Copyright infringement poses a significant challenge within intellectual property law, necessitating strong legal protections for creators. India has recently updated its legal framework with new statutes: the Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replace the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC), and the Indian Evidence Act, 1872 (IEA), respectively. This article offers a comparative analysis of the criminal remedies under these new legislations versus the previous laws.

Bharatiya Nyaya Sanhita, 2023 vs. Indian Penal Code, 1860

The Bharatiya Nyaya Sanhita, 2023 (BNS) adopts a more direct approach to criminalizing copyright infringement, unlike the Indian Penal Code, 1860 (IPC), which addressed such issues indirectly.

The IPC approached copyright infringement through sections related to cheating (Section 420) and forgery (Sections 463 to 471), which, while applicable, were not specifically designed for intellectual property violations. This often led to ambiguities in enforcement, with penalties ranging from six months to three years of imprisonment and fines.

In contrast, the BNS offers clearer definitions and enhanced penalties:

• Dishonest Misappropriation of Property: Under Section 314 of the BNS, dishonest misappropriation now mandates a minimum six-month imprisonment and both imprisonment and fines, whereas the IPC allowed for imprisonment or fines.
• Criminal Breach of Trust: Sections 406-409 of the IPC, related to criminal breach of trust, have been consolidated into Section 316 of the BNS, with the maximum imprisonment extended from three to five years.
• Cheating: Sections 417, 418, and 420 of the IPC are unified under Section 318 of the BNS, increasing the maximum imprisonment from one year to three years, and up to five years for cheating involving wrongful loss to a protected party.

These changes reflect modern economic realities and provide a stronger deterrent against copyright infringement.

Bharatiya Nagarik Suraksha Sanhita, 2023 vs. Code of Criminal Procedure, 1973

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) introduces enhanced procedural mechanisms compared to the Code of Criminal Procedure, 1973 (CrPC).

• Investigation and Prosecution: The BNSS offers specific procedures for investigating copyright infringement, including enhanced guidelines for police investigations and the introduction of ‘Zero FIR,’ allowing the registration of complaints irrespective of jurisdiction. This development aims to streamline and expedite the process.
• Search and Seizure: The BNSS provides modern guidelines for digital evidence, addressing challenges associated with digital piracy. It mandates audio and video recording of search and seizure operations to prevent tampering and ensure transparency.
• Attachment of Property: The BNSS grants Magistrates broader authority to attach property deemed ‘proceeds of crime,’ including the ability to act on an ex parte basis, a significant improvement over previous procedures.

Bharatiya Sakshya Adhiniyam, 2023 vs. Indian Evidence Act, 1872

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) addresses gaps in the Indian Evidence Act, 1872 (IEA), particularly regarding digital evidence.

• Admissibility of Evidence: The BSA recognizes electronic records as primary evidence, offering a robust framework for their admissibility in court. It includes a broad range of digital data, such as emails, server logs, and electronic communications, which were inadequately covered under the IEA.

The transition from the IPC, CrPC, and IEA to the BNS, BNSS, and BSA represents a significant advancement in India’s legal approach to copyright infringement. The new laws offer clearer remedies, updated penalties, and modern enforcement mechanisms, reflecting the technological advancements and evolving landscape of intellectual property crimes. These reforms enhance the protection of copyright holders and ensure more effective responses to infringement in the digital era, contributing to a more robust legal framework for intellectual property in India.

Posted and reproduced in Public Interest by

Adv. Sulaiman Bhimani Legal Consultant

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