Present
Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 23.11.2009
Date of judgment : .01.2010
Appellant : The State through Mr. Rizwan Ali Dodani, Standing Counsel/DAG
Versus
Respondents M/Muhammad Amin Haroon & others
Respondents 1 to 12 & 11 & 14 : through Mr. Yasin Ali, Advocate.
J U D G M E N T
Aqeel Ahmed Abbasi, J. These two Criminal Acquittal Appeals under Section 417 Cr.P.C. read with Section 427 and 435 PPC have been filed by the State through Deputy Attorney General against the impugned order dated 31.3.2008 passed by the Judicial Magistrate (South-I) Karachi in Criminal Case No.67 of 2007 (FIR No.15/2005) under Section 66-A and 66-B of the Copyright Ordinance, 1962, and the order dated 18th of March 2008 passed by the IVth Civil Judge/Judicial Magistrate (West) Karachi, in Criminal Case No.2328 of 2007 (FIR No.18/2007) under Section 66-A, 66-B and 71 of the Copyright Ordinance, 1962. Since as per both the learned counsel for the parties, the legal issues involved in both the cases are common, except with the distinction that in Criminal Acquittal Appeal No.202 of 2008, there is no claimant/owner of Copyright and State through F.I.A is the complainant, whereas in Criminal Acquittal Appeal No.213 of 2008, there is a complainant who claims to be assignee of Copyright. Both the learned counsel appearing for the parties agreed for the disposal of both these appeals by a common judgment.
Mr. Rizwan Ali Dodani, learned Standing Counsel, argued that both the impugned orders are illegal and perverse, as the respondents have been acquitted under Section 249-A Cr.P.C without recording evidence and examining the merits of the case. According to the learned Standing Counsel, the learned trial Court, seriously erred in law by holding that since there is no actual owner, assignee and/or the licensee of intellectual property/work, no case is made out in terms of Section 13 of the Copyright Ordinance, 1962. He further argued that learned trial Courts also fallen in error of law and fact by holding that since there exists no artistic, intellectual work covered within the scope of Copyright Ordinance, 1962, therefore, question of violation or compliance of copyright does not arise. It was further argued that both the trial Courts were not justified in holding that the cognizance taken by FIA in the instant case was not in accordance with law. Learned Standing Counsel also argued that the reliance placed on the case law by the learned trial Court on the point of jurisdiction of F.I.A was misplaced as the same was relevant for the period prior to amendment made through Gazette Notification NO.SRO 321(I)/05 dated 16th April 2005, available at page 71 of the file, by virtue of which Entry No.26 was inserted in the schedule of F.I.A Act, 1974, after entry 25-G, which reads as follows:
"Offences punishable under Copyright Ordinance, 1962 (XXXIV of 1962)".
Leaned Standing Counsel argued that since the provisions of Copyright Ordinance, 1962 have been made subject to cognizance of F.I.A authorities relating to offences punishable under the Copyright Ordinance, the F.I.A has jurisdiction to take cognizance in the case of violation of the provisions of Copyright Ordinance 1962.
Conversely, learned counsel for the respondents has vehemently opposed the instant criminal acquittal appeals and supported the impugned orders, which according to him, are based on sound reasoning and proper appreciation of facts and law. It has been argued that in the instant case there is no violation of provisions of Copyright Ordinance for the reason that neither there is any intellectual property or work nor there is any owner/claimant of such alleged copyright, and further there is no violation of any government work in terms of Section 13(d). According to learned counsel, State can take cognizance only in the case of violation in terms of Section 13(d), where Government is the owner of such copyright. According to the learned counsel for the respondents, the entire proceedings are without jurisdiction, as alleged violation does not attract the penal consequence particularly cognizable by F.I.A. According to the learned counsel, cognizance by F.I.A is without jurisdiction and of no legal effect because the dispute is civil in nature. Learned counsel for the respondents has placed reliance on the following judgments to show the scope and the extent of the jurisdiction of F.I.A:
(i) Mian Hamza Shahbaz Sharif v. Federation of Pakistan, etc. N.L.R 1998 Criminal 103. It has been held that FIA would have no jurisdiction and authority to register cases when alleged offence cannot be said to have been committed in connection with matters concerning Federal Government.
(ii) Dr. Sayed Rahatullah v. Deputy Director, Crime Circle-1, 1990 P.Cr. L.J 1594. That in terms of Section 3(1) of F.I.A, Act, the F.I.A has been empowered to enquire and investigate the offences specified in the Schedule to the said Act including an attempt or conspiracy to commit and abet any of the schedule offences and the powers of the Members of the F.I.A are limited to that extent. Offences otherwise non-cognizable do not become cognizable merely Federal Investigation Agency can enquire or investigate the same. F.I.A has no jurisdiction in a civil dispute between two civilians.
(iii) Iftikhar Hussain and others v. Government of Pakistan 2001 P.Cr.L.J 146. Division Bench of Lahore High Court, while examining jurisdiction & scope of F.I.A has held that object of framing of F.I.A Act, 1974 as per its preamble, was to set-up an Investigating Agency to investigate into offences committed in connection with matters concerning Federal Government and matters connected therewith. Contention that in respect of offences falling within Schedule to the said Act, Agency set-up under said Act had jurisdiction and power to investigate and register a case notwithstanding that Federal Government could not be connected with dispute, was repelled, some nexus has to be there even though remote and indirect, between the acts complained of and the Federal Government in order to attract jurisdiction of the F.I.A. Preamble would provide a useful guide for finding out the intention of legislature and could not be ignored while interpreting law.
(iv) Fazal Dad v. Col. (Rtd) Ghulam Muhammad Malik & others P.L.D 2007 SC 571. It has been held in the instant case that it is the trite principle of interpretation of statute that in order to determine the scope of statute the preamble is always a key to interpret such statute to bring the office within the ambit of a particular statute. It is essential to examine to that offence should have nexus with the object of the act and is covered by its relevant provisions
He has also placed reliance on an unreported case W.P. No.1004 of 2007 Thar Production v. Deputy Director, F.I.A and others, in which, according to the learned counsel, under the identical facts and circumstances the issue has been decided in favour of the respondents, wherein it was argued that jurisdiction of F.I.A to take cognizance of the offences under the Copyright Ordinance, 1962, arises if the matter comes under Section 13(d) of the Ordinance, 1962, which provides that in case of Government work, the Government shall, in the absence of any agreement to the contrary, be the first owner of the Copyright therein. It was argued that F.I.A can take cognizance in the matters concerning Federal Government and for matters connected therewith. It was further argued that when the dispute is between private parties, F.I.A has no jurisdiction and the local police and authority can take cognizance in such matters. In this regard the reliance was placed on the reported cases i.e Iftikhar Hussain and others v. Government of Pakistan and others 2001 P.Cr.L.J 146, Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan and others P.L.D 1972 SC 279, Muhammad Hussain Patel v. Ghaffar Wali Muhammad and others P.L.D 1972 Kar. 421 and Syed Akhlaque Hussain v. Habib Ismail Bajwa P.L.D 1969 Lahore 563. Learned Single Judge of Lahore High Court at Multan in the above said Writ Petition has held that the F.I.A has rightly rejected the application of the petitioner for registration of a case keeping in view the preamble of the F.I.A Act, 1974. It was further held that though the offences under the Copyright Ordinance, 1962 are included in the Schedule of F.I.A Act, 1974 but the local police has also got concurrent jurisdiction in the matter and they can register cases under the Copyright Ordinance, 1962. The learned Judge observed that contention of the respondent that the F.I.A can only entertain the application filed by the Government under Section 13(d) of the Copyright Ordinance, 1962 read with the preamble of the F.I.A Act, 1974 is fully supported by the judgment of Division Bench of Lahore High Court in the case titled as Iftikhar Hussain and others v. Government of Pakistan and others 2001 P.Cr.L.J. 146. In the above perspective, the learned Judge held that registration of criminal case, where the dispute was between private parties and of civil nature, was rightly refused by the F.I.A. The Writ Petition was accordingly, dismissed.
In right of rebuttal, learned Standing Counsel has argued that the case law relied upon by the counsel for the respondents pertain to the period prior to amendment brought to the Schedule of F.I.A Act, 1974 vide Gazette Notification No.321(1)/05 dated 16th April 2005. It is further argued that the provisions of the Copyright Ordinance, 1962 have not been properly examined. He has referred to the provisions of Section 66-A and 66-B of the Copyright Ordinance, 1962, which according to the learned counsel are penal in nature and are attracted in the instant case.
I have heard both the learned counsel and perused the case record. In the instant criminal acquittal appeals, following legal issues are required to be determined for disposal of these appeals.
(a) Whether the F.I.A has jurisdiction to proceed in the cases pertaining to violation of Copyright Ordinance, 1962, particularly after insertion of Entry No.26 in the Schedule to F.I.A Act, 1974.
(b) Whether the F.I.A has jurisdiction only in such cases where violation of some Government work is made and not in respect of infringement of Copyright between private parties?
(c) Whether for establishing infringements of copyright, there has to be some owner/claimant of the original work?
For the purposes of ascertaining the jurisdiction of F.I.A, it will be relevant to examine the provisions of Section 3(1) (2) of F.I.A Act, 1974, which read as follows:
Section 3. Constitution of the Agency;
(1) Notwithstanding anything contained in any other law for the time being in force, the Federal Government may constitute an Agency to be called the Federal Investigation Agency for inquiry into and investigation of the offences specified in the Schedule, including an attempt or conspiracy to commit, and abetment of, any such offence.
(2) The Agency shall consist of a Director-General to be appointed by the Federal Government and such number of other officers as the Federal Government may, from time to time, appoint to be members of the Agency.
It is also relevant to refer to Entry No.26, which was inserted by SRO No.321(1)/2005 dated 16th April 2005, whereby the offences punishable under the Copyright Ordinance, 1962 were included in the said Schedule hence made cognizable by the F.I.A authorities.
"Offences punishable under Copyright Ordinance, 1962 (XXXIV of 1962)".
Examination of provisions of Section 13(1) (d), (e), Section 53 (2) (b) and Section 53(2) (c) (ii) are also relevant for the purposes of resolution of the instant controversy, which are re-produced as under:
Section 13(1) (d) in the case of Government work, Government shall, in the absence of any agreement to the first owner of the copyright therein.
Section 13(1) (e) in the case of a work to which the provisions of section 53 apply, the international organization concerned shall be the first owner of the copyright therein.
Section 53(2) (b) there would, apart from this section, be no copyright in the work in Pakistan at the time of the making or, as the case may be, of first publication thereof, and
Section 53(2) (c) (ii) under section 13 any copyright in the work would belong to the organization.
there shall subsist copyright in the work throughout Pakistan except as respects its reprint, translation, adaptation or publication, by or under the authority of the Federal Government, as textbook for the purposes of teaching, study or research in educational institution.
Provisions of Section 66-A and 66-B, which being criminal in nature are also relevant for the purposes of resolution of instant controversy which are also re-produced hereunder for the sake of convenience.
66-A. Penalty for publishing collection or compendiums of work which have been adapted, translated or modified in any manner without the authority of the owner of the copyright. Any person who knowingly publishes, or causes to be published, a collection or compendium of works which have been adapted, translated or modified in any manner without the authority of owner of the copyright in the original works, or who fraudulently employees a title which tends to mislead the public or create confusion with another work published earlier, shall be punishable with imprisonment which may extend to three years, or with fine which may extend to one hundred thousand rupees, or with both.
66-B. Penalty for unauthorized reproduction or distributes of counterfeit copies of sound recording and cinematographic work. Any person who unauthorisedly makes or distributes counterfeit of sound recording and cinematographic work for the purpose of business, profit or gain shall be punishable with imprisonment which may extend to three years, or with fine which may extend to one hundred thousand rupees, or with both.
On perusal of provisions of Section 3(1) of the F.I.A Act, 1974, the F.I.A has jurisdiction to conduct inquiry into and investigation of the offences specified in the Schedule, including an attempt or conspiracy to commit, and abetment of, any such offence. After insertion of clause (26) in the schedule to the F.I.A Act, 1974 it appears that the F.I.A was given concurrent jurisdiction relating to violation of Copyright Ordinance, 1962.
The authority and jurisdiction of F.I.A has continuously remained in dispute and has been entertained by the various Courts. Before referring to judgments in this regard, it will be expedient to refer to the preamble of FIA Act, 1974 for the purposes of examining the scope and the purpose of such enactment. Its preamble reads as follows:
"Whereas it is expedient to provide for constitution of Federal Investigation Agency for the investigation of certain offences committed in connection with the matters concerning the Federal Government, and for matters connected therewith.
From a reading of the above, it becomes obvious that the object of framing the law of F.I.A was to set-up an Investigating Agency to investigate into offences committed in connection with matters concerning Federal Government and matters connected therewith. Though the preamble is not an operative part of the statute but nevertheless it does provide a useful guide for finding out the intention of the legislature and therefore, cannot be ignored while interpreting the law. In this view of the matter, I am guided by the case of Hon'ble Supreme Court i.e. Murree Brewery Co, Ltd v. Pakistan through the Secretary to Government of Pakistan and others P.L.D 1972 SC 279. The ratio of this judgment was also followed by a Division Bench of Lahore High Court in the case of Iftikhar Hussain and others v. Government of Pakistan 2001 P.Cr.L.J 146. The combined reading of the preamble to the Act, Section 3 and Section 6 of the F.I.A Act read with Schedule attached therewith, goes to show that there has to be some nexus, even though remote and indirect, between the acts complained of and the Federal Government in order to attract jurisdiction of the F.I.A. It is pertinent to mention that the scope and jurisdiction of the F.I.A viza-viz the normal investigating agency i.e Police, is concurrent in nature and the provision of F.I.A Act, prevail upon normal law under specified circumstances as provided in the Schedule to the Act itself. F.I.A Act, being a special law will prevail over the normal law in such circumstances. Since after insertion of Entry No.26 by SRO No.321(I)/2005 dated 16th April 2005 offences punishable under the Copyright Ordinance, 1962 were made part of the Schedule, therefore, the F.I.A was authorized to take cognizance of violation of Copyright Ordinance, 1962. Since there was no provision inserted either in the F.I.A Act, Copyright Ordinance, or PPC and Cr.P.C, ousting the jurisdiction of the Police to take cognizance of offence under Copyright Ordinance, 1962, it emerges that the jurisdiction of F.I.A is concurrent in nature. If we make a combined reading of the F.I.A Act, and the relevant provision of Copyright Ordinance, it further appears that the cases involving infringement of Copyright between private parties involving civil disputes are to be dealt and investigated by the normal police, whereas the cases which involved infringement of Copyright of some Government work and the offences relatable to the Government are to be dealt and investigated by F.I.A. Any other interpretation in this regard will lead to overlapping of the jurisdiction of two agencies which cannot be the intent of legislature. In view of herein above, I am of the view that F.I.A has jurisdiction to proceed in the cases pertaining to violation of Copyright Ordinance, 1962 particularly after insertion of Entry No.26 in the Schedule to the F.I.A Act, 1974. However, the F.I.A, having been given the concurrent jurisdiction, can take cognizance of such cases where violation of some Government work is involved, and has no jurisdiction in respect of infringement of Copyright between private parties or disputes, which are civil in nature.
Having dealt with the scope and jurisdiction of the F.I.A in the cases relating to Copyright Ordinance, 1962, I would now like to dilate upon the scope and jurisdiction of the Copyright Ordinance, whereby cognizance of any infringement of Copyright can be taken. The meaning of copyright has been given in Section 3 of the Copyright Ordinance, which reads as follows:
3. Meaning of Copyright.(1)For the purposes of this Ordinance, "copyright" means the exclusive right, by virtue of, and subject to, the provisions of this Ordinance:-
(a) in the case of a literary, dramatic or musical work, to do and authorize the doing of any of the following acts, namely;
(i) to reproduce the work in any material from;
(ii) to publish the work;
(iii) to perform the work in public;
(iv) to produce, reproduce, perform or publish any translation of the work;
(v) to use the work in a cinematographic work or make a record in respect of the work;
{(v) to broadcast the work, or to communicate the broadcast of the work to the public by a loudspeaker or any other similar instrument};
(vii) to make any adaptation of the work;
(viii) to do in relation to a translation or an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (vi);
{(ix) to authorize the rental of computer programmes}
(b) in the case of a cinematographic work, to do or authorize the doing of any of the following acts, namely:-
(i) to make a copy of the work;
(ii) to cause the work insofar as it consists of visual images, to be seen in public and, insofar as it consists of sounds, to be heard in public;
(iii) to make any record embodying the recording in any part of the sound track associated with the work by utilizing such sound track;
{(iv) to broadcast the work};
{(v) to authorize the rental of cinematographic works};
(c) in the case of an artistic work, to do or authorize the doing of any of the following acts, namely:-
(i) to reproduce the work in any material form;
(ii) to publish the work;
(iii) to use the work in a cinematographic work;
(iv) to show the work in television;
(v) to make any adaptation of the work;
(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);
(d) in the case of a record, to do or authorize the doing of any of the following acts by utilizing the record, namely:-
(i) to make any other record embodying the same recording;
(ii) to use the recording in the sound track of a cinematographic work;
(ii) to cause the recording embodied in the record to be heard in public;
(iv) to communicate the recording embodied in the record by broadcast.
(2) Any reference in sub-section (1) to the doing of any act in relation to a work or a translation or an adaptation thereof shall include a reference to the doing of that act in relation to a part thereof.
{(3) Entitlement to copyright in compilation of data or other material shall not extend to data or other material itself and shall be without prejudice to any copyright subsisting in the data or other material, that is to say the copyright shall subsist to the extent of compilation only.}
The meaning of definition of copyright as per Corpus Juris Secandum is given as follows:
(1) 'Copyright means the sole right to produce or reproduce work in any material form whatsoever to perform, or regarding a lecture, to deliver, the work or any substantial part thereof in public and if the work is unpublished, to publish the work or any substantial part thereof.
(2) Copyright defined by Corpus Juris. Copyright is usually defined as the exclusive right or printing or otherwise multiplying copies of an intellectual production and of publishing and vending the same; the right of preventing all others from doing so. As such rights can be enjoyed in their entirety only by virtue of statutory provisions. The term is synonymous with statutory copyright. Copyright may be accurately defined, therefore, as the right granted by statue to the proprietor of an intellectual production to the exclusive use and enjoyment to the extent specified in statute.
In common parlance the copyright can be defined as the sole and exclusive liberty of printing or otherwise multiplying, copies of any literary, dramatic, musical and artistic works. It exists in original literary, dramatic and musical works, and cinematograph films and records. For the purposes of Copyright Ordinance, there has to be some intellectual property, literary work, script, lecture, musical work, photograph, cinematograph work etc and the original owner thereof. There has to be a claimant of such copyright either as owner or as an assignee. In other words, if there exist no work as defined in the Copyright Ordinance, nor there is any owner or claimant of such work, the cognizance in terms of Copyright Ordinance cannot be taken in the normal course relating to dramatic copyright. However, in terms of Chapter XI of the Copyright Ordinance, Section 53 provides for protection of International Copyright, whereas Section 54 authorizes Central Government to extend the copyright foreign works. Section 56 of the Copyright Ordinance, 1962 defines infringement of copyright, the same is reproduce hereunder for the sake of convenience and understanding as to how the infringement of copyright is recognized by law.
56. When copyright infringed. Copyright in a work shall be deemed to be infringed:-
(a) when any person without the consent of the owner of the copyright or without a licence granted by such owner or the Registrar under this Ordinance or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Ordinance:-
(i) does anything the exclusive right to do which is by this Ordinance conferred upon the owner of the copyright; or
(ii) permits for profit any place to be used for the performance of the work in public where such performance constitutes an infringement of the copyright in the work unless he was not aware and had no reasonable ground for suspecting, that such performance would be an infringement of copyright; or
(b) when any person:-
(i) makes for sale or hire or sell or lets for hire, or by way of trade displays or offers for sale or hire; or
(ii) distributes either for the purpose of trade to such an extent as to affect prejudicially the owner of the copyright; or
(iii) by way of trade exhibits in public; or
(iv) imports into Pakistan.
Explanation. For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematographic work shall be deemed to be an "infringing copy".
On careful perusal of this section I am further strengthen in my view holding that unless there exists some intellectual or artistic work and there is any owner or claimant of such work, the infringement of copyright does not arise, meaning thereby the cognizance in terms of Copyright Ordinance cannot be taken under such circumstances. The reference in this regard made to the reported judgments by the respondent herein above appears to be well placed and in consonance with statutory provision of F.I.A Act and Copyright Ordinance, 1962.
In view of herein above, I am of the view that for establishing infringement of copyright there has to be some owner/claimant of the original work. Reverting to the facts of the instant criminal acquittal appeals it appears that in Criminal Acquittal Appeal No.213 of 2008 though there was complainant who was claiming copyright through assignment, but later on such complainant withdrew from such claim hence, the case fall into the category where there is no owner or claimant of the copyright. Similarly, in Criminal Acquittal Appeal No.202 of 2008 there is no owner or claimant of any purported copyright, whereas cognizance has been taken by the State through F.I.A. On perusal of F.I.R and challan submitted before the learned trial Court, it does not reveal as to whether alleged infringement of copyright is in respect of Government work or is relatable to Government work. Similarly, it does not reveal as to how provision of Section 53 and 54 read with Section 66-B of the Copyright Ordinance are attracted in the instant case as neither any notification in terms of Section 53 and 54 of the Copyright Ordinance has been issued by Central Government nor there has been any provision of law cited whereby suo-motu cognizance can be taken by the F.I.A in terms of Copyright Ordinance for the alleged infringement of Copyright and violation of the provision of Copyright Ordinance. Under the circumstances, the orders passed by the learned trial Court in both the cases do not suffer from any factual impropriety and legal defect. In view of herein above, I find no merits in the instant Criminal Acquittal Appeals, which are hereby dismissed with no order as to cost.
Since these Criminal Acquittal Appeals have been decided on merits and the learned counsel for the respondents has not pressed the objection relating to maintainability of the instant appeals filed by the State without any sanction/permission of the Federal Government, I have abstained from giving decision on such objection which may be dealt in some other case as and when arise.
JUDGE