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Infringement and Remedies under copyright law

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This Article is written by Anshika Srivastava of 4th Semester of NMIMS School of Law

“When you have wit of your own, it’s a pleasure to credit other people for theirs.”

                                                         —————– Criss Jami, Killosophy——————-

INTRODUCTION

Intellectual property rights belong to creators. They often provide the creator a restricted license to use their innovation.

IP also covers copyright. The original text is protected by copyright whenever the creator makes it visible or touchable. The copyright act protects a variety of works, including written works, moving pictures, musical compositions, sound recordings, computer programs, plays, books, blogs, and more.

This paper examines the many copyright infringement alternatives available in India. Property breach rules exist in India on a civil, criminal, and administrative level. Each of them will be covered on this page.

BACKGROUND

History of Copyright in India

  1. In 1847, the East India Company established copyright laws. Copyright was awarded for the author’s lifetime and seven years after. Copyright had 42-year limits. The government may require a copyright holder to publish a piece after an author dies. Infraction cases would be heard by the “highest local court exercising original civil jurisdiction.”
  2. II. The “proprietor, projector, publisher, or conductor” of “any encyclopedia, review, periodical work, or work published in a series of books or parts” under a service contract owns it. Illegal copying.
  3. Significantly, copyright was not guaranteed. Home Office copyright registration was needed for Act rights. However, the Act specifically reserved the author’s copyright and his ability to seek legal action to the extent permissible by laws other than the 1847 Act.
  4. The 1911 UK Copyright Act was mostly extended to India in 1914. Changes were minor. Copyright infringement was forbidden under sections 7–12. Second, Section 4 prohibited the author’s “sole right” to “produce, reproduce, perform, or publish a translation of the work” for 10 years after publication. If she published or authorized a translation within 10
  5. years, she retained “sole rights”. The 1914 Act was revised until the 1957 Act entered into effect on January 24, 1958.

Evolution of Copyright in India

  1. I. Before 1957, the 1914 Copyright Act expanded the 1911 British Copyright Act. 1983, 1984, 1992, 1994, and 1999 amended the Act. In May 2012, the Indian Parliament unanimously enacted the Copyright Amendment Bill, 2012, aligning Indian copyright law with the (WCT) and  (WPPT).
  2. In order to comply with WCT and WPPT, expand copyright protection to the digital sphere, create statutory licenses for cover versions and broadcasting companies, and guarantee writers’ income, the Copyright Act was revised in 2012.

What is copyright?

Owners of intellectual property have copyright. Copying is against the law. A work can only be duplicated by the original creators and those who have their permission.

Before a piece of original content reaches the public domain, copyright law gives its creators the only right to use and reproduce it.

Duty must be performed. Humans also have rights. wholesome, legal, or moral. People and their jobs are connected by moral rights. In the digital era, moral rights are devalued. Work is governed by morals. Copyright frequently comes with moral rights. Morality is safeguarded by copyright laws. Before, crimes against moral rights were not brought to justice.

What are the rights related to copyright?

Books, music, artwork, sculptures, films, and technologically based works like computer programs and electronic databases are all protected by copyright. Authors’ rights are what some languages refer to as copyright. Despite some convergence brought about by international law, many copyright regimes still show this historical disparity in the history of these rights.

A literary or creative work may only be copied by the author or with permission, which is known as copyright. Most laws acknowledge that writers have moral rights over their works that they alone can exercise, such as the ability to forbid inaccurate copies. Other rights, including the right to copy, can be used by a publisher who has been given permission by the author.

Copyright is a way to protect two different rights.

Due to economic rights, people who own intellectual property can make money when other people use their works.

Authors and other producers have the moral right to take certain steps to protect their relationship to their work and keep it in good shape. The author or person who made the work can own the business rights, or they can be given to one or more copyright holders. In many countries, moral rights cannot be given or taken away.

Economic Rights

Economic rights are those that provide the creator the ability to profit from his creation. The works that the author produces are his or her property. He alone is authorized to utilize his creativity for personal or professional gain through replication, transmission, distribution, assignment, or alienation as he is the owner.

Rights to adaptation and translation

  1. A copyrighted owner’s consent is also required before translating or altering a work. The expression of a work in a language different than that of the original form is known as translation.
  2. Adaptation is the modification of one work to produce another, such as the adaptation of a novel into a film, or the modification of a work for different conditions of exploitation, such as modifying a university textbook for a lower level.
  3. Translations and adaptations are copyrighted. Publishing a translation or adaptation requires permission from both the original work and the translation’s copyright holders.
  4. Due to the vastly expanded possibilities for altering and adapting works in digital media, the extent of the right of adaptation has been the topic of much dispute in recent years.
  5. Users may readily edit text, sound, and images using digital technology to produce user-generated content (UGC).
  6. The main topic of discussion has been how to strike the correct balance between users’ rights to make changes that appear to be necessary for the regular use of a work in digital format and the author’s right to govern the integrity of a work by approving alterations. Some of the concerns center on whether consent from the right owner is required to produce new works that include elements of earlier works, such as through sampling or mash-ups.

Rights of public performance, broadcasting, communication to the public, and making available to the public.

  1. Under many national laws, any performance at a site where the public is or may be present, or at a facility not accessible to the public but where a substantial number of persons outside a family and its close friends are present, is a public performance. Playwrights and composers can perform. Shows recorded. Stores, airplanes, and discos play phonograms.
  2. Broadcasting is the wireless transmission of sounds or images for public reception via radio, television, or satellite. A wired or wireless signal is sent to the public to be decoded by those with the right equipment. Cable is public communication.
  3. According to the Berne Convention, only authors have the authority to provide permission for the public performance, transmission, and communication of their works. In certain nations, a right to equitable remuneration supersedes the author’s or another right owner’s exclusive right to allow broadcasting, however, this is a practice that is waning.
  4. Rights related to broadcasting, public performance, and public communication have recently been under contention. New issues have been created by digital technology, which allows individuals to select the works that are supplied to their computers or other devices. The legitimacy of this practice is contested.
  5. According to Article 8 of the WCT, writers have the exclusive authority to grant access to their works “so that the public may access such works from a place and at a time individually chosen by them.” Although some national laws include it in the distribution right, most of them include this right in the public communication right.

Rights of distribution, rental, and importation

  1. Other rights are protected by national legislation in addition to this fundamental reproductive right. Copying works is permitted under several laws. The freedom to reproduce would be useless if copyright owners could not restrict the distribution of legal copies. The sale or transfer of a physical copy often ceases distribution. This suggests that the new owner can provide or sell a copy of a book without permission when the copyright owner sells or transfers ownership of it. National legal systems are thinking about including digital data in this concept.
  2. The WCT now explicitly mentions the right to authorize the rental of certain types of works, such as audio-visual works, computer programs, and musical works in sound recordings. When technology made it simple for clients of rental shops to copy these works, a solution was required to prevent copyright infringement.

3) To protect territoriality, certain copyright regulations provide copy importation restrictions. If copyright holders were unable to use their reproduction and distribution rights on a geographical basis, their legitimate economic interests would be in jeopardy.

What is infringement?

“Copyright in a work is infringed when a person does or authorizes someone else to do, any of the actions prohibited by the copyright,” according to the law. –s16(2) CDPA When the defendant personally engages in any prohibited behavior that violates the rightsholder, this is considered primary infringement. It matters not whether the defendant was aware of a copyright violation. Liability for secondary infringement is based on “guilty” knowledge. It is the selling, importing, or exporting of copies that are unlawfully made.

What is primary infringement?

As a property right, copyright can be violated without needing to show that it has caused harm. Considering the whole or a significant portion, s. 16(3)The author’s exclusive rights apply to the entire work or any substantial component of it, that is, any portion that contains the author’s unique creative effort. The CJEU determined that the expression “in whole or in part” should be read in light of the Directive’s wording, context, overall goals, and international law. This is mentioned in EU directives. In accordance with recognized precedent, several acts of copying substantial chunks of a serial work (newspapers) may be regarded as either a single act carried out over a period or as separate acts. The consequences for the owners of the original marks have been looked at in order to gauge how significant the test is. Direct or indirect performance of unlawful conduct is an infringement, regardless of how it is carried out. Leeman Ltd. v. King Features Syndicate In [1941] – Even though the defendant had copied licensed dolls and brooches based on the drawings rather than the original paintings themselves, the copyright in a drawing of Popeye was determined to have been breached. Not all instances of copyright infringement are lucrative. It is not necessary for the infringement to be done for profit. Liability can be violated in the home. Although private and domestic use is not a general defense to copyright infringement, it can provide protection if the conditions are met. One such defense is time shifting (s70 CDPA). The right was infringed whether the perpetrator was behaving innocently or intentionally, regardless of whether he knew what he was doing or intended to violate.

LANDMARK JUDGEMENTS ON ECONOMIC RIGHTS IN INDIA

The Delhi High Court went into detail about this claim in [1]Escorts Construction Equipment Ltd & Anr vs. Action Construction Equipment Pvt Ltd & Anr. The Pick-N-Carry Hydraulic Self Mobile Cranes produced by the defendants, according to the plaintiffs, is a three-dimensional representation of the drawings for which the plaintiffs are entitled to copyright protection. The Court noted the following after referencing Section 14(c)13: “It goes without saying that skilled draughtsmen generate industrial designs.

Even in such drawings, there is enough knowledge, effort, ability, and judgment. Some of the illustrations show common parts like an engine or transmission. The designs that were used to make the crane were exact replicas of the original creative work. The parts of the crane were then constructed using these versions of the plans. Once more, the manufactured components are exact replicas of the original creative works.

Moral Rights

Moral rights are acknowledged by Section 57 of the Copyright Act of 1957. You have access to the paternity, dissemination, integrity, and retraction rights under this section. A moral right may be relinquished if it conflicts with public policy.

There are three kinds of moral rights

The RIGHT TO INTEGRITY

This privilege shields the author from criticism. Derogatory treatment includes significantly altering, eradicating, or changing the work. This privilege protects the author and their creation. The task shouldn’t be hampered by changes. This permission safeguards the reputation of the authors. Negative feedback might make an attempt look bad. There are exceptions to both the right to attribution and the right to integrity. This privilege covers workplace modifications.

THE RIGHT OF ATTRIBUTION

Right of Paternity or Right to Authorship. Thus, the work gains ownership. The public can learn about the author thanks to this right. Authors must be given credit under the right of attribution. Thus, plagiarism is avoided. The name of the author must be included in reproductions and adaptations. Some countries demand attribution. A statement of ownership is required. Contracts claim. An exhibition-published piece’s title may be affixed to the frame. This permission is only ever used. Make rapid use of this privilege. Pseudonyms may be used by authors with this authorization.

THE RIGHT AGAINST FALSE ATTRIBUTION

This right forbids pretending to own a piece of art. This authorization stops a non-owner from receiving credit for their work.

Additional moral rights include the right to privacy, publication, withdrawal, and protection of the author’s reputation.

How can one obtain moral rights, and what kinds of effort qualify?

Moral rights on works are created by copyrights. Morality at work does not need to be registered. Moral rights typically endure beyond the author’s passing. In several countries, authors must demonstrate their moral rights. Moral rights cannot be taken away. However, moral rights can be passed down to the author’s legal heirs.

Moral duties:

What is the infringement of moral rights?

When someone utilizes a work without giving due acknowledgment to the author or in a way that might harm the author’s reputation, moral rights may have been infringed. The author may file a lawsuit for such a moral rights breach.

Remedy for Infringement of Moral Rights

A person may escape punishment by proving that a moral right was violated in a way that was acceptable given the circumstances. When assessing this defense, the court will consider a variety of factors, including:

The kind of labor, as well as the objective of the effort and its application.

author’s thoughts on the transgression.

pertinent business practices.

Whether or whether the project was created while you were at work.

The justification of reasonableness cannot be used to support the erroneous attribution of a moral right. There has not been a breach of moral rights if the author has given their assent to the precise action or omission of the act. Another justification that is available to a person is that they were using the work for legal or academic purposes.

Depending on the circumstances of the case and the type of infringement, the court may impose any of the following remedies:

Depending on the circumstances of the case, an injunction to prohibit infringement may be permanent or simply temporary. Three components must be established in order to get an injunction from the court: a prima facie case, inconveniences suffered, and loss or damage to the plaintiff.

Financial losses – The plaintiff has the right to hold the defendant liable for the plaintiff’s financial losses. He may also make a claim for conversion damages if the work has been changed into another form.

The Anton Piller Order requires the defendant to stop using the plaintiff’s work. The court may also order the plaintiff’s lawyer to search the defendant’s property.

Prison sentence – Depending on the seriousness of the offense, the court may additionally impose a fine and other punishment on the offender.

Public statement – The defendant may also be required by the court to issue a statement requesting that the plaintiff stop using the defendant’s creation in its entirety.

LANDMARK JUDGEMENTS ON MORAL RIGHTS IN INDIA

[2]Mannu Bhandari v. Kala Vikas Pictures Ltd.

The plaintiff, a Hindu author, granted the defendant permission to adapt her novel “Aap ka Bunty” into a film. The plaintiff filed a lawsuit seeking a permanent injunction, saying that the novel and movie had different plots and that this hurt her image as a writer. According to the court’s decision, the defendant now owns all legal rights to the work, but the plaintiff still retains moral ownership. Additionally, it stipulated that some novel-to-film adaptations are permitted if they don’t harm the author’s reputation. Finally, the defendants consented to take the plaintiff’s name and that of her novel out of the movie, so taking away her ownership of it.

[3]Amarnath Sehgal v. Union of India

A petitioner was engaged by the Ministry of Works, Housing, and Supplies to design a mural for Vigyan Bhavan, India’s first convention center. After the painting was destroyed, the complaint filed a lawsuit against the government under section 57 of the Copyright Act of 1957. According to the court, even if artists get no monetary gain from their work, their freedom to express themselves must be safeguarded. The plaintiff had extraordinary rights to seek damages, the court found. Furthermore, it said that only the plaintiff was entitled to the reproduction of his work and compensation for the defendant’s injury to the plaintiff’s reputation, honor, and mental health.

CONCLUSION

The “Infringement and Remedies” section of the copyright law (ss. 50-61) concluded that copyright holders have exclusive rights to their works and have the right to legal redress when those rights are violated. At the end of the section, we came to this conclusion. A copyrighted work is regarded to have been violated when it is used or copied without the owner’s permission. The owner has the right to demand restitution for damages, injunction relief to cease the infringement, and, in some cases, criminal penalties. The facts surrounding the infringement, such as the type of the infringement, its breadth, and whether or not it was intentional, define the precise remedies that are available. The importance of upholding the exclusive rights of persons who own copyrights and making sure that these people have enough legal options to protect those rights are both stressed in this section.

REFERENCES

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[1] Escorts Construction Equipment Ltd & Anr vs. Action Construction Equipment Pvt Ltd & Anr, IA No.2460,1998

[2] Mannu Bhandari v. Kala Vikas Pictures Ltd.IR 1987 Delhi 13, ILR 1986 Delhi 191

[3] Amar Nath Sehgal vs Union of India (Uoi) And Anr., 117 (2005) DLT 717, 2005

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