Copyright law confers upon the owner of the work a bundle of exclusive right in respect of the reproduction of the work and other acts which enables the owner to get financial benefits by exercising those rights. If any of these acts relating to the work is carried out by a person other than the owner without a license from the owner or a competent authority under any Act related to Copyright than it constitutes infringement of Copyright in the work. Since Copyright is granted only for a limited period there will b no infringement if the reproduction of the work or other acts concerned is carried out after the term of Copyright has been expired.
In order to constitute infringement of Copyright in any literary dramatic or musical work, two elements must be Present:
There must be sufficient objective similarity between the infringing work and the Copyright work or a substantial part thereof for the former to be properly described not necessarily as identical with but as a reproduction or adaptation of the latter;
The Copyright work must be the source from which the infringing work is derived; but it need not to be the direct source.
What are the remedies and actions for infringement of Copyright?
There are three types of remedies against infringement namely:
Civil remedies.
Criminal remedies
Administrative remedies.
Administrative remedies:
It is useful in preventing importation of infringing copies in India. In Gramophone Co. of Indian Ltd. v Birendra Bhadur Pandey and Others , AIR 1984 SC 667 , a consignment of pre-recorded
cassettes to be dispatched to Nepal. A writ of mandamus was file in the Calcutta High Court to compel the Registrar to pass an order under Sec.53 to prevent the release of the cassettes from the custody of the customs authority. The Hon’ble High Held that there was no importation when the goods entered India en route to Nepal. Appellant filed an appeal before the Supreme Court. The Hon’ble Supreme Court held that the word ‘import’ means ‘bringing into India from outside India’, and it was not limited to importation for commerce only, but included importation for transit across the country. Sec. 53(2) of the Act empowers the Registrar to-
a) enter any ship, dock or premises where any such infringing copies may be found; and
b) examine such copies. This is to determine whether the such copies infringe the copyright in the work of the applicant.
Criminal remedies
Sec.63 to 70 – Can be availed simultaneously along with civil. this remedy more effective than civil because it can be disposed of quickly. – it directly strikes at the honour and social status of an offender – as a result sometimes the offender comes for a settlement out of court. – Knowledge or mens rea is an essential ingredient of the offence.
1. Civil remedies:
Secs. 54 to 62 deal with these concepts. These are of two types:- a) Preventive Civil Remedies, and b) Compensatory Remedies.
a) Preventive Civil Remedies:- These are of following types:-
Interlocutory Injunction:- It is granted by the Court to stop the infringing work of the Defendant from continuing. To claim injunction, the plaintiff must prove the following things:-
v establishment of prima facie case,
v balance of convenience must tilt in his favour,
v that an irreparable loss to the plaintiff if injunction is not granted,
v that the plaintiff has reasonable likelihood of success on merits.
In Gujarat Bottling Company Ltd v Coca Cola Company, AIR 1995 SC 2372 , the Court held that the object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he cannot be compensated in terms of money.
In Mirabai Films Pvt Ltd v Siti Cable Network and ors (2003) 26 PTC473 (Del.) , the appellant was the producer of the film ‘Monsoon Wedding’ and respondents were cable operators. The respondents were habitual offenders in telecasting pirated copies of films, and were about to do the same with the appellants film. Therefore, to restrain the respondents from doing so the Court granted the temporary injunction.
(ii) Mareva Injunction:- the purpose of this injunction is to restrain the defendant from disposing of or removing them from the jurisdiction of the Court assets which may be required to satisfy the plaintiff’s claim. This injunction are usually sought ex parte. Injunction is is founded on equity and cannot be sought as a matter of right.
Permanent Injunction :- If the plaintiff succeeds at the trial in establishing infringement of copyright, he will normally be entitle to a permanent in junction to restrain future infringements. This injunction will operate only during the un-expired term of the copyright.
(b) Compensatory Civil Remedies:- These remedies can be divided into three parts: damages, damages for conversion / delivery up of infringing copies, and account of profit.
(i) Damages :- Copyright infringement is a Tort and the overriding principle in Tort law is that damages should be compensated
Is Copyright protection is given to unregistered work?
Many people falsely believe that when copyright infringement laws exist, they only protect officially copyrighted work. When a work is officially copyrighted, a person or business has engaged in a legal process to register a copyright with the proper authorities. WIPO says that in most countries a work is protected the moment it is created. When this is the case, owners of intellectual property can seek protection of infringement laws even if their work is not registered.
Is copyright infringement a criminal offence?
Yes. Any person who knowingly infringes or abets the infringement of the copyright in any work commits criminal offence under Section 63 of the Copyright Act.
What are the punishments for a criminal offence under the copyright law?
The minimum punishment for infringement of copyright is imprisonment for six months with the minimum fine of Rs. ....../-. In the case of a second and subsequent conviction the minimum punishment is imprisonment for one year and fine of Rs. ....... (check the latest please).
Is copyright infringement a cognizable offence?
Any police officer, not below the rank of a sub inspector, may, if he is satisfied that an offence in respect of the infringement of copyright in any work has been, is being, or is likely to be committed, seize without warrant, all copies of the work and all plates used for the purpose of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable be produced before a magistrate.
What constitute infringement of Artistic Works?
Under the Copyright Act, copyright in an artistic work will only be infringed if someone:
reproduces the work in a material form;
publishes the work; or
communicates the work to the public.
The words ‘publish’ and ‘communicate’ in this context can be deceptive because the Copyright Act defines them narrowly. Publication of an artistic work is limited to supplying reproductions of the work to the public (by sale or otherwise), while communication only occurs when material is electronically transmitted or made available online. By contrast, a work can be reproduced’ in a wide variety of methods, for example by photographing, filming, drawing, sketching and many other techniques, even if the reproduction is not an identical one.
What constitute infringement of Literary, musical and dramatic works?
The acts reserved exclusively for the copyright owner in relation to literary, musical and dramatic works are the same as those for artistic works (the right to reproduce, publish and communicate) but also extend to:
performing the work in public; and
making an adaptation of the work.
This means that it is perfectly fine for someone to sell a novel that he or she owns in a public market place as long as that person has not reproduced the copy, for example by printing its pages from the internet. The same reasoning applies to selling a play script or sheet music in a public place. These examples highlight the conceptual divide between property and intellectual property: you will have property in (or ‘title to’) any object you buy, which allows you to sell that object without restriction, but you will not own the intellectual property in that object (unless you created it yourself or had the intellectual property assigned to you in writing) and therefore you cannot exercise any of the exclusive rights of the copyright owner.
Copyright in digital era
We have noticed and experienced the rapid changes that have been brought about by technological advancement. Computers, CDs, Internet are some modes that have virtually changed our world and brought about better and improved quality of life. These technologies have provided a better, fast and cheap way to access and transfer information. Lot of works which are subject matter of copyright are being disseminated through this medium. A growing number of users which is triggered by lowering of prices and superior technology, will encourage the copyright holders to use this effective medium to exercise their rights. This rapid advancement of which virtually no one is untouched raises important questions of law. Whether the decades old copyright law will be able withstand this technological onslaughts? How can web-sites their layouts, E-Books, softwares, Databases etc. be protected under the law remains the moot question. We have noticed and experienced the rapid changes that have been brought about by technological advancement. Computers, CDs, Internet are some modes that have virtually changed our world and brought about better and improved quality of life. These technologies have provided a better, fast and cheap way to access and transfer information. Lot of works which are subject matter of copyright are being disseminated through this medium. A growing number of users which is triggered by lowering of prices and superior technology, will encourage the copyright holders to use this effective medium to exercise their rights. This rapid advancement of which virtually no one is untouched raises important questions of law. Whether the decades old copyright law will be able withstand this technological onslaughts? How can web-sites their layouts, E-Books, softwares, Databases etc. be protected under the law remains the moot question.
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