Copyright Infringement

INFRINGEMENT OF COPYRIGHT

SUBMITTED TO

SUBMITTED BY

Kislay Soni

Garima Rajput 11LLB026

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INDEX

TABLE OF CONTENT

PAGE NO.

 Introduction

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 Types of infringement

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 Remedies for infringement

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 Conclusion

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 Reference

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INTRODUCTION Copyright is a form of protection provided to the creators of "original works of authorship," including literary, dramatic, musical and artistic works. The importance of copyright was recognized only after the invention of the printing press, which enabled the reproduction of books in large quantities. England's "Statute of Anne" is regarded as the first copyright law. This law for the first time accorded exclusive rights to authors and limited the duration of such exclusive rights to a certain number of years, after which all works would pass into the public domain. Copyright is a creation of a statute. Under the present law there is no such thing as a common law copyright. The Act make it clear that no person shall be entitled to or unpublished copyright or any similar rights in any work, whether published unpublished, otherwise than in accordance with the provisions of the Act. Copyright is a form of IPR. The concept of IPR in the work as distinguished from the physical Kaproperty in the material containing the words was developed by leading philosophers like Kant Hegel and Schopenhauer. Copyright is a multiple right, consisting of a bundle of different right in the same work. These right can be assigned or license either as a whole or separately. Infringement basic Definition Copyright is infringed by a person who without a license of the copyright owner, does, or authorizes another to do, any of the acts restricted by the copyright. Not only is copyright therefore infringed by anyone who does not of the restricted acts without a license, but also by anyone who without license authorizes the doing of any such acts. An infringing act of authorization is a separate tort from the infringing act so authorized. In addition copyright is infringed. (a) by the doing of any act of these acts not only in relation to the whole of a work but also in relation to any substantial part of it, (b) by the doing of any of these acts indirectly as well as directly, it being immaterial whether any act intervening themselves infringes copyright.

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The doing of any of these acts by any person other than the copyright owner or one who is permissible is therefore an infringement unless the act falls within the statutory permitted acts 1 or os otherwise excusable. Each wrongful exercise of exclusive rights constitutes a separate tort. Apart from these acts, however, other dealings with a work do not constitute a primary infringement. It is thus a infringement of copyright to read a hard copy of a book or to resell a copy which was purchased in a bookshop. Exclusive right granted under the Act extend also to a translation or adaptation of the work or to a substantial part thereof2. Thus copyright will be infringed if a substantial part of the work is reproduced. What amount to a substantial part of the work is depend upon the case. Sec 51 Statutory definition of infringement - When copyright infringed. -Copyright in a work shall be deemed to be infringed(a) when any person, without a license granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a license 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

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Licence; permitted act It is necessary ingredient of the tort that the act in question was done without the licence of the copyright owner. 2 Sec14(a) of Copyright Act- (a) in the case of a literary, dramatic or musical work, not being a computer programme,

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(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 103Provided 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".

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TYPES OF COPYRIGHT INFRINGEMENT

1. PRIMARY INFRINGEMENT 2. SECONDARY INFRINGEMENT

PRIMARY INFRINGEMENT The exclusive right to prevent copying or reproduction of a work is the most fundamental and historically the oldest, right of a copyright owner. Now-a-days copyrighted work is exist in all the categories. But there are certain degree or test to be established whether a right is infringed or not. Some points are common in considering that whether an act is deemed to be infringement or not. 1. The right is the exclusive right of copying for thought to be infringed two elements must be established there must be a sufficient degree of similarity between the two work and the work is the result of the copyrighted work and there is a sufficient degree of similarity between the two work and the work is the result of the copyrighted work and there is a casual connection between the two. 2. When there is a copying of a substantial part of it. 3. There is a exclusive right to copy the work directly or indirectly. 4. Exclusive right is also extent to the making of copies which are transient or incidental to some other use of the work. Sufficient Similarity-There must be sufficient objective similarity between the two copyrighted work and alleged copy. (a) First the allegedly infringing work must be in real sense represent the claimant’s. Thus a literary work consisting of instructor will not be in real sense represent the claimant’s. Thus a literary work consisting of instructor will not be infringed by the making of an article with respect to that instruction and an artistic work such as circuit diagram will not be infringed by describing in content or words. 6

(b) Second- when there is a no sufficient objective similarity between the two work then there will be no infringement. Even if a copyrighted work has been used as a reference or is a inspiration to what the defendant has been used done, this is by itself its not enough if there is no such similarity. IDEA VS EXPRESSION- Copyright is only granted on the expression on idea not on the idea itself. When a person derives his work from the claimant but may have done too much in such a way either deliberately or through completely which does not amount to infringement. Casual Connection- There must be casual connection between the two work because there will be no infringement unless there is a direct connection between the copyrighted work. There must be casual connection between the copyrighted work or the infringing work . Substantial Part- law never allows a defendant to escape a liability on the grounds that he has not copied the plaintiff work exactly less than complete copying has always been an infringement. In this it is laid down that copyright should not be allowed to become an instrument of oppression and extortion. Infringement is not always when there is a exact copies of the claimant work exactly less than complete copying is always an infringement. Substantial part of the claimant work can usually be characterized (a) The exact use of part of the work only( or where the extracts from literary work have been taken verbatim) (b) Some reworking of the whole of it( where the whole of literary work has been paraphrased, dramatic or translated into another language, an entire artistic work imitated in some other ways) (c) Combination of these. In determining whether there is a substantial part, applying the test and to determine whether the whole work has been imitated, modified or otherwise altered without exact copying of any part.

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In the case of R.G Anand Vs Deluxe Films3 In these case court held that film produced by defendant cannot be said a substantial copy and defendant cannot be held liable for copyright because both are different in story climax and characteristics. Moreover copyright cannot be acquired in idea and copyright offers protection only to the expression of ideas and not the idea itself. So, there is no infringement and allegation made by plaintiff is not valid. In the case of Macmillan And Company Limited Vs K. and J. Cooper4 In these case action brought by the appellant to restrain the defendant a firm carrying on in Bombay trade and publishing of educating books in which the relief was claimed was that the copyright exist in such books. In these case it is laid down that copyright is exist in original work and appellant work is not the original work so there is no infringement of copyright and also there is no absolute verbal identity of some of notes in both the books. In Hindustan Pencils Ltd v Alpna Cottage Industries 5 The Copyright Board of Goa held that where the similarities between the artistic works of the parties are fundamental and substantial in material aspects, it would amount to copyright violation and the defendant’s copyright is liable to be expunged from the register of copyright

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1978 AIR 1613,1979 SCR (1) 218 (1924) 26 BOMLR 292 5 AIR 1987 SC 426 4

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SECONDARY INFRINGEMENT It is basically based on the principle that it is necessary ingredient of the tort that the defendant must have a degree of guilty knowledge before he can be liable. It is termed as primarily act of an infringer. Dealing with infringer copies-The main act of secondary infringement concern dealing with infringing copies. Person is also liable who knowingly possess or provide the means for making infringing copies. Thus the copyright of a work is infringed by a person who, without the license of a work is infringed by a person who, without the license of a copyright (a) Makes (b) Imports (c) Possess in the course of a business (d) Sells or lets for hire, or offers or expenses for sale or hire. Copyright in a work is also be infringed by a person, who, without the license of the copyrighted owner transmit the work by means of a telecommunication. Where the copyright in a literary, dramatic or musical work is infringed by a performance at a place of public entertainment, any person who gave permission for that place to be used for performing is also liable for infringement unless he gave permission be believed on reasonable ground that performance would not infringed copyright. In the case of Microsoft Files Copyright Infringement Case against KK Software Microsoft has filed a copyright case against Kamlesh Kumar Jha, the owner of New Delhi-based KK Software Solutions, and other defendants for allegedly indulging in software piracy and counterfeiting Microsoft products, in the Delhi High Court for permanent injunction and damages. CBI concluded its investigations and filed charge sheet against KK Jha and others before the court of Chief Metropolitan Magistrate (CBI Cases), New Delhi in December 2011

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citing violations of the Copyright Act 1957, the Information Technology Act 2000 and the Indian Penal Code 1860. This criminal case is currently awaiting framing of charges by the court, according to Microsoft Microsoft informed that at the hearing of the civil case on January 7, 2013, the Delhi High Court after examining the case has issued an ex-parte ad interim injunction restraining the defendants from undertaking any further reproduction, storage, installation and/or usage of infringing/unlicensed software of Microsoft.

In the case John Richard Brady & Others. v. Chemical Process Equipment Pvt. Ltd, Delhi High Court6 This is a case concerning the legal principle of copyright infringement involving trade secrets and engineering. Brady was the owner of copyright in the drawings of the FPU and was entitled to the exclusive right of publishing and reproducing the drawings whether two dimensionally or three dimensionally as he considered apt. Defendant was falsely using the plaintiff pictures and developed their own design. Thus, the court restrained the Chemical Process Equipment Pvt. Ltd from manufacturing and selling machines that were substantial imitation and reproduction of the drawings of Brady’s FPU or from using in any other manner whatsoever the know-how, specifications, drawings and other technical information about the FPU disclosed to them by Brady.

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AIR 1987 Delhi 372

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REMEDIES FOR THE INFRINGEMENT OF COPYRIGHT

Copyright Act provides both civil and criminal remedies for the infringement of copyright. Sec 557 which deals civil remedies for infringement. The owner of copyright shall be entitled to all such remedies by way injunction, damages, account of difference and account of differences as may be conferred by law civil. Civil suits are instituted at the appropriate district court having jurisdiction including where the plaintiff resides.

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Civil remedies for infringement of copyright.—

(1) Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, 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: tc "55. Civil remedies for infringement of copyright.—(1) Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, 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\:" Provided 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. tc "Provided 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." (2) Where, in the 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. tc "(2) Where, in the 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." (3) The costs of all parties in any proceedings in respect of the infringement of copyright shall be in the discretion of the court. tc "(3) The costs of all parties in any proceedings in respect of the infringement of copyright shall be in the discretion of the court."

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Sections 64-70 provides a range of criminal penalties for infringing copyrights which are typically punishable with terms of imprisonment that “may extend up to three years” along with a fine. These offences would be taken cognizance of and tried at the court of the Metropolitan Magistrate or Judicial Magistrate of the First class Sec 70, in the same manner as all cognizable offences in India i.e., by following the procedures under the Code of Criminal Procedure, 1973. Section 64 8 of the Copyright Act dealing with police powers was amended in 1984 to give plenary powers to police officers, of the rank of a sub-inspector and above, to seize without warrant all infringing copies of works “if he is satisfied” that an offence of infringement under Sec 64. Section 63, “has been, is being, or is likely to be, committed”. Prior to amendment, this power could only be exercised by a police officer when the matter had already been taken cognizance of by a Magistrate. Prima facie, this is a very sweeping power since its exercise is unsupervised by the judiciary and only depends on the “satisfaction” of a police officer. To put matters in perspective, under the Income Tax Act, dealing with the far more sensitive issue of tax evasion, a 8

Power of police to seize infringing copies.

(1) Any police officer, not below the rank of a sub-inspector, may, if he is satisfied that an offence under section 63 in respect of the infringement of copyright in any work has been, is being, or is likely to be, committed, seize without warrant, all copies of the work, and all plates used for the purpose of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable, be produced before a Magistrate.] tc "64. Power of police to seize infringing copies.—5[(1) Any police officer, not below the rank of a sub-inspector, may, if he is satisfied that an offence under section 63 in respect of the infringement of copyright in any work has been, is being, or is likely to be, committed, seize without warrant, all copies of the work, and all plates used for the purpose of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable, be produced before a Magistrate.]" (2) Any person having an interest in any copies of a work 2[, or plates] seized under sub-section (1) may, within fifteen days of such seizure, make an application to the magistrate for such copies 2[or plates] being restored to him and the Magistrate, after hearing the applicant and the complainant and making such further inquiry as may be necessary, shall make such order on the application as he may deem fit. tc "(2) Any person having an interest in any copies of a work 1[, or plates] seized under sub-section (1) may, within fifteen days of such seizure, make an application to the magistrate for such copies 1[or plates] being restored to him and the Magistrate, after hearing the applicant and the complainant and making such further inquiry as may be necessary, shall make such order on the application as he may deem fit."

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search and seizure can only be conducted based on information already in the possession of the investigating authority.

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CONCLUSION The provision for the protection of copyright infringement in India is strong and effective. But it is not enough making provision we cannot conclude that copyright protection is strong and it is not going to infringed. It is easy to get a pirated music videos, movies, pirated Shopkeepers not afraid to dealing with these pirated things and taking the law in his hands by dealing with these copyrighted material. Police also sometimes also not take the appropriate action which is required to protect the copyright infringement. There should be effective enforcement of law that no infringement should be taken places. Now a day cyberspace infringement is very common so there should be strict rules and regualation should be made to protect the cyberspace copyright infringement. Judiciary also played a very important and effective role in protective of copyright infringement.The situation is, however, not as alarming as it is perceived and the existing legal system can effectively take care of any problems associated with copyright infringement.

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REFERENCES 

Copyright Act 2012

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Narayana P. Copyright and Industrial Designs, 3rd edn (Eastern Law House, Kolkata).

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Textbook on copyright law by Copier

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www.indiankanoon.com

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A copyright infringement aricle in Lawinfowire.com

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Pdf on copyright infringement by Mark Miller Jackson Walker L.L.P.

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Manupatra.com

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