INFRINGEMENT AND REMEDIES UNDER INDIAN COPYRIGHT LAW

INFRINGEMENT AND REMEDIES UNDER INDIAN COPYRIGHT LAW

INTRODUCTION

The Copyright Act, 1957 provides copyright protection with certain exclusive rights on the author. The idea behind conferring this right upon authors was to enable him to reap the fruits of his labour and investment to the exclusive of others. But the public also have certain right under Section 52 on the Copyright Act under the head of Fair dealing which is known as permitted use of the copyrighted work. Thus, if a person uses any of the exclusive rights of the copyright owner he shall be liable for infringement of Copyright under Section 51 of the Copyright Act. For Infringement under Section 51, it is very crucial that the person must have not taken a prior permission of the Copyright Owner before usage of the work and neither has he come under the purview of Section 52 of Copyright Act.

WHEN COPYRIGHT IS INFRINGED?

Section 51 of the Indian Copyright Act deals with the circumstances in which a Copyright is termed infringed.

a) When any person without license or any authorization from the Copyright Owner or Registrar of Copyright, or in contravention of the conditions of license-

i. Does anything, exclusive right to take action is with owner,

ii. Permits (for profits) any place to be used for communication of work,

Unless, he was not aware that his act will amount to infringement amounts to contravention.

b) When any person-

i. Make for sale or hire, sells or lets for hire, or by way of trade displays or offers for sale or hire any infringing copies of the work,

ii. Distributes any infringing copies of the work for trade or affecting prejudicially the Copyright Owner,

iii. Exhibits in public, any infringing copies of the work by way of trade.

It is however, not infringing of Copyright to import one copy of any work for the private domestic use of the importer.

TYPES OF INFRINGEMENT OF COPYRIGHT BY COPYING

a) Direct Copying

The person copies the exact work of the copyright Owner as it is. In K.R. VenugopalaSarma v. Sangu Ganesan [1972 Cr LJ 1098 (Mad)]. The Hon’ble court held that ‘the degree of resemblance between the two pictures, which is to be judged by the eye must be such that the person looking at the respondents’ pictures must get the suggestion that it is the appellants picture.

b) Indirect Copying

The person indirectly copies the work of the Copyright Owner. In J.C. Bamford Excavators Limited v. Action Construction Equipment Limited [2006 (33) PTC 81 (Bom).], the court has held that where the defendants produced their products on the basis of the drawings they reached by way of reverse engineering of the plaintiff’s product, there was no infringement of Copyright in the drawings of the plaintiffs. In this case, the plaintiffs could not lay their hands on the drawings on the basis of which the machine of the defendants was manufactured. Apart from that, the photographs have shown that the components were not exactly the replica of each other.

c) Subconscious Copying

Under this, the person copying believes that the work belongs to him and he is the original owner of the work but in reality he is not. The work already belongs to someone’s.

Substantial Taking

Under this, the person does not copy the entire work but copies the substantial part or important part of the work of the Copyright Owner. In Ladbroke v. William Hill [, Lord Reid held that substantial part depends much more on the quality than the quantity of what he has taken.

Casual Connection

It is important for the Plaintiff to establish a connection between the copied work and his original copyrighted work in order to prove infringement. In Corelli v. Gray [(1913) 29 TLR 116.], the similarity between the works of plaintiff and defendant may also occur due to other reasons, such as both of them might have used a common source or they have arrived at their results by putting independent time and labour. In such a case, their shall be no infringement of plaintiff’s copyright.

REMEDIES TO INFRINGEMENT OF COPYRIGHT

a. CIVIL REMEDIES FOR COPYRIGHT INFRINGEMENT

Section 55 of the Copyright Act deals with the civil remedies available to the Copyright Owner. The remedies are as stated below-

i. Interlocutory Injunctions

Conditions for grant of Interlocutory Injunctions are-

i.i. There should be a Prima facie case

i.ii. There needs to be balance of convenience

i.iii. There should be an irreparable injury

ii. Pecuniary Injunctions

This remedy is grant when the Copyright owner seeks for-

i.i. account of profits, so that owner seek the sum of profit made by unlawful conduct

i.ii. Compensatory damage

i.iii. conversion damage which is assessed according to the value of article.

iii. Anton Pillar Orders

Important elements of the order are-

i.i. injunction restraining defendant from destroying or infringing work or goods.

i.ii. permit plaintiff?s lawyer to search defendants premises and takes goods in their safe custody.

i.iii. defendant be directed to disclose the names and addresses of suppliers and consumers.

iv. Mareva Injunctions

This comes into play when court believes that the defendant is trying to delay or obstruct the execution of any decree being passed against them.

v. Norwich Pharmacal Order

This order is passed when information needs to be recovered from a third party.

b. CRIMINAL REMEDIES

i. There can be Imprisonment upto 3 years but not less than 6 months.

ii. There can be fine which may not be less than Rs. 50,000 but may extend to Rs. 2,00,000.

iii. There can be search &seizure of infringing goods.

c. ADMINISTRATIVE REMEDIES

i. The court can grant delivery of infringing goods to the Copyright Owner

ii. The Registrar can ban the import of infringing goods to India.

FRESH CAUSE OF ACTION

On recurring infringement by a person, fresh suit can be instituted for every infringement by the Copyright Owner.

RIGHTS ARE PROTECTED IN WORKS, NOT IN IDEAS, THEMES OR PLOTS

The right of against infringement and remedies of an Copyright Owner persists in the work of the Copyright Owner. If a person had an idea, thought, themes or plot in his mind, that would not be subjected to any right under Copyright law.

References-

-V.K. Ahuja, Law Relating to Intellectual Property Rights, 3RD Edition, 2018.

-Remedies for Copyright Infringement in India, Wazzeer.

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