcement of Copyright and reated rights is of utmost importance for the sustainabe growth of the nationa economy. The Inteectua Property Rights (IPR) Division at FICCI is intensivey invoved with issue pertaining to protection and enforcement of Copyrights. This Too Kit has been deveoped to serve as a ready reckoner for the enforcement agencies to dea with Copyright reated crimes. I woud ike to thank FICCI's IPR committee members, who have provided vauabe inputs for this project, and knowedge partners "Intt Advocure" who have contributed consideraby towards the deveopment of the Too Kit. I aso take this opportunity to thank the Economic Offences Wing, Dehi Poice for their inputs and experiences which payed a pivota roe in deveopment of the Too Kit Dr. A. Didar Singh Secretary Genera FICCI Too Kit POLICE HANDBOOK

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7 Check List for Poice I. Investigation reating to Counterfeiting or Piracy cases. If a Compaint discoses commission of a cognizabe offence reated to Copyright and Trademarks foowing is the aid down procedure for the guidance of the investigating officer. a. Admit IPR Compaints Accept compaints from Copyright owners, their ega representatives, Power of attorney hoder possessing duy egaized or Apostied under the Hague Convention and a vaid identity proof of him. Copyright registration certificates from any Berne Convention Country shoud be accepted as a vaid certificate for Copyright ownership to fie a compaint. b. Record Record the statements of the compainant or the informant in detai. c. Questionnaire for the informant/compainant i. Whether Copyright (Video/Audio/Pubishing/Performing/ Broadcasting) or Trade Mark (Use/icense/assignment rights) rights or icenses pertaining to the subject matter being infringed were granted to anyone? ii. Proof of any such icense/assignment or transfer of rights sha be requisitioned. Notarized copies coud aso be obtained upon the wiingness of the compainant to produce the certified copies at a ater stage, anytime before fiing of the charge sheet. iii. Certificates or Certified Copies from Government Authorities such as the Centra Board of Fim Certification are be requisitioned and the poice officer sha prima facie verify if the owner of the Copyright has compied the requirements under Section 52A of the Copyright Act which requires the pubisher of a video fim or sound recording to dispay on the video fim/sound recording, copy of the 01 Too Kit POLICE HANDBOOK

8 02 Too Kit POLICE HANDBOOK Certificate granted by the Board of Fim Certification, the name and address of the person who made the fim/sound recording, the name and address of the owner of the copyright in such work etc. d. Status of Registration. Poice officer sha ascertain the status and veracity of Trade Mark or Copyright or other IPR registration from the onine database made avaiabe by the concerned department ike the Trade Mark registry, through e. Grounds to be recorded. Before approaching the premises to be raided or where search or seizure is to be conducted, the grounds of beief and reasons for conducting the same sha be recorded in writing. f. Preiminary Information. Do coect preiminary information about the infringer, the infringing premise/spot, the number of infringers, the nature of the premises etc., before conducting the search or seizure. g. Search and Seizure. i. Procedure and Panch witnesses. Foow the rues provided under Code of Crimina Procedure, 1973 in conducting search and seizure. Secure the presence of the owner of the entity/shop/house premises, empoyees, neighbors and officia panch witnesses at the time of conducting such search/seizure and aso obtain their signatures. The description of pace of offence must be mentioned in the Panchnama. ii. Seizure, Confiscation and Acknowedgement of artices taken into custody. Poice Personne sha seize a the counterfeiting or infringing products avaiabe in the premises such as products with infringing, trade mark, fase trade description, being imitations of cothing, handbags, shoes, watches, eectronics, movies etc.

9 In cases pertaining to software privacy, the poice officer sha demand the End User License Agreement, License Key, Software seria numbers etc., from the user at the time of search and seizure. The poice officer sha coect the andine teephone bi, eectricity bi, Municipa or Panchayat door number and other documents which show the ownership/ Possession of the premises as that of the accused at the time of investigation and before fiing of Charge Sheet. A copy of the driving icense, Eection identity card, Ration card, Pan Card, Passport or any other photo identity proof of the accused/accused(s) issued by the Centra Government or State Government authority sha aso be obtained before fiing of the Charge Sheet. The poice officer sha obtain copies of the icenses issued by the Municipaity/Corporation to operate the shop/entity. Any rent deed/eave and icense agreement sha aso be obtained from the premises before fiing of the Charge Sheet. The statements of the owner of the premises sha aso be recorded under Section 161 of Code of Crimina Procedure The Poice Personne sha aso obtain/seize a the bis/receipts/membership card (Video Libraries Association Membership Card)/register/book maintained at the video-audio shop. The poice officer sha seize the stock/purchase register or records maintained at the shop/entity and record the number of infringing copies avaiabe at the said premises. A the properties or infringing products seized, which sha incude the infringing copies, pates, broadcasting equipments and other accessories invoved in manufacturing/producing the infringing copies incuding aptop or hard disk of machine on which Video/Audio was found to be instaed or dupicated, dyes, pates, and a other products seized during the course of search and seizure sha 03 Too Kit POLICE HANDBOOK

10 immediatey after search and seizure be neaty and safey packed, seaed and produced before the magistrate as earier as possibe with no apse of time. In cases where the infringer possess accessories such as desktops or servers in producing the infringing products, the investigation officer sha confiscate the entire product or remove and obtain the hard disk of such products. In case the poice officer conducting the search and seizure finds it impractica to seize the entire hard disks he sha obtain the mirror images of the same which shoud contain a the data being used on the computer systems. Poice Personne sha take due care and caution in recovering the infringing materias from the spot. The poice officer sha keep an account of the number of such confiscated infringing products and sha get the signature of the owner of the shop whie removing it from the premises of the shop. Acknowedgement sha be given to the accused/owner of the premises where such search or seizure was conducted aong with a copy of the panchnama together with reevant annexures. A ist of seized artices shoud be furnished to the accused under Section 165 of Code of Crimina Procedure, iii. Safe transit to the Poice station. The concerned officer sha take a due efforts to ascertain and obtain a the evidences/ proofs avaiabe at the premises during the time of investigation and sha bring it to the poice station safey. There shoud be proper warehousing and storing of confiscated infringing goods at every poice station. 04 Too Kit POLICE HANDBOOK

11 II. Post Search and Seizure steps. a. The investigation by poice officers sha target and trace out the source of infringement and catch hod of a the infringers invoved in the chain. b. The Investigation officer shoud get the chaan or chart sheet Scrutinised by the Pubic Prosecutor. Inputs of rights owner as to the rights asserted, tited documents. License agreements etc., sha aso be secured. c. The owner of the premises, the empoyees and others invoved in the infringement or piracy sha be examined to ascertain and show that the accused is induged in making/sae/distribution or deaing with reproduction of pirated audio or video CDs'/DVDs'. d. The investigating officer sha aso pay due attention to the foowing specia statutes in addition to Code of Crimina Procedure, 1973 whie framing the charge sheet: i. The Copyright Act, 1957; ii. The Trademarks Act, 1999; iii. Any other Act/ New Statute/Amendments/Rues/Deegated Legisation/Guideines which sha come into force in this regard from time to time; and 05 Too Kit POLICE HANDBOOK

12 An outook on the offences, penaties and powers of poice under various Inteectua Property Statutes. Statute Offence Penaty Cognizabe/ Search & Authority/ Non- Seizure Sanction Cognizabe Power Copyright Section 63: Imprisonment: Cognizabe Without Poice officer Act, 1957 Offence of not ess than warrant not beow the infringement 6 months to 3 rank of subof copyright years, and Fine: inspector if he or other not ess than is satisfied that rights Rs. 50,000 but an offence conferred by may extend up been committed this Act. to Rs. 2 akhs. under the Act. Section 63B: Imprisonment Knowing use for a term of infringing which sha not copy of be ess than computer seven (7) days programme but which may to be an extend to three offence. (3) years and with fine which sha not be ess Rs. 50,000, but may extend to Rs.2 Lakhs. Provided that where the computer programme has not been used for gain or in the course of trade or business, the court may, for adequate and specia reasons to be mentioned Cognizabe 06 Too Kit POLICE HANDBOOK

13 in the judgment, not impose any sentence of imprisonment and may impose a fine which may extend to Rs. 50,000. As per Section 2 (t), pate incudes any stereotype or other pate, stone, bock, moud, matrix, transfer, negative, dupicating equipment or other device used or intended to be used for printing or reproducing copies of any work, and any matrix or other appiance by which Sound recording for the acoustic presentation of the work are or are intended to be made Indian Section 415: 417: Punishment Non- Pena read with for cheating- cognizabe Code, Section 417 Imprisonment for year or fine or 415. both Cheating: Whoever, by deceiving any person, frauduenty or dishonesty induces the person so deceived to deiver any property to any person, or to consent that any person sha retain any property, or intentionay induces the person so deceived to do or omit to do anything 07 Too Kit POLICE HANDBOOK

14 08 Too Kit POLICE HANDBOOK which he woud not do or omit if he were not so deceived, and which act or omission causes or is ikey to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Expanation: A dishonest conceament of facts is a deception within the meaning of this section. Trade Section 103: Imprisonment for Cognizabe Without Any Poice Marks Act, Penaty for six months to warrant officer not 1999 appying fase three years and beow the trade mark with fine of rank of or trade Rs. 50,000 to Superintendent descriptions 2 akhs of Poice or equivaent. Section 104: Imprisonment for Cognizabe Without Penaty for six months to warrant seing goods three years and or providing with fine of services to Rs. 50,000 to which fase 2 akhs trade mark or fase trade description is appied.

15 Proviso to Section 115 read with Rue 110 of Trade Mark Rues Opinion of the registrar on the facts invoved in the offence under the proviso to Section 115(4) is to be sought before conducting Search and seizure. Information S. 76 Technoogy Confiscation Act, 2000 Any computer, computer system, foppies, compact disks, tape drives or any other accessories reated thereto, which is in contravention to any of the provision of this Act, rues, orders or reguations made there under, sha be iabe to confiscation. Section 80 Conduct without a Poice officer Power of poice warrant, search and not beow the officer and other seizure in any pubic rank of the officers to enter pace who is Deputy into search. reasonaby suspected Superintendent of having committed of Poice or an or committed or about authorized 09 Too Kit POLICE HANDBOOK

16 to commit any offence under the Act. officer of the Centra or State Government. Geographica Section 50: Search and Seize Poice officer Indications of Power to without warrant. not beow the Goods Act, conduct Search rank of the 1999 and Seizure Deputy without warrant Superintendent of Poice. 10 Too Kit POLICE HANDBOOK Prior to search and seizure, the poice officer must obtain and abide by the opinion of the Registrar. Drug and S. 22 (cc) Power to examine Inspector Cosmetics any record, Act, 1940 register, document or any other materia object found [with any person, or in pace, vehice, vesse or other conveyance, and seize Section 22(c) Stop and search Inspector of the Act. any vehice, vesse or conveyance, which he has a reason to beieve, is being used for carrying any drug or cosmetic in respect of an offence under the Act.

17 Designs Section 22: Contravener sha Act, 2000 Piracy of be iabe to pay to registered the registered design, proprietor of the (unauthorized design a sum use/expoitati not exceeding on of a Rs. 25,000 registered recoverabe as a copyright in contract debt. Design) 11 Too Kit POLICE HANDBOOK

18 POWERS OF THE POLICE OFFICERS WITH RESPECT TO SEARCH & SEIZURE UNDER VARIOUS INTELLECTUAL PROPERTY LAWS & CRIMINAL LAWS Crimina Law framework to dea with Counterfeiting and piracy. Indian Pena Code, 1860 (hereinafter, "IPC") The Code of Crimina Procedure, 1973 (hereinafter, "CrPC") IPC Section 28: Counterfeit Section 415: Cheating Section 417: Punishment for Cheating Section 28 This section ays down that a person who causes one thing to resembe another thing, with an intention to deceive others, or who knows that such an act woud amount to deception is said to have committed the crime of counterfeiting. Section 415 This section states that a person, who, frauduenty or dishonesty deceives another and induces him/her to deiver any property to any person, or to consent that a property be retained by any person or intentionay induces the person so deceived to do or omit to do anything which he/she woud not do or omit if he/she were not so deceived, and which act or omission causes or is ikey to cause damage or harm to that person in body, mind, reputation or property, is said to have committed the offence of 'cheating'. 12 Too Kit POLICE HANDBOOK

19 E.g. 'A', by putting a counterfeit mark on an artice, intentionay deceives 'Z' into a beief that this artice was made by a certain ceebrated manufacturer, and thus dishonesty induces 'Z' to buy and pay for the artice, 'A' cheats. Cheating is cassified as a non-cognizabe, but baiabe offence. Section 417 A person who is convicted for cheating sha be punished either with an imprisonment the term of which may extend to one year or with fine or with both. Case Laws: Dina Nath Kapoor vs. State (AIR 1963 A 133) Facts: The appicant was a cyce deaer of Aahabad. A search was made at his shop and four cyce frames bearing the name "Hercueans", four cyce frames bearing the trade name "Phiipines", one cyce frame bearing "BSC" and three cyce seats bearing the name "Brooks" were recovered. These trade marks were not the origina trade marks of the various companies but had been made subsequenty. The case for the prosecution was that the trade marks were counterfeit and as the various artices were in the possession of the accused for sae he committed an offence of counterfeiting. Decision: The Hon'be Court observed that a counterfeit trade mark is one by means of which resembance to a genuine artice is intended to deceive or to ead a purchaser to imagine that the counterfeit is in reaity the genuine artice. Therefore if a trade mark of a company is put on an artice beonging to or 13 Too Kit POLICE HANDBOOK

20 manufactured by that company, then the trade mark is not counterfeit. An artice does not cease to be the manufacture of a particuar company merey because it has become od or the trade mark on it has faded. Reiance was paced on the case Hoand Bombay Trading Co. V. Buktear Mu (8 Ca WN 42) where it was hed that ony when, it is proved that an accused person hs sod or exposed or had been in possession for sae or any purpose of trade or manufacture any goods or things with a counterfeit trade mark that the onus wi ie on him to show that he acted honesty and did not commit an offence. Poice Officer must record a the information in the station diary of the poice station which is in accordance with Section 172 Crimina Procedure Code, Cognizabe Offence. In cases under Sec. 155 of the Crimina Procedure Code when an information is given to an officer in charge of the poice station of the commission of a non-cognizabe offence, he has to enter the substance of the information in a book to be kept for the purpose and refer the informant to the Magistrate but he cannot under sub-s. (2) investigate such a case without the order of a Magistrate. On receiving such an order any Poice officer may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an Officer in charge of poice station may exercise in a cognizabe case. S. 100: Persons in charge of cosed pace to aow search (Procedure to search) Whenever any pace iabe to search of inspection is cosed, a person residing in, or being in charge of, such pace, sha, on demand of the officer or other person executing the warrant, and on production of the warrant, aow him free ingress thereto, and afford a reasonabe faciities for a search to take pace. 14 Too Kit POLICE HANDBOOK

21 The search sha be made in their presence of two witnesses. The occupant of the pace searched, or some person in his behaf, sha, be permitted to be present during the search. When any person is searched under this section a ist of a things taken possession of sha be prepared, and a copy thereof sha be deivered to such person. S. 102: Power of poice officer to seize certain property. Any poice officer may seize any property which may be aeged or suspected to have been stoen, or which may be found under circumstances, which create suspicion of the Commission of any offence. Every such poice office sha report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be, convenienty transported to the Court, he may give custody thereof to any person by making such a person execute a bond to produce the property before the Court as and when required. S. 156: Poice officer's power to investigate cognizabe cases. Any officer in charge of a poice station may, without the order of a Magistrate, investigate any cognizabe case which a court having jurisdiction over the oca area within the imits of such station woud have power to inquire into or try. This section provide suo moto powers to the Poice officers. The proceeding undertaken by the Poice officers cannot be questioned on the ground that the case was of a nature which the officer was not empowered to take suo moto action on. Authority: However, any Magistrate of the First cass is empowered to order any investigation of a cognizabe offence. 15 Too Kit POLICE HANDBOOK

22 S Procedure by poice upon seizure of property (Post seizure of goods): Whenever the seizure of property by any poice officer is reported to a Magistrate, and such property is not produced before a Crimina Court during an inquiry or tria, the Magistrate may make order. i. of the disposa of such property or the deivery of such property to the person entited to the possession thereof, ii. or, regarding custody and production of such property. If the person so entited is known, the Magistrate may order i. the property to deivered to him on such conditions (if any) as the Magistrate thinks fit, and ii. if such person is unknown, the Magistrate may detain it and sha, in such case, issue a procamation specifying the artices of which such property consists, and requiring any person who may have a caim thereto, to appear before him and estabish his caim within six ( 6) months from the date of such procamation. Further Section 459 of the CrPC speaks about the power of the magistrate to dispose of perishabe property which is subject to speedy and natura decay. if the person entited to the possession of such property is unknown or absent, and the property is subject to speedy and natura decay, or if the Magistrate to whom its seizure is reported is of opinion that its sae woud be for the benefit of the owner, or that the vaue of such property is ess than ten (10) rupees, the Magistrate may at any time direct it to be sod; and the provisions of Section 457 and 458 sha, as neary as may be practicabe, appy to the net proceeds of such sae. 16 Too Kit POLICE HANDBOOK

23 Cases under Indian Law a. Smt. Basavva Kom Dyamangouda vs. State Of Mysore, AIR 1977 SC 1749 The Hon'be Supreme Court observed that the object and scheme of the various provisions of the Code appear to be that where the property which has been the subject matter of an offence is seized by the poice it ought not to be retained in the custody of the court or of the poice for any time onger than what is absoutey necessary. As the seizure of the property by the poice amounts to a cear entrustment of the property to a government servant, the idea is that the property shoud be restored to the origina owner after the necessity to retain it ceases. The Court further observed that that there may be two stages when the property may be returned to the Owner: In the first pace it may be returned during any inquiry or tria. This may particuary be necessary where the property concerned is subject to speedy or natura decay. There may be other compeing reasons aso which may justify the disposa of the property to the owner or otherwise in the interest of justice. b. Microsoft Corporation & Anr. Vs Mr. Dhireen Gopa & Ors., 2010 (42) PTC 1 (De) Four suits had been fied by Microsoft Corporation against four different defendants aeging vioation of the copyright on the ground of suspicion that the defendants were using pirated iegay copied software of the paintiffs at their offices/work pace. Issue: Whether the copyright of the Paintiffs over the software was infringed by the defendants and the seizure order be passed? 17 Too Kit POLICE HANDBOOK

24 Decision: The Hon'be Dehi High Court opined as foows: "The technoogy has advanced to an extent and a mirror image of the hard disc can be obtained and preserved. The mirror images so obtained woud contain a the data being used on computer systems. The appropriate method, therefore, in a such cases where the court considers appointment of Loca Commissioner necessary and seizing of infringing materia necessary is a direction for preparation of mirror images of the hard disc and get such mirror images seaed on the spot so that the paintiffs are not abe to use the database of the defendants either for backmaiing the defendants or for any other purpose and the seaed mirror images are produced in the court and inspected in the court by experts of the paintiffs to find out if there was an infringement or not and if the paintiffs finds an infringement, he shoud fie an affidavit after showing the mirror images to that extent and the suit shoud be continued further, otherwise the suit shoud be dismissed and the defendant shoud be suitaby compensated by the paintiff for making fase aegations, by way of awarding cost to the defendants." The Court ordered the investigation to take pace and aowed the appointment of the oca Commissioner. It further ordered that the defendants in case were found using pirated software to cease and desist from using pirated software forthwith. c. Event and Entertainment Management Association v. Union of India, 2012 (52) PTC 380 (De) The Hon'be Court had made remarks on the manner in which compaints under Section 64 of the Copyright Act are deat with. The same is discussed hereinbeow: 1. That Poice, merey on the receipt of the information or a compaint from the owner of a copyright about the infringement of the copyrighted work, is not expected to straightway affect seizure. 18 Too Kit POLICE HANDBOOK

25 2. Section 52 of the Copyright Act deas with 'exceptions to infringement' and enabes the person against whom such compaint is made to show that one or more of the circumstances outined in that provision exists and that therefore there is no infringement. During the preiminary inquiry by the Poice, if such a defense is taken by the person against whom the compaint is made it wi be incumbent on the Poice to prima facie be satisfied that such defense is untenabe before proceeding further with the seizure. 3. The Court further observed that the Poice Officers must now both: be prima facie satisfied that there is an infringement of copyright in the compaint is made, and v conduct a preiminary inquiry during which, if the defense of fair deaing is raised, the poice officer must be satisfied that such defense is untenabe. v 19 Too Kit POLICE HANDBOOK

26 Thank You Federation of Indian Chamber of Commerce and Industry (FICCI), as a initiative to strengthen enforcement, requests a the readers of the handbook to share any editoria or procedura inputs that must find pace in this handbook. Pease contact at ipr@ficci.com

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