Copyright infringement and protection

Author: Abhinav Gaur, Research Associate

The first Copyright Act (India) was passed in the year 1914. Currently, the Copyright Act, 1957 governs the copyright law in India. The original Act of 1957 was amended several times like in the year 1983, 1984, 1992, 1994, and recently in 1999.

Section 16 of the Act provides that, ‘no copyright exists in any work, except as provided in the Act’.

The moral basis for protection under Copyright law rests in the Eighth Commandment: “Thou shall not steal”. Philosophy of the Copyright law is: ‘The law does not permit one to appropriate to himself, what has been produced by the labor, skill and capital of the another’.

COPYRIGHT

A copyright is an intangible property, like the trademarks. The subject matter of copyright, the thing which is indeed protected is called ‘work’. Copyright exists in India in various forms:

(a) original literary, dramatic, musical and artistic works

(b) cinematograph film, and

(c) sound recording ((Section 13 Copyright Act 1957)).

No other work, except for the ones above stated, is entitled to copyright protection and entitlement under the Act.

Section 14 of the Act boils down the definition of a Copyright for the purposes of the Act, which is that a Copyright, means the exclusive right to do or authorize the doing of acts in respect of a work or any substantial part thereof.

PROTECTION UNDER THE COPYRIGHT

The under mentioned are the acts, which can be given a copyright:

  • Literary, dramatic or musical work: The owner of copyright has an exclusive right to the reproduction of the work in any material form including the storing of it in any medium by electronic means, to issue copies to the public, to perform or communicate the work to the public, to make cinematograph or sound recording in respect of the work, to translate or make any adaptation of the work ((Section 14 (a)Copyright Act 1957)).
  • Computer programs: As an addendum to the above right, the owner has an exclusive right to sell or give on hire, or offer for sale or hire any copy of the program. The Copyright (Amendment) Act, 1999 has added one more right; i.e., to sell or give on commercial rental or offer for sale or for commercial rental any copy of the program ((Section 14 (b)Copyright Act 1957)).
  • Cinematograph film: A producer of cinematography has an exclusive right to make copy of the film including photograph of any image forming part thereof, to sell or give on hire, or offer for sale or hire any copy of the film, to communicate the film to the public ((Section 14 (d)Copyright Act 1957)).
  • Sound recording: A composer of a sound recording has an exclusive right to make any other sound recording embodying it, or offer for sale or hire any copy of the film, to communicate the film to the public ((Section 14 (e)Copyright Act 1957)).

Often the rights conferred by section 14 upon the author of such work are referred to as the economic rights, because any exploitation of such work by himself or by licensing it for royalty may bring economic benefit to the author.

The fundamental object to come up with the copyright law was to encourage authors, composers and artists to createoriginal works by giving them exclusive right for limited period to reproduce the work for the benefit of the public. Nonetheless, it is a negative right to prevent others from copying their work.

Further, the Act also recognizes moral rights of the author, which exist with the author even after assignment of the work ((Section 57 Copyright Act, 1957)). These rights are also known as the author’s special rights, which are to claim authorship of the work; and to restrain and claim damages in respect of any distortion, mutilation, modification or other act in relation to the work, which is done before the expiration of the term of copyright, if such distortion would be prejudicial to his honor or reputation.

INFRINGEMENT

Above we have discussed the concept of copyright with ‘works’ to which a copyright may be given. Now, we shall understand what if such rights to such works are infringed.

If any of the acts specified in Section 14 relating to the work is carried out by a person other than the owner or without license from the owner or a competent authority under the Act it constitutes infringement of copyright ((Section 51Copyright Act 1957)).

The acts, which constitute infringement, depend upon the nature of the work done. Secondary infringement such as making for sale or hire of, exhibition in public by way of trade of, distribution – infringing copies – is also prohibited and punishable under the Act.

ACTS, WHICH DO NOT CONSTITUTE INFRINGEMENT OF COPYRIGHT

Not all acts committed leads to a copyright infringement. Section 51 gives an exhaustive list of such acts which leads to an infringement of a copyright. On the other hand, Section 52 lays down the exhaustive list of all such acts which does not constitute the infringement of copyright, per se.

To name a few, such permitted acts can be classified as: fair dealing, educational purpose, library and archive use, usage associated with public administration, certain acts carried out by lawful users of computer program.

In respect of computer programs, acts like allowing lawful users to make back-up copies, to decompile program in limited circumstances, to copy and adapt programs in ways consistent with lawful use, are permitted and are not conceived as an infringement of copyright per se.

Creation of a similar work does not infringe the copyright, if it is created independently without copying the original work.

REMEDIES

The Copyright Act lays down the provisions for protection of the work, by conferring certain exclusive rights to the author. The Act provides for civil remedies ((Section 55 Copyright Act 1957))by the way of seeking injunction/damages and this remedy is given to an ‘owner’  ((Section 17 Copyright Act 1957))and not to a ‘prospective owner’. Injunction is an equitable remedy, by way of judicial discretion, depending upon case to case ((R. M. Subbiah v. N. Sankaran Nair, AIR 1979 Mad 56)). If the plaintiff succeeds at the trial in establishing infringement of copyright, he will normally be entitled to a permanent injunction to restrain future infringements ((K. P. M. Sundhram v. M/S RP Mandir, AIR 1983 Del 461; Hawkins Cookers Ltd v. Magicook Appliances Co., 2002 (25) PTC 713 (Del); Himalaya Drug Co. v. Sumit, 2006 (32) PTC 112 (Del); Diamond Comic Pvt. Ltd. v Raja Pocket Books, 2005 (31) PTC 378 (Del).)).

The Act also provides for compensatory civil remedies against infringement of copyright, by awarding damages. The purpose of awarding damage is restoration to the plaintiff as if no damage had been done or as to what his position was before infringement took place. The court ((Microsoft Corporation v. K. Mayuri, 2007 (35) PTC 415))has observed that in cases of blatant infringement, an award of damage may be passed under following three heads:

(a) Compensatory or Actual Damages;

(b) Damages to Reputation;

(c) Punitive Damages.

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