INFRINGEMENT OF COPYRIGHT
Infringement of a copyright is a trespass on a private domain owned and occupied by the
owner of the copyright, and, therefore, protected by law, and infringement of copyright, or
piracy, which is synonymous term in this connection, consists in the doing by any person,
without the consent of the owner of the copyright of anything the sole right to do which is
conferred by the statute on the owner of the copyright.
In determining the question of infringement the following factors are considered:-
● Copying
● Substantial taking
Section:- 51. When copyright infringed:- Copyright in a work shall be deemed to be
infringed-
a. when any person, without a licence granted by the owner of the copyright or the
Registrar of Copyrights under this Act or in contravention of the conditions of a
licence so granted or of any condition imposed by a competent authority under this
Act-
(i) does anything, the exclusive right to do which is by this Act conferred upon the
owner of the copyright, or
(ii) permits for profit any place to be used for the communication of the work to the
public where such communication constitutes an infringement of the copyright in the
work, unless he was not aware and had no reasonable ground for believing that such
communication to the public would be an infringement of copyright; or
b. when any person-
(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers
for sale or hire, or
(ii) distributes either for the purpose of trade or to such an extent as to affect
prejudicially the owner of the copyright, or
(iii) by way of trade exhibits in public, or
(iv) imports into India, any infringing copies of the work
Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for
the private and domestic use of the importer.
Explanation.- For the purposes of this section, the reproduction of a literary, dramatic,
musical or artistic work in the form of a cinematograph film shall be deemed to be an
"infringing copy".
R.G. Anand v. M/s. Delux Films 1978
On the basis of the pleadings of the parties, the learned trial Judge framed the
following issues:
1. Is the plaintiff owner of copyright in the play ‘Hum Hindustani’?
2. Is the film ‘New Delhi’ an infringement of the plaintiff’s copyright in the play ‘Hum
Hindustani’?
3. Have defendants or any of them infringed the plaintiff’s copyright by producing, or
distributing or exhibiting the film ‘New Delhi’”
4. Is the suit bad for misjoinder of defendants and causes of action?
5. To what relief is the plaintiff entitled and against whom?
In the case of Hanfstaengl v. W.H.Smith and Sons (1905) it has been held by Bayley, J. that
“a copy is that which comes so near to the originals as to give to every person seeing it the
idea created by the original.”
Copinger in his book on Copyright 11th Edition that what is refernce protected is not the
original thought but expression of thought in a concrete form.
In the book Corpus Juris Secundum:- it was pointed out that the test is whether one
charged with the infringement made an independent production, or made a substantial and
unfair use of the plaintiff’s work.”
● It was also written in this book that Intention to plagiarise is not essential, One may
be held liable for infringement which is unintentional or which was done
unconsciously.
● The appropriation must be of a ‘substantial or ‘material’ part of the protected work.
Infringement exists when a study of two writings indicates plainly that the defendant’s
work is a transparent rephrasing to produce essentially the story of the other writing
Mr. Ball in “Law of Copyright and Literary Property” points out that that sometimes
even though there may be similarities between the copyrighted work and the work of the
defendant they may be too trivial to amount to appropriation of copyrighted material.
● The author further says that unless there is any substantial identity between the
respective works in the scenes, plot, lines,incidents and treatment, a case of
infringement of copyright is not made out.
In West v. Francis (1822):- “A copy is that which comes so near to the original as to give to
every person seeing it the idea created by the original ... If it were altered thus - “a copy is
that which comes so near to the original as to suggest that original to the mind of every
person seeing it”
Ratio of the case:-
1. There can be no copyright in an idea, subject-matter, themes, and plots or historical or
legendry fact and violation of the copyright in such cases is confined to the form,
manner and arrangement and expression of the idea by the author of the copyrighted
work.
2. If the defendants work is nothing but literal imitation of the copyrighted work with
some variation here and there it would amount to violation of the copyright. In other
words, in order to be actionable, the copy must be a substantial and material one
which at once leads to the conclusion that the defendant is guilty of an act of piracy.
3. One of the surest and the safest test to determine whether or not there has been a
violation of copyright is to see if the reader, spectator or the viewer after having read
or seen both the works is clearly of the opinion and gets an unmistakable impression
that the subsequent work appears to be a copy of the original.
4. Where the theme is the same but is presented and treated differently so that the
subsequent work becomes a completely new work, no question of violation of
copyright arises.
5. Where however apart from the similarities appearing in the two works there are also
material and broad dissimilarities which negative the intention to copy the original
and the coincidences appearing in the two works are clearly incidental no
infringement of the copyright comes into existence.
6. As a violation of copyright amounts to an act of piracy it must be proved by clear and
cogent evidence
7. Where however, the question is of the violation of the copyright of stage play by a
film producer or a director the task of the plaintiff becomes more difficult to prove
piracy. It is manifest that unlike a stage play a film has much broader perspective,
wider field and a bigger background where the defendants can by introducing a
variety of incidents give a colour and complexion different from the manner in which
the copyrighted work has expressed the idea. Even so, if the viewer after seeing the
film gets a totality of impression that the film is by and the large a copy of the
original play, violation of the copyright may be said to be proved.
Decision:- A close perusal of the script of the film clearly shows that all the three aspects
mentioned above are integral parts of the story and it is very difficult to divorce one from the
other without affecting the beauty and the continuity of the script of the film. Further, it
would appear that the treatment of the story of the film is in many respects different from the
story contained in the play.
As already indicated above, applying the various tests outlined above we are unable to hold
that the defendants have committed an act of piracy in violating the copyright of the play.
Defendants committed no violation of the copyright.
