TOOLKIT for POLICE Department of Industrial Policy and Promotion Ministry of Commerce and Industry Government of India

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Department of Industrial Policy and Promotion Ministry of Commerce and Industry Government of India

IPR ENFORCEMENT TOOLKIT FOR POLICE Department of Industrial Policy and Promotion Ministry of Commerce and Industry Government of India

IPR ENFORCEMENT TOOLKIT FOR POLICE

This toolkit has been compiled by Saikrishna & Associates and seeks to explain the basic concepts of Trademark and Copyright Infringements in India with a view to aid police officials in combating widespread counterfeiting and piracy. Department of Industrial Policy and Promotion Ministry of Commerce and Industry Government of India

IPR ENFORCEMENT TOOLKIT FOR POLICE

This toolkit has been compiled by Saikrishna & Associates and seeks to explain the basic concepts of Trademark and Copyright Infringements in India with a view to aid police officials in combating widespread counterfeiting and piracy. Hkkjr ljdkj jes”k vfHk’ksd vkS|ksfxd uhfr vkSj lao/kZu foHkkx okf.kT; ,oa m|ksx ea«kky; RAMESH ABHISHEK m|ksx Hkou] ubZ fnYyh&110 011 Government of India lfpo Dep. of Industrial Policy and Promoon Ministry of Commerce & Industry Secretary Udyog Bhawan, New Delhi-110 011 Tel. : 23061815, 23061667 Fax : 23061598 e-mail : [email protected]

MESSAGE

5 December, 2016

Intellectual Property is a rapidly developing field related to creation, use and exploitation of mental or creative labor. It has today emerged as a highly valued financial asset in organizations and plays an indispensable role in the economic growth of a nation. Like any other asset, Intellectual Property needs to be protected. Intellectual Property Rights (IPRs) enforcement aims at safeguarding the interests of innovators and creators, ensuring that they enjoy the fruits of their labour to which they are rightfully entitled. However, with the advent of globalization and technology, the number of IP crimes in the brick-and-mortar as well as in the digital context has increased exponentially. The rights of the IP owners are increasingly at risk as infringement by way of counterfeiting or piracy is being carried out with impunity. This IPR Enforcement Toolkit for Police is an initiative to strengthen the enforcement regime of IPRs in the country and thereby take forward the clarion call of “Creative India; Innovative India” enshrined in the National IPR Policy. I would like to extend my gratitude to the Federation of Indian Chambers of Commerce and Industry (FICCI) and their partners for their painstaking efforts in development of the Toolkit. I take immense pleasure in sharing the IPR Enforcement Toolkit for Police. I believe this Toolkit will be of great help to police officials across the states in curbing the menace of IP Crime.

(Ramesh Abhishek)

IPR ENFORCEMENT TOOLKIT FOR POLICE Hkkjr ljdkj jes”k vfHk’ksd vkS|ksfxd uhfr vkSj lao/kZu foHkkx okf.kT; ,oa m|ksx ea«kky; RAMESH ABHISHEK m|ksx Hkou] ubZ fnYyh&110 011 Government of India lfpo Dep. of Industrial Policy and Promoon Ministry of Commerce & Industry Secretary Udyog Bhawan, New Delhi-110 011 Tel. : 23061815, 23061667 Fax : 23061598 e-mail : [email protected]

MESSAGE

5 December, 2016

(Ramesh Abhishek)

IPR ENFORCEMENT TOOLKIT FOR POLICE Foreword

Intellectual property is an important discipline covering numerous aspects pertaining to creation, innovation and securing rights of the holder of intellectual property. Being a marketable tool as well as a financial asset, Intellectual property plays a crucial role in economic growth of a country and hence has become an international agenda for debate and discussion. It is now well-established that creativity and innovation is the key to the prosperity of a country. However, an economy can disintegrate if menaces like counterfeiting and piracy are not addressed within a suitable time period. India's National IPR Policy rightly seeks to reinforce the IPR framework in the country. This, among other things, calls for an urgent need to strengthen the country's enforcement mechanisms for combating IPR infringements. The issue being intricate demands stern consideration of the enforcement agencies to build the capacity of their officials at various levels, including strengthening of IPR cells in State police forces, especially to curb the rising levels of counterfeiting and piracy. FICCI's Intellectual Property Rights Division is intensively involved with the issues pertaining to protection and enforcement of IP Rights, and we are pleased to present the Enforcement Tool Kit for Police Officials. It is hoped that this Tool Kit will serve as a ready reckoner for the Police Officials while dealing with the menace of counterfeiting and piracy which is posing a serious threat to the nation's economy. I would like to thank the Department of Industrial Policy & Promotion, Government of India, for the valuable guidance and support provided towards the development of the Tool Kit. I express my gratitude to the FICCI IPR Committee Members for their constructive inputs for this important document. I also take this opportunity to acknowledge and appreciate our knowledge partner, Saikrishna & Associates, for their pivotal role in and contribution to the development of this tool kit for Police Officials.

Dr. A. Didar Singh Secretary General FICCI

IPR ENFORCEMENT TOOLKIT FOR POLICE Foreword

Dr. A. Didar Singh Secretary General FICCI

IPR ENFORCEMENT TOOLKIT FOR POLICE TABLE OF CONTENTS

Chapter 1 ENFORCEMENT TOOL KIT...... 1

1. Background and Objective...... 1

2. What is the difference between counterfeiting and piracy? ...... 2

3. Trade Mark and Copyright ...... 4

4. Criminal Offences under the Trade Marks Act, 1999 ...... 8

5. Criminal Offenses under the Copyright Act, 1957 ...... 13

6. Classification of Offences under the Code of ...... 15 Criminal Procedure, 1973:

7. Criminal offences under the Indian Penal Code, 1860...... 15

8. Search and Seizure Powers of Police in IP Crimes ...... 23

Chapter 2 GENERAL GUIDELINES FOR SEARCH AND SEIZURE ...... 29

Chapter 3 CHECKLIST FOR REGISTERING COMPLAINT...... 33

Chapter 4 CHECKLIST FOR SEARCH AND SEIZURE ...... 39

ANNEXURES ...... 45

ANNEXURE I SAMPLE FORMS ...... 46

ANNEXURE II CABLE PIRACY OF PAY TV SIGNAL...... 61

ANNEXURE III SOURCE TO ONLINE PIRACY ...... 65

IPR ENFORCEMENT TOOLKIT FOR POLICE TABLE OF CONTENTS

Chapter 1 ENFORCEMENT TOOL KIT...... 1

1. Background and Objective...... 1

2. What is the difference between counterfeiting and piracy? ...... 2

3. Trade Mark and Copyright ...... 4

4. Criminal Offences under the Trade Marks Act, 1999 ...... 8

5. Criminal Offenses under the Copyright Act, 1957 ...... 13

6. Classification of Offences under the Code of ...... 15 Criminal Procedure, 1973:

7. Criminal offences under the Indian Penal Code, 1860...... 15

8. Search and Seizure Powers of Police in IP Crimes ...... 23

Chapter 2 GENERAL GUIDELINES FOR SEARCH AND SEIZURE ...... 29

Chapter 3 CHECKLIST FOR REGISTERING COMPLAINT...... 33

Chapter 4 CHECKLIST FOR SEARCH AND SEIZURE ...... 39

ANNEXURES ...... 45

ANNEXURE I SAMPLE FORMS ...... 46

ANNEXURE II CABLE PIRACY OF PAY TV SIGNAL...... 61

ANNEXURE III SOURCE TO ONLINE PIRACY ...... 65

IPR ENFORCEMENT TOOLKIT FOR POLICE Chapter 1 ENFORCEMENT TOOL KIT

1. Background and Objective

The National IPR Policy ("the Policy") published by the Government of India on May 12th 2016 focusses on strengthening enforcement mechanisms for IPR infringement amongst its 7 principal objectives. India has a TRIPS compliant, robust, equitable and dynamic IPR regime, and the Policy envisions an India where intellectual property protection leads to an increase in creativity and innovation, advancement in science, technology, art and culture, and protection of traditional knowledge and biodiversity resources. The nature of IP crimes today spans the physical and digital domains. Trade mark and copyright infringement including counterfeiting and piracy are carried out by organisations that operate as a part of sophisticated criminal networks with global links. Technological advancement has created new benefits and opportunities to society at large. As we seek to move into an era where IPR reforms will drive creativity and innovation, there is an immediate need to act against outright counterfeiting and piracy. The negative impact of rampant counterfeiting / piracy is far reaching on the country and on IP owners and stakeholders who depend on IP assets for their livelihood either directly or indirectly. The impact is economic and social, and results in huge financial losses to the exchequer as well. It is therefore imperative to build a conducive environment for IP owners to enforce their Intellectual Property Rights.

The objective of this tool kit is to provide a standardised ready reckoner for law enforcement agencies in India in relation to enforcement efforts against IP crimes, specifically trade mark and copyright counterfeiting and piracy. This enforcement toolkit contains

IPR ENFORCEMENT TOOLKIT FOR POLICE 1 Chapter 1 ENFORCEMENT TOOL KIT

1. Background and Objective

IPR ENFORCEMENT TOOLKIT FOR POLICE 1 a. Details on offences under IP laws such as Trade Marks Act, 1999, Counterfeit Piracy Copyright Act, 1957 and applicable provisions of the Indian Penal Code, 1860; or knowing it to be likely that deception copyright owner, permits for profit any will thereby be practised." place to be used for the performance of b. Powers available to police for search and seizure under the IP laws the work in public where such performance constitutes an and Criminal Procedure Code, 1973; infringement of the copyright in the c. Checklists for registering a complaint, and for search and seizure work, or makes for sale or hires or sells or lets for hire or distributes either for operations in relation to IP Crimes. the purpose of trade or to such an extent as to affect prejudicially the owner of 2. What is the difference between counterfeiting and the copyright or imports into India, any piracy? infringing copies of the work. In addition to physical piracy by Counterfeit Piracy reproducing a protected work without A counterfeit good is an unauthorised Piracy involves an unauthorised exact authorisation, piracy can also occur imitation of a branded good. Exact copy -not a simple imitation - of an item online. Online piracy is a term imitation is not essential to covered by an intellectual property specifically used to refer to illegal 1 counterfeiting and the imitation should right. copying of a protected work from the Internet. have a deceptive quality to it. According to the TRIPS Agreement, "Pirated copyright goods shall mean In the case of television broadcasting, According to the TRIPS Agreement, any goods which are copies made piracy means and include unauthorized "Counterfeit trademark goods shall without the consent of the right holder transmission / retransmission of signals mean any goods, including packaging, or person duly authorised by the right of television channels by any person and bearing without authorisation a holder in the country of production and includes transmission / retransmission trademark which is identical to the which are made directly or indirectly by authorized operator(s) in an trademark validly registered in respect from an article where the making of unauthorized mode or beyond the authorized territory / area. Piracy of of such goods, or which cannot be that copy would have constituted an infringement of a copyright or a related television channels may amount to distinguished in its essential aspects right under the law of the country of infringement of the following rights: from such a trademark and which importation.” copyright / broadcast reproduction thereby infringes the rights of the owner Indian law deals with piracy through right, theft*, cheating and criminal of the trademark in question under the provisions relating to copyright breach of trust**. law of the country of importation." infringement. As per Section 51 of the *Signals are moveable property. - As per Section 28 of the Indian Penal Copyright Act, 1957, a copyright in a Abdulgafar A. Nadiadwala vs Assistant Code, "a person is said to "counterfeit" work is deemed to be infringed when Commissioner of Income-Tax (2004) 188 who causes one thing to resemble any person, without a licence granted CTR Bom. 232 another thing, intending by means of by the owner of the Copyright or the ** When signals are retransmitted in that resemblance to practise deception, Registrar of Copyrights does anything unauthorized areas or in an which is the exclusive right of the unauthorized mode in violation of the terms of entrustment of signals by an 1 http://europa.eu/rapid/press-release_MEMO-10-272_en.htm authorized operator.

IPR ENFORCEMENT IPR ENFORCEMENT 2 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 3 a. Details on offences under IP laws such as Trade Marks Act, 1999, Counterfeit Piracy Copyright Act, 1957 and applicable provisions of the Indian Penal Code, 1860; or knowing it to be likely that deception copyright owner, permits for profit any will thereby be practised." place to be used for the performance of b. Powers available to police for search and seizure under the IP laws the work in public where such performance constitutes an and Criminal Procedure Code, 1973; infringement of the copyright in the c. Checklists for registering a complaint, and for search and seizure work, or makes for sale or hires or sells or lets for hire or distributes either for operations in relation to IP Crimes. the purpose of trade or to such an extent as to affect prejudicially the owner of 2. What is the difference between counterfeiting and the copyright or imports into India, any piracy? infringing copies of the work. In addition to physical piracy by Counterfeit Piracy reproducing a protected work without A counterfeit good is an unauthorised Piracy involves an unauthorised exact authorisation, piracy can also occur imitation of a branded good. Exact copy -not a simple imitation - of an item online. Online piracy is a term imitation is not essential to covered by an intellectual property specifically used to refer to illegal 1 counterfeiting and the imitation should right. copying of a protected work from the Internet. have a deceptive quality to it. According to the TRIPS Agreement, "Pirated copyright goods shall mean In the case of television broadcasting, According to the TRIPS Agreement, any goods which are copies made piracy means and include unauthorized "Counterfeit trademark goods shall without the consent of the right holder transmission / retransmission of signals mean any goods, including packaging, or person duly authorised by the right of television channels by any person and bearing without authorisation a holder in the country of production and includes transmission / retransmission trademark which is identical to the which are made directly or indirectly by authorized operator(s) in an trademark validly registered in respect from an article where the making of unauthorized mode or beyond the authorized territory / area. Piracy of of such goods, or which cannot be that copy would have constituted an infringement of a copyright or a related television channels may amount to distinguished in its essential aspects right under the law of the country of infringement of the following rights: from such a trademark and which importation.” copyright / broadcast reproduction thereby infringes the rights of the owner Indian law deals with piracy through right, theft*, cheating and criminal of the trademark in question under the provisions relating to copyright breach of trust**. law of the country of importation." infringement. As per Section 51 of the *Signals are moveable property. - As per Section 28 of the Indian Penal Copyright Act, 1957, a copyright in a Abdulgafar A. Nadiadwala vs Assistant Code, "a person is said to "counterfeit" work is deemed to be infringed when Commissioner of Income-Tax (2004) 188 who causes one thing to resemble any person, without a licence granted CTR Bom. 232 another thing, intending by means of by the owner of the Copyright or the ** When signals are retransmitted in that resemblance to practise deception, Registrar of Copyrights does anything unauthorized areas or in an which is the exclusive right of the unauthorized mode in violation of the terms of entrustment of signals by an 1 http://europa.eu/rapid/press-release_MEMO-10-272_en.htm authorized operator.

IPR ENFORCEMENT IPR ENFORCEMENT 2 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 3 3. Trade Mark and Copyright Trade marks are also classified as conventional trade marks and non- conventional trade marks. Conventional trade marks include: A. Trade Marks - word marks A trade mark2 is a source identifier denoting that a product belongs to a certain company or person, and distinguishes it from - stylised marks the products of others. A trade mark may be a sign, design or - logos expression. - Labels A logo protected by trade mark laws may also be protected under copyright law as an artistic work. - Product Packaging / Trade Dress

B. Different types of Trade Marks - Slogans/catch lines

A trade mark may be registered for goods (by manufacture) or for Recognized non-conventional trade marks: services (by service provider), and may be categorised as follows: - Sound marks

a. Standard Trademark: (applied for by proprietors of the - Colour marks trademark); In addition, protection has also been sought for dynamic mark, b. Certification Trademark: (applied for by the certifying moving mark and smell mark in the past. authority); C. Copyright c. Collective trademark: (applied for by a group where all the members may use the TM). The 6 different types of "works" are recognised under the Copyright Act, 1957:

1. Literary Works (including computer programs / software) - for 2 Section 2 (zb) – Trade Marks Act, 1999- "trade mark" means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of instance: books, articles, databases, poems, lyrics etc. one person from those of others and may include shape of goods, their packaging and combination of colours; and-- 2. Artistic Works - for instance: labels, paintings, drawings, (i) in relation to Chapter XII (other than section 107), a registered trade mark or a mark sketches, maps etc. used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and 3. Dramatic Work - for instance: any piece of recitation, some person having the right as proprietor to use the mark; and choreographic work, scenic arrangement which is fixed in (ii) in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so to indicate a connection in the writing etc. course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether 4. Musical Work - for instance: musical composition which may with or without any indication of the identity of that person, and includes a certification be void of graphical notation etc. trade mark or collective mark;

IPR ENFORCEMENT IPR ENFORCEMENT 4 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 5 3. Trade Mark and Copyright Trade marks are also classified as conventional trade marks and non- conventional trade marks. Conventional trade marks include: A. Trade Marks - word marks A trade mark2 is a source identifier denoting that a product belongs to a certain company or person, and distinguishes it from - stylised marks the products of others. A trade mark may be a sign, design or - logos expression. - Labels A logo protected by trade mark laws may also be protected under copyright law as an artistic work. - Product Packaging / Trade Dress

B. Different types of Trade Marks - Slogans/catch lines

A trade mark may be registered for goods (by manufacture) or for Recognized non-conventional trade marks: services (by service provider), and may be categorised as follows: - Sound marks

IPR ENFORCEMENT IPR ENFORCEMENT 4 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 5 5. Sound Recordings - for instance: recording of a musical Exclusive Right Works composition in a CD or any other suitable medium etc. Translation - Literary Works - Musical Works 6. Cinematograph Films - for instance: essentially a visual - Dramatic Works recording and includes a sound recording etc. - Computer programme

D. Exclusive Rights (copyright) in different works under the Adaptation - Literary Works Copyright Act, 1957: - Musical Works - Dramatic Works The Copyright Act, 1957 grants a bundle of exclusive rights, in - Artistic Works works, in favour of the copyright owner. These exclusive rights - Computer programme according to the relevant works are inter alia identified below: Sell / Rental - Computer programs Exclusive Right Works - Sound recordings Reproduction and Storage including in - Literary Works; - Cinematograph Films electronic form - Musical Works - Artistic Works In addition to copyright, the Copyright Act, 1957 also confers some - Dramatic Works specific rights, akin to copyright, namely: - Computer programs 1. Broadcast Reproduction Right (Section 37) - Cinematograph film - Sound recording 2. Performer's Rights (Section 38) And (Section 38a)

Issue copies (distribution) - Literary Works; E. Exclusive Rights in Broadcasts and Performances under the - Musical Works Copyright Act, 1957: - Artistic works - Dramatic Works Right akin to Copyright granted by the Exclusive Right Copyright Act, 1957 - Computer programs Broadcast Reproduction Right - To re-broadcast the Broadcast Performing in public - Literary Works; - To cause the broadcast to be heard or - Musical Works seen by the public on payment of any - Dramatic Works charges - To make any sound recording or Communication to the public - Literary works; visual recording of the broadcast - Musical Works - To make any reproduction of such - Artistic works sound recording or visual recording - Dramatic works where such initial recording was - Computer programs done without licence or, where it was - Sound recordings licensed, for any purpose not - Cinematograph Films envisaged by such licence

IPR ENFORCEMENT IPR ENFORCEMENT 6 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 7 5. Sound Recordings - for instance: recording of a musical Exclusive Right Works composition in a CD or any other suitable medium etc. Translation - Literary Works - Musical Works 6. Cinematograph Films - for instance: essentially a visual - Dramatic Works recording and includes a sound recording etc. - Computer programme

IPR ENFORCEMENT IPR ENFORCEMENT 6 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 7 Right akin to Copyright granted by the Exclusive Right S. No. Provision under the Definition of/ Punishment for the Copyright Act, 1957 Trade Marks Act Criminal Offence for sale, or had in possession for sale - To sell or give on commercial rental, or for any purpose of trade or or offer for such sale or such rental, manufacture, in or with any any such sound recording or visual package or other thing to which a recording referred to above. trade mark or mark or trade description has been applied; or Performers Rights - To make a sound recording or a visual (d) uses a trade mark or mark or trade recording of the performance description in any manner - Right to Reproduce and store the reasonably likely to lead to the said recording of the performance belief that the goods or services in - Right to issue copies of the said connection with which it is used are recording to the public designated or described by that trade mark or mark or trade - Right to communicate the said description; or recording of the performance to the (e) in relation to the goods or services public uses a trade mark or trade - Selling or giving on commercial description in any sign, rental, or offering for such sale or advertisement, invoice, catalogue, such rental, any copy of the said business letter, business paper, recording price list or other commercial - Right to Broadcast or communicate document and goods are delivered the performance to the public except or services are rendered to a person in pursuance of a request or order where performance is already made by reference to the trade broadcast. mark or trade description as so used. 4. Criminal Offences under the Trade Marks Act, 1999 2. Section 102 (1) A person shall be deemed to falsify a S. No. Provision under the Definition of/ Punishment for the Meaning of falsifying and trade mark who, either,-- Trade Marks Act Criminal Offence falsely applying trade marks (a) without the assent of the proprietor of the trade mark makes that trade 1. Section 101 (1) A person shall be deemed to apply a mark or a deceptively similar mark; Meaning of applying trade mark or mark or trade or trademarks and trade description to goods or services who-- (b) falsifies any genuine trade mark, descriptions (a) applies it to the goods themselves whether by alteration, addition, or uses it in relation to services; or effacement or otherwise. (b) applies it to any package in or with (2) A person shall be deemed to falsely which the goods are sold, or apply to goods or services a trade mark exposed for sale, or had in who, without the assent of the possession for sale or for any proprietor of the trade mark,-- purpose of trade or manufacture, or (a) applies such trade mark or a (c) places, encloses or annexes any deceptively similar mark to goods or goods which are sold, or exposed services or any package containing goods

IPR ENFORCEMENT IPR ENFORCEMENT 8 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 9 Right akin to Copyright granted by the Exclusive Right S. No. Provision under the Definition of/ Punishment for the Copyright Act, 1957 Trade Marks Act Criminal Offence for sale, or had in possession for sale - To sell or give on commercial rental, or for any purpose of trade or or offer for such sale or such rental, manufacture, in or with any any such sound recording or visual package or other thing to which a recording referred to above. trade mark or mark or trade description has been applied; or Performers Rights - To make a sound recording or a visual (d) uses a trade mark or mark or trade recording of the performance description in any manner - Right to Reproduce and store the reasonably likely to lead to the said recording of the performance belief that the goods or services in - Right to issue copies of the said connection with which it is used are recording to the public designated or described by that trade mark or mark or trade - Right to communicate the said description; or recording of the performance to the (e) in relation to the goods or services public uses a trade mark or trade - Selling or giving on commercial description in any sign, rental, or offering for such sale or advertisement, invoice, catalogue, such rental, any copy of the said business letter, business paper, recording price list or other commercial - Right to Broadcast or communicate document and goods are delivered the performance to the public except or services are rendered to a person in pursuance of a request or order where performance is already made by reference to the trade broadcast. mark or trade description as so used. 4. Criminal Offences under the Trade Marks Act, 1999 2. Section 102 (1) A person shall be deemed to falsify a S. No. Provision under the Definition of/ Punishment for the Meaning of falsifying and trade mark who, either,-- Trade Marks Act Criminal Offence falsely applying trade marks (a) without the assent of the proprietor of the trade mark makes that trade 1. Section 101 (1) A person shall be deemed to apply a mark or a deceptively similar mark; Meaning of applying trade mark or mark or trade or trademarks and trade description to goods or services who-- (b) falsifies any genuine trade mark, descriptions (a) applies it to the goods themselves whether by alteration, addition, or uses it in relation to services; or effacement or otherwise. (b) applies it to any package in or with (2) A person shall be deemed to falsely which the goods are sold, or apply to goods or services a trade mark exposed for sale, or had in who, without the assent of the possession for sale or for any proprietor of the trade mark,-- purpose of trade or manufacture, or (a) applies such trade mark or a (c) places, encloses or annexes any deceptively similar mark to goods or goods which are sold, or exposed services or any package containing goods

IPR ENFORCEMENT IPR ENFORCEMENT 8 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 9 S. No. Provision under the Definition of/ Punishment for the S. No. Provision under the Definition of/ Punishment for the Trade Marks Act Criminal Offence Trade Marks Act Criminal Offence (b) uses any package bearing a mark (g) causes any of the things above- which is identical with or mentioned in this section to be done, deceptively similar to the trade shall be punishable with: mark of such proprietor, for the Imprisonment for a term which shall not purpose of packing, filling or be less than six months but which may wrapping therein any goods other extend to three years and with fine which than the genuine goods of the shall not be less than fifty thousand proprietor of the trade mark. rupees but which may extend to two lakh (3) Any trade mark falsified as mentioned rupees: in sub-section (1) or falsely applied as Provided that the court may, for adequate mentioned in sub-section (2), is in this and special reasons to be mentioned in Act referred to as a false trade mark. the judgment, impose a sentence of (4) In any prosecution for falsifying a trade imprisonment for a term of less than six mark or falsely applying a trade mark to months or a fine of less than fifty thousand goods or services, the burden of rupees. proving the assent of the proprietor shall lie on the accused. 4. Section 104 Any person who sells, lets for hire or Penalty for selling goods or exposes for sale, or hires or has in his 3. Section 103 Any person who- providing services to which possession for sale, goods or things, or Penalty for applying false (a) falsifies any trade mark; or false trade mark or false trade provides or hires services, to which any trademarks, trade (b) falsely applies to goods or services any description is applied false trade mark or false trade description descriptions, etc. trade mark; or is applied or which, being required under (c) makes, disposes of, or has in his section 139 to have applied to them an possession, any die, block, machine, indication of the country or place in which plate or other instrument for the they were made or produced or the name purpose of falsifying or of being used and address of the manufacturer, or for falsifying, a trade mark; or person for whom the goods are manufactured or services provided, as the (d) applies any false trade description to case may be, are without the indications goods or services; or so required, shall, unless he proves,-- (e) applies to any goods to which an (a) that, having taken all reasonable indication of the country or place in precautions against committing an which they were made or produced or offence against this section, he had at the name and address of the the time of commission of the alleged manufacturer or person for whom the offence no reason to suspect the goods are manufactured is required to genuineness of the trade mark or trade be applied under section 139, a false description or that any offence had indication of such country, place, name been committed in respect of the or address; or goods or services; or (f) tampers with, alters or effaces an (b) that, on demand by or on behalf of the indication of origin which has been prosecutor, he gave all the information applied to any goods to which it is in his power with respect to the person required to be applied under section from whom he obtained such goods or 139; or things or services; or

IPR ENFORCEMENT IPR ENFORCEMENT 10 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 11 S. No. Provision under the Definition of/ Punishment for the S. No. Provision under the Definition of/ Punishment for the Trade Marks Act Criminal Offence Trade Marks Act Criminal Offence (b) uses any package bearing a mark (g) causes any of the things above- which is identical with or mentioned in this section to be done, deceptively similar to the trade shall be punishable with: mark of such proprietor, for the Imprisonment for a term which shall not purpose of packing, filling or be less than six months but which may wrapping therein any goods other extend to three years and with fine which than the genuine goods of the shall not be less than fifty thousand proprietor of the trade mark. rupees but which may extend to two lakh (3) Any trade mark falsified as mentioned rupees: in sub-section (1) or falsely applied as Provided that the court may, for adequate mentioned in sub-section (2), is in this and special reasons to be mentioned in Act referred to as a false trade mark. the judgment, impose a sentence of (4) In any prosecution for falsifying a trade imprisonment for a term of less than six mark or falsely applying a trade mark to months or a fine of less than fifty thousand goods or services, the burden of rupees. proving the assent of the proprietor shall lie on the accused. 4. Section 104 Any person who sells, lets for hire or Penalty for selling goods or exposes for sale, or hires or has in his 3. Section 103 Any person who- providing services to which possession for sale, goods or things, or Penalty for applying false (a) falsifies any trade mark; or false trade mark or false trade provides or hires services, to which any trademarks, trade (b) falsely applies to goods or services any description is applied false trade mark or false trade description descriptions, etc. trade mark; or is applied or which, being required under (c) makes, disposes of, or has in his section 139 to have applied to them an possession, any die, block, machine, indication of the country or place in which plate or other instrument for the they were made or produced or the name purpose of falsifying or of being used and address of the manufacturer, or for falsifying, a trade mark; or person for whom the goods are manufactured or services provided, as the (d) applies any false trade description to case may be, are without the indications goods or services; or so required, shall, unless he proves,-- (e) applies to any goods to which an (a) that, having taken all reasonable indication of the country or place in precautions against committing an which they were made or produced or offence against this section, he had at the name and address of the the time of commission of the alleged manufacturer or person for whom the offence no reason to suspect the goods are manufactured is required to genuineness of the trade mark or trade be applied under section 139, a false description or that any offence had indication of such country, place, name been committed in respect of the or address; or goods or services; or (f) tampers with, alters or effaces an (b) that, on demand by or on behalf of the indication of origin which has been prosecutor, he gave all the information applied to any goods to which it is in his power with respect to the person required to be applied under section from whom he obtained such goods or 139; or things or services; or

IPR ENFORCEMENT IPR ENFORCEMENT 10 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 11 S. No. Provision under the Definition of/ Punishment for the S. No. Provision under the Definition of/ Punishment for the Trade Marks Act Criminal Offence Trade Marks Act Criminal Offence (c) that otherwise he had acted offence has been committed with the innocently, shall be punishable with consent or connivance of, or that the Imprisonment for a term which shall not commission of the offence is be less than one year but which may attributable to any neglect on the part extend to three years and with fine which of, any director, manager, secretary or shall not be less than one lakh rupees but other officer of the company, such which may extend to two lakh rupees. director, manager, secretary or other officer shall also be deemed to be guilty 5. Section 105 Imprisonment for a term which shall not of that offence and shall be liable to be Enhanced Penalty on second be less than one year but which may proceeded against and punished or subsequent conviction extend to three years and with fine which accordingly. shall not be less than one lakh rupees but Explanation.--For the purposes of this which may extend to two lakh rupees section-- Provided that the court may, for adequate (a) "company" means any body and special reasons to be mentioned in corporate and includes a firm or the judgment, impose a sentence of other association of individuals; and imprisonment for a term of less than one (b) "director", in relation to a firm, year or a fine of less than one lakh rupees: means a partner in the firm. Provided further that for the purposes of this section, no cognizance shall be taken of any conviction made before the 5. Criminal Offenses under the Copyright Act, 1957 commencement of this Act. S. No. Offences under the Punishment 6. Section 114 1) If the person committing an offence Copyright Act Offences by Companies under this Act is a company, the 1. Section 63 Imprisonment for a term which shall not company as well as every person in Intentional infringement or be less than six months and may extend to charge of, and responsible to, the three years and with fine which shall not company for the conduct of its abetment of the infringement of the copyright in a work. be less than fifty thousand rupees but business at the time of the commission which may extend to two lakh rupees. of the offence shall be deemed to be guilty of the offence and shall be liable 2. Section 63A Imprisonment for a term which shall not to be proceeded against and punished be less than one year but which accordingly: Second and subsequent convictions may extend to three years and with fine Provided that nothing contained in this which shall not be less than one sub-section shall render any such lakh rupees but which may extend to two person liable to any punishment if he lakh rupees proves that the offence was committed without his knowledge or that he 3. Section 63B Imprisonment for a term which shall not exercised all due diligence to prevent be less than seven days but which may the commission of such offence. Knowing use of infringing copy of computer program extend to three years and with fine which (2) Notwithstanding anything contained in shall not be less than fifty thousand rupees sub-section (1), where an offence but which may extend to two lakh rupees. under this Act has been committed by a company and it is proved that the

IPR ENFORCEMENT IPR ENFORCEMENT 12 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 13 S. No. Provision under the Definition of/ Punishment for the S. No. Provision under the Definition of/ Punishment for the Trade Marks Act Criminal Offence Trade Marks Act Criminal Offence (c) that otherwise he had acted offence has been committed with the innocently, shall be punishable with consent or connivance of, or that the Imprisonment for a term which shall not commission of the offence is be less than one year but which may attributable to any neglect on the part extend to three years and with fine which of, any director, manager, secretary or shall not be less than one lakh rupees but other officer of the company, such which may extend to two lakh rupees. director, manager, secretary or other officer shall also be deemed to be guilty 5. Section 105 Imprisonment for a term which shall not of that offence and shall be liable to be Enhanced Penalty on second be less than one year but which may proceeded against and punished or subsequent conviction extend to three years and with fine which accordingly. shall not be less than one lakh rupees but Explanation.--For the purposes of this which may extend to two lakh rupees section-- Provided that the court may, for adequate (a) "company" means any body and special reasons to be mentioned in corporate and includes a firm or the judgment, impose a sentence of other association of individuals; and imprisonment for a term of less than one (b) "director", in relation to a firm, year or a fine of less than one lakh rupees: means a partner in the firm. Provided further that for the purposes of this section, no cognizance shall be taken of any conviction made before the 5. Criminal Offenses under the Copyright Act, 1957 commencement of this Act. S. No. Offences under the Punishment 6. Section 114 1) If the person committing an offence Copyright Act Offences by Companies under this Act is a company, the 1. Section 63 Imprisonment for a term which shall not company as well as every person in Intentional infringement or be less than six months and may extend to charge of, and responsible to, the three years and with fine which shall not company for the conduct of its abetment of the infringement of the copyright in a work. be less than fifty thousand rupees but business at the time of the commission which may extend to two lakh rupees. of the offence shall be deemed to be guilty of the offence and shall be liable 2. Section 63A Imprisonment for a term which shall not to be proceeded against and punished be less than one year but which accordingly: Second and subsequent convictions may extend to three years and with fine Provided that nothing contained in this which shall not be less than one sub-section shall render any such lakh rupees but which may extend to two person liable to any punishment if he lakh rupees proves that the offence was committed without his knowledge or that he 3. Section 63B Imprisonment for a term which shall not exercised all due diligence to prevent be less than seven days but which may the commission of such offence. Knowing use of infringing copy of computer program extend to three years and with fine which (2) Notwithstanding anything contained in shall not be less than fifty thousand rupees sub-section (1), where an offence but which may extend to two lakh rupees. under this Act has been committed by a company and it is proved that the

IPR ENFORCEMENT IPR ENFORCEMENT 12 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 13 S. No. Offences under the Punishment 6. Classification of Offences under the Code of Criminal Copyright Act Procedure, 1973: 4. Section 65 Imprisonment which may extend to two years and shall also be liable to fine. Possession of plates for Schedule 1 of the Code of Criminal Procedure, 1973 lays down the purpose of making infringing copies classification of the offences as cognizable or non-cognizable 5. Section 65A Imprisonment which may extend to two offences. IP Crimes fall under Part II of Schedule 1, which deals with Protection of technological years and shall also be liable to fine. “offences under other laws”. measures Offence Cognizable/Non- Bailable/Non- Court Triable 6. Section 65B Imprisonment which may extend to two Cognizable Bailable Protection of Rights years and shall also be liable to fine. Management Information If punishment with death, Cognizable Non-Bailable Court of imprisonment for life or session 7. Section 67 Imprisonment which may extend to one imprisonment for more than Penalty for making false entries year or with fine or both. 7 years in register for producing or tendering false entries If punishable for Cognizable Non-Bailable Magistrate of imprisonment for 3 years the first class 8. Section 68 Imprisonment which may extend to one and upwards but not more Penalty for making false year or with fine or both. than 7 years. statements for the purpose of deceiving or influencing any If punishable with Non-Cognizable Bailable Any Magistrate authority or officer imprisonment for less than 3 years or with fine only. 9. Section 68A Imprisonment which may extend to three Penalty for contravention of years and shall also be liable to fine. 7. Criminal offences under the Indian Penal Code, 1860 Section 52A (particulars to be included in Sound Recordings There are several offences under the Indian Penal Code, 1860 which and Video films) are in addition to the prescribed Trade Mark / Copyright offences and 10. Section 69 In case an offence under the Copyright Act which should be considered along with the IP crimes being registered Offences by Companies is committed by a company or a by enforcement agencies. Some of these are enumerated below: partnership firm, all directors, partners, managers, secretaries etc. who are responsible for the conduct of the Offence Punishment Nature of the Applicability business of the said company/partnership Offence firm shall be guilty of such offence along with the company/partnership firm as the Section 107: Abetment of a Section 109: Whether To any IP Crime case may be. However, such persons shall thing Punishment for Cognizable/ Bail- not be liable if they prove that they A person is said to be abetting abetment of a thing able will depend the doing of a thing if he: on the offence of exercised all due diligence to prevent the Whoever abets any l Instigates a person to do that offence shall be which there was commission of such offence or it was thing; punished with the a abetment committed without their knowledge. l Engages with one or more punishment provided other person or persons in for that offence.

IPR ENFORCEMENT IPR ENFORCEMENT 14 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 15 S. No. Offences under the Punishment 6. Classification of Offences under the Code of Criminal Copyright Act Procedure, 1973: 4. Section 65 Imprisonment which may extend to two years and shall also be liable to fine. Possession of plates for Schedule 1 of the Code of Criminal Procedure, 1973 lays down the purpose of making infringing copies classification of the offences as cognizable or non-cognizable 5. Section 65A Imprisonment which may extend to two offences. IP Crimes fall under Part II of Schedule 1, which deals with Protection of technological years and shall also be liable to fine. “offences under other laws”. measures Offence Cognizable/Non- Bailable/Non- Court Triable 6. Section 65B Imprisonment which may extend to two Cognizable Bailable Protection of Rights years and shall also be liable to fine. Management Information If punishment with death, Cognizable Non-Bailable Court of imprisonment for life or session 7. Section 67 Imprisonment which may extend to one imprisonment for more than Penalty for making false entries year or with fine or both. 7 years in register for producing or tendering false entries If punishable for Cognizable Non-Bailable Magistrate of imprisonment for 3 years the first class 8. Section 68 Imprisonment which may extend to one and upwards but not more Penalty for making false year or with fine or both. than 7 years. statements for the purpose of deceiving or influencing any If punishable with Non-Cognizable Bailable Any Magistrate authority or officer imprisonment for less than 3 years or with fine only. 9. Section 68A Imprisonment which may extend to three Penalty for contravention of years and shall also be liable to fine. 7. Criminal offences under the Indian Penal Code, 1860 Section 52A (particulars to be included in Sound Recordings There are several offences under the Indian Penal Code, 1860 which and Video films) are in addition to the prescribed Trade Mark / Copyright offences and 10. Section 69 In case an offence under the Copyright Act which should be considered along with the IP crimes being registered Offences by Companies is committed by a company or a by enforcement agencies. Some of these are enumerated below: partnership firm, all directors, partners, managers, secretaries etc. who are responsible for the conduct of the Offence Punishment Nature of the Applicability business of the said company/partnership Offence firm shall be guilty of such offence along with the company/partnership firm as the Section 107: Abetment of a Section 109: Whether To any IP Crime case may be. However, such persons shall thing Punishment for Cognizable/ Bail- not be liable if they prove that they A person is said to be abetting abetment of a thing able will depend the doing of a thing if he: on the offence of exercised all due diligence to prevent the Whoever abets any l Instigates a person to do that offence shall be which there was commission of such offence or it was thing; punished with the a abetment committed without their knowledge. l Engages with one or more punishment provided other person or persons in for that offence.

IPR ENFORCEMENT IPR ENFORCEMENT 14 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 15 Offence Punishment Nature of the Applicability Offence Punishment Nature of the Applicability Offence Offence

any conspiracy for the doing which he knows or has reason or with fine which of that thing, if an act or to believe to be false may extend to one illegal omission takes place thousand rupees, or in pursuance of that with both; or, if the conspiracy, and in order to information which he the doing of that thing; or is legally bound to l Intentionally aids, by any act give respects the or illegal omission, the doing commission of an of that thing offence, or is required for the purpose of Section 120A: Definition of Section 120B: Whether To any IP Crime preventing the criminal conspiracy Punishment for Cognizable/ Bail- commission of an When two or more persons criminal conspiracy able will depend offence, or in order to agree to do or cause to be done l Whoever is a party on the offence of the apprehension of and illegal act or an act which is to a criminal which there was an offender, with not illegal but is done by illegal conspiracy to a criminal imprisonment of means, such an agreement is commit an offence conspiracy either description for designated as a criminal punishable with a term which may conspiracy. death, extend to two years, [imprisonment for or with fine, or with life] or rigorous both. imprisonment for a term of two years Section 204: Destruction of Section 204: Non-Cognizable To any IP Crime or upwards, shall, document to prevent its Punishment for and Bailable where no express production as evidence destruction of provision is made in Whoever secretes or destroys document to prevent this Code for the any [document or electronic its production as punishment of such record] which he may be evidence a conspiracy, be lawfully compelled to produce Imprisonment of punished in the as evidence in a Court of either description for same manner as if Justice, or in any proceeding a term which may he had abetted lawfully held before a public extend to two years, such offence. servant, as such, or obliterates or with fine, or with l A party to a or renders illegible the whole both. criminal conspiracy or any part of such [document other than for the or electronic record] with the offences mentioned intention of preventing the above shall be same from being produced or punished with a an used as evidence before such imprisonment of six Court or public servant as months, fine or aforesaid, or after he shall have both been lawfully summoned or required to produce the same Section 177: Furnishing false Section 177: Non-Cognizable To any IP Crime for that purpose. information Punishment for and Bailable Section 206: Fraudulent Section 206: Non-Cognizable To any IP Crime Whoever, being legally bound furnishing false removal or concealment of Punishment for and Bailable to furnish information on any information property to prevent its seizure fraudulent removal or subject to any public servant, Imprisonment for a Whoever fraudulently removes, concealment of as such, furnishes, as true, term which may conceals, transfers or delivers property to prevent information on the subject extend to six months, its seizure

IPR ENFORCEMENT IPR ENFORCEMENT 16 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 17 Offence Punishment Nature of the Applicability Offence Punishment Nature of the Applicability Offence Offence any conspiracy for the doing which he knows or has reason or with fine which of that thing, if an act or to believe to be false may extend to one illegal omission takes place thousand rupees, or in pursuance of that with both; or, if the conspiracy, and in order to information which he the doing of that thing; or is legally bound to l Intentionally aids, by any act give respects the or illegal omission, the doing commission of an of that thing offence, or is required for the purpose of Section 120A: Definition of Section 120B: Whether To any IP Crime preventing the criminal conspiracy Punishment for Cognizable/ Bail- commission of an When two or more persons criminal conspiracy able will depend offence, or in order to agree to do or cause to be done l Whoever is a party on the offence of the apprehension of and illegal act or an act which is to a criminal which there was an offender, with not illegal but is done by illegal conspiracy to a criminal imprisonment of means, such an agreement is commit an offence conspiracy either description for designated as a criminal punishable with a term which may conspiracy. death, extend to two years, [imprisonment for or with fine, or with life] or rigorous both. imprisonment for a term of two years Section 204: Destruction of Section 204: Non-Cognizable To any IP Crime or upwards, shall, document to prevent its Punishment for and Bailable where no express production as evidence destruction of provision is made in Whoever secretes or destroys document to prevent this Code for the any [document or electronic its production as punishment of such record] which he may be evidence a conspiracy, be lawfully compelled to produce Imprisonment of punished in the as evidence in a Court of either description for same manner as if Justice, or in any proceeding a term which may he had abetted lawfully held before a public extend to two years, such offence. servant, as such, or obliterates or with fine, or with l A party to a or renders illegible the whole both. criminal conspiracy or any part of such [document other than for the or electronic record] with the offences mentioned intention of preventing the above shall be same from being produced or punished with a an used as evidence before such imprisonment of six Court or public servant as months, fine or aforesaid, or after he shall have both been lawfully summoned or required to produce the same Section 177: Furnishing false Section 177: Non-Cognizable To any IP Crime for that purpose. information Punishment for and Bailable Section 206: Fraudulent Section 206: Non-Cognizable To any IP Crime Whoever, being legally bound furnishing false removal or concealment of Punishment for and Bailable to furnish information on any information property to prevent its seizure fraudulent removal or subject to any public servant, Imprisonment for a Whoever fraudulently removes, concealment of as such, furnishes, as true, term which may conceals, transfers or delivers property to prevent information on the subject extend to six months, its seizure

IPR ENFORCEMENT IPR ENFORCEMENT 16 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 17 Offence Punishment Nature of the Applicability Offence Punishment Nature of the Applicability Offence Offence

to any person any property or Imprisonment of the mode in which such trust is IPTV) Service any interest therein, intending either description for to be discharged, or of any legal Provider, under a thereby to prevent that a term which may contract, express or implied, legal contract property or interest therein extend to two years, which he has made touching which lays down from being taken as a forfeiture or with fine, or with the discharge of such trust, or the terms of or in satisfaction of a fine, both. wilfully suffers any other exploitation of under a sentence which has person so to do, commits the signals such been pronounced, or which he 'criminal breach of trust as authorized knows to be likely to be area and pronounced, by a Court of authorized mode. Justice or other competent Any authority, or from being taken retransmission of in execution of a decree or signals in breach order which has been made, or of such terms will which he knows to be likely to amount to be made by a Court of Justice in criminal breach a civil suit of trust. Section 378: Theft Section 379: Cognizable and Applicable only in Section 409: * A merchant is a Whoever, intending to take Punishment for theft Non-Bailable, relation to Criminal Breach of person who buys dishonestly any moveable Non - Television Signal Imprisonment of Trust by Public in whole sale and property out of the possession compoundable Piracy by either description for Servant, or by Banker, sells in retail. of any person without that per- Distribution a term which may Merchant* or Agent Since a cable son's consent, moves that Platforms such as extend to three years, operator takes property in order to such Cable/ DTH/ HITS Whoever, being in any or with fine, or with signals of TV taking, is said to commit theft. / IPTV Service manner entrusted both. channels in whole Provider as the with property, or with sale from the Cable Signals that any dominion over Broadcaster(s) are pirated are property in his and sells in retail the original capacity of a public to subscribers/ signals deemed servant or in the way consumers falls to be in the of his business as a within the possession of the banker, merchant, definition of owner of the factor, broker, merchant signals as against attorney or agent, other industries commits criminal ** in case of where it is breach of trust in continued piracy counterfeiting respect of that despite and/or copying. property, shall be registration of FIR punished with and raid, the Section 405: Criminal Breach of Section 406: Cognizable and Applicable only to [imprisonment for Police may use its Trust Punishment for Non-Bailable, piracy of life], or with powers under Whoever, being in any manner Criminal breach of Non- Television signals imprisonment of 41(1)(a) and(b), entrusted with property, or trust Compoundable as there is an either description for 140 and 151 to with any dominion over Imprisonment of entrustment of a term which may prevent the property, dishonestly either description for signals of TV extend to ten years, commission of misappropriates or converts to a term which may channels by and shall also be the cognizable his own use that property, or extend to three years, broadcaster to liable to fine** offence of cable dishonestly uses or disposes of or with fine, or with Distribution piracy. that property in violation of both Platform any direction of law prescribing (Cable/DTH/HITS/

IPR ENFORCEMENT IPR ENFORCEMENT 18 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 19 Offence Punishment Nature of the Applicability Offence Punishment Nature of the Applicability Offence Offence to any person any property or Imprisonment of the mode in which such trust is IPTV) Service any interest therein, intending either description for to be discharged, or of any legal Provider, under a thereby to prevent that a term which may contract, express or implied, legal contract property or interest therein extend to two years, which he has made touching which lays down from being taken as a forfeiture or with fine, or with the discharge of such trust, or the terms of or in satisfaction of a fine, both. wilfully suffers any other exploitation of under a sentence which has person so to do, commits the signals such been pronounced, or which he 'criminal breach of trust as authorized knows to be likely to be area and pronounced, by a Court of authorized mode. Justice or other competent Any authority, or from being taken retransmission of in execution of a decree or signals in breach order which has been made, or of such terms will which he knows to be likely to amount to be made by a Court of Justice in criminal breach a civil suit of trust. Section 378: Theft Section 379: Cognizable and Applicable only in Section 409: * A merchant is a Whoever, intending to take Punishment for theft Non-Bailable, relation to Criminal Breach of person who buys dishonestly any moveable Non - Television Signal Imprisonment of Trust by Public in whole sale and property out of the possession compoundable Piracy by either description for Servant, or by Banker, sells in retail. of any person without that per- Distribution a term which may Merchant* or Agent Since a cable son's consent, moves that Platforms such as extend to three years, operator takes property in order to such Cable/ DTH/ HITS Whoever, being in any or with fine, or with signals of TV taking, is said to commit theft. / IPTV Service manner entrusted both. channels in whole Provider as the with property, or with sale from the Cable Signals that any dominion over Broadcaster(s) are pirated are property in his and sells in retail the original capacity of a public to subscribers/ signals deemed servant or in the way consumers falls to be in the of his business as a within the possession of the banker, merchant, definition of owner of the factor, broker, merchant signals as against attorney or agent, other industries commits criminal ** in case of where it is breach of trust in continued piracy counterfeiting respect of that despite and/or copying. property, shall be registration of FIR punished with and raid, the Section 405: Criminal Breach of Section 406: Cognizable and Applicable only to [imprisonment for Police may use its Trust Punishment for Non-Bailable, piracy of life], or with powers under Whoever, being in any manner Criminal breach of Non- Television signals imprisonment of 41(1)(a) and(b), entrusted with property, or trust Compoundable as there is an either description for 140 and 151 to with any dominion over Imprisonment of entrustment of a term which may prevent the property, dishonestly either description for signals of TV extend to ten years, commission of misappropriates or converts to a term which may channels by and shall also be the cognizable his own use that property, or extend to three years, broadcaster to liable to fine** offence of cable dishonestly uses or disposes of or with fine, or with Distribution piracy. that property in violation of both Platform any direction of law prescribing (Cable/DTH/HITS/

IPR ENFORCEMENT IPR ENFORCEMENT 18 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 19 Offence Punishment Nature of the Applicability Offence Punishment Nature of the Applicability Offence Offence

Section 420: Cheating and Section 420: Cognizable and To any IP Crime package or other with fine, or with dishonestly inducing delivery of Punishment for Non-Bailable, receptacle having any mark both property cheating and Non – thereon, in a manner Whoever cheats and thereby dishonestly inducing compoundable reasonably calculated to cause dishonestly induces the person delivery of property it to be believed that the property or goods so marked, deceived to deliver any Imprisonment of or any property or property to any person, or to either description for goods contained in any such make, alter or destroy the a term which may receptacle so marked, belong whole or any part of a valuable extend to seven years, to a person to whom security, or anything which is and shall also be they do not belong, is said to signed or sealed, and which is liable to fine. capable of being converted into use a false property mark. a valuable security. Section 483: Counterfeiting a Section 483: Non-Cognizable, Applicable to Section 468: Forgery for the Section 468: Cognizable and To any IP Crime property mark used by another Punishment for Bailable, Trademark Compoundable offences purpose of cheating Punishment for Non-Bailable, Whoever counterfeits any counterfeiting a Whoever commits forgery, forgery for the Non – property mark used by any property mark used intending that the [document purpose of cheating compoundable other person by another Imprisonment of or electronic record forged] Imprisonment of either description for shall be used for the purpose of either description for a term which may cheating. a term which may extend to two years, extend to seven years, or with fine, or with and shall also be both. liable to fine. Section 471: Using a genuine Section 471: Cognizable and To any IP Crime Section 484: Counterfeiting a Section 484: Bailable, Non- Applicable to forged document Punishment for using Bailable, Non – mark used by a public servant: Punishment for Cognizable, Non- Trademark Whoever fraudulently or a genuine forged compoundable Whoever counterfeits any counterfeiting a mark Compoundable offences dishonestly uses as genuine any document property mark used by a public used by a public [document or electronic record] Punishment in the servant, or any mark used by a servant which he knows or has reason same manner as if he public servant to denote that Imprisonment of to believe to be a forged had forged such any property has been either description for [document or electronic record] document or manufactured by a particular a term which may electronic record, person or at a particular time extend to three years, which is or place, or that the property is and shall also be Imprisonment of of a particular quality of has liable to fine. either description for passed through a particular a term which may office, or that it is entitled to extend to seven years, any exemption, or uses as and shall also be genuine any such mark liable to fine as per knowing the same to be Section 468. counterfeited.

Section 481: Using a false Section 482: Non- Cognizable, Applicable to Section 485: Making or Section 485: Bailable, Non- Applicable to property mark Punishment for using Bailable, Trademark possession of any instrument Punishment for Cognizable, Non- Trademark Whoever marks any moveable a false property mark compoundable offences for counterfeiting a property making or possession Compoundable offences property or goods or any case, Imprisonment of mark of any instrument for package or other receptacle either description for Whoever makes or has in his counterfeiting a containing moveable property a term which may possession any die, plate or property mark or goods, or uses any case, extend to one year, or other instrument for the

IPR ENFORCEMENT IPR ENFORCEMENT 20 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 21 Offence Punishment Nature of the Applicability Offence Punishment Nature of the Applicability Offence Offence

purpose of counterfeiting a Imprisonment of Section 489: Tempering with Section 489: Bailable, Non- Applicable to property mark, or has in his either description for property mark with intent to Punishment for Cognizable, Non- Trademark possession a property mark for a term which may cause injury tempering with Compoundable offences the purpose of denoting that extend to three years Whoever removes, destroys, property mark with any goods belong to a person or with fine, or with defaces or adds to any property intent to cause injury to whom they do not belong both. mark, intending or knowing it Imprisonment of Section 486: Selling goods Section 486: Bailable, Non- Applicable to to be likely that he may thereby either description for marked with a counterfeit Punishment for selling Cognizable, Trademark cause injury to any person a term which may property mark goods with a Compoundable offences extend to one year, or Whoever sells, or exposes, or counterfeit property with fine, or with has in possession for sale, any mark both. goods or things with a Imprisonment of The Police has no powers for site-blocking. This can only be done through an order of the counterfeit property mark] either description for competent Court. affixed to or impressed upon a term which may the same to or upon any case, extend to one year, or package or other receptacle in with fine, or with 8. Search and Seizure Power of Police in IP Crimes which such goods are contained both. Section 487: Making a false Section 487: Bailable, Non- Applicable to S. No Name of the Provision Seizure Powers of Police Statute mark upon any receptacle Punishment for Cognizable, Non- Trademark containing goods making a false males Compoundable offences Whoever makes any false mark mark upon any 1. Trade Marks Act, Section 115 (4) l Any police officer not below the rank of upon any case, package or receptacle containing 1999 Cognizance of deputy superintendent of police or other receptacle containing goods certain offences equivalent, may, if he is satisfied that any goods, in a manner reasonably Imprisonment of and the powers of the offences referred to in sub-section calculated to cause any public either description for of police officer (3) has been, is being, or is likely to be, servant or any other person to a term which may for search and committed, search and seize without believe that such receptacle extend to three years, seizure warrant the goods, die, block, machine, contains goods which it does or with fine, or with plate, other instruments or things involved not contain or that it does not both in committing the offence, wherever contain goods which it does found, and all the articles so seized shall, as contain, or that the goods soon as practicable, be produced before a contained in such receptacle Judicial Magistrate of the first class or are of a nature or quality Metropolitan Magistrate, as the case may different from the real nature be: or quality thereof, shall, unless l Provided that the police officer, before he proves that he acted making any search and seizure, shall obtain without intent to defraud the opinion of the Registrar on facts involved in the offence relating to trade Section 488: Punishment for Section 488: Bailable, Non- Applicable to mark and shall abide by the opinion so making use of any such false Punishment for Cognizable, Non- Trademark obtained. mark making use of any Compoundable offences Whoever makes use of any such false mark 2. Copyright Act, Section 64 l Where a magistrate has taken cognizance 1957 Power of police of any offence under section 63 in respect such false mark in any manner Imprisonment of to seize infringing of the infringement of copyright in any prohibited by the last foregoing either description for copies work, it shall be lawful for any police section shall, unless he proves a term which may officer, not below the rank of sub- that he acted without intent to extend to three years, inspector, to seize without any warrant defraud, be punished as if he or with fine, or with from the magistrate, all copies of the work had committed an offence both against that section. wherever found, which appear to him to

IPR ENFORCEMENT IPR ENFORCEMENT 22 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 23 Offence Punishment Nature of the Applicability Offence Punishment Nature of the Applicability Offence Offence purpose of counterfeiting a Imprisonment of Section 489: Tempering with Section 489: Bailable, Non- Applicable to property mark, or has in his either description for property mark with intent to Punishment for Cognizable, Non- Trademark possession a property mark for a term which may cause injury tempering with Compoundable offences the purpose of denoting that extend to three years Whoever removes, destroys, property mark with any goods belong to a person or with fine, or with defaces or adds to any property intent to cause injury to whom they do not belong both. mark, intending or knowing it Imprisonment of Section 486: Selling goods Section 486: Bailable, Non- Applicable to to be likely that he may thereby either description for marked with a counterfeit Punishment for selling Cognizable, Trademark cause injury to any person a term which may property mark goods with a Compoundable offences extend to one year, or Whoever sells, or exposes, or counterfeit property with fine, or with has in possession for sale, any mark both. goods or things with a Imprisonment of The Police has no powers for site-blocking. This can only be done through an order of the counterfeit property mark] either description for competent Court. affixed to or impressed upon a term which may the same to or upon any case, extend to one year, or package or other receptacle in with fine, or with 8. Search and Seizure Power of Police in IP Crimes which such goods are contained both. Section 487: Making a false Section 487: Bailable, Non- Applicable to S. No Name of the Provision Seizure Powers of Police Statute mark upon any receptacle Punishment for Cognizable, Non- Trademark containing goods making a false males Compoundable offences Whoever makes any false mark mark upon any 1. Trade Marks Act, Section 115 (4) l Any police officer not below the rank of upon any case, package or receptacle containing 1999 Cognizance of deputy superintendent of police or other receptacle containing goods certain offences equivalent, may, if he is satisfied that any goods, in a manner reasonably Imprisonment of and the powers of the offences referred to in sub-section calculated to cause any public either description for of police officer (3) has been, is being, or is likely to be, servant or any other person to a term which may for search and committed, search and seize without believe that such receptacle extend to three years, seizure warrant the goods, die, block, machine, contains goods which it does or with fine, or with plate, other instruments or things involved not contain or that it does not both in committing the offence, wherever contain goods which it does found, and all the articles so seized shall, as contain, or that the goods soon as practicable, be produced before a contained in such receptacle Judicial Magistrate of the first class or are of a nature or quality Metropolitan Magistrate, as the case may different from the real nature be: or quality thereof, shall, unless l Provided that the police officer, before he proves that he acted making any search and seizure, shall obtain without intent to defraud the opinion of the Registrar on facts involved in the offence relating to trade Section 488: Punishment for Section 488: Bailable, Non- Applicable to mark and shall abide by the opinion so making use of any such false Punishment for Cognizable, Non- Trademark obtained. mark making use of any Compoundable offences Whoever makes use of any such false mark 2. Copyright Act, Section 64 l Where a magistrate has taken cognizance 1957 Power of police of any offence under section 63 in respect such false mark in any manner Imprisonment of to seize infringing of the infringement of copyright in any prohibited by the last foregoing either description for copies work, it shall be lawful for any police section shall, unless he proves a term which may officer, not below the rank of sub- that he acted without intent to extend to three years, inspector, to seize without any warrant defraud, be punished as if he or with fine, or with from the magistrate, all copies of the work had committed an offence both against that section. wherever found, which appear to him to

IPR ENFORCEMENT IPR ENFORCEMENT 22 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 23 S. No Name of the Provision Seizure Powers of Police S. No Name of the Provision Seizure Powers of Police Statute Statute

be infringing copies of the work and all be infringing copies of the work and all copies so seized shall, as soon as copies so seized shall, as soon as practicable, be produced before the practicable, be produced before the magistrate. magistrate. l Any person having an interest in any copies l Any person having an interest in any copies of a work seized under sub-section (1) may, of a work seized under sub-section (1) may, within fifteen days of such seizure, make within fifteen days of such seizure, make an application to the magistrate for such an application to the magistrate for such copies being restored to him and the copies being restored to him and the magistrate, after hearing the applicant and magistrate, after hearing the applicant and the complainant and making such further the complainant and making such further inquiry as may be necessary, shall make inquiry as may be necessary, shall make such order on the application as he may such order on the application as he may deed fit. deed fit. 3. The Code of Section 41 (1) Any police officer may without an order Section 140 Every police officer may interpose for the Power of purpose of preventing, and shall, to the best of Criminal When police may from a Magistrate and without a warrant, Magistrate to his ability, prevent, the commission of any Procedure, 1973 arrest without arrest any person- furnish written cognizable offence. warrant (a) Who commits, in the presence of a police officer, a cognizable offence; instructions, etc. - Since television (b) against whom a reasonable complaint has - Police to prevent channel piracy been made, or credible information has cognizable is usually a been received, or a reasonable suspicion offences continuing exists, that he has committed a cognizable offence it offence punishable with imprisonment for a Section 151 CrPC A police officer knowing of a design to commit becomes term which may be less than seven years or Arrest to prevent any cognizable offence may arrest, without necessary to which may extend to seven years whether the commission of orders from a Magistrate and without a arrest the with or without or without fine, if the cognizable warrant, the person so designing, if it appears accuse and stop following conditions are satisfied, namely:- offences to such officer that the commission of the the commission (i) The police officer has reason to believe on offence cannot be otherwise prevented. of cognizable the basis of such complaint, information, or offence suspicion that such person has committed Section 165 Whenever an officer in charge of a police the said offence; Search by Police station or a police officer making an (ii) The Police officer is satisfied that such arrest Officer investigation has reasonable grounds for is necessary believing that anything necessary for the (a) To prevent such person from committing purposes of an investigation into any offence any further offence; or which he is authorised to investigate may be (b) For proper investigation of the offence; or found in any place with the limits of the police (c) To prevent such person from causing the station of which he is in charge, or to which he evidence of the offence to disappear or is attached, and that such thing cannot in his tampering with such evidence in any opinion be otherwise obtained without undue manner; or delay, such officer may, after recording in (d) To prevent such person from making any writing the grounds of his belief and specifying inducement, threat or promise to any in such writing, so far as possible, the thing for person acquainted with the facts of the which search is to be made, search, or cause case so to dissuade him from closing such search to be made, for such thing in any place facts to the court or to the police office; or within the limits of such station. (e) As unless such person is arrested, his 2. A police officer proceeding under sub- presence in the court whenever required cannot be ensured; and the police officer section (1), shall, if practicable, conduct the shall record while making such arrest, his search in person - If he is unable to conduct reason in writing the search in person, and there is no other

IPR ENFORCEMENT IPR ENFORCEMENT 24 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 25 S. No Name of the Provision Seizure Powers of Police S. No Name of the Provision Seizure Powers of Police Statute Statute be infringing copies of the work and all be infringing copies of the work and all copies so seized shall, as soon as copies so seized shall, as soon as practicable, be produced before the practicable, be produced before the magistrate. magistrate. l Any person having an interest in any copies l Any person having an interest in any copies of a work seized under sub-section (1) may, of a work seized under sub-section (1) may, within fifteen days of such seizure, make within fifteen days of such seizure, make an application to the magistrate for such an application to the magistrate for such copies being restored to him and the copies being restored to him and the magistrate, after hearing the applicant and magistrate, after hearing the applicant and the complainant and making such further the complainant and making such further inquiry as may be necessary, shall make inquiry as may be necessary, shall make such order on the application as he may such order on the application as he may deed fit. deed fit. 3. The Code of Section 41 (1) Any police officer may without an order Section 140 Every police officer may interpose for the Power of purpose of preventing, and shall, to the best of Criminal When police may from a Magistrate and without a warrant, Magistrate to his ability, prevent, the commission of any Procedure, 1973 arrest without arrest any person- furnish written cognizable offence. warrant (a) Who commits, in the presence of a police officer, a cognizable offence; instructions, etc. - Since television (b) against whom a reasonable complaint has - Police to prevent channel piracy been made, or credible information has cognizable is usually a been received, or a reasonable suspicion offences continuing exists, that he has committed a cognizable offence it offence punishable with imprisonment for a Section 151 CrPC A police officer knowing of a design to commit becomes term which may be less than seven years or Arrest to prevent any cognizable offence may arrest, without necessary to which may extend to seven years whether the commission of orders from a Magistrate and without a arrest the with or without or without fine, if the cognizable warrant, the person so designing, if it appears accuse and stop following conditions are satisfied, namely:- offences to such officer that the commission of the the commission (i) The police officer has reason to believe on offence cannot be otherwise prevented. of cognizable the basis of such complaint, information, or offence suspicion that such person has committed Section 165 Whenever an officer in charge of a police the said offence; Search by Police station or a police officer making an (ii) The Police officer is satisfied that such arrest Officer investigation has reasonable grounds for is necessary believing that anything necessary for the (a) To prevent such person from committing purposes of an investigation into any offence any further offence; or which he is authorised to investigate may be (b) For proper investigation of the offence; or found in any place with the limits of the police (c) To prevent such person from causing the station of which he is in charge, or to which he evidence of the offence to disappear or is attached, and that such thing cannot in his tampering with such evidence in any opinion be otherwise obtained without undue manner; or delay, such officer may, after recording in (d) To prevent such person from making any writing the grounds of his belief and specifying inducement, threat or promise to any in such writing, so far as possible, the thing for person acquainted with the facts of the which search is to be made, search, or cause case so to dissuade him from closing such search to be made, for such thing in any place facts to the court or to the police office; or within the limits of such station. (e) As unless such person is arrested, his 2. A police officer proceeding under sub- presence in the court whenever required cannot be ensured; and the police officer section (1), shall, if practicable, conduct the shall record while making such arrest, his search in person - If he is unable to conduct reason in writing the search in person, and there is no other

IPR ENFORCEMENT IPR ENFORCEMENT 24 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 25 S. No Name of the Provision Seizure Powers of Police S. No Name of the Provision Seizure Powers of Police Statute Statute

person competent to make the search 4. The Cable Section 11 Section 11 present at the time, he may, after recording Television Power to seize • If any authorized officer has reason to in writing his reasons for so doing, require Networks equipment used believe that provisions of section 3, section any officer subordinate to him to make the (Regulations) Act, for operating the 4A, Section 5, Section 6, section 8, section search, and he shall deliver to such 1995 cable television 9, section 10 have been or are being subordinate officer an order in writing, network contravened by any cable operator, he may specifying the place to be searched, and so seize the equipment being used by such far as possible, the thing for which search is cable operator for opening the Cable to be made; and such subordinate officer Television Network may thereupon search for such thing in such place. • Provided that the seizure of equipment in 3. The provisions of this Code as to search- case of contravention of section 5 and 6 warrants and the general provisions as to shall be limited to the programming service searches contained in section 100 shall, so provided on the channel generated at the far as may be, apply to a search made level of cable operator under this section. Section 12 Section 12 4. Copies of any record made under sub- Confiscation The equipment seized under sub-section (1) section (1) or sub- section (3) Shall of section 11 shall be liable to confiscation forthwith be sent to the nearest Magistrate unless the cable operator from whom the empowered to take cognizance of the equipment has been seized registers himself as offence, and the owner or occupier of the a cable operator under section 4 within a place searched shall, on application, be period of thirty days from the date of seizure furnished, free of cost, with a copy of the of the said equipment same by the Magistrate. 5. Information Section 76 Section 76 Section 181 3) Any offence of theft*, extortion or robbery Technology Act, Confiscation Any computer, computer system, floppies, Place of trial in may be inquired into or tried by a Court 2000 compact disks, tape drives or any other case of certain within whose local jurisdiction the offence accessories related thereto, in respect of offences. was committed or the stolen property which which any provision of this Act. rules, orders or is the subject of the offence was possessed regulations made thereunder has been or is by any person committing it or by any being contravened, shall be liable to person who received or retained such confiscation property knowing or having reason to relieve it to be stolen property. Section 77 Section 77 (4) Any offence of criminal misappropriation or Penalties or No penalty imposed or confiscation made of criminal** breach of trust may be confiscation not under this Act shall prevent the imposition of inquired into or tried by a Court within to interfere with any other punishment to which the person whose local jurisdiction the offence was other affected thereby is liable under any other law committed or any part of the property punishments for the time being in force. which is the subject of the offence was received or retained, or was required to be Section 78 Section 78 returned or accounted for, by the accused Power to person. Notwithstanding anything contained in the investigate *Piracy of TV channels by an unauthorised Code of Criminal Procedure, 1973, a police offences cable operator in theft officer not below the rank of Deputy Superintendent of Police shall investigate any ** Piracy by authorised cable operator is offence under this Act. criminal breach of trust of TV channels

IPR ENFORCEMENT IPR ENFORCEMENT 26 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 27 S. No Name of the Provision Seizure Powers of Police S. No Name of the Provision Seizure Powers of Police Statute Statute person competent to make the search 4. The Cable Section 11 Section 11 present at the time, he may, after recording Television Power to seize • If any authorized officer has reason to in writing his reasons for so doing, require Networks equipment used believe that provisions of section 3, section any officer subordinate to him to make the (Regulations) Act, for operating the 4A, Section 5, Section 6, section 8, section search, and he shall deliver to such 1995 cable television 9, section 10 have been or are being subordinate officer an order in writing, network contravened by any cable operator, he may specifying the place to be searched, and so seize the equipment being used by such far as possible, the thing for which search is cable operator for opening the Cable to be made; and such subordinate officer Television Network may thereupon search for such thing in such place. • Provided that the seizure of equipment in 3. The provisions of this Code as to search- case of contravention of section 5 and 6 warrants and the general provisions as to shall be limited to the programming service searches contained in section 100 shall, so provided on the channel generated at the far as may be, apply to a search made level of cable operator under this section. Section 12 Section 12 4. Copies of any record made under sub- Confiscation The equipment seized under sub-section (1) section (1) or sub- section (3) Shall of section 11 shall be liable to confiscation forthwith be sent to the nearest Magistrate unless the cable operator from whom the empowered to take cognizance of the equipment has been seized registers himself as offence, and the owner or occupier of the a cable operator under section 4 within a place searched shall, on application, be period of thirty days from the date of seizure furnished, free of cost, with a copy of the of the said equipment same by the Magistrate. 5. Information Section 76 Section 76 Section 181 3) Any offence of theft*, extortion or robbery Technology Act, Confiscation Any computer, computer system, floppies, Place of trial in may be inquired into or tried by a Court 2000 compact disks, tape drives or any other case of certain within whose local jurisdiction the offence accessories related thereto, in respect of offences. was committed or the stolen property which which any provision of this Act. rules, orders or is the subject of the offence was possessed regulations made thereunder has been or is by any person committing it or by any being contravened, shall be liable to person who received or retained such confiscation property knowing or having reason to relieve it to be stolen property. Section 77 Section 77 (4) Any offence of criminal misappropriation or Penalties or No penalty imposed or confiscation made of criminal** breach of trust may be confiscation not under this Act shall prevent the imposition of inquired into or tried by a Court within to interfere with any other punishment to which the person whose local jurisdiction the offence was other affected thereby is liable under any other law committed or any part of the property punishments for the time being in force. which is the subject of the offence was received or retained, or was required to be Section 78 Section 78 returned or accounted for, by the accused Power to person. Notwithstanding anything contained in the investigate *Piracy of TV channels by an unauthorised Code of Criminal Procedure, 1973, a police offences cable operator in theft officer not below the rank of Deputy Superintendent of Police shall investigate any ** Piracy by authorised cable operator is offence under this Act. criminal breach of trust of TV channels

IPR ENFORCEMENT IPR ENFORCEMENT 26 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 27 S. No Name of the Provision Seizure Powers of Police Statute Chapter 2 GENERAL GUIDELINES FOR SEARCH AND SEIZURE 6. Customs Act, 19623 Section 11 Section 11 Power to prohibit • The Section 11 of the Customs Act, 1962 importation or enables Customs authority to prohibit exportation of either absolutely or subject to such goods conditions (to be fulfilled before or after clearance) as may be specified in the 1) Immediate or expeditious execution of search and seizure action is notification, the import or export of goods imperative to effectively address piracy. Given the covert nature of of any specified description. • Section 11 (2) (n); the protection of piracy, acting immediately on information on piracy is critical and patents, trademarks, copyrights, designs any delay will likely defeat the purpose; and geographical indications 7. Cinematograph Section 7A Section 7A 2) In all types of arrest, search and seizure, the provisions of the Act, 1952 Power of Seizure • Where a film in respect of which no Criminal Procedure Code read with section 115 of Trademark Act, certificate has been granted under this Act is exhibited, or a film certified as suitable 1999 or any other specific provision as the case may be and the for public exhibition restricted to adults is exhibited to any person who is not an adult precautions pronounced by the Hon'ble Court must be followed to or a film is exhibited in contravention of avoid the procedural lacunae. any of the other provisions contained in this Act or of any order made by the Central Government or the Board in the 3) Search or seizure at any premises shall be conducted only by an exercise of any of the powers conferred on it, any police officer may enter any place in officer of the rank not below the Deputy Superintendent of Police or which he has reason to believe that the with relevant authority under him; film has been or is being or is likely to be exhibited, search it and seize the film. • The search is to be carried out as per the 4) The concerned police officer conducting the search and seizure shall relevant provisions of CrPc. exercise all powers available to the police to effectuate the search and seizure including lock breaking powers;

5) Search/seizure shall be conducted as per prescribed procedure and reasons for doing so by the concerned police officer as informed by 3 In order to efficiently control the import of infringing goods, the Intellectual Property the contents of complaint made by complainant; Rights (Imported Goods) Enforcement Rules, 2007 were introduced. Under these Rules, an application along with a general bond and an indemnity bond need to be submitted by the 6) Search and Seizure actions should be conducted in premises copyright holder with the customs authorities. Once the application is fixed, a Unique Permanent Registration Number (UPRN) number is allotted to the copyright holder which identified by the complainant as well as at any other premises is valid for a period of 5 years. On his satisfaction as to the ownership of rights in such subsequently identified during course of investigation and action; goods, the Commissioner has the power to detain such goods. It should be noted that the Commissioner has the power to release all such detained goods (in the event of a 7) Police officers shall seek to secure the presence of the owner of the challenge against the detention by the importer) if the right-holder does not produce before him, any order from a Court of competent jurisdiction as to the temporary or entity/shop/house premises, employees and official panch permanent disposal of the detained goods within fourteen days from the date on which witnesses at the time of conducting such search/seizure and also the goods were detained obtain the signatures of the owner of the shop, the landlord of the

IPR ENFORCEMENT IPR ENFORCEMENT 28 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 29 S. No Name of the Provision Seizure Powers of Police Statute Chapter 2 GENERAL GUIDELINES FOR SEARCH AND SEIZURE 6. Customs Act, 19623 Section 11 Section 11 Power to prohibit • The Section 11 of the Customs Act, 1962 importation or enables Customs authority to prohibit exportation of either absolutely or subject to such goods conditions (to be fulfilled before or after clearance) as may be specified in the 1) Immediate or expeditious execution of search and seizure action is notification, the import or export of goods imperative to effectively address piracy. Given the covert nature of of any specified description. • Section 11 (2) (n); the protection of piracy, acting immediately on information on piracy is critical and patents, trademarks, copyrights, designs any delay will likely defeat the purpose; and geographical indications 7. Cinematograph Section 7A Section 7A 2) In all types of arrest, search and seizure, the provisions of the Act, 1952 Power of Seizure • Where a film in respect of which no Criminal Procedure Code read with section 115 of Trademark Act, certificate has been granted under this Act is exhibited, or a film certified as suitable 1999 or any other specific provision as the case may be and the for public exhibition restricted to adults is exhibited to any person who is not an adult precautions pronounced by the Hon'ble Court must be followed to or a film is exhibited in contravention of avoid the procedural lacunae. any of the other provisions contained in this Act or of any order made by the Central Government or the Board in the 3) Search or seizure at any premises shall be conducted only by an exercise of any of the powers conferred on it, any police officer may enter any place in officer of the rank not below the Deputy Superintendent of Police or which he has reason to believe that the with relevant authority under him; film has been or is being or is likely to be exhibited, search it and seize the film. • The search is to be carried out as per the 4) The concerned police officer conducting the search and seizure shall relevant provisions of CrPc. exercise all powers available to the police to effectuate the search and seizure including lock breaking powers;

IPR ENFORCEMENT IPR ENFORCEMENT 28 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 29 premises if available, employees if present and the panch witnesses 15) Acknowledgment shall be given to the accused/owner of the therein; premises where search or seizure was conducted of the copy of the panchnama together with all other annexures. The description of 8) Linking owner with location of infringement- The concerned police place of offence should be mentioned in panchnama; officer shall also obtain copies of the licenses issued by the municipality/corporation to operate the shop/entity. Any rent 16) List of seized articles should be furnished to the accused under deed/leave and license agreement shall also be obtained from the Section 165 of the CrPC; premises, if available. 17) The search and seizure proceedings shall be covered through 9) The shop owner should be examined. The statements of the owner videography and the statement of the videographer shall be of the premises shall also be recorded under section 161 of Code of reduced to writing and recorded in detail under Section 161 of Code Criminal Procedure; of Criminal Procedure at the cost of the complainant; 10) The concerned officer shall take due care to ascertain and obtain all 18) In cases of video or audio or book piracy, the investigating officer the evidences available at the premises during the time of search may, if necessary, inspect the home premises of the owner of the and seizure and prepare an inventory thereof for the purpose of shop/entity; record and preserve them for the future references. 19) Photographs of the premises/shop should be taken while the 11) All accounts books, financial details, receipt books, payment slips accused is carrying on the business; etc. should be seized to preserve evidence of money laundering of proceeds from IP crimes; 20) Photographs of the premises, book shop or any other entity 12) In case of disclosures by accused of additional premises/ details of involved in video/audio/book piracy should be taken; infringing activity, these should be recorded and immediately/ 21) Seizure of all infringing products available in the premises is expeditiously followed up by search and seizure on those premises imperative. A list of items to be seized is provided in the also; accompanying checklist. 13) Police officers should call upon two or more independent and 22) The concerned police officer shall have an account of the number of respectable inhabitants of the locality in which the place to be such confiscated infringing products and apparatus and shall get the searched is situated. The search must be conducted in the presence signature of the owner of the shop while removing it from the of such witnesses as per Section 100 (4) of the CrPC; premises of the shop; 14) As per Section 160, 161 and 162 of the CrPC, if the investigating 23) Police officers shall secure identification of infringing material from officer considers it necessary, he may order in writing, attendance of complainant and record such statement accordingly after witnesses residing within the limits of his own or adjoining police completion of search and seizure; stations and examine such witnesses. Statement of such witness, if reduced in writing, need not be signed by the person making it;

IPR ENFORCEMENT IPR ENFORCEMENT 30 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 31 premises if available, employees if present and the panch witnesses 15) Acknowledgment shall be given to the accused/owner of the therein; premises where search or seizure was conducted of the copy of the panchnama together with all other annexures. The description of 8) Linking owner with location of infringement- The concerned police place of offence should be mentioned in panchnama; officer shall also obtain copies of the licenses issued by the municipality/corporation to operate the shop/entity. Any rent 16) List of seized articles should be furnished to the accused under deed/leave and license agreement shall also be obtained from the Section 165 of the CrPC; premises, if available. 17) The search and seizure proceedings shall be covered through 9) The shop owner should be examined. The statements of the owner videography and the statement of the videographer shall be of the premises shall also be recorded under section 161 of Code of reduced to writing and recorded in detail under Section 161 of Code Criminal Procedure; of Criminal Procedure at the cost of the complainant; 10) The concerned officer shall take due care to ascertain and obtain all 18) In cases of video or audio or book piracy, the investigating officer the evidences available at the premises during the time of search may, if necessary, inspect the home premises of the owner of the and seizure and prepare an inventory thereof for the purpose of shop/entity; record and preserve them for the future references. 19) Photographs of the premises/shop should be taken while the 11) All accounts books, financial details, receipt books, payment slips accused is carrying on the business; etc. should be seized to preserve evidence of money laundering of proceeds from IP crimes; 20) Photographs of the premises, book shop or any other entity 12) In case of disclosures by accused of additional premises/ details of involved in video/audio/book piracy should be taken; infringing activity, these should be recorded and immediately/ 21) Seizure of all infringing products available in the premises is expeditiously followed up by search and seizure on those premises imperative. A list of items to be seized is provided in the also; accompanying checklist. 13) Police officers should call upon two or more independent and 22) The concerned police officer shall have an account of the number of respectable inhabitants of the locality in which the place to be such confiscated infringing products and apparatus and shall get the searched is situated. The search must be conducted in the presence signature of the owner of the shop while removing it from the of such witnesses as per Section 100 (4) of the CrPC; premises of the shop; 14) As per Section 160, 161 and 162 of the CrPC, if the investigating 23) Police officers shall secure identification of infringing material from officer considers it necessary, he may order in writing, attendance of complainant and record such statement accordingly after witnesses residing within the limits of his own or adjoining police completion of search and seizure; stations and examine such witnesses. Statement of such witness, if reduced in writing, need not be signed by the person making it;

IPR ENFORCEMENT IPR ENFORCEMENT 30 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 31 24) All digital / electronic material seized during a search and seizure Chapter 3 material should be carefully sealed for validation by State/ Central Forensics Laboratory; CHECKLIST FOR REGISTERING COMPLAINT

25) "Mirror copies" of digital/ electronic evidence should be immediately made to preserve evidence and to send to State/ Central Forensics Laboratory; It is mandatory to register an FIR if the information given to the police discloses the commission of a cognizable offence. 26) All the properties or infringing products seized, which shall include - Lalita Kumari vs. Govt. of U.P. and Ors., AIR 2014 SC 187 the infringing copies, plates, broadcasting equipment, other accessories involved in relaying/ exploiting/manufacturing/ IMPORTANT NOTE: There are three kinds of proof to be checked producing the infringing copies including laptop or hard disk of while registering a complaint – (a) proof of authority to institute machine on which video/audio/ infringing material was found to be complaint, (b) proof of current holder of right and (c) evidence of residing/installed/ duplicated and all other products seized during infringement. the course of search and seizure shall be neatly and safely packed, sealed and shall be produced before the magistrate as earlier as COMPLETE ALL THREE SECTIONS. possible without any lapse of time; SECTION ONE: PROOF OF AUTHORITY TO INSTITUTE COMPLAINT

27) Challan should be filed before the competent magistrate as per the If Indian Company If foreign IP owner provisions of the Section 173 of the Code of Criminal Procedure, o Copy of Certificate of o Duly attested copy of power 1973 within the specified period, i.e., within 60 or 90 days as the Registration from RoC/MCA, of attorney legalized/ case may be. and apostiled under the Hague o Power of Attorney in favour Convention of the person lodging the complaint, if complaint not made by the original right holder (duly notarized copy)

Additionally, If the complainant is a further delegate authorized by the Power of Attorney holder, o Delegation letter in favour of the person who is lodging the complaint, from the authorized person No other document is required as proof of authority to institute a complaint for registration of an FIR.

IPR ENFORCEMENT IPR ENFORCEMENT 32 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 33 24) All digital / electronic material seized during a search and seizure Chapter 3 material should be carefully sealed for validation by State/ Central Forensics Laboratory; CHECKLIST FOR REGISTERING COMPLAINT

IPR ENFORCEMENT IPR ENFORCEMENT 32 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 33 Advisory: film, name and address of the copyright owner and year of first (i) Power of attorney can contain a photograph of the holder of publication. power of attorney from the rights owner to ensure that such For Sound Recording: document is not misused. (ii) Holder of power of attorney/ delegate should produce valid ID o Copy of the Certificate granted by Central Board of Film proof to prevent misuse of Power of attorney, such as election ID Certification (CBFC) under Section 5A of the Cinematograph Act, card, PAN card, Driver's license, Passport copy, etc. 1952,

Registration of Power of attorney is not required for enforcement OR actions. o Copy of published sound recording with particulars displayed on SECTION TWO: PROOF OF CURRENT HOLDER OF RIGHT it. The following particulars are legally required to be present on the sound recording: name and address of the person who has o If licensee/ assignee: copy of the license/ assignment agreement made the recording, name and address of the copyright owner with original right holder and year of first publication.

A. For Copyright Infringement For Computer Program:

Copyright registration is not required under the Copyright Act, 1957 o Notarized Copies of Copyright Registration Certificate [Indian/ to enable protection under the Act. – K.C. Bokadia And Anr. vs Dinesh US/ other Berne Convention Country registration will suffice], Chandra Dubey 1999 (1) MPLJ 33; Glaxo Orthopaedic U.K. Ltd. vs. Samrat Pharma, AIR 1984 Delhi 265 AND o In case of off-the-shelf-software: copy of Original Software o Copyright registration certificate issued by the Registrar of Package with Copyright Owner/Publisher's name disclosed on Copyrights if available package, For Cinematograph Film: AND o Copy of the Certificate granted by Central Board of Film o End User License Agreement (EULA)/Software licensing Certification (CBFC) under Section 5A of the Cinematograph Act, agreement, 1952, AND OR o Report generated by a technical expert duly authorized and o Copy of published film with particulars displayed on it. The trained by the software manufacturer to identify the original following particulars are legally required to be present on the software from the pirated software video film: name and address of the person who has made the

IPR ENFORCEMENT IPR ENFORCEMENT 34 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 35 Advisory: film, name and address of the copyright owner and year of first (i) Power of attorney can contain a photograph of the holder of publication. power of attorney from the rights owner to ensure that such For Sound Recording: document is not misused. (ii) Holder of power of attorney/ delegate should produce valid ID o Copy of the Certificate granted by Central Board of Film proof to prevent misuse of Power of attorney, such as election ID Certification (CBFC) under Section 5A of the Cinematograph Act, card, PAN card, Driver's license, Passport copy, etc. 1952,

A. For Copyright Infringement For Computer Program:

IPR ENFORCEMENT IPR ENFORCEMENT 34 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 35 For Books/ Magazines/ Journals and other printed materials: SECTION THREE: EVIDENCE OF INFRINGEMENT o Copy of original book bearing publisher's name, 1. Whether any infringing items produced – tick any one: o Yes AND o No o Copy of agreement with original publisher if complainant 2. If Yes - publisher is different, List of items produced along with any details provided: OR 1. 2. o Attested copy of author-publisher agreement 3. In case of a literary (including computer programs), dramatic, 4. musical or artistic work or a cinematographic film or a sound 5. recording, the person whose name appears on copies of the work o Source from where infringing items obtained: ______purporting to be that of the author/ publisher is PRESUMED TO BE o Proof of purchase of infringing copies the actual author/ publisher, in any proceeding in respect of infringement of copyright, unless the contrary is proved. – Section Video recording or digital/electronic evidence of piracy along with the complaint should be accepted as basis for registration of the FIR. 55(2), Copyright Act Such electronic evidence is admissible under section 65B of the B. For Trademark Infringement Evidence Act. Admissibility of electronic evidence under Section 65B: Anvar P.V. v. o “Certificate for Use in Legal Proceedings” pertaining to the Trade P.K. Basheer and ors., (AIR 2015 SC 180) - Mark Registration asserted by IP owner “Any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media Advisory: Trade Mark Registration Certificate does not reflect current produced by a computer shall be deemed to be a document only if the status of the mark and should not be accepted as sufficient proof of conditions mentioned under sub-Section (2) are satisfied, without ownership. further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer A. Broadcast Reproduction Right (for cable signal piracy) output, depends on the satisfaction of the four conditions under o Up-linking / Down linking permission granted to TV Channel Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act: Owner (i) The electronic record containing the information should have OR been produced by the computer during the period over which the same was regularly used to store or process information for the o Agreement of a Broadcaster with any cable / DTH operator purpose of any activity regularly carried on over that period by anywhere in India the person having lawful control over the use of that computer;

IPR ENFORCEMENT IPR ENFORCEMENT 36 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 37 For Books/ Magazines/ Journals and other printed materials: SECTION THREE: EVIDENCE OF INFRINGEMENT o Copy of original book bearing publisher's name, 1. Whether any infringing items produced – tick any one: o Yes AND o No o Copy of agreement with original publisher if complainant 2. If Yes - publisher is different, List of items produced along with any details provided: OR 1. 2. o Attested copy of author-publisher agreement 3. In case of a literary (including computer programs), dramatic, 4. musical or artistic work or a cinematographic film or a sound 5. recording, the person whose name appears on copies of the work o Source from where infringing items obtained: ______purporting to be that of the author/ publisher is PRESUMED TO BE o Proof of purchase of infringing copies the actual author/ publisher, in any proceeding in respect of infringement of copyright, unless the contrary is proved. – Section Video recording or digital/electronic evidence of piracy along with the complaint should be accepted as basis for registration of the FIR. 55(2), Copyright Act Such electronic evidence is admissible under section 65B of the B. For Trademark Infringement Evidence Act. Admissibility of electronic evidence under Section 65B: Anvar P.V. v. o “Certificate for Use in Legal Proceedings” pertaining to the Trade P.K. Basheer and ors., (AIR 2015 SC 180) - Mark Registration asserted by IP owner “Any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media Advisory: Trade Mark Registration Certificate does not reflect current produced by a computer shall be deemed to be a document only if the status of the mark and should not be accepted as sufficient proof of conditions mentioned under sub-Section (2) are satisfied, without ownership. further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer A. Broadcast Reproduction Right (for cable signal piracy) output, depends on the satisfaction of the four conditions under o Up-linking / Down linking permission granted to TV Channel Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act: Owner (i) The electronic record containing the information should have OR been produced by the computer during the period over which the same was regularly used to store or process information for the o Agreement of a Broadcaster with any cable / DTH operator purpose of any activity regularly carried on over that period by anywhere in India the person having lawful control over the use of that computer;

IPR ENFORCEMENT IPR ENFORCEMENT 36 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 37 (ii) The information of the kind contained in electronic record or of Chapter 4 the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity; CHECKLIST FOR SEARCH AND SEIZURE (iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the IMPORTANT NOTE: COMPLETE ALL FOUR SECTIONS. record or the accuracy of its contents; and SECTION ONE: DOCUMENTS TO BE GIVEN TO THE ACCUSED/OWNER (iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the OF THE PREMISES WHERE SEARCH OR SEIZURE WAS CONDUCTED ordinary course of the said activity. o Acknowledgment Under Section 65B(4) of the Evidence Act, if it is desired to give a o Copy of the panchnama containing a description of place of statement in any proceedings pertaining to an electronic record, it is offence together with all other annexures permissible provided the following conditions are satisfied: o List of seized articles, as per Section 165 of the CrPC (a) There must be a certificate which identifies the electronic record containing the statement; (b) The certificate must describe the SECTION TWO: DOCUMENTS SEIZED FROM THE ACCUSED/ OWNER manner in which the electronic record was produced; (c) The certificate must furnish the particulars of the device involved o Copies of the licenses issued by the municipality/ corporation to in the production of that record; operate the shop/entity (d) The certificate must deal with the applicable conditions o Any other rent deed/leave and license agreement mentioned under Section 65B(2) of the Evidence Act; and o Any other document(s) – please specify: ______(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device. SECTION THREE: PROCEDURES FOLLOWED WHILE CONDUCTING SEARCH It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. o Owner of the entity/shop/house premises searched present Most importantly, such a certificate must accompany the electronic o Signature of owner taken record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought o Shop owner examined to be given in evidence, when the same is produced in evidence. All o Number of employees present: ______these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to o Signatures of employees taken be used as evidence. Electronic records being more susceptible to o Any other witnesses present: ______tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can o Signatures of witnesses taken lead to travesty of justice.” o Photographs of the premises being searched (paras 13, 14, 15)

IPR ENFORCEMENT IPR ENFORCEMENT 38 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 39 (ii) The information of the kind contained in electronic record or of Chapter 4 the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity; CHECKLIST FOR SEARCH AND SEIZURE (iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the IMPORTANT NOTE: COMPLETE ALL FOUR SECTIONS. record or the accuracy of its contents; and SECTION ONE: DOCUMENTS TO BE GIVEN TO THE ACCUSED/OWNER (iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the OF THE PREMISES WHERE SEARCH OR SEIZURE WAS CONDUCTED ordinary course of the said activity. o Acknowledgment Under Section 65B(4) of the Evidence Act, if it is desired to give a o Copy of the panchnama containing a description of place of statement in any proceedings pertaining to an electronic record, it is offence together with all other annexures permissible provided the following conditions are satisfied: o List of seized articles, as per Section 165 of the CrPC (a) There must be a certificate which identifies the electronic record containing the statement; (b) The certificate must describe the SECTION TWO: DOCUMENTS SEIZED FROM THE ACCUSED/ OWNER manner in which the electronic record was produced; (c) The certificate must furnish the particulars of the device involved o Copies of the licenses issued by the municipality/ corporation to in the production of that record; operate the shop/entity (d) The certificate must deal with the applicable conditions o Any other rent deed/leave and license agreement mentioned under Section 65B(2) of the Evidence Act; and o Any other document(s) – please specify: ______(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device. SECTION THREE: PROCEDURES FOLLOWED WHILE CONDUCTING SEARCH It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. o Owner of the entity/shop/house premises searched present Most importantly, such a certificate must accompany the electronic o Signature of owner taken record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought o Shop owner examined to be given in evidence, when the same is produced in evidence. All o Number of employees present: ______these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to o Signatures of employees taken be used as evidence. Electronic records being more susceptible to o Any other witnesses present: ______tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can o Signatures of witnesses taken lead to travesty of justice.” o Photographs of the premises being searched (paras 13, 14, 15)

IPR ENFORCEMENT IPR ENFORCEMENT 38 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 39 o Photograph of the premises/shop taken while the accused is II. For software, films & sound recording piracy: carrying on the business

o Proceedings recorded through videography o Infringing/ pirated software o RAM o Statements of videographer reduced to writing at cost of o Video/audio cassettes o Graphic card complainant as per Section 161 of the CrPC o DVDs/CDs o HD recording devices o For video/ audio/ book piracy: Home of the shop owner visited o Computer hard disks o DVD copier o Statement of complainant recorded AFTER completion of search o Laptops and seizure o Scanner o USBs o Digital/ electronic material seized sealed for validation by State/ o Software converter Central Forensics Laboratory o Server/s including remote desktop servers o External DVD writers o “Mirror copies” of digital/ electronic evidence made o Mobile phones o Any other items: o Seized items packed, sealed and produced before Magistrate o Hi-tech desktop system ______o Challan filed before the competent magistrate as per Section 173 of the CrPC Printing apparatus, plates etc. used to make, produce, manufacture and effectuate infringing material and acts: SECTION FOUR: LIST OF INFRINGING ITEMS SEIZED o Computers o Hi-tech desktop system I. For trade mark counterfeiting: o o RAM o Products packaged with infringing labels CD burners o o Graphic card o Loose infringing labels Desktops or servers including remote desktop o HD recording devices o Artwork for infringing labels servers o DVD copier o o Any other items: ______Laptops o Scanner Printing apparatus, plates etc. used to make, produce, manufacture o Hard discs o Software converter and effectuate infringing material and acts: o USBs used to reproduce/ o External DVD writers o Printers copy software /content o Any other items: o Computers o Mobile phones ______o Hard discs o Any other items: ______

IPR ENFORCEMENT IPR ENFORCEMENT 40 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 41 o Photograph of the premises/shop taken while the accused is II. For software, films & sound recording piracy: carrying on the business o Proceedings recorded through videography o Infringing/ pirated software o RAM o Statements of videographer reduced to writing at cost of o Video/audio cassettes o Graphic card complainant as per Section 161 of the CrPC o DVDs/CDs o HD recording devices o For video/ audio/ book piracy: Home of the shop owner visited o Computer hard disks o DVD copier o Statement of complainant recorded AFTER completion of search o Laptops and seizure o Scanner o USBs o Digital/ electronic material seized sealed for validation by State/ o Software converter Central Forensics Laboratory o Server/s including remote desktop servers o External DVD writers o “Mirror copies” of digital/ electronic evidence made o Mobile phones o Any other items: o Seized items packed, sealed and produced before Magistrate o Hi-tech desktop system ______o Challan filed before the competent magistrate as per Section 173 of the CrPC Printing apparatus, plates etc. used to make, produce, manufacture and effectuate infringing material and acts: SECTION FOUR: LIST OF INFRINGING ITEMS SEIZED o Computers o Hi-tech desktop system I. For trade mark counterfeiting: o o RAM o Products packaged with infringing labels CD burners o o Graphic card o Loose infringing labels Desktops or servers including remote desktop o HD recording devices o Artwork for infringing labels servers o DVD copier o o Any other items: ______Laptops o Scanner Printing apparatus, plates etc. used to make, produce, manufacture o Hard discs o Software converter and effectuate infringing material and acts: o USBs used to reproduce/ o External DVD writers o Printers copy software /content o Any other items: o Computers o Mobile phones ______o Hard discs o Any other items: ______

IPR ENFORCEMENT IPR ENFORCEMENT 40 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 41 III. For cable piracy: IV. For book piracy: ALL Printing apparatuses, plates etc. used to make, produce, o Infringing copies of books manufacture and effectuate infringing material and acts: o Book cover jackets o Computers o Art work for book covers o Hard discs storing, cataloguing and scheduling dissemination of o programme/ signals to subscribers, such as: Any other items: o DTH Consumer Set Top Box ______o DTH Antenna along with Low Noise Block down converter Printing apparatus, plates etc. used to make, produce, manufacture with Feed pipe (LNBF) and effectuate infringing material and acts: o o HITS consumer Set Top Box Photo copying machines o o MSO consumer Set Top Box Screen printing apparatus o o Any other source of piracy - Dream Set Top Box/ Magic Set Any other items: Top Box ______o IPTV Streaming Set Top Box V. For evidence of money laundering from IP crimes: o Any other items:______o Accounts books Medium/ signal processing units, such as: o Financial details o Modulator in case of o Network Switch o Receipt books analogue transmission o Optical transmitter o Mixer/ combining unit in o Payment slips case of analogue o Optical Receiver (NODE) o Any other items: transmission o Cable – Coaxial and/or Fiber o ______Encoder Optics o EDGE QAM/ IP QAM o (Mixing, scrambling and Signal Amplification Device – QAM) Amplifier o NMS - Network o Any other items: Management System along with display unit - ______Computer Monitor, Lap Top, iPad etc.

IPR ENFORCEMENT IPR ENFORCEMENT 42 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 43 III. For cable piracy: IV. For book piracy: ALL Printing apparatuses, plates etc. used to make, produce, o Infringing copies of books manufacture and effectuate infringing material and acts: o Book cover jackets o Computers o Art work for book covers o Hard discs storing, cataloguing and scheduling dissemination of o programme/ signals to subscribers, such as: Any other items: o DTH Consumer Set Top Box ______o DTH Antenna along with Low Noise Block down converter Printing apparatus, plates etc. used to make, produce, manufacture with Feed pipe (LNBF) and effectuate infringing material and acts: o o HITS consumer Set Top Box Photo copying machines o o MSO consumer Set Top Box Screen printing apparatus o o Any other source of piracy - Dream Set Top Box/ Magic Set Any other items: Top Box ______o IPTV Streaming Set Top Box V. For evidence of money laundering from IP crimes: o Any other items:______o Accounts books Medium/ signal processing units, such as: o Financial details o Modulator in case of o Network Switch o Receipt books analogue transmission o Optical transmitter o Mixer/ combining unit in o Payment slips case of analogue o Optical Receiver (NODE) o Any other items: transmission o Cable – Coaxial and/or Fiber o ______Encoder Optics o EDGE QAM/ IP QAM o (Mixing, scrambling and Signal Amplification Device – QAM) Amplifier o NMS - Network o Any other items: Management System along with display unit - ______Computer Monitor, Lap Top, iPad etc.

IPR ENFORCEMENT IPR ENFORCEMENT 42 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 43 ANNEXURES ANNEXURES ANNEXURE I 2. Copyright Registration Certificate SAMPLE FORMS

1. Certificate of Incorporation of Indian Company

IPR ENFORCEMENT IPR ENFORCEMENT 46 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 47 ANNEXURE I 2. Copyright Registration Certificate SAMPLE FORMS

1. Certificate of Incorporation of Indian Company

IPR ENFORCEMENT IPR ENFORCEMENT 46 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 47 3. Power of Attorney

IPR ENFORCEMENT IPR ENFORCEMENT 48 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 49 3. Power of Attorney

IPR ENFORCEMENT IPR ENFORCEMENT 48 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 49 4. CBFC Certificate 5. TM Certificate for use in legal proceedings

IPR ENFORCEMENT IPR ENFORCEMENT 50 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 51 4. CBFC Certificate 5. TM Certificate for use in legal proceedings

IPR ENFORCEMENT IPR ENFORCEMENT 50 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 51 6. US Copyright Registration for Software

IPR ENFORCEMENT IPR ENFORCEMENT 52 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 53 6. US Copyright Registration for Software

IPR ENFORCEMENT IPR ENFORCEMENT 52 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 53 7. Permission to uplink TV channel from India

IPR ENFORCEMENT IPR ENFORCEMENT 54 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 55 7. Permission to uplink TV channel from India

IPR ENFORCEMENT IPR ENFORCEMENT 54 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 55 8. Registration Certificate to downlink TV channel into India

IPR ENFORCEMENT IPR ENFORCEMENT 56 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 57 8. Registration Certificate to downlink TV channel into India

IPR ENFORCEMENT IPR ENFORCEMENT 56 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 57 IPR ENFORCEMENT IPR ENFORCEMENT 58 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 59 IPR ENFORCEMENT IPR ENFORCEMENT 58 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 59 ANNEXURE II CABLE PIRACY OF PAY TV SIGNAL FIG. 1: Transmission of TV signal from Broadcaster to Subscriber

Broadcaster Hits U/L in Uplinking DTH C-Band

Hits D/L

DTH to end user

LCO HITS to end user

LCO to end user

Broadcaster e.g DTH Operator and Hits Star, Zee or Sony Downlinking MSO MSO to end user Downlinking and processing further

Broadcaster

Multi System Headend in The Direct to Home Internet Protocol Operator Television Sky (DTH) (MSO) (IPTV) (HITS)

Local Cable Subscriber Subscriber Subscriber Operator (LCO)

Local Cable Operator Subscriber (LCO)

Subscriber

IPR ENFORCEMENT IPR ENFORCEMENT 60 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 61 ANNEXURE II CABLE PIRACY OF PAY TV SIGNAL FIG. 1: Transmission of TV signal from Broadcaster to Subscriber

Broadcaster Hits U/L in Uplinking DTH C-Band

Hits D/L

DTH to end user

LCO HITS to end user

LCO to end user

Broadcaster e.g DTH Operator and Hits Star, Zee or Sony Downlinking MSO MSO to end user Downlinking and processing further

Broadcaster

Multi System Headend in The Direct to Home Internet Protocol Operator Television Sky (DTH) (MSO) (IPTV) (HITS)

Local Cable Subscriber Subscriber Subscriber Operator (LCO)

Local Cable Operator Subscriber (LCO)

Subscriber

IPR ENFORCEMENT IPR ENFORCEMENT 60 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 61 FIG 2: FIG 3B: Through LCOs Transmission of Pay TV channels in an ANALOGUE mode MSO Dish Integrated Satellite Encoder Antenna Receiver/Decoder MSO Dish Integrated Satellite Antenna Receiver/Decoder

Conditional Headend EDGE QAM SMS + Billing Access Amplifier Headend Modulator Mixer Amplifier

Local Cable Splitter Subscriber Local Cable Operator Splitter Subscriber Operator

FIG 3: FIG 4: Transmission of Pay TV channels in a DAS Area by MSO Hardware Used in Head End

FIG 3A: Directly to Subscriber

MSO Dish Integrated Satellite Encoder Antenna Receiver/Decoder Integrated Receiver Decoder Encoder (IRD) Encoder is used to convert Analog Conditional Headend EDGE QAM SMS + Billing IRD is provided by Broadcaster. signal from IRDs into digital stream. Access Amplifier One IRD is used to transmit one 8 to 12 IRDs can be connected to channel only. Number of channels one Encoder. Thus, one Encoder demonstrate number of IRDs at can carry 8 to 12 channels to form MSO Control Room. one stream.

Splitter Subscriber

IPR ENFORCEMENT IPR ENFORCEMENT 62 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 63 FIG 2: FIG 3B: Through LCOs Transmission of Pay TV channels in an ANALOGUE mode MSO Dish Integrated Satellite Encoder Antenna Receiver/Decoder MSO Dish Integrated Satellite Antenna Receiver/Decoder

Conditional Headend EDGE QAM SMS + Billing Access Amplifier Headend Modulator Mixer Amplifier

Local Cable Splitter Subscriber Local Cable Operator Splitter Subscriber Operator

FIG 3: FIG 4: Transmission of Pay TV channels in a DAS Area by MSO Hardware Used in Head End

FIG 3A: Directly to Subscriber

Splitter Subscriber

IPR ENFORCEMENT IPR ENFORCEMENT 62 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 63 ANNEXURE III Source To Online Piracy

SOURCE TO ONLINE PIRACY STAKEHOLDERS

CAMCORDER/SOURCE SUPPLIERS PIRACY (illegally camcord films in theatres) REPLICATORS (produce millions of pirated copies) HARD GOODS/OPTICAL DISC ILLEGAL WEBSITES/ PIRACY INTERNET PIRACY RELEASE GROUPS THROUGH ORGANISED PIRATE NETWORKS (put the pirated movies onto high speeed computer servers called ‘topsites’) FACILITATORS EDGE QAM (act as internet directories/ search engines, to facilitate mass downloading) Output of Encoder goes to input of EDGE QAM. One EDGE QAM can have FILE SHARERS/ DOWNLOADERS 24 streams from 24 Encoders as input. EDGE QAM performs three (peer-to-peer software enables functions: (1) Multiplexer- mixing of multiple streams from Encoders; (2) downloaders to instantly share their content with other downloaders) Scrambler – Scrambling in combination with CAS used to encrypt the streams from Encoders; (3) QAM – Decides the frequency/ Local Channel CAMCORDER/ SOURCE PIRACY Number (LCN) of channel. “When someone enters a theatre with any type of recording device — camcorder, smartphone, voice recorder, etc. — AND intentionally records or photographs any portion of the video or audio track of a movie, that person is engaging in camcorder piracy.” 4

Camcorder Audio Recorder Remote Control Amplifier Optical Transmitter Amplifies the strength of the signal It converts electrical signal into so that it can travel a longer optical signal so that it can travel a distance. longer distance.

View Finder Full Set High End Mobile

SOURCE TO ONLINE PIRACY STAKEHOLDERS

View Finder Full Set High End Mobile

4 National Association of Theatre Owners and Motion Pictures Association of America, Inc., Fight Film Theft, available at http://fightfilmtheft.org/camcorder-privacy.html IPR ENFORCEMENT IPR ENFORCEMENT 64 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 65 ONLINE PIRACY THREAT TO CONSUMERS Facilitated through Rogue Websites - websites primarily designed with the intention of piracy and are habitual offenders. They are illegitimate, 1. Can lead to identity theft but pose as genuine sites to target Indian online users. They may be hosted on Indian ccTLD or a foreign server. 2. Insertion of malware on the consumer's system

TYPES OF ROGUE WEBSITES: 3. Installation of Remote Access Trojans and risk of Ransomware attack 4. Exposes consumers to high-risk advertising

CYBER CRIME COSTS

Bit Torrent sites P2P Video Streaming sites

Cyber Locker Indexing site No. of illegal Downloads as of 24th Jun’16 : 916,443 downloads MALWARE & ROGUE WEBSITES No. of illegal Views as of 24th Jun’16 : 1,630,000 views Total cumulative illegal downloads/illegal streams : 25,46,443 1. Illegal websites lure consumers through illegal copies of popular / newly released films

2. Site supplements income (from advertising and/ or subscriptions) by signing up to deliver malware to consumers exposed to the site

3. Consumers accessing content on such a website are at risk of being infected by malware

4. Illegal site earns money for every malware installed on a consumer's computer.

IPR ENFORCEMENT IPR ENFORCEMENT 66 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 67 ONLINE PIRACY THREAT TO CONSUMERS Facilitated through Rogue Websites - websites primarily designed with the intention of piracy and are habitual offenders. They are illegitimate, 1. Can lead to identity theft but pose as genuine sites to target Indian online users. They may be hosted on Indian ccTLD or a foreign server. 2. Insertion of malware on the consumer's system

TYPES OF ROGUE WEBSITES: 3. Installation of Remote Access Trojans and risk of Ransomware attack 4. Exposes consumers to high-risk advertising

CYBER CRIME COSTS

Bit Torrent sites P2P Video Streaming sites

2. Site supplements income (from advertising and/ or subscriptions) by signing up to deliver malware to consumers exposed to the site

3. Consumers accessing content on such a website are at risk of being infected by malware

4. Illegal site earns money for every malware installed on a consumer's computer.

IPR ENFORCEMENT IPR ENFORCEMENT 66 TOOLKIT FOR POLICE TOOLKIT FOR POLICE 67 ORGANISED PIRATE NETWORKS – SOURCE TO ONLINE

Working in XY as Senior Manager CHENNAI Head of SYNDICATE III JABALPUR Cam Corder PUNJAB Partner & Brothers Head of SYNDICATE I Head of SYNDICATE II PUNE DELHI PQR DELHI Working at LMNOP DELHI Partner

BHOPAL Brothers DELHI DELHI Cam Corder Operates PQR’S Hard Supplies DVDs to goods’ operations open Market GHAZIABAD Cam Corder FRANCE AUSTRALIA

IPR ENFORCEMENT 68 TOOLKIT FOR POLICE ORGANISED PIRATE NETWORKS – SOURCE TO ONLINE

BHOPAL Brothers DELHI DELHI Cam Corder Operates PQR’S Hard Supplies DVDs to goods’ operations open Market GHAZIABAD Cam Corder FRANCE AUSTRALIA

IPR ENFORCEMENT 68 TOOLKIT FOR POLICE FEDERATION OF INDIAN CHAMBERS OF CELL FOR IPR PROMOTION AND COMMERCE AND INDUSTRY (FICCI) MANAGEMENT (CIPAM) Federaon House, Tansen Marg, New Delhi-110 001 Udyog Bhawan, New Delhi-110011 T: +91-11-2373 8760-70 F: +91-11-2332 0714 E: [email protected] W: www.ﬁcci.in