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INFRINGEMENT OF COPYRIGHT

Updated: Feb 20, 2022

Written by: Kethana Tamminaina



INTRODUCTION


Copyright is described by the term itself: it is the right to copy. It explains the legal rights of the intellectual property holders. An individual who holds the copyright to a work is the only one who can copy it or give others permission to copy it. The significance of copyright was only realised after the advent of the printing press, which made the large-scale production of books possible. England's "Statute of Anne"[1] is considered as the first copyright law. For the first time, this statute granted writers exclusive privileges and limited the duration of such exclusive rights to a certain number of years, in which all works would become public domain.


Copyright infringement[2] refers to the violation of someone's intellectual property (IP). It is just another word for piracy, or the exploitation of someone else's original work, particularly when the pirate makes a fortune rather than the material's creator. Copyright infringement (also known as piracy) is the use of works protected by copyright law without authorization for a purpose for which permission is necessary, thus violating on the copyright holder's proprietary rights, such as the right to print, publish, view, or conduct the copyrighted material, as well as the right to create derivative works. The work's author, or a publisher or other company to whom copyright has been granted, is usually the copyright holder. To avoid and punish copyright infringement, copyright holders also use legal and technical interventions.


Statutory definition of infringement:

A work's copyright would be considered infringed


1) When any party acts without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act, or in violation of the terms of a licence so granted, or of any requirement imposed by a competent authority under this Act-


a) Does anything, for which the owner of the copyright has the sole right to do under this Act, or

b) permits every place to be used for the benefit for the transmission of the work to the public if such communication is an infringement of the work's copyright, unless he was not aware and really has no valid cause for thinking that any such communication to the public would be a copyright infringement; or


2) When any individual


a) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or

b) distributes either for commercial purposes or in such a way as to extent as to affect prejudicially the owner of the copyright, or

c) by way of trade exhibits in public, or

d) imports into India, any infringing copies of the work, Provided that nothing in sub-clause

e) Shall apply to the import of one copy of any work for the private and domestic use of the importer.


ESSENTIALS OF COPYRIGHT INFRINGEMENT[3]:


To be protected by copyright law, a work must have the following characteristics:


  • The work must be original (originality refers to the fact that the work was produced from inspiration rather than being replicated from other sources. The work had to be made for the first time.)

  • It must be fixed in some permanent form. The work must be presented in an expressible and physical way that can be defined in a set form/identified in its existence or tangible form, such as paper, recordings on optical media, drawings, records, web servers, and so on.

  • It must be the first publishing of an original work; it could not have been published previously.

  • If a work is published after the author's death, then the author must have been a citizen of India at the time of his or her death.

  • If a work is published outside of India, the author must be a citizen of India at the time of publishing.

  • As per Indian Copyright Act Section 13 of Chapter III[4], the protection is given to the following works;

  • Artistic works

  • Dramatic works

  • Musical works

  • Literary works

  • Computer program/software

  • Sound recordings

  • Architectural works

  • Cinematograph films

  • Copyright protection is not provided for;

  • Works which are not in permanent form

  • Titles, names, short phrases, slogans, methods, factual information, symbols or designs – however these works can be somewhat protected by trademark law.

  • Ideas or concepts, procedures, process, plans, principles, discoveries, and guidelines – however, these can be protected by patent or trade secret law

  • Works that are already in the public domain and whose original authorship cannot be traced are exempted from copyright protection.

  • Copyrighted works that have long passed their expiration date

RIGHTS OF AUTHOR/CREATOR[5]


Copyright is a collection of judicially granted rights to the author/creator. According to Section 14 of Chapter III[6]and Section 57 of Chapter XI of the Indian Copyright Act[7], the author/creator has been granted certain exclusive and unique privileges; these rights are divided into three categories, which are as follows;


1) Statutory Rights or Negative rights


The original author has an exclusive legal or statutory right to his work under copyright law. It imposes a 'negative duty' on others, which restricts them from using or obtaining benefit from the work without the author's permission.


2) Economic Rights


The economic right entitles the author to financial rewards. The author may receive royalties by granting copyright to others in whole or in part. According to international treaties, a national copyright statute usually grants the copyright holder the following exclusive rights.

  • Distribution rights

  • Adaption rights

  • Translation right

  • Reproduction rights

  • Rental rights

  • Public display of works rights

  • Public performance rights

3) Moral Rights.


Copyright law always protects the creator even after the assignment of copyright work to others either completely or partially. Moral rights provide an author the freedom to have his name permanently affixed to a work and safeguard him from any distortion or altering of the work, as well as any other disrespectful action in relation to the work that may be detrimental to the author's reputation.


REMEDIES AVAILABLE FOR COPYRIGHT INFRINGEMENT[8]:


Section 55 of the Copyright Act of 1957[9] provides legal remedies for copyright infringement. The following are the various civil remedies available:


1) Interlocutory Injunctions


The granting of an interlocutory injunction is the most effective remedy. In most of the cases, where the appeal is filled for interlocutory relief, the matter rarely moves further (i.e., beyond the interlocutory stage). There are three conditions for granting an interlocutory injunction – Firstly, it should be a prima facie case. Secondly, there must be a balance of comfort. Finally, there would be an irreparable damage.


2) Pecuniary Remedies


Sections 55 and 58 of the Copyright Act of 1957[10] also provide for three pecuniary remedies for copyright holders. First, an account of income which allows the employer to claim an amount of money equal to the benefit made from illegal conduct. Second, compensatory damages which allows the copyright owner to claim the damages he has incurred as a result of the infringement. Third, conversion losses are calculated based on the value of the article.


3) Anton Pillar Orders


The Anton Pillar order is named after the Anton Pillar AG V. Manufacturing Processes. An Anton Pillar Order contains the following elements: First, an injunction prohibiting the defendant from destroying or infringing on the property is issued. Second, an injunction authorising the plaintiff's counsel to search the defendant's property and seize property in their safe possession is issued. Third, an order directing the defendant to publish the names and addresses of suppliers and customers is passed.


4) Mareva Injunction


The Mareva injunction comes into play when the court claims that the defendant is intending to postpone or hinder the enforcement of any order being issued against him. The court has the authority to ask him to surrender all or half of his property to the court in order to fulfil the order. This is mentioned in Order XXXVIII, Rule 5 of the Civil Procedure Code, 1908[11].


5) Norwich Pharmacal Order


The Norwich Pharmacal Order is typically issued where details need to be obtained by a third party.


CRIMINAL REMEDIES[12]


Under the Copyright Act, 1957 the following remedies are provided for infringement:


  • Imprisonment up to 3 years but, not less than 6 months

  • Fine which may not be less than 50,000 but, may extend up to 2,00,000

  • Search and seizure of infringing goods

  • Delivery of infringing goods to the copyright owner

CONCLUSION


To wrap up, the objective of copyright is to secure the privileges of the creator and provide the incentives and financial benefits to the creator. The scope of copyright extends to the literary or artistic works which demands creativity including Database and computer software. It is not mandatory to register a work in order to be considered for copyright protection. However, registering to the work is often recommended so it can be used as testimony in court.


If anyone infringes on someone else's patented work, he may be held liable under all criminal and civil penalties. However, there are certain exceptions to copyright infringement, such as where a party is not allowed to seek the copyright holder's consent to use his art. However, it is often recommended to create original work rather than reusing someone else's copyrighted work without permission.

[1] A Brief History of Copyright, available at: https://www.iprightsoffice.org/copyright_history/, (visited on may 14th, 2021). [2] Copyright Infringement Definition| What is Copyright Infringement?, available at: https://www.irro.org.in/what-is-copyright-infringement/, ( Last Modified February 13, 2020). [3] Goold. P, ‘Unbundling the tort of Copyright Infringement’, vol. 8, JSTOR-Journal Storage,(2016). [4] Section 13 of the Copyright Act, 1957. [5] Columbia Law review, ‘Copyright Infringement’, vol. 4, JSTOR- Journal Storage (1956). [6] Section 14 of the Copyright Act, 1957 [7] Section 57 of the Copyright Act, 1957. [8] Walter Arthur Copinger & Easton J, ‘The Law of Copyright in works of Literature, Art, Architecture, Photography, Music and the Drama’, pg, no 212, (HeinOnline, 5th ed., 1915). [9] Section 55 of the Copyright Act, 1957. [10] Section 58 of the Copyright Act, 1957. [11] The Code of Civil Procedure, 1908. [12] Section 63 of Copyright Act, 1957.

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