DHARMAPALA

VS.

OFFICER-IN-CHARGE, COLOMBO SPECIAL CRIMES DIVISION

SUPREME COURT
JAYAWARDENA, J.
AMARASEKARA, J.
KODAGODA, J.
SC/APPEAL/155/2014
HC/APPEAL/MCA/106/08
MC MALIGAKANDA 22070/05
JUNE 25, 2020

Intellectual Property rights-Criminal prosecution-Intellectual Property Act, No. 36 of 2003, sections 5, 6, 9, 10, 11, 12, 13, 16, 17, 21, 178(2)- Penal Code, section 24-Code of Criminal Procedure Act, No. 15 of 1979, sections 16, 136-lntegrity of productions-Burden of proof-Real evidence-Copyright-Economic rights-Moral rights-Presumption of innocence-Beyond reasonable doubt-Cross examination-Evidence Ordinance, sections 3, 60, 106, 114(f), 150, 151, 152, 165-Evidence (Special Provisions) Act, No. 14 of 1995

The accused-appellant was charged in the Magistrate's Court under section 178(2) of the Intellectual Property Act, No. 36 of 2003, for exhibiting for sale, giving on rent and possessing for trading purposes unlawfully prepared copies of a record named "Galana Gangaki Jeewithe" containing songs owned/sung/composed (lyrics/music) by Sunit Ariyaratne, Nanda Malini and Raveendra Mahagamasekera. After trial, he was found guilty of all three charges and sentenced to six months imprisonment suspended for ten years and a fine of Rs.500,000. On appeal, the High Court affirmed the conviction and sentence. The appellant appealed to the Supreme Court.

Held :

1. Under the second proviso to section 60 of the Evidence Ordinance, real (physical) evidence may be admitted. However, it is necessary that such evidence be associated with an item of oral evidence, which provides a description of the existence or condition of such physical item.

2. The actus reus of the offence as envisaged by section 178(2) of the Intellectual Property Act is that the offender should have sold, displayed for sale, or had in his possession for sale or rental or for any other purpose of trade a copy that had been made in infringement of the rights protected under Part II of the Intellectual Property Act. The mens rea of the offence is that the offender should have either known or had reason to believe that the copy in issue had been made by whosoever is in infringement of the rights protected under Part II of the Intellectual Property Act.

3. The lyricist, music composer and producer (jointly) of a song have economic rights to inter alia authorise the reproduction of the song. If a song is made for the purpose of an audio-visual work and integrated into a film, unless otherwise provided, the producer of the film will be vested with the economic and moral rights of the film and the songs included in the film.

4. Fixation takes place when a song is recorded onto a CD, in which event the authorisation of the singer is required for the preparation of copies of the CD.

5. The prosecution has established beyond doubt the integrity of the CD from the stage it was purchased from the accused to the stage at which it was played to be heard by the three complainants. It was not necessary for the prosecution to establish the integrity of the productions from the time they were taken into custody to the point they were produced in court during the trial.

6. The presumption of innocence of the· accused and the right to a fair trial are cornerstones of the criminal justice system which give rise to the principle of proof beyond reasonable doubt. Reasonable doubt means doubt in respect of which a valid reason can be attributed. Such doubt must be objective and reason-based. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt.

7. The scheme of the Criminal Procedure Code, in particular section 16, envisages that when an accused is convicted of having committed more than one offence, the court should impose separate sentences in relation to each of the offences in respect of which he has been found guilty.

Cases referred to :

1. Perera v. Attorney Gener