India—Disproportionate Punishments for IP Infringement

Abstract This chapter examines criminal sanctions for intellectual property (IP) infringement in India, tracing their historical roots to the colonial period when criminal penalties for certain copyright and trademark offences were first introduced. Today, such penalties apply under India’s copyright, trademark, plant variety protection, and biodiversity laws. Other legislative instruments also provide criminal penalties for IP infringement-related offences, including customs, drug regulation, money laundering, and general criminal laws. Indian patent and design laws do not provide any criminal penalties for infringement. Some state laws also prescribe ‘preventive detention’ of those accused of certain types of copyright infringement—special laws permitting detention without trial for up to one year. While accurate statistics regarding civil litigation are unavailable, those on criminal enforcement indicate that copyright prosecutions far exceed trademark prosecutions. Conviction rates for copyright infringement appear to be quite low. The number of trademark prosecutions is minuscule, and there may be several reasons for these relatively few criminal prosecutions under Indian law. These statistics raise doubts about the tall claim made by lobbying groups regarding the volume of counterfeiting activity in India. One of the significant problems with the operation of criminal prosecutions under copyright law is the lack of sufficient procedural safeguards, which enables abuse of power by a police force known for corruption. In such a scenario, the mere threat of criminal proceedings can be used to extract disproportionate royalties from users. The chapter concludes that India’s approach to criminalizing certain forms of IP infringement is in dire need of reform.