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Remedies Available For Copyright Infringement in India


Posted By Shrihar on 01 Aug 2017

A copyright is a legal device that gives the creator of a literary, artistic, musical, or other creative work the sole right to publish and sell that work. Copyright owners have the right to control the reproduction of their work, including the right to receive payment for that reproduction. An author may grant or sell those rights to others, including publishers or recording companies. Violation of a copyright is called infringement. The Statute dealing with provisions for copyright protection is the Indian Copyright Act 1957.

Thus article deals with remedies available when a copy right is infringed. Before talking about the remedies available for copyright infringement we should know what points a copyright owner has to prove to show that his/her copyright has been infringed.

  1. The work which is in issue for copyright infringement should be a subject matter of copyright according to provisions of Section 13 of Indian Copyright Act, 1957.
  2. The party raising a claim for copyright infringement should be the first owner of the work according to section 17 of Indian Copyright Act 1957, or he should be legal assignee of copyright by owner of the work by following the due process of law given under Section 18 to 21 of Indian Copyright Act 1957.
  3. The work must be original for copyright protection which originality is a prefixed criterion for copyright protection according to Section 13 of Indian Copyright Act 1957. There are no fixed criteria for determining originality; it depends on the facts and circumstances of case to case. The courts have introduced the following tests to decide the term originality.

i) Doctrine of Sweat and Brow- According to this doctrine, an author gains rights through simple diligence during the creation of a work. Substantial creativity or “originality” is not required. This is an English law concept. University of London Press v. University Tutorial Press was the judgment which explained the doctrine of sweat and Brow.[1]

ii) Doctrine of Modicum of Creativity - This doctrine stipulates that originality subsists in a work where a sufficient amount of intellectual creativity and judgment has gone into the creation of that work. The standard of creativity need not be high but a minimum level of creativity should be there for copyright protection. This doctrine was introduced by the US Supreme Court in the case of Feist Publication Inc. v. Rural Telephone Service.[2]

The Indian Courts earlier used to follow the Sweat and Brow- as our legal system is very much similar to English legal system but after the judgment of Eastern Book Company v. D.B. Modak[3], Where the Supreme Court discarded the ‘Sweat of the Brow’ doctrine and shifted to a ‘Modicum of creativity ‘approach as followed in the US. The dispute was related to copyright ability of judgments. The Court held that these inputs made by the editors of SCC can be given copyright protection because such tasks require the use of legal knowledge, skill and judgment of the editor because they used to add head notes to judgment which contained summary of the case. Accordingly, the Court granted copyright protection to the additions and contributions made by the editors of SCC. At the same the Court also held that the orders and judgments of the Courts are in public domain and everybody has a right to use and publish them and therefore no copyright can be claimed on the same.[4]

Now we will talk about acts which lead to copyright infringement. Simply one can say that the owner of the copyrights has some rights related to his work and if some knowingly or unknowingly uses those rights without the permission of owner it leads to copyright infringement.

Section-51 of the Indian Copyright Act, 1957 talks about acts which leads to copyright infringement. Authorized copyright owners have the right to:-

  • Publish the work;
  • Perform the work in public;
  • Produce the work in a material form;
  • Produce, reproduce, perform or publish any translation of the work;
  • Make any adaptation of the work;
  • Communicate the work through broadcast, radio or cable;
  • Make copies of the work;
  • Make a derivative based on the original;
  • Distribute the work;
  • Perform the work publicly;
  • Display the work in a commercial setting; and
  • Seek remedies for unauthorized use of the copyright work.

And if someone enjoys the above rights without the permission of the authorized owner of copyright owner it leads to copyright infringement.

Civil Remedies Available for Copyright Infringement

Section55. Civil remedies for infringement of copyright.—

Subsection 1 of Section 55 talks about the various forms of remedies which are available. It says that when a  copyright of  any work has been infringed, the owner of the copyright shall, except as otherwise provided by the provisions of Indian Copyright Act 1957, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right.[5]

A proviso had been added to this clause that if the defendant proves that at the date of the infringement he was not aware and had no reasonable ground for believing that copyright subsisted in the work, the plaintiff shall not be entitled to any remedy other than an injunction in respect of the infringement and a decree for the whole or part of the profits made by the defendant by the sale of the infringing copies as the court may in the circumstances deem reasonable. This concept gets its origin from basic principles of law that no innocent party should be unnecessarily punished more than what he/she is liable for.

Subsection 2 of Section 55 says that, in  case of a literary, dramatic, musical or artistic work, a name purporting to be that to the author or the publisher, as the case may be, appears on copies of the work published, or, in the case of an artistic work, appeared on the work when it was made, the person whose name so appears or appeared shall, in any proceeding in respect of infringement of copyright in such work, be presumed, unless the contrary is proved, to be the author or the publisher of the work, as the case may be. As civil laws are used in proceedings of Copyright Infringement so this presumption gets its origin from provisions of Section 4 of Indian Evidence Act.[6]

The costs and the amount raised as claim and as relief in matters of Copyright Infringement are generally very huge figure so costs of all parties in any proceedings in respect of the infringement of copyright is  the discretion of the court according to Subsection 3 of Section 55 of Indian Copyright Act 1957.[7]

Interlocutory Injunctions is the main civil remedy which is awarded in disputes related to copyright infringement. An interlocutory injunction is a court order to compel or prevent a party from doing certain acts pending the final determination of the case. It is an order made at an interim stage during the trial, and is usually issued to maintain the status quo until judgment can be made.

Criminal Remedies Available for Copyright Infringement

The Indian Copyright Act 1957 also provides for criminal liability to offenders of Copyright Infringement. Section 63 mentions that when someone intentionally infringes or abets infringement of Copyright Infringement he/she is liable for an imprisonment of 6 months which may extend to three years and fine of fifty thousand but which may extend to two lakhs.

Section 63A further talks about enhanced punishment for habitual offender's according to which the minimum imprisonment term is 1 years and minimum fine is 1 Lakh Rupees. The highest punishment that can be awarded is same as that of first time offender's.

Landmark Case Laws of Copyright Infringement in India

R.G Anand V/s M/s. Delux Films & Ors.

In this case the court decided that there is no Copyright of an idea and when someone adapts a theater play and makes a movie out of it the owner of the play cannot claim a copyright Infringement as the movie is very different form a theater play. The defendant here made a movie named 'New Delhi' based on theatre play written by the plaintiff RJ Anand. The court said that where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work and no question of Copyright Infringement arises.[8]

Concept of Fair dealing Under Indian Copyright Act 1957

It is a defense in case of Copyright Infringement disputes and an exception of Copyright Infringement. It is an integral part of Copyright Law in India. It gets its origin from provisions of Section 52 of Indian Copyright Act 1957 which talks about exception of Copyright Infringement. There are other exceptions to copyright infringement as well such as private use, research purpose, etc.

Fair dealing means when a copyright is used after duly acknowledging the authorized Copyright Owner and no monetary benefit is taken from such use. For example distributing copies of book to students for education purpose for free of cost by school administration, without taking any charge so that no monetary benefit is made out of it.

The fair nature of the dealing depends on the following four factors:

  • the purpose of use;
  • the nature of the work;
  • the amount of the work used; and
  • the effect of use of the work on the original.

DU Photocopy Case

The legal battle began in August 2012, when publishers including Oxford University Press, Cambridge University Press and Taylor and Francis Group brought a case of copyright infringement against Rameshwari Photocopy Service, a licensed vendor in DU’s north campus. The publishing houses claimed the sale of compilations of parts of books in the form of course packs to students is illegal and in violation of the provisions of the Indian Copyright Act. The court passed an interim stay order restraining the shop from selling copies of compiled course books to students in October 2012. Taking in context the Socioeconomic condition of India and the fact that the photocopy shops were only taking charges for producing copies and were not earning profit out of it the court decided that there was no Copyright Infringement. The court also said that Section 52(i) also supported court’s decision which says that use copyrightable for education purpose does not lead to any Copyright Infringement. In order to protect their rights, students had set up the Association of Students for Equitable Access to Knowledge (ASEAK). The association, while highlighting students’ suffering due to the stay order, told the court that it was not possible for them to continue studying without photocopied notes as very few of them could afford to buy new books.[9] Thus judgment was also criticized by lot of legal professionals as being an unsound judgment as it was moreover based on emotions rather than law, but it is a perfectly fine judgment when we consider the situation of our nation.

 

 

 

 

 

 

Conclusion

Indian Copyright Law still is not fully developed and is still developing just like our nation. It keeps on changing from time to time. What may not be a copyright today may be a matter that is copyrightable in near future. But still the Indian Copyright Law is a sufficient Statute to decide and govern matters of Copyright disputes. It has a lot of remedies available in case when a copyright is infringed because protection of Copyright is a big issue in modern world. It also provides a lot of defenses too that no innocent party is punished. The Indian Copyright Act has been amended for 6 times, latest being the amendment if 2012. Many of these amendments have been done to comply with TRIPS Agreement because India is a part of it, which makes the Copyright Law more updated and in accordance with changing scenario across the world. Still there is a lot of grey matter regarding many concepts under Indian Copyright Law and it needs some developments. The courts have relied upon lot of International Jurisprudence to decide matters of Copyright Infringement as our legal system did not have many disputes related to copyright infringement. The US Copyright Law is most developed one and after the DB Modak Case the courts have started following the US concepts of Copyright protection.

 

[1] England, Chancery Division. [1916] 2 Ch. 601

[2] 499 U.S. 340, 342 (1991)

[3] Eastern Book Company v. D.B. Modak, 2002 PTC 641

[4] Id.           

[5] S-55(1) Indian Copyright Act 1957

[6] S-55(2) Indian Copyright Act 1957

[7] S-55(3) Indian Copyright Act 1957

[8] R.G Anand vs M/S. Delux Films & Ors 1978 AIR 1613

[9] The Chancellor, Masters & Scholars of the University of Oxford & Ors. V. Rameshwari Photocopy Services & Anr.

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