Unit II

INFRINGEMENT OF COPYRIGHT
INTRODUCTION
The advent of the internet has posed a threat to people in different
ways. One of them is Copyright infringement. People can have
access to millions of websites with just a click, post something on
social media networks by altering somebody’s original work, a
popular example of such alteration is the submission of research
papers where researchers often use different sources to produce
their work. People often copy someone else’s original work without
having any authority to do so. Can the copyright holder bring an
action for copyright infringement? What are the rights of a
copyright holder? What are the remedies available with the
copyright holder?

COPYRIGHT DEFINITION AND EXAMPLE

What is Copyright?
Copyright refers to the collection of rights that are automatically
vested on the creator of the original work of authorship such as a
literary work, music, movies or software. The copyright holder i.e.
the creator of the original work has the right over his work, he can
transfer his rights to others or keep full control over his work by
not giving the right to anyone to copy or produce his work.

Copyright has been defined in Section 14 of the Copyright Act,

1957 as an exclusive right to do or authorise the doing of any of
the following acts in respect of a work or any substantial part
thereof, namely:

1.Reproduce the work in any form including storing the work in any
form
2.Issue copies of the work to the public

3.Perform the work in Public

4.Make any cinematographic film in respect of the work

5.Translate the work

6.Make an adaptation of the work

Examples of Copyright

1.Someone publishes the novel, then he gets the copyright for the
novel.

2.The makers of the film have a copyright over the film.

WHY IS COPYRIGHT IMPORTANT

Copyright is important for various reasons, namely,

• Copyright legally protects the creator’s work

• Copyright helps the author to exercise control over his work
• It provides ownership to the creator of the work.

PURPOSE OF COPYRIGHT

• To promote the progress of useful arts and science by

protecting the exclusive rights of the creators.
• To provide incentive and reward to the creators for
producing original content. The creators can be
economically benefited by their copyrighted work and
receive proper recognition.
• To encourage the creators to come up with creative ideas.
RIGHTS OF A COPYRIGHT OWNER
The name of the author or publisher that appears in the copies of dramatic,
literary, artistic or musical work is presumed to be the author/copyright owner
of the work. A copyright owner has the following rights in the copyrighted
work:

1.Produce the work in public

2.Publish the work

3.Perform the work in public

4.Translate the work

5.Make a cinematograph film or a record of the work

6.Broadcast the work

7.Make an adaptation of the work

8.Make copies of the work and distribute them

9.Prevent others from unauthorised usage of the copyrighted work

COPYRIGHT INFRINGEMENT IN INDIA

As per the Copyright Act, 1957, the use of a copyrighted work without the
permission of the owner results in copyright infringement. Infringement
occurs when a third person unintentionally or intentionally uses/copies the
work of another without giving credit. It is usually classified into two
categories, i.e. primary and secondary infringement .
Copyright infringement refers to the unauthorized use of
someone’s copyrighted work. Thus, it is the use of someone’s
copyrighted work without permission thereby infringing certain
rights of the copyright holder, such as the right to reproduce,
distribute, display or perform the protected work.
Section 51 of the Copyright Act specifies when a copyright is
infringed. According to Section 51 of the Act, Copyright is deemed
to be infringed if:

• A person without obtaining the permission of the copyright

holder does any act which only the copyright holder is
authorised to do.
• A person permits the place to be used for communication,
selling, distribution or exhibition of an infringing work
unless he was not aware or has no reason to believe that
such permission will result in the violation of copyright.
• A person imports infringing copies of a work
• A person without obtaining the authority from the copyright
holder reproduces his work in any form.

COPYRIGHT INFRINGEMENT EXAMPLES

• If a person uses someone’s song as background music in his/her music
video then he could be made liable for copyright infringement.
• If a person downloads movies or songs from an unauthorized source
then it will amount to copyright infringement.
• A person is free to record a TV program to view it later, but if he
transfers or distributes it to others then it becomes a copyright
infringement.

COPYRIGHT INFRINGEMENT ELEMENTS

• The work was the original creation of the author

• The defendant actually copied the work of the author. It is

important to note that not all factually copying is legally
actionable. The substantial similarity between the works of
the author and the defendant has to be established to prove
that the defendant has infringed the author’s copyright.
COPYRIGHT INFRINGEMENT ISSUES

There are a number of issues that can arise in Copyright. These

are discussed below:

PLAGIARISM

Someone may copy the copyrighted material and pretend it to be

his original work. People are allowed to quote the work or refer the
work but the person who is using the copyrighted work has to give
the credit to the copyright holder.

OWNERSHIP

The issue of ownership may arise when an employer works for an

organisation. In such case who has the copyright over the work? If
a person is an employer then it is the organisation which has the
copyright over the material but if a person is a freelance writer
then it is the person himself who is the sole owner of the
copyrighted material.

DERIVATIVE WORKS

Derivative works use the already existing work of someone. It is a

new version of already existing material. For example, translating
a book into another language. A person requires a license for it but
if he has not obtained the license for it then he can be made liable
for copyright infringement.

TYPES OF COPYRIGHT INFRINGEMENT

Copyright infringement can be broadly classified into two

categories:

Primary Infringement
Secondary Infringement

PRIMARY INFRINGEMENT

Primary infringement refers to the real act of copying the work of

the copyright holder. For example, photocopying a book and then
distributing it for commercial purposes.

However, sometimes a person may only copy a part of the work,

for example, a paragraph of an article. In such a case, the
copyright holder is required to establish two things:

Substantial Taking

A copyright is infringed only when an unauthorized person copies

a substantial part of the work. For example, copying a catchy
phrase of a lyricist.

While deciding the case, the court also tries to conceive, how an
ordinary person will perceive the work. If an ordinary person will
perceive that the work is copied from a different source then it will
be considered infringement.

If the writing style, language and errors are similar to the

copyrighted work then it will serve as evidence of copying in a court
of law. The minor alterations made by the person in the work of a
copyright holder will not affect the claim of infringement.

Casual Connection

The copyright holder must prove that there is a similarity in the

works of the copyright holder and the infringer. However, this may
be because of several other reasons like both of them have used
the same source for the research. In such a case, the copyright
holder can not claim for infringement.
SECONDARY INFRINGEMENT

Secondary Infringement refers to the infringement of copyright

work without actually copying it. This can happen in the following
ways:

Providing a place for Copyright Infringement

If a person provides the place or permits the place (for profit) to
be used for communicating of the work the public and such work
amounts to copyright infringement then such person can be made
liable for the offence of copyright imprisonment. However, if the
person is unaware or has no reason to believe that the place is
used for copyright infringement then cannot be made liable for the
same.

It is important to note that the person should let the place for
“profit” to be made liable for copyright infringement. If an NGO lets
the place then the NGO cannot be made liable for the same.

Selling Infringing Copies

If a person sells the copies that infringe the right of the copyright
holder then it will amount to copyright infringement.

Distributing Infringing Copies

When a person distributes infringing copies of the copyright holder
works then it will amount to copyright infringement. For example,
if a person uploads a movie on the internet for free then it is an
infringement of copyright.

Importing Infringing Copies

Importing the infringed work of the copyright holder in India also
amounts to infringement of Copyright. However, if the person has
imported the infringed work for the domestic or personal use then
it will not amount to Copyright Infringement.

CONCEPT OF FAIR DEALING (SECTION 52)

Section 52 of the Copyright Act introduces exceptions to copyright

infringement. These exceptions encompass acts such as fair
dealing, transient or incidental storage, and reproduction for the
purpose of a judicial proceeding, among others. One noteworthy
exception is fair dealing, which permits the use of copyrighted
works for research, criticism, or review purposes.

In the case of Civic Chandran v. Ammini Amma, the court

emphasized that the concept of fair dealing entails considering
various factors. These include the volume of material used, with an
emphasis on quality rather than quantity, as well as the extent to
which the materials in question are subject to copyright protection.
Additionally, the court takes into account the existence of animus
furandi, which refers to the intention to save labour, and the level
of competition between the works of the plaintiffs and defendants.

LANDMARK CASE LAWS ILLUSTRATING COPYRIGHT MISUSE AND

INFRINGEMENT
The University of Oxford v Rameshwari Photocopy Services

In this case, the Hon’ble Delhi High Court, established that the act of
creating study materials through the photocopying of book pages, as
directed by professors, did not amount to copyright infringement.
This ruling upheld the rights of educational institutions to utilize
copyrighted materials for educational purposes.

RG Anand v Delux Films &Ors

In this case, the Hon’ble Supreme Court, clarified that copyright

protection extends to the expression of an idea rather than the idea
itself. The court also noted that if an ordinary person observes a
substantial resemblance between two works, then the impugned
work would be deemed an infringement.

Kartar Singh Giani v Ladha Singh

This case highlighted the importance of motive and intent in

determining copyright infringement. It was held that if copying is
done with an unfair motive to compete and profit from such
competition, it would be deemed infringement.

MRF Limited v Metro Tyres Limited

In this case, the Hon’ble Delhi High Court emphasized the need to
compare the fundamental essence and distinctive features of both
advertisements. Blatant copying of the essential elements of the
advertisement with an intent to mislead would constitute copyright
infringement.

Myspace Inc v Super Cassettes Industries Limited

Regarding intermediary liability in cases of copyright infringement,

the Hon’ble Delhi High Court ruled that intermediaries can be held
liable for secondary infringement only if they have knowledge of the
infringing activities. However, if the intermediary engages in acts of
infringement themselves, they would be subject to punishment.

Remedies of Copyright Infringement

The remedies for copyright infringement are:

1. Civil remedy
2. Criminal remedy
3. Administrative remedy
Only the first two remedies, i.e. civil and criminal, have any actual practical
significance.

Civil Remedies

Here are some of the civil remedies provided under the Indian Copyright
Act, of 1957:

I. Interlocutory Injunctions

The most important civil remedy is the issuing of an interlocutory

injunction since most lawsuits begin with a request for interlocutory relief
and because the majority of cases never move past the interlocutory
stage.

The owner of the work files an interlocutory injunction, asking the court
to prevent the individual from utilising the copyrighted literary work.

An injunction may be issued before the trial and only last until the
conclusion of the trial or until subsequent orders are made, or it may be
definitive and irrevocable.

Interlocutory injunctions are intended to give the plaintiff immediate and

temporary protection against any ongoing breach of his rights for which
he cannot be fully made whole by monetary damages.
The following criteria must be met in order to award an interim injunction:
(1) A prima facie case;
(2) A balance of convenience; and
(3) Irreparable damage.

II. Pecuniary Remedies

Sections 55 and 58 of the Copyright Act of 1957 provide monetary

remedies for copyright owners who experience issues with infringement.
Damages that the victim has experienced financially are known as
pecuniary damages.

The injured person may pursue the following remedies:

• Account of profit is a legal action brought against the defendant to

collect any profits he has accrued due to the violation.
• Compensatory damages: Compensatory damages are monetary
awards made to an aggrieved party to compensate for their
losses.
• Conversion damages: For the conversion of any unauthorised
copies, the copyright holder is entitled to get remuneration based
on the worth of the work.

III. Anton Pillar Orders

Orders of this nature are extreme, and they have broad effects. These
orders consist of the following components:
 • An order prohibiting the defendant from disposing of or selling
counterfeit products.
• An order directing the defendant to disclose the names and
addresses of suppliers and customers.
• An order allowing the plaintiff’s solicitors access to the defendant’s
premises so they can search them and remove goods that are in
their safe custody. In simple words, it is an order allowing the
plaintiff’s solicitors to search the defendant’s premises.

IV. Mareva Injunction

It is an order that temporarily seizes a defendant’s assets, preventing

them from violating the judgement by selling them.

V. Norwich Pharmacal Orders

Under these orders, the methods for finding information from third
parties are used.

Criminal Remedies

Criminal remedies for copyright violation include:

• Punishment through imprisonment that may not be less than 6

months but may extend to 3 years.
• Fines shall not be less than Rs. 50,000 but may extend to Rs.
2,00,000.
• Search and seizure of infringing goods.
• Delivery of infringing goods to the owner of the copyright.
A person who violates the copyright of another person’s work is subject to
both criminal and civil penalties. However, there are several exceptions to
copyright infringement, meaning that in some circumstances, a person
may not need the copyright holder’s consent to utilise his work. Therefore,
it is always advisable to create unique content rather than unauthorised
use of another person’s copyrighted work.

Administrative Remedy

When an infringement occurs through an importation (bringing of goods

into a country from abroad for sale), administrative remedies provide
petitioning the Registrar of Copyrights to impose a restriction on the
import of infringing copies into India and delivering the confiscated
infringing copies to the copyright owner.

Administrative remedies consist of moving the Registrar of copyrights to

ban the import of infringing copies into India when the infringement is by
way of such importation and the delivery of the confiscated infringing
copies to the owner of the copyright and seeking the delivery.

Jurisdiction of Courts

A suit or other civil proceedings relating to infringement of copyright is filed

in the District Court or High Court within whose jurisdiction the plaintiff
resides or carries on business or where the cause of action arose
irrespective of the place of residence or place of business of the defendant

Limitation

The period of limitation for filing the suit is three years from the date of
infringement.
COPYRIGHTS AND TECHNOLOGY

Intellectual property refers to the ownership of intangible goods. These include ideas,
designs, symbols, writings and creations. It also refers to digital media such as audio
and video clips those are accessible through the electronic media. Since intellectual
property is intangible, if it is stolen, it may be difficult to recover.

The influence of digital technology on information technology is phenomenal. The

present millennium is witnessing a new culture that is cyber culture. IPR awareness is
the key to technological innovations and in the emerging knowledge-based economy;
the importance of IPR is likely to go further. The awareness among the creators of
information and knowledge about IPR has become essential in the digital environment
because in the digital environment it is becoming difficult to prove rights’ violation
whenever they occur. With the enhancement of technology the importance of
intellectual property has also increased. Information Technology is growing faster
than any other communication vehicle in the history of mankind. Invention of digital
technology was the most important revolution in the last century. This new
technology may be in the field of Patent, trade mark, Copyright etc.

So, when we talk about Copyright protection, it comes in our mind that it is generally
granted to original literary, musical, dramatic or artistic works. But the growth of new
technology has given rise to new concepts like computer programs, computer
database, computer layouts, various works on web, etc. So, it is very necessary to
know more about copyright with regard to computer programs/software, computer
databases and various work in cyber space. Copyright is a key issue in intellectual
property rights in digital era. This paper deals with scope and coverage of various
concepts connected with Copyright, also the Copyright issues associated with digital /
electronic information and protection of digital right.

Twenty first century has seen a surprising advancement in computerized

innovations which enhance our ways of lives. The Human mankind has
now ventured into an era which requires a much sophisticated technology
called “Digital era”. And with outbreak of novel corona virus (COVID-19),
growths of technology and digitalization have increased.
Every field of entertainment and information has enhanced in India and
the world as a whole. A library where one conceived books in enormous
numbers, are making a progress into a time of digital book. And with the
pandemic the mode of education has now shifted to E-classrooms mostly.
Notes, various study materials have now been enhanced into e-books. A
period will come when digitization will take away print simply like the PC
keyboard, and mouse have minimized the utilization of typewriter. Print
despite exists but it is being gradually shifted to electronic type of
information which offers a superior option against the confinements of
print innovation.

Law is a reaction to social or any other difficulties or challenges. Law while

reacting answers such difficulties or challenges and in the process creates
itself. Copyright is one of the best examples on which one arrives at while
diving upon the connection between law and innovations.

The new technology and innovations have expanded the significance

of intellectual property. This new innovation might be in the field of
Patent, trade mark, Copyright and so on. At the point when we talk
about copyright protection it comes in our mind that it is commonly
allowed to unique scholarly, artistic, musical, dramatic. The
development of new innovation has offered ascend to new ideas like
PC programs, PC database, PC designs, different takes a shot at web,
and so forth. So it is extremely important to find out about copyright
concerning PC programs/programming, PC databases and different
works in the internet. Copyright is the key in intellectual property
rights in this digital era.
India’s Copyrights Act, 1957 as amended by Copyright (Amendment)
Act, 2012, fully reflects Berne Convention on copyrights. Additionally,
India is party to the Geneva Convention for the protection of rights
and procedures of Phonograms and to the Universal Copyright
Convention. India is also an active member of World Intellectual
Property Organization (WIPO) and UNESCO. The copyright act has
been amended periodically to keep pace with changing requirements.

The 2012 amendments make Indian Copyright Law compliant with

the Internet Treaties – the WIPO Copyright Treaty (WCT) and WIPO
Performances and Phonograms Treaty (WPPT).
Also, while introducing technological protection measures, the amended law
ensures that fair use survives in the digital era by providing special fair use
provisions. The amendments have made many author-friendly amendments,
special provisions for disabled, amendments facilitating access to works and
other amendments to streamline copyright administration.

This article gives a narration of the changes made by the Copyright

(Amendment) Act.

The amendments introduced through Copyright (Amendment) Act 2012 can be

categorized into:

Amendments to rights in artistic works, cinematograph films and sound

recordings. 2. WCT
and WPPT related amendment to rights

3. Author-friendly amendments on mode of Assignment and Licenses

4. Amendments facilitating Access to Works

5. Strengthening enforcement and protecting against Internet piracy

6. Reform of Copyright Board and other minor amendments.

Copyright Issues and Challenges:

The prominent copyright issues in the digital era can be classified into three
groups:

Issues relating to a whole new set of work, namely, computer programs,

databases and multimedia works;

(ii) Issues relating to reproduction, distribution and communication to the

public of a work through digital media;

Prepared by Sanabel Uzma