Updated on: Oct 28th, 2022
11 min read
Copyright provides exclusive rights to the copyright holder, such as the right to distribute, reproduce, perform or display the copyright-protected work. The usage of copyright-protected work without the authorisation/permission of the copyright owner results in copyright infringement.
Thus, copyright infringement means the unauthorised use of someone’s copyrighted work for a profit. It results in the infringement of certain rights of the copyright holder, such as the right to distribute, reproduce, perform or display the protected work.
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:
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.
Primary infringement occurs when there is an actual act of copying, while secondary infringement occurs when unauthorised dealings take place, such as selling or importing pirated books, etc. In the case of secondary infringement, the infringer will know about infringement, while in the case of primary infringement, the infringer may or may not know about infringement.
The following elements should be present for copyright infringement:
As per the Copyright Act, 1957, a copyright infringement occurs in India in the following cases:
In this case, YRF filed a copyright infringement suit against Sri Sai Ganesh Productions on the grounds that it copied their movie ‘Band Baaja Baaraat’ and produced ‘Jabardasht’ movie which had substantial and material similarities in terms of concept, theme, character, plot, story, script and expression amongst other things. The court extended the test of originality since the films are protected like original works, to distinguish between the two films based on ‘foundation, substance and kernel’ and understand the average moviegoer’s viewpoint as to whether they would have an impression that one work was a copy of the other. The court held that Sri Sai Ganesh Productions had blatantly copied the YRF film’s essential, fundamental and distinctive features, resulting in copyright infringement.
Hawkins Cooker Ltd sued Magicook Appliances on the grounds of illicitly using their label registered under the Copyright Act, 1957, which they used on their renowned pressure cooker line. The court deterred Magicook Appliances from using the Hawkins Cooker Ltd cookbooks. It ordered Magicook Appliances to deliver damages to Hawkins Cooker Ltd company for all alleged books, products, and articles employed by them in manufacturing the offending goods.
Super Cassettes Industries Limited (SCIL) claimed that the YouTube business model makes a substantial profit from using the copyrighted work uploaded without approval from the copyright owners and without paying a royalty for the same. The court opined that YouTube, the video streaming giant and Google should stop distributing, reproducing, displaying or transmitting on their portal any audio-visual works in the exclusive ownership of the SCIL.
Certain acts do not result in copyright infringement. Such acts/uses of copyrighted works are allowed without permission from the copyright owner. The following are the acts that do not result in copyright infringement in India are:
The authors/copyright owners can take legal action against a person or entity infringing their copyrighted works. The copyright owner can file a civil case in a court having jurisdiction and is entitled to remedies by way of damages, injunctions and accounts. A criminal suit can also be filed in a court of a First Class Judicial Magistrate or Metropolitan Magistrate.
In the case of copyright infringement by an artificial judicial person like a company or Limited Liability Partnership (LLP), the company/LLP and all persons in charge at the time of committing the offence or responsible for the conduct of the business would be liable for the infringement.
Where a copyrighted work has been infringed, the copyright owner is entitled to remedies of injunction, damages and accounts. However, when the infringer proves that he/she was unaware and had no reasonable ground for believing that copyright existed in work at the infringement date, the copyright owner will not be entitled to any remedy except an injunction.
Injunction: Injunction is the effective remedy for copyright infringement. An injunction means a judicial process through which the infringer is restrained to continue the infringing acts or is ordered to restore the position which stood before the infringement.
Damages: Damages are compensation provided to the copyright owner. The purpose of ordering to provide the damages to the copyright holder is to restore the owner to the earlier position. There are various factors to determine the damage amount. Generally, the damages are the amount the copyright holder would have gotten from the infringing acts if the infringer had obtained the licence for such acts. Various other factors, such as loss of reputation, loss of profit to the copyright holder, decrease in the sale of the copyright holder’s work, etc., determine the damages amount.
Accounts: The infringer can be asked to submit an account of profits made from the sale of the copied works and pay such an amount to the copyright owner.
When a person knowingly infringes or abets the infringing act of a copyrighted work, then the offence is a criminal offence under the Copyright Act, 1957. When the copyright owner files a criminal suit for copyright infringement, the minimum punishment for the infringement is imprisonment for six months, which can extend to three years, with a minimum fine of Rs. 50,000, which can extend up to Rs.2 lakhs.
In the case of a subsequent and second conviction, the punishment is imprisonment for a minimum of one year, extending to three years and a fine of Rs.1 lakhs, extending to Rs.2 lakhs. Any police officer (not below the sub-inspector rank) can seize the infringing copies without a warrant when the police officer is satisfied that a copyright infringement offence in any work has been committed and produce them before the Magistrate.
Copyright aims to protect the author’s rights and provide them with economic benefits. The scope of copyright protection extends to all original works which demand creativity, including computer software and databases.
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