Copyright Infringement In India

Copyright is a collection of rights that are vested in the creator of the original work of authorship such as any literary work, music, movies, or software. Copyright is important for a variety of reasons including for the legal protection of one’s work, for helping the author to exercise control over their work, and to provide ownership to the creator of the work. Copyright encourages the creators to come up with creative ideas. It is also granted to artistic work which includes painting, sculpture, diagrammatic representation as well as drawing. It is provided to all kinds of original literary, artistic, musical, or dramatic, sound recordings as well as cinematography.

The use of the internet has many underlying threats. And one of the biggest among those is copyright infringement. Copyright infringement is the unauthorized use of someone’s work to make a profit resulting in the Copyright Infringement; which can mean infringement of certain rights of the Copyright holder, such as the right to distribute; reproduce; perform or even display the work that is protected.

Though it is not mandatory to get the copyright of the work registered; it is advisable as it works as valid proof during times of dispute. Although, the question is what remedies does the law provide?

When A Copyright Is Deemed To Be Infringed

Section 51 of the Copyright Act[1] states the acts that are deemed as an infringement of copyright. These Acts are:

1. When a person without obtaining the permission of the copyright owner does any act that only the copyright owner is entitled to do.
2. When a person permits a place to be used for the communication, selling, distribution, or exhibition of an infringing work, unless that person was not aware, or had no reason to believe that such a permission was resulting in the infringement of copyright.
3. When a person imports infringing copies of a work.
4. When a person, without obtaining permission from the copyright owner, goes ahead to reproduce their work.

Copyright infringement has two elements:

1. First, the work was the original creation of the author.
2. The defendant copied the work of the author.

Some common infringement issues are as follows:

1. Plagiarism: Plagiarism occurs when someone copies the copyrighted material of the other and pretends that to have been their original work.
2. Ownership: When a person is an employer; then in that case; it is the organization that has the copyright over the material but in case the person is just a freelance contractor then it is simply the person who is the sole owner of the copyrighted material.

Copyright Infringement can be classified into two categories; i.e.,

1. primary or
2. secondary infringement.

Primary infringement refers to the act of copying the work of the copyright holder. The types of primary infringement are as follows:

1. Substantial Taking: This refers to copying of a substantial part of someone’s work like copying the catchy phrase of a lyricist. In this case, any minor alterations made by the person in the original copyright holder’s work will not
2. Casual Connection: This occurs when there is a similarity between the work of the copyright owner and the infringer.

Secondary infringement on the other hand refers to the infringement of the copyrighted work without copying the same directly. The types of secondary infringement are:

1. Providing a place for copyright infringement: Although, the place has to be provided for receiving “profits”. In case an NGO lets the place; then in that case it cannot be held liable.
2. Importing the infringing copies: Importing the infringement work of the copyright owner also comes under secondary infringement as this is prohibited in India.
3. Selling infringing copies: In case a person sells the copies that amount to copyright infringement; then in that case also it would amount to infringement of copyright.
4. Distributing infringing copies: In case a person distributes the infringing copies; even in that case it will amount to copyright infringement.

Copyright Infringement Cases

1. In the case of YRF vs. Sri Sai Ganesh Productions[2]; the copyright infringement suit was filed against Sri Sai Ganesh Productions because they copied the movie Band Baja Barat’ and produced the movie ‘Jabardasht’; and the ground was that these two movies had substantial similarities; in the term of concept, theme, character, plot, story, script as well as expression among many other things. The court held that Sri Sai Ganesh Productions had blatantly copied the essentials of the movie ‘Band Baja Barat’ resulting in Copyright Infringement.
2. Further, in the case of Hawkins Cooker Ltd. vs. Magicook Appliances[3]; the court deterred Magicook Appliances from using the cookbooks of Hawkins Cooker Ltd, as that would lead to copyright infringement.

Remedies For Copyright Infringement[4]

The authors or copyright owners can take legal action against the person or entity that infringes their copyright.

1. Civil Remedies: When a copyrighted work has been infringed, the copyright owner is entitled to the remedies consisting of injunction, damages, and accounts.
   • Injunction: An injunction means a judicial order that restrains the infringer from continuing the infringing acts or is ordered for restoring the position that was there before the infringement.
   • Damages: Damages are the compensation that is provided to the copyright owner. Damages are provided on account of various factors, such as loss of reputation, loss of profit to the copyright holder, and decrease in the sales of the copyright holders’ work which determine the damages amount.
2. Criminal Prosecution for Copyright Infringement: For the first-time offense; the minimum punishment is imprisonment for six months, which can extend to a period of three years, it has a minimum fine amount of Rs. 50, 000 which can again extend up to Rs. 2 lakhs.

Further, in case of a subsequent and second conviction; the punishment is imprisonment for a minimum of one year. This can extend to three years. Further, the minimum fine amount is 1 lakh; which can extend up to Rs. 2 lakhs.

Conclusion

The protection of IP Rights is important to make sure that your original work is not exploited. It is highly important to take the advice of a copyright lawyer to have full protection at every stage of the copyright life cycle. And even though registering a copyright is not important; frequently doing it is important to have solid evidence in case of a legal dispute. Also, before registration of the copyright, in the case of logos, it is important to conduct a proper search as a resemblance with a previous mark or logo will substantially impact the copyright in case of a legal dispute.

Furthermore; it is highly important to make sure that good legal advice is procured during the whole life cycle of the copyright; hence; for any further advice on the matters of the copyright dispute or registration; kindly get in contact with the details provided in the CONTACT US section with the firm.

FAQs

[1] The Copyright Act 1957, Sec. 51, No. 14 of 1957, Acts of Parliament (India).

[2] YRF vs. Sri Sai Ganesh Productions; CS (COMM) 1329/2016

[3] Hawkins Cooker Ltd. vs. Magicook Appliances; AIR 2015 Cal 150

[4] The Copyright Act 1957, Sec. 55, No. 14 of 1957, Acts of Parliament (India).

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