Infringement of Copyright laws in India by Bishal Basak @lexCliq.com

ABSTRACT:

 

The main objective of the copyright law is to promote the interest of individual. Basically, copyrights law involves in providing incentives to the author in order to encourage creation of new work. This law is basically intended to achieve the recognition of the authorship of the work and to ensure economic return. Sec 13 and 63 of Indian Copyright Act, 1957 protects literary work, pictures, sound recordings and other creative works from been copied without the permission of the copyright author. There is no any clarity in law as to how copyright law governs on the internet. The researcher in this paper would try analysing the same as technological changes creates challenges to the basic principles of the copyright law. This research paper would give an overview of intellectual property rights on the context of infringement of copyrights in India. This paper deals with copyrights and infringement of copyright in India. Further the researcher would deal with all the legal provisions regarding infringement of copyright in India.

Keywords: Copyright, infringement, intellectual property rights etc.

 

INTRODUCTION:

 

A copyright is a body of rights that automatically bestow on someone who generate an original work of authorship like a literary work, song, movie or software and it includes the right to reproduce the work, to prepare plagiarized works, to distribute copies, and to accomplish and exhibit the work publicly. Establishment of copyrights by the creator of an authentic work at the time when that authentic work is placed in corporal medium of expression, which can be a written document, sound or video recording, digital file or any of a very wide range of other structures. For example, a copyright with a written article or a book is established when the article or book has been written, even if it is not published or distributed. No application or request for grant of the rights is required for copyright protection to take place, though registration of copyrights is desirable to make implementation effortless and more empirical. When copyrights are acknowledged, the rights are owned solely by the author of the protected work, unless the creation is a work-for-hire. Although the author of a work obtains absolute copyright ownership upon presentation of that work in a tangible medium of expression, there are limits to the exercise of that control. Other parties have “fair use” rights to make limited use of copyrighted material for certain purposes deemed to serve the interests of the public, such as reporting the news, even without a license or other grant of authorization from the copyright owner. The right to distribute the protected work to other parties is exercised only the owner of the copyright.  This right extends to samples of the procured work as well. Thus, for example, the creator of a video game initiates copyright while creating the digital files correlated with that game. The right to distribute the game and copies of the game to other parties is only exercised by the game creator. This incorporates electronic copies and physical copies.

A violation, a breach, or an unauthorized act ca be termed as Infringement. Infringement takes place in diverse situations. In areas of intellectual property, an infringement refers to an unofficial use of a copyrighted or patented creation. Copyright infringement is the benefit or procreation of copyright-protected material without the sanction of the copyright holder. Copyright infringement means that the rights afforded to the copyright holder, such as the absolute use of a work for a specific period of time, are being contravened by a third party. Music and movies are two of the most renowned forms of leisure that suffer from remarkable amounts of copyright infringement. Infringement cases may lead to conditional liabilities, which are aggregates set aside in case of a possible legal proceedings.

During the regime of East India Company, the first Copyright Act of India was enacted in 1847. According to the act, the term of copyright was either, for the eternity of author plus 7 years or 42 years. The government had the authority to permit the publishing license after the death of the author if the owner of the copyright repudiated the sanction. Under the jurisdiction of the highest local civil court came all the suits and infringement related to copyright. The Copyright Act of 1914 replaced the previous act. The act of 1914 was the first ‘modern’ copyright law of India. The 1914 Act was replaced by the Copyright Act of 1957which came into force on 21st of January, 1958. The act in addition to amending the copyright law also incorporated landmark changes such as provisions for fixing copyright office under the authority of Registrar of copyright for certification of books and other works of art. Section 51 of the Copyright Act specifies when a copyright is infringed. The work was the actual invention of the author. The work of the author was actually copied by the defendant. It is necessary to note that not all irrefutably copying is legally functional. The substantial similarity between the works of the author and the defendant has to be established to prove that the defendant has infringed the author’s copyright. Section 52 provides an extensive list of acts which do not embody infringement of copyright. These are in the nature of exceptions to the absolute rights negotiated upon the copyright owner. They also serve as defence in an action for infringement of copyright.

 

PROVISIONS FOR INFRINGEMENT OF COPY RIGHTS:

 

Provisions for infringement of copyright in India are as follows:

Section 51 of the copyright acts says that Copyright in a work is deemed to be infringed-

(a) When any person in the absence of a license from the owner of the copyright, or the Registrar of Copyright, or in dereliction of the conditions of a licence granted or any conditions imposed by a skilful authority under the Act:

(i) Does anything, the exclusive right to do which is conferred upon the owner of the copyright, or

(ii) Permits for profit any piece to be used for the communication of the work to the people where such communication initiates an infringement of the copyright in the effort, unless he was not conscious of and had. no rational ground for believing that such communication to the people would be a copyright infringement, or

 

(b) If any person,

(i) Makes for sale or hire, or sells or lets for hire or by way of trade displays or offers for trading or recruiting of any infringing copies of the work, or

(ii) Distributes, either with the motive of trade or to such an area as to affect detrimentally the owner of the copyright, any infringed samples of the work, or

(iii) Manifests in public by way of trade any contravening copies of the work, or

(iv) Imports any infringing copies of the work into India except one copy of any work as it is for the private and domestic use of the importer.

The propagation of a literary dramatic, musical or artistic work in the form of a cinematographic film will be considered to be an infringing copy.

 

Exceptions to infringement of copyright in India:

 

In India, Section 52 of the Copyright Act, 1957 offer for certain acts, which do not constitute an infringement of the copyright or considered as exception to infringement of copyright. Namely honest dealing with a literary, musical, dramatic or artistic work not being a computer program for the reasons of-

  • Private use accompanied by research.
  • Analysis or appraisal.
  • Present events to be reported in any print media.
  • Through a cinematic film or broadcast or by any means of photographs.
  • Reproduction of the judicial proceeding or of a report of the judicial proceeding.
  • Publication or propagation of the musical, literary, dramatic or artistic work prepared by the secretariat of the legislature.
  • The procreation of any literary, musical work or dramatic in a attested copy made or supplied in lines with any law provisionally in force.
  • The recitation or reading in public of any reasonable extract from the published literary or dramatic work.
  • The publication in the collection, primarily made of non-copyright matter, bona fide deliberated for the purpose of educational institutions.
  • The composing of sound if prepared with or by the license or consent of the owner of the right in the work.

Remedies for infringement of copyrights in India are:

Civil Remedies for Copyright Infringement:

The civil remedies for copyright infringement are covered under Section 55 of the Copyright Act of 1957. The distinct civil remedies available are:

1)    Interlocutory Injunctions

The grant of interlocutory injunction is an essential remedy. The application filled is for interlocutory relief and the matter rarely goes beyond the interlocutory stage. There are three requirements for there to be a grant of interlocutory injunction – Firstly, it needs to be a prima facie case. Secondly, there needs to be a balance of comfort and finally there needs to be an unredeemable injury.

Certain grounds when the court may refuse the grant of a permanent injunction are as follows:

  • No evidence exists to show that the defendant’s activities can threaten or intervene in the plaintiff’s enjoyment of copyright
  • The intrusion of rights even if exists then they are theoretical in nature and which would to the maximum provide the plaintiff with nominal damages
  • The extent of injury caused to the defendant and is higher than the advantage the plaintiff will derive from the injunction

2)    Pecuniary Remedies

Copyright owners can also seek three pecuniary remedies under Section 55 and 58 of the Copyright Act of 1957. Firstly, an account of profits which lets the owner seek the sum of money made equal to the profit made through unlawful conduct. Secondly, compensatory damages which let the copyright owner to look for the damages he met with due to the infringement and finally revamping damages which are evaluated according to the merit of the article.

3)    Anton Pillar Orders

The name Anton Pillar Orders is acquired from the holding in Anton Pillar AG vs. Manufacturing Processes. The elements which are present in Anton Pillar Order are as follows: Firstly, an injunction preventing the defendant from demolishing or infringing goods. Secondly, an order granting the plaintiff’s lawyer to search the defendant’s place and take goods in their safe custody and eventually an order that the defendant be directed to reveal the names and addresses of suppliers and consumers.

4)    Mareva Injunction

When the court believes that the defendant is trying to delay or cumber the execution of any decree being passed against him then the Mareva Injunction comes into play. The court has the authority to direct him to place whole or any part of his property under the court’s disposal which may be adequate to fulfil the decree. This is mentioned in Order XXXVIII, Rule 5 of The Civil Procedure Code of 1908.

5)    Norwich Pharmacal Order

When information needs to be discovered from a third party an order called the Norwich Pharmaceutical Order is passed.

Criminal Remedies for copyright infringement:

The following remedies are provided for infringement of copyright under sec. 63 of the Copyright Act, 1957:

  • Imprisonment may get extended upto 3 years but not less than 6 months
  • Fine may extend up to 2,00,000 but not less than 50,000
  • Search and seizure of infringing goods
  • Infringed goods should be delivered to the copyright owner

 

CASE LAWS OF COPY RIGHT INFRINGEMENT:

 

Some of the landmark cases along with their judgments are as follows:

In Eastern Book company v Navin J. Desai, the question implied was if there is any copyright while reporting the judgment of a court. The Delhi High court observed: It is not denied that under section 2(k) of the Copyright Act, a work which produced or promulgated under the supervision or jurisdiction of any Court, tribunal or other judicial control in India is a Government work. According to section 52(q), the procreation or publication of any judgment or order of a court, arbitration board or other absolute judiciary shall not account for infringement of copyright of the government in these tasks. Thus, it is clear that it is open to everybody to procreate and publish the government work including the judgment/order of a court. However, in case, a person by comprehensive reading, careful study and comparison and with the utilization of taste and judgment has made certain remarks about judgment or has written a critique thereon, may be such a comment and critique is entitled to protection under the Copyright Act.

The court further observed: In terms of section 52(1)(q) of the Act, reproduction of a judgment of the court is an exception to the infringement of the Copyright. are in the public domain and Anyone can publish the orders and judgments of the court as these are in the public domain. Apart from been a government work, no copyright exists in these orders and judgments. Copyright in these judgments and orders of the court merely on the ground that he had first published them in his book cannot be claimed by anybody. The changes that have been made consists of abolition, changes of spelling, abolition or addition of citations and corrections of typographic mistakes are insignificant and hence no copyright exists

 

In Caterpillar Inc v Kailash Nichani, the plaintiff, a foreign company, was conveying a business in several places in India including Delhi, through its Indian distributors and collaborators. The plaintiff affirmed the relief of temporary injunction for preventing violation of its copyright by the defendant, although the defendant was dealing with separate goods. The High Court of Delhi held that it was not mandatory to show that the business being conveyed by the plaintiff in Delhi should necessarily be in respect of footwear and articles of clothing as well. It is adequate if the business was being conveyed by the plaintiff in Delhi and farther that there was an infringement of plaintiff’s copyright in respect of certain goods, which were being sold by the defendant in Delhi. The court further held that section 62 of the Copyright Act makes an obvious and significant retreat from the yardstick that the option of jurisdiction should initially be governed with the convenience of the defendant. The legislature in its wisdom instigated this provision laying down completely opposite norm than the one set out in section 20 of CPC. The motive is to unveil the offender with disruption rather than enthralling the sufferer to run after the former.

 

In Hawkins Cooker Ltd. V. Magicook Appliances, the court ordered for perpetual injunction restraining the defendants, their servants, agents etc. Beginning with an array of tag in relation to pressure cookers which is delusively similar to the tag of the plaintiff having characteristic features and registered under the provisions of the Copyright’s Act of 1957. The defendants were also detached from trading with the cook books of the plaintiff company and were administered to convey up to the plaintiff company for demolition of all such pressure cookers and books complained against and all appendages and artefacts waged by the defendants in the production of the sinful goods which are in the custody, power, possession and authority of the defendants. The plaintiff company is also entitled to damages arising upon the rendition of accounts by the defendants.

 

In Super Cassettes Industries Limited v. YouTube & Google, SCIL claimed that the business model of YouTube allows, encourages and profits from use of copyrighted piece uploaded on the database in the absence of any license or authorization from the sanctioned copyright owners and without payment of any royalty. The high court passed the order against YouTube and google restraining them from reproducing, adapting, distributing, communicating, transmitting, disseminating or displaying on their websites any audio-visual works which is in the exclusive ownership of SCIL

 

CONCLUSION:

 

It has been already observed that the remedies provided for copyright infringement in Indian law are slowly coming at parity with those provided globally. It is possibly the better execution of these remedies that is required. However, in the light of the additional innovative remedies being introduced every now and then, it must be sustained in mind that Copyright laws were never deliberated to create absolute monopoly. Copyright law has been considered to create equilibrium between the rights of copyright owner to initiate a profit for their chores and the benefit to society of learning from and building upon their duties. The customary principles of copyright, like the ‘fair use’ doctrine, progressed towards this end. With the arrival of Information and Communication Technology mutiny these customary principles are losing their purpose. A major problem has emerged in copyright laws due to this digital transmission technology in the form of the Internet. In order to counter this, there is a thorough alteration of copyright laws with the acquisition of many layers of patronage in the form of “technological protection measures” and through agreement laws besides the copyright laws. The balance in favour of the copyright owners may get inclined.

The rights of all stakeholders would be balanced through an ideal regime for copyright protection. On one hand, India faces major economic losses due to rampant piracy, especially online and on the other hand the unusual socio-economic conditions of the country make it crucial to overlook IPRs to an extent for the greater attributes. In these situations, maybe the stress should be a fruitful execution of the existing remedies rather than instituting new remedies over and above the current provisions, so that the authentic exceptions to IPRs are not decayed. With the paragon shift in the legal authorities governing the concern in India, it remains to be seen how such a balance continues to exist.

 

REFERENCES:

 

  • Internet]. Scce.ac.in. 2019 [cited 6 February 2019]. Available from: http://scce.ac.in/noticeboard/10550_05022016IPR_COPYRIGHT_STUDY_MATERIAL.doc
  • http://copyright.gov.in/documents/handbook.html (retrieved on 20.01.2016)
  • http://www.wipo.int/portal/en/index.html (retrieved on 20.01.2016)
  • Mishra J. An introduction to intellectual property rights, Allahabad: Central Law Publications 2009
  • in. (2019). Central Law Publication an Introduction to Intellectual Property Rights by J Mishra online@ Best Price. [Online] Available at: https://bookwindow.in/product.php/intellectdual-property-rights-Mishra-English [Accessed 7 Feb. 2019].

 

 

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