Infringement of Copyrights and Remedies

By Rajendra Choudhary 17 Minutes Read

Introduction

Protecting oneself from various forms of harm is essential to safeguard one’s interest. This harm encompasses not just physical injury but extends to one’s work, creations, and the results of personal effort and skill. This concern is not unique to any individual; rather, it is universal. Everyone, from children to adults and even organizations, cherishes their possessions and takes pride in their achievements.

Copyright is a category within the broader spectrum of Intellectual property Rights. Intellectual Property Rights is the term given by the World Intellectual Property Organization. Moreover, it is a legal right that accrued for the literary, scientific, trade, and artistic fields. Many nations have their own statutes to secure or protect the interests of Intellectual Property Rights. The objective is to initially establish a statutory framework to protect the creator’s moral, ethical, and economic rights in relation to their works. Lastly, it promotes the concept of fair trading to generate the economy for social and national development.

Under the Copyright Act of 1957, Section 13[1] enumerates the classes of protections. Protections are granted to works, including literary, artistic, and cinematic creations. This protection ensures that no one can duplicate, use, or recreate a work without the creator’s permission, with violations leading to copyright infringement. In Amar Nath Sehgal v. Union of India, the Court granted the Injunction to protect the rights of the creator of the mural and awarded compensation for the damages incurred to the plaintiff.

The core purpose of copyright law is to encourage and support creativity, promote innovative work, and permit the creator’s rights for a set period of its creation. The 2012 Copyright Amendment Bill aimed to address “Protection against Internet Piracy,” aligning with principles from the Berne Convention, which underscores the importance of safeguarding creative works across borders. This issue has been recognized in various legal frameworks, emphasising the importance of intellectual property.

What is Copyright Infringement?

Section 14[2] of the Copyright Act defines the Rights associated with copyrighted works, including reproduction, public communication, adaptation, and translation. When these rights are infringed upon, it constitutes copyright infringement. For instance, some websites illegally host new films before or shortly after their official release, violating copyright.

Consider an example: Mr. X from India authored a novel titled “Feathers of a Broken Bird” and published it through XYZ Publishing House. His book, available in both paperback and eBook formats for Rs. 2600, was later found on a website being offered for free. This not only undermines his financial return but also harms his reputation and trust, causing widespread negative impacts on both the creator and the industry.

The term “copyright” can be interpreted in two distinct ways, Charles Jefferys v. Thomas Boosey[3]. Firstly, at common law, the author of a literary work has an inherent right to the physical manuscript or paper on which their composition is written, as well as to any copies they choose to create for themselves or others. If the author lends a copy, their rights to that copy remain intact; however, if the copy is lent under an implied agreement that it should not be further distributed or published, the author retains the right to enforce this agreement. Secondly, copyright refers to the exclusive legal right to reproduce and distribute copies of a published literary work, including the authority to prevent others from copying the work through printing or other means.

In R.G Anand v. Delux Films[4]. The Court applied the idea-expression dichotomy from Section 13 of the Copyright Act, asserting that copyright protects the expression of ideas, not the ideas themselves. “Similarities due to a shared idea are not sufficient for infringement if the expression differs.” Therefore, the Supreme Court ruled in favour of the defendants, stating that no copyright infringement occurred.

In Donoghue v. Allied Newspapers Ltd.[5] Here, the Court followed the “Idea and Expression dichotomy” and held that a mere idea cannot be protected under the Copyright Protection Act and it has to be manifested in a substantial manner to fall under copyright protection.

However, if an idea is articulated well in words or expressions, it will not be considered an idea solely. An idea should be a link between its abstract version and its creative work. It must serve a purpose for the foundation of its theme, character, narrative, and direction to establish a base for the development of a comprehensive script. In Anil Gupta v. Kunal Dasgupta[6], the Court held that the idea itself was innovative and originally derived from the mythological concept. Therefore, it was protected under the Copyright Protection Act, and an injunction was granted. The same was held in Urmi Juvekar v. Global Broadcast News Ltd.

The term “infringement,” as defined in Section 51[7] of the Act, pertains to the unauthorized use, reproduction, distribution, display, or modification of a copyrighted work. An infringement occurs when an individual or entity engages in any of these activities without the consent of the copyright holder, thereby violating the exclusive rights granted to the copyright owner. These rights generally encompass the authority to reproduce, distribute, publicly perform, public display, and create derivative works based on the copyrighted material. To establish infringement, certain elements should be considered:

1. There should be a significant degree of similarity between the two works.
2. Engagement of the defendant in any unauthorized or unlawful use of the plaintiff’s creation, either directly or indirectly.
3. There should be a link between copyrighted work and the defendant’s purported infringing copy.
4. There should be a nexus to the defendant’s direct or indirect access to the plaintiff’s original work.

In Super Cassettes Industries Ltd v. Hamar Television Network Pvt Ltd[8]. The Court held that there was an infringement of copyright by the defendant to the plaintiff’s musical work. Meanwhile, in The Chancellor, Master & Scholar of the University of Oxford v. Rameshwari Photocopy Services[9], the Court dismissed the contention of any infringement of copyright by the defendant to the plaintiffs’ creation.    

Evolution of this Act

The Copyright law, for the first time, Germany’s Licencing Act of 1662[10], aimed to control book printing. In 1709, England introduced the Statute of Anne, marking the world’s first copyright legislation and offering protection against piracy, albeit limited to literary works. Subsequent laws, such as the Engraving Copyright Act of 1734[11] and The Fine Arts Copyright Act of 1862[12], addressed other creative fields. Eventually, these laws were consolidated into the Copyright Act of 1911[13], extending protection to unpublished works.

The Berne Convention of 1886[14] was a significant advancement, emphasizing the principle of automatic protection, ensuring that creators receive equal protection in member countries as they do in their home country, without additional formalities.

In India, the Copyright Act of 1957 represents the current law, encompassing various types of works, including literary, dramatic, musical, artistic, cinematographic, and sound recordings, regardless of registration. As highlighted in the Madras High Court case Sulamangalam R. Jayalakshmi vs. Meta Musicals (2000)[15], copyright law aims to protect creators’ efforts and talent from unauthorized appropriation. Section 2(m) of the Act defines an “infringing copy” as any unauthorized reproduction of a work.

The case of Blackwood And Sons Ltd. vs. A.N. Parasuraman (1958)[16] established that translations of literary works are also protected by copyright, and unauthorized reproduction constitutes infringement.

Copyright Infringement Classification

Classified into two categories:

1. Primary Infringement: Directly making unauthorized copies of a copyrighted work, such as recording and distributing a new film illegally.
2. Secondary Infringement: Involves contributing to the infringement, such as activities of distributing, importing, or selling the infringing copies or providing platforms for their distribution.

Amendments to the Copyright Act

1. 1983 Amendment: For the first time, computer programs were included in the definition of literary works. It also broadened the scope of the Copyright Protection Act by including sound recordings and cinematographic films. It extended the time period of copyright protection from 25 years to the lifetime of the author plus 50 years. Included moral rights under section 57 for authors, such as the right to attribution and the right to object to derogatory treatment of their work.
2. 1992 Amendment: For the first time, the Copyright Protection Act of 1957 was brought in conjunction with the Berne Convention and other international treaties. The duration is extended from the lifetime of the author plus 50 years to the lifetime of the author plus 60 years for the protection of copyright. Clarified and expanded economic rights related to broadcasting, cable services, and rental rights. Introduced provisions for the enforcement of rights and remedies for infringement.
3. 1994 Amendment: The amendment was designed to bring Indian copyright law into compliance with the TRIPS Agreement, which was part of the World Trade Organization (WTO) framework. This involved adopting higher standards of protection for copyrighted works, e.g., adaptation, public communication, infringement, and reprography, which have been aligned with the Rome Convention. Additionally, rights related to broadcasting, performers, and sound recordings have been introduced alongside provisions for collective management by copyright societies. Amendments to moral rights.
4. 1999 Amendment: The 1999 amendment to the Copyright Act of 1957 was a crucial step in harmonising with the TRIPS agreement and modernizing India’s copyright framework to address technological advancements and international obligations. By expanding protection for digital content, enhancing economic and moral rights, including the right to attribution and integrity, ensuring that authors could protect their personal and reputational interests in their works, and strengthening enforcement mechanisms. The amendment aimed to create a robust legal environment for copyright in the digital age while also balancing the interests of creators by improving protection for performers by recognizing and safeguarding their rights in relation to their performances. And producer’s rights by protecting sound recordings and cinematographic films, including control over the reproduction, distribution, and public performance of their works. Also, improved civil remedies and strengthened criminal penalties.
5. 2012 Amendment: Aligning Indian copyright law with the World Intellectual Property Organization (WIPO) Treaties, specifically the WIPO Copyright Treaty (WCT) of 1996[17] and the WIPO Performances and Phonograms Treaty (WPPT) of 1996[18], involves extending copyright protection in the digital realm. This includes implementing penalties for the circumvention of technological protection measures and rights management information, establishing the liability of internet service providers, and introducing statutory licenses for cover versions and broadcasting. Additionally, it ensures authors, music composers, and performers have the right to receive royalties, grants performers exclusive economic and moral rights, provides equal membership rights in copyright societies for authors and other rights holders, and includes exceptions for copyright to facilitate access for physically disabled individuals. Provided clearer guidelines on the licensing and assignment of copyright, including the transfer of rights and terms of licensing agreements. Extended protection to databases, ensuring that the substantial investment in the creation and maintenance of databases is recognized and protected under copyright law.
6. Tribunal reforms 2017 & 2012: The Copyright Board and the Intellectual Property Appellate Board (IPAB) have been abolished. Improved mechanisms for addressing copyright infringement, including clearer procedures for seeking remedies, such as injunctions and damages, and strengthened enforcement against piracy and other violations. Enhanced economic rights for authors and creators, including rights related to reproduction, distribution, and public performance of their works, especially in the context of digital and online environments. Expanded provisions for the protection of digital content, including clearer guidelines on digital rights management (DRM) and protection against unauthorized distribution and access. Addressed issues related to online platforms and intermediaries, including the responsibilities of platforms in managing and addressing copyright infringement.

Remedies

1. Civil Remedies: Section 55[19] of the Copyright Protection Act, 1957, states the provisions for civil Remedies. These are classified as follows:

a. Interlocutory Injunction: This is the Injunction generally granted to the plaintiff for the instance of a prima facie case or to injunct the damages incurring to the plaintiff.

b. Pecuniary remedies: In this remedy, the plaintiff can ask for the accounts of profits misappropriated and can claim compensation for damages incurred.

c. Anton Pillar Orders, this remedy is available to seek the inspection and removal of the plaintiff’s property from the defendant’s possession

d. Mareva Injunction: This injunction is imposed if there is an apprehension to the Court that there is any obstruction to the execution of any decree passed against the defendant by the defendant.

e. Norwich Pharmacal Order: This is the order passed by the Court to determine relevant information from third parties to support any evidence presented before the Court by either the plaintiff or the defendant.

2. Criminal Remedies: Under the Copyright Act of 1957, the following remedies are provided for infringement. Imprisonment up to 3 years but not less than six months, a Fine which may not be less than 50,000 but may extend up to 2,00,000, Search and seizure of infringing goods, and Delivery of infringing goods to the copyright owner.

[1] Copyright Act, 1957 (14 of 1957)

[2] Copyright Act, 1957 (14 of 1957).

[3] (1854) 4 HLC 815

[4] 1978 AIR 1613 1979 SCR (1) 218 1978 SCC (4) 118

[5] (1937) 3 Ch. D. 503

[6] AIR 2002 DELHI 379

[7] Copyright Act, 1957 (14 of 1957)

[8] 2011 PTC (45) PTC 70 (Del.)

[9] (2016) 16 DRJ (SN) 678

[10] Licensing Act, London (1662), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

[11] The Engraving Copyright Act 1734 or Engravers’ Copyright Act (8 Geo. 2. c. 13)

[12] Fine Art Copyright Act (1862)

[13] Copyright Act (1911) 

[14] Berne Convention for the Protection of Literary and Artistic Works (as amended on September 28, 1979)

[15] AIR2000MAD454, AIR 2000 MADRAS 454, 2001 (1) COPYTR 73 (2000) 3 MAD LW 38, (2000) 3 MAD LW 38

[16] AIR1959MAD410, AIR 1959 MADRAS 410

[17]  WIPO Performances and Phonograms Treaty

(WPPT) (1996)

[18] WIPO Performances and Phonograms Treaty (WPPT) (1996)

[19] Copyright Act, 1957 (14 of 1957)

Rajendra Choudhary