This article is written by Megha Arora of 5th Semester of Department of Laws, Panjab University, Chandigarh, an intern under Legal Vidhiya.
The article provides a comprehensive overview of copyright law in India, focusing on the concept of copyright infringement and the remedies available to copyright owners. It covers key legal provisions, court cases, and practical guidelines related to copyright protection. The article also highlights the significance of moral rights for creators and addresses the issue of unwarranted copyright threats. Overall, it offers valuable insights into the legal framework surrounding intellectual property rights in India.
Copyright, Copyright Protection, Copyright Infringement, Indian Copyright Act, Intellectual Property Rights, Remedies for Copyright Infringement, Civil Remedies, Criminal Remedies, Exclusive Licensee, Special Rights of Copyright Owners.
Copyright is a legal concept that plays a pivotal role in protecting the intellectual property rights of creators, artists, authors, and innovators. It grants exclusive rights to these individuals or entities over their creative works, ensuring that they can control how their works are used, copied, distributed, and displayed. Copyright protection extends to various forms of artistic and intellectual creations, including literary, musical, artistic works, cinematographic, sound recordings, software, and much more. The importance of copyright cannot be overstated, as it not only fosters creativity but also ensures that creators can benefit financially from their efforts, incentivizing further innovation.
However, the issue of copyright infringement looms large in the realm of intellectual property. Copyright infringement occurs when someone copies, reproduces, distributes, or performs a copyrighted work without the authorization of the copyright owner. This unauthorized use not only undermines the economic interests of creators but also deprives them of the recognition and credit they deserve for their work. In essence, copyright infringement poses a significant threat to the very essence of creative expression.
In response to the challenge of infringement, copyright protection serves as a crucial shield. It functions as both a preventive measure and a punitive deterrent. On one hand, copyright protection acts as a barrier by clearly delineating the rights and limitations associated with a work, making it harder for potential infringers to exploit the creation without permission. On the other hand, copyright laws provide remedies to copyright owners when infringement does occur, ensuring that those who violate copyright can face legal consequences.
CONCEPT OF COPYRIGHT INFRINGEMENT AND REMEDIES
Infringement, in the context of copyright law, refers to any unauthorized use or exploitation of a copyrighted work. This can include activities such as reproducing, distributing, performing, or adapting the work without the permission of the copyright owner. Copyright infringement undermines the core principles of copyright, as it violates the exclusive rights granted to creators and can lead to financial losses and reputational harm. This can encompass activities such as reproducing a book, distributing copies of a song, adapting a screenplay without permission, or even broadcasting a copyrighted film without a license. Essentially, any act that encroaches upon the exclusive rights of the copyright owner constitutes infringement.
In India, copyright infringement is governed by the Indian Copyright Act, 1957. This comprehensive legal framework outlines the rights of creators and the remedies available to them in cases of infringement. It’s crucial to understand that copyright infringement is not limited to unauthorized commercial use; it can also involve non-commercial activities. Understanding the various nuances of copyright infringement is essential to both creators and users of copyrighted material.
The Indian Copyright Act, 1957, also offers remedies to copyright owners to address instances of infringement. These remedies can be civil or criminal in nature, depending on the severity and intent of the infringement. Civil remedies may include injunctions to stop further infringement, monetary damages to compensate the copyright owner for losses suffered, and an account of profits to ensure that the infringer does not benefit financially from their wrongful actions. Criminal remedies, on the other hand, involve penalties such as imprisonment and fines, primarily for cases of intentional and commercial infringement.
INFRINGEMENT OF COPYRIGHT
Copyright infringement is a trespass on a private domain owned and occupied by the owner of the copyright. It is the unauthorized use, reproduction, distribution, display, or adaptation of copyrighted material, such as literary, musical, artistic works, or other creative content, in a manner that violates the exclusive rights granted to the copyright owner by law.
The Kerala High Court , in the case of K.L. George v. C. Cheriyan, established that copyright infringement occurs when any individual performs an action for which the Copyright Act exclusively grants rights to the copyright owner.
In another case R.G. Anand v. Delux Films, the Supreme Court ruled that an infringement doesn’t require an exact or word-for-word duplication of the original work. Instead, a substantial resemblance between the alleged copy and the original, even with some alterations to mask the piracy, can constitute infringement. Infringement encompasses various ways in which the content of a work can be adapted, imitated, transferred, or reproduced.
In Hindustan Lever Ltd. V. Nirma Private Ltd., the court provided a practical guideline. It stated that one of the most reliable tests to determine copyright violation is to assess whether a reader, spectator, or viewer, upon comparing both works, unmistakably perceives the subsequent work as a copy of the original.
ACTS DEEMED TO INFRINGED COPYRIGHT [SECTION 51]
Section 51 of the Indian Copyright Act defines specifies various scenarios where the unauthorized use, distribution, or import of copyrighted material is considered copyright infringement, unless specific conditions or exceptions apply. It outlines several scenarios where unauthorized use of copyrighted material becomes a violation of the copyright owner’s rights:
- Copyright infringement occurs when a person, without the proper license from the copyright owner or the Registrar of Copyrights, or in violation of the license conditions, does any of the following:
i. Engages in an activity that exclusively belongs to the copyright owner as per the Act.
ii. Permits, for profit, a place to be used for public communication of the work, which would infringe the copyright, unless they were unaware and had no reasonable grounds to believe that it would constitute infringement.
2. Copyright infringement also takes place when a person:
i. Creates copies of the work for sale, hire, or trade, or sells or rents such copies.
ii. Distributes the work to an extent that harms the interests of the copyright owner, especially for commercial purposes.
iii. Exhibits the work in public as part of a trade.
iv. Imports infringing copies of the work into India, with an exception for the private and domestic use of the importer, which doesn’t constitute infringement.
It’s important to note that the reproduction of a literary, dramatic, musical, or artistic work in the form of a cinematograph film is also considered an “infringing copy” under this section.
In the case of Penguin Books Ltd., England v. M/s. India Books Distributors, British publications were imported from America and sold in India without the copyright owner’s license, constituting copyright infringement under Section 51 of the Copyright Act, 1957, as ruled by the Delhi High Court.
In the case of Microsoft Corporation v. Yogesh Papat, a well-known software company, Microsoft, sued defendants who illegally copied and distributed their operating system software. The Delhi High Court found this to be piracy and issued a permanent injunction against the defendants, ordering them to pay Rs. 19.75 lakhs in damages. The court stated that software piracy is a copyright infringement under Section 51 of the Copyright Act, 1957, and the copyright owner has remedies under Section 55.
CERTAIN ACTS WHICH DO NOT CONSTITUTE INFRINGEMENT OF COPYRIGHT [SECTION 52]
Section 52 of the Copyright Act, 1957, is a comprehensive provision that outlines various acts that do not constitute copyright infringement for different types of works. It specifies exceptions related to copyright infringement. This section recognizes that while copyright protection is essential, there are instances where the use of copyrighted material should be allowed for purposes such as education, research, and personal enjoyment.
Following are the works which are not deemed to Infringe copyright work:
- CERTAIN ACTS IN LITERARY, DRAMATIC, MUSICAL, OR ARTISTIC WORK WHICH ARE NOT DEEMED TO BE INFRINGEMENT OF COPYRIGHT
a. Fair Dealing: According to Section 52(1)(a), certain uses of copyrighted works are allowed without permission, including for private or personal use, criticism, review, and reporting of current events. Additionally, storing a work electronically for these purposes is not infringement, provided it’s not an infringing copy.
In the case of Macmillan & Co. v. K. & J. Cooper, it was established that simply selecting and compiling passages from an original textbook into a guidebook does not qualify as an abridgment of the copyright in the textbook.
In the case of Messrs. Blackwood & Sons v. A.N. Parsuram, the Madras High Court ruled that if there is a motive to compete, it would make the use “unfair.” Additionally, if significant and essential parts of a work are reproduced, it demonstrates the intention to profit from the efforts of others, and there is no need to prove any separate ulterior motive.
b. Reproduction of work: Section 52 of the Copyright Act, 1957, outlines various circumstances in which the reproduction of a copyrighted work does not constitute copyright infringement:
i. Reproduction for judicial proceedings or reports thereof.
ii. Reproduction by the Legislature’s Secretariat for members’ use.
iii. Certified copies made in accordance with the law.
iv. Reproduction for educational purposes, exams, and answers.
v. Reproduction in newspapers or periodicals on current topics unless expressly prohibited.
vi. Reproduction of unpublished works in libraries or museums for research, after a specified period.
vii. Limited copies (up to three) made by a public library when a book is unavailable for sale.
viii. Reproduction or publication of certain official matters, acts, reports, and judgments.
ix. Reading or recitation of reasonable extracts in public.
x. Performances by amateur clubs or societies for non-paying audiences or religious institutions.
xi. Publication of public lecture reports.
xii. Translation of legislative acts and rules in Indian languages under specific conditions.
xiii. Making ephemeral recordings by broadcasting organizations for their own broadcasts and archival purposes, given certain conditions.
These exceptions allow certain uses of copyrighted works without infringing the copyright holder’s rights.
2. ACTS NOT DEEMED TO BE INFRINGEMENT OF COPYRIGHT WITH RESPECT TO COMPUTER PROGRAMME
Section 52 of the Copyright Act, 1957, extends specific exceptions for computer programs, preventing certain acts from being considered copyright infringement:
i. Making Copies for Protection: Individuals who legally possess a computer program can create copies or adaptations of it for two purposes: to use it for its intended function or to create backup copies temporarily safeguarded against loss, destruction, or damage.
ii. Obtaining Essential Information: Lawful possessors of a computer program can perform necessary actions to acquire information essential for making independently created computer programs interoperable with other programs, as long as this information isn’t readily available elsewhere.
iii. Testing and Studying: Conducting observations, studies, or tests to understand the fundamental ideas and principles underlying a computer program’s elements, while performing actions essential for the program’s intended functions, is not considered copyright infringement.
iv. Non-Commercial Copying: Making copies or adaptations of a computer program from a legally obtained copy for non-commercial personal use is not an infringement of copyright.
These provisions recognize the need for flexibility and interoperability in the context of computer programs, allowing certain actions without violating copyright.
3. THE INCIDENTAL OR TRANSIENT STORAGE OF A WORK OR PERFORMANCE [SECTION 52 (1)(b)(c)]
Section 52 (1)(b)(c) of the Copyright Act, amended in 2012, allows for transient or incidental storage of works in digital transmission without infringing copyright. However, if a complaint is received, access is paused for 21 days, after which it can resume if no court order is issued. This provision recognizes digital transmission realities while respecting copyright holders’ rights and access needs.
4. CINEMATOGRAPH FILM
Sec. 52 (1)(u) and (y) of the Copyright Act, 1957 cover exceptions for cinematograph films. First, including artistic works in a film isn’t infringement if they’re in public places or part of the film’s background. Second, after a copyright’s expiration, showing a film with recorded literary, dramatic, or musical works doesn’t infringe, provided proper acknowledgment is given, unless the work is anonymous or the author waives acknowledgment.
5. Painting, drawing, engraving, a work of architecture or any work of artistic craftsmanship
Section 52 of the Copyright Act, 1957, outlines exceptions for artistic works. It permits the reproduction and display of architectural, sculptural, and crafted works in public places. It also allows building reconstruction based on original architectural drawings with consent. Authors can use certain tools for their works, and two-dimensional artworks can be turned into three-dimensional objects for industrial use without infringing copyright. These exceptions balance copyright protection and creativity in various contexts.
PARTICULARS TO BE DISPLAYED ON SOUND RECORDING AND VIDEO CASSETTES [SECTION 52A]
Section 52A of the Copyright Act is designed to prevent copyright infringement in sound recordings and video films. It does this by requiring specific details to be displayed on the packaging of sound recordings and video cassettes. These details must include the name and address of the person who created the sound recording or video film, as well as the names and addresses of the copyright owner of these works.
In the case of State of Andhra Pradesh v. Nagoti Venkararamane, Supreme Court clarified that identifying the copyright owner is not a prerequisite for convicting someone under the Copyright Act, 1957. The introduction of Section 52A aimed to prevent piracy while protecting copyright interests. Prosecution doesn’t need to find the copyright owner to prove infringement. The absence of required particulars on video films, as per Section 52-A, itself constitutes copyright infringement.
IMPORTATION OF INFRINGING COPIES IN INDIA [SECTION 53]
Section 53 of the Copyright Act enables copyright or related rights owners, or their representatives, to formally notify the Commissioner of Customs regarding potential copyright infringement. This notification should include proof of ownership, a request to treat infringing copies as prohibited goods, and details about the expected arrival of these copies in India within a year. After review, the Commissioner can classify the copies as prohibited goods, except for goods in transit. A security deposit may be required to cover potential expenses. The Customs Officer detaining the goods must notify both the importer and the person who issued the notice within 48 hours. If the person who issued the notice, failed to obtain court order within 14 days, the goods must release and no longer be treated as prohibited.
RESALE SHARE RIGHT OF OWNER IN THE ORIGINAL COPIES [SECTION 53A]
Section 53A of the Copyright Act pertains to the resale of original copies of specific works, which include paintings, sculptures, drawings, and original manuscripts of literary, dramatic, or musical works. In this context, the owner of these original copies has the right to assign them to another person. The assignee, in turn, can resell these original copies. If the resale price surpasses ten thousand rupees, the owner of the original copies is entitled to a share in the resale price. However, the exact amount of the owner’s share is determined by the Commercial Court. It’s important to note that this share cannot exceed ten percent of the resale price of the original copy.
REMEDIES AGAINST THE INFRINGEMENT OF COPYRIGHT
There are two types of remedies provided in Copyright Act, 1957:
- Civil Remedy [Section 54-62]: A civil remedy is a legal solution or action sought by an individual or entity through civil litigation to resolve a dispute or seek compensation for harm or damages caused by another party. These remedies typically include injunctions, damages, and other legal actions aimed at resolving civil disputes rather than criminal matters.
- Criminal Remedy [Section 63-70]: The criminal remedy, in context of copyright infringement, involves legal actions and penalties pursued by authorities or copyright owners against individuals or entities engaged in deliberate and unlawful violations of copyright laws. This can result in criminal charges, fines, and even imprisonment for the infringing parties.
CIVIL REMEDY AGAINST INFRINGEMENT
OWNER OF THE COPYRIGHT [SECTION 54]
According to the section, term “owner of copyright.” not only includes the original creator or author of a work but also extends to others in certain situations.
Firstly, an “exclusive licensee” is considered the owner of copyright. An exclusive licensee is someone who has been granted exclusive rights to use, reproduce, or distribute a copyrighted work. In essence, they have the same rights as the copyright owner during the period of their license.
Secondly, in cases where a literary, dramatic, musical, or artistic work is anonymous (the author’s identity is unknown) or pseudonymous (the author uses a false name), the “publisher” of the work is regarded as the owner of copyright until the author’s identity is publicly disclosed or established to the satisfaction of the Commercial Court. This provision ensures that the publisher, who may have legal rights and responsibilities related to the work, is recognized as the copyright owner until the author’s identity becomes known or confirmed.
In the case of Maganlal Savani v. Rupam Pictures (Pvt) Ltd., the defendant, Rupam Pictures (Pvt.) Ltd., initially produced the film “Chupke Chupke.” However, they later entered into an agreement with the plaintiff, granting them exclusive and perpetual ownership rights over the film. This agreement allowed the plaintiff to exploit, exhibit, or broadcast the film in various ways, including through television and satellite broadcast.
The Bombay High Court ruled that any satellite broadcast of the film by a party other than the plaintiff would violate the terms of the agreement. Consequently, the court issued an injunction, preventing other parties from exhibiting the film via satellite, based on Section 55 of the Copyright Act.
CIVIL REMEDY AGAINST THE COPYRIGHT INFRINGEMENT [SECTION 55]
Section 55 of the Copyright Act in India outlines the civil remedies available to copyright owners in cases of copyright infringement:
- Remedies Available: When someone infringes the copyright of a work, the owner of that copyright is entitled to various remedies. These remedies includes:
a. Injunction (a court order to stop the infringing activity);
b. Damages (monetary compensation for the losses suffered due to infringement);
c. Accounts (requesting an account of the profits made by the infringing party), and;
d. any other remedies provided by law for copyright infringement.
However, if the defendant can prove that they were not aware and had no reasonable grounds to believe that copyright existed in the work at the time of the infringement, the copyright owner may only be entitled to an injunction and a share of the profits made by the defendant through the sale of infringing copies, as determined by the court.
2. Presumption of Authorship: In cases involving literary, dramatic, musical, or artistic works (and, in most cases, cinematograph films and sound recordings), if copies of the work as published bear the name of an author or publisher, that person is presumed to be the author or publisher of the work, unless evidence to the contrary is presented. This presumption simplifies copyright infringement proceedings by establishing the identity of the author or publisher.
3. Costs of Proceedings: The allocation of costs incurred during legal proceedings related to copyright infringement is at the discretion of the court. This means that the court has the authority to decide which party, the plaintiff (copyright owner) or defendant (infringing party), will bear the legal costs associated with the case.
RESTRICTION ON REMEDY OF INJUCTION IN CASE OF ARCHITECTURE WORK [SECTION 59]
Section 59 specifies that when it comes to the copyright owner of an architectural work, they cannot seek an injunction to halt or demand the demolition of a building or structure if construction has already started. In other words, if someone is already building a structure, the copyright owner of the architectural work cannot use legal means to stop the construction or order the building’s destruction based on copyright infringement.
SAFEGUARDING OF SPECIAL RIGHTS OWNED BY VARIOUS PERSONS [SECTION 56]
When multiple individuals or entities hold distinct rights within a single copyright, each of them has the legal authority to protect and enforce their specific rights independently. This means that any person who possesses a separate right within a copyright can take legal action, such as filing a lawsuit or initiating other legal proceedings, to safeguard their rights without requiring the participation of others who may own different rights within the same copyright. In essence, they have the freedom to pursue legal remedies for their specific copyright interests without involving all other right holders in the same copyright.
SPECIAL RIGHT OF AUTHOR [SECTION 57]
Section 57 of the Copyright Act grants special rights to the author of a work, which they can exercise independently of their copyright, even if they have partially or fully assigned that copyright to someone else. These special rights include:
- Claiming Authorship: The author has the right to claim authorship of the work. This means they can insist on being recognized as the creator of the work.
- Protection Against Harm to Reputation: The author also has the right to prevent or seek damages for any actions related to the work that could harm their honor or reputation. This includes actions like distortion, mutilation, or modification of the work that would negatively impact how the author is perceived.
However, not displaying the work or not displaying it to the author’s satisfaction is not considered a violation of the rights granted in this section.
Furthermore, if the author is no longer alive, their legal representatives can exercise these rights on their behalf. In essence, this section ensures that authors retain control over their reputation and the integrity of their work, even if they’ve assigned their copyright to others.
In the case of Amarnath Sehgal v. Union of India, the renowned sculptor Amarnath Sehgal was commissioned by the Indian Government to create a mural for Vigyan Bhavan. After its completion, the government decided to remove and store the mural during building renovations without informing or obtaining authorization from Amarnath. The mural also suffered damage due to mishandling.
Amarnath sued the government, asserting that this mistreatment of his mural violated his moral rights as an artist. The court ruled in favor of Amarnath, emphasizing that moral rights are integral to an author’s work and cannot be relinquished, even after a sale. The destruction and mutilation of the work were deemed an infringement of the author’s moral rights.
The government argued that once the sale was completed, it had the authority to use the work as it saw fit, including removal from public display. However, the court disagreed, highlighting that the damage to the mural harmed the artist’s reputation, regardless of ownership. As a result, the court awarded Amarnath compensation of Rs. 5,00,000 and ordered the remaining mural to be returned to him for restoration and potential sale.
This case set a significant precedent for the interpretation of moral rights and introduced special remedies, such as returning copyrighted work to the author. It established a framework for future cases involving moral rights and an author’s residual rights over their creations.
In the case of Raj Rewal v. Union of India & Ors., an architect claimed special rights over both his architectural drawings and the buildings constructed based on those drawings. However, the Delhi High Court ruled against the architect, stating that an architect’s authorship rights extend only to the drawings, not the resulting buildings. The court emphasized the property owner’s right to the physical structure and concluded that the architect cannot prevent the demolition of a building based on his architectural design using Section 57 of the Copyright Act, 1957.
RIGHT OF COPYRIGHT OWNER TO RECOVER POSSESSION OF INFRINGING COPIES [SECTION 58]
Section 58 of the Copyright Act addresses the recovery of infringing copies and related matters. Under this section, any copies of a work in which copyright exists and all plates used or intended for producing such infringing copies are considered the property of the copyright owner. Consequently, the copyright owner has the legal authority to initiate proceedings to recover these infringing copies as per Section 58 of the Copyright Act, 1957. Additionally, the copyright owner can seek the remedy of converting these infringing copies.
However, it’s important to note that the remedy of conversion may be denied if the opposing party can prove two key points:
i. They were unaware and had no reasonable grounds to believe that copyright existed in the work from which these copies were allegedly created.
ii. They had reasonable grounds to believe that these copies or plates used for reproduction did not constitute copyright infringement.
LEGAL RECOURSE FOR UNWARRANTED COPYRIGHT THREAT BY THE COPYRIGHT OWNER [SECTION 60]
Section 60 of the Copyright Act addresses situations where an individual, claiming to be the copyright owner, threatens legal action against another person for alleged copyright infringement. These threats can be conveyed through circulars, advertisements, or any other means. If someone receives such groundless threats and feels aggrieved, they have legal recourse under this section.
The aggrieved person can seek an injunction to stop the continuation of these threats. Additionally, they have the right to claim damages for any losses they may have incurred as a result of these groundless threats. In essence, Section 60 provides a legal remedy for individuals who are wrongly threatened with copyright-related legal actions, allowing them to protect their interests and seek compensation if necessary.
COPYRIGHT OWNERS MUST BE INVOLVED IN LEGAL PROCEEDINGS [SECTION 61]
Section 61 of the Copyright Act allows an exclusive licensee of a copyright to initiate a civil suit or legal proceedings related to copyright infringement. However, in such cases, the owner of the copyright becomes the defendant in the proceedings. This means that the copyright owner has the opportunity to challenge the claims made by the exclusive licensee. It’s essential to note that if the exclusive licensee prevails in the lawsuit, the copyright owner cannot file a new lawsuit based on the same cause of action. This provision ensures that disputes over copyright infringement involving exclusive licensees are resolved efficiently and prevent multiple lawsuits on the same issue.
In conclusion, copyright is a fundamental legal concept that safeguards the intellectual property rights of creators across various forms of artistic and intellectual works. It empowers creators to control the use, distribution, and reproduction of their creations, ensuring that they can reap the benefits of their efforts and fostering a culture of innovation. However, the issue of copyright infringement poses a significant challenge to these rights, as unauthorized use and reproduction of copyrighted material threaten both the economic interests and creative integrity of creators.
To combat copyright infringement, the Indian Copyright Act, 1957, provides a comprehensive legal framework that outlines the rights of creators and the remedies available to them. It categorizes acts that constitute copyright infringement and specifies exceptions that do not constitute infringement, particularly in cases related to education, research, and personal use. The Act also delineates civil and criminal remedies, allowing copyright owners to seek injunctions, damages, accounts, and other legal actions against infringers.
Moreover, the Act recognizes the special rights of authors, ensuring that they maintain control over their works and reputation even after assigning copyright. It addresses issues such as architectural copyright, recovery of infringing copies, unwarranted copyright threats, and the involvement of exclusive licensees in legal proceedings.
In essence, the Indian Copyright Act, 1957, plays a vital role in balancing the interests of creators and users of copyrighted material, promoting creativity, and upholding the principles of intellectual property protection.
 K.L. George v. C. Cheriyan, AIR 1986 Ker. 12.
 R.G. Anand v. Delux Films, AIR 1978 SC 1613.
 Hindustan Lever Ltd. V. Nirma Private Ltd., AIR 1992 Bom. 195.
 Penguin Books Ltd., England v. M/s. India Books Distributors, AIR 1985 Del. 29.
 Microsoft Corporation v. Yogesh Papat, 2005 (3) PTC 245 (Del.).
 Macmillan & Co. v. K. & J. Cooper, AIR 1924 PC 75.
 Messrs. Blackwood & Sons v. A.N. Parsuram, AIR 1959 Mad. 410.
 State of Andhra Pradesh v. Nagoti Venkararamane, (1996) 6 S.C.C. 409.
 Maganlal Savani v. Rupam Pictures (Pvt) Ltd., AIR 2000 Bom. 416.
 Amarnath Sehgal v. Union of India, 2005 (30) PTC 253 (Del).
 Janhavi KM, Amarnath Sehgal v. Union of India, IP MATTERS https://www.theipmatters.com/post/amarnath-sehgal-v-union-of-india.
 Raj Rewal v. Union of India & Ors., 2019.