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Copyright law grants the owner of the work a bundle of exclusive rights in relation to the reproduction of the work and other acts, allowing the owner to profit financially by exercising such rights. Any of these acts connected to the work performed by someone other than the owner without a licence from the owner or a competent authority under the Act constitutes infringement of copyright in the work. Since copyright is only granted for a limited time, there is no infringement if the work is reproduced or other activities are performed after the term of the copyright has expired. The owner's exclusive rights are determined by the nature of the property.
(a) when any person without a license from the owner of the copyright, or the Registrar of Copyright, or in contravention of the conditions of a licence granted or any conditions imposed by a competent authority under the Act:
(b) when any Person,
Depending upon the kind of copyright work, infringement involves one or more of the following acts:
the plaintiff has to establish:
However, as ideas are not copyrightable, an idea of a person, if others present it in a physical form will not constitute an act of infringement. The Supreme Court of India has also upheld the same principle in the case of Anand v Delux Films.
The ground to be considered by a court to analyze as to whether an act is infringement or not is to see whether or not the reader, speaker or the viewer after having read or seen both the original and the subsequent works, gets an unmistakable impression that the subsequent work is a copy of the original. The court categorically ruled that copyright law protects only creative expression but not the ideas. Ideas if copied by others cannot be protected and there could be no violation of copyright if ideas are copied.
There must be some causal connection between the original work and the alleged infringing copy apart from a sufficient degree of objective similarity between the two works. Where there is a substantial degree of objective similarity this will afford prima facie evidence of causal connection.
A work may be copied by copying a copy to it. Copying a three dimensional version of a two dimensional drawing establishes causal connection. Similarly a novel may be converted into a play. If another person converts the play into a ballet, it would constitute infringement of the novel. It is an infringement of copyright to produce a work similar to a copyright work, although the defendant has never seen the plaintiffs' work but has copied an intermediate copy which he was entitled to copy.
Reproduction means, reproducing the original exactly or copying a substantial part of the original work and does not include cases where an author or compiler produces a substantially similar result by independent work without copying. A copy is that which comes so near to the original as to suggest that original to the mind of every person seeing it.
In the case of literary, dramatic, musical or artistic work in which copyright subsists, to make any adaptation of the work without the consent of the owner of the copyright amounts to an infringement.
Importation of infringing copies into India is an act of infringement. But importing one copy of the work for the private and domestic use of the importer is allowed. This exception does not apply to import of cinematograph film or records. Thus importing even a single copy of a video cassette or a musical record or cassette is an infringement of the copyright in the work.
Importation into India of copies of books lawfully published in a foreign for the purpose of trade will constitute infringement, Importation of infringing copies into India for transit across the country is also an infringement.
Section 52 gives a long list of acts which do not constitute infringement of copyright. They are briefly stated as follows:
In respect of computer programme the following acts do not constitute infringement:
The making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme from such copy-
The exceptions to infringements listed in s. 52(1) apply also to the doing of any act in relation to the translation of a literary, dramatic or musical work or the adaptation of such work as they apply in relation to the work itself.
The nature of the exceptions vary according to the nature of the work. These are, therefore, dealt with separately for different categories of works.
Section 52(1) provides that a fair dealing with any work for the following purposes does not constitute infringement:
(i) private or personal use, including research,
(ii) criticism or review, whether of that work or of any other work,
(iii) reporting of current events and current affairs including the reporting of a lecture delivered in public.
The Explanation to the section stipulates that the storing of any work in any electronic medium for the purposes mentioned in cl. (a) of s. 52(1), including the incidental storage of any computer programme which is not itself an infringing copy for the said purposes, shall not constitute infringement of copyright. In the case of item (ii) and (iii) the criticism or review or newspaper reporting must be accompanied by an acknowledgment identifying the work by its title or other description and identifying the author unless the work is anonymous, or the author of the work has previously agreed or required that no acknowledgment of his name should be made.
Further the above provisions also apply to the translation of a literary, dramatic or musical work or the adaptation of a literary, dramatic musical or artistic work as they apply in relation to the work itself.
Academy of General Education Manipal and Another vs B.Malini Mallya
In this decision, the Supreme Court concluded that Section 52 of the Copyright Act of 1957 specifies some conduct that does not constitute a copyright infringement. When a fair trade is made, for example, of a literary or theatrical work for the purpose of private use, research, criticism, or review, whether of that work or any other work, the right under the Act cannot be asserted. Similarly, because the appellant is an educational institution, the order of injunction will not apply if the dance is performed within the meaning of paragraph I of sub-section (1) of Section 52. Again, if the appellant institution performs such a performance in front of a non-playing public, and the institution falls under the umbrella of an amateur club or society, the order of injunction is not violated.
Civic Chandran v. Ammini Amma
Civic Chandran v. Ammini Amma is a landmark decision in Indian copyright law, determined by the Kerala High Court, in which the court declared that under the fair dealing exemption, even considerable copying of copyrighted material is acceptable if the copying is in the public interest.
Protection of rights under the copyright law, which is basically a negative right, is as much a problem of complying with the mandatory provisions of the procedural law as the effective exercise of investigative and adjudicatory functions by the enforcing authorities and the courts.
There are basically 3 types of remedies available in the case of infringement of copyright:
Civil remedies include injunction, return of account of profit, and deliver the infringing copies of copyright work and conversion damages. Section 54 to Section 62 of the Copyright Act provide for civil remedies under the Act. Section 55 provides that where copyright in any work has been infringed, the owner of the copyright can, except as otherwise provided in the Act, be entitled to all remedies like injunctions, damages and accounts as are conferred by law for the infringement of a right.
However, if the defendant proves that at the date of the infringement he was not aware and had no reasonable ground to believe that copyright subsisted in the work, the plaintiff will not be entitled to any remedy other than an injunction in respect of the infringement and a decree for the whole or part of the profits made by the defendant by the sale of the infringing copies as the court may, in the circumstances, deem reasonable.
Criminal remedies provide for the imprisonment of the accused or imposition of fine or both, seizure of infringing Copies and delivery of infringing copies to the owner of the copyright. Prior to the maximum punishment for infringement of copyright under Section 63 of the Copyright Act, 1957 was one year's imprisonment and fine. These punishments were enhanced by the Copyright (Amendment) Act, 1984 with a view to curbing widespread piracy in video-taping and musical records.
Under these provisions, a person who knowingly infringes or abets the infringement of copyright in a work or any other right conferred by the Copyright Act, is punishable with imprisonment for a term of not less than six months but which may extend to three years and fine which shall not be less than 50,000/-, but which may extend to 2.00,000/-. However, the court has the discretion to reduce the minimum term of imprisonment and the minimum fine for adequate and special reasons.
For the second and subsequent convictions, the minimum term of imprisonment has been prescribed as one year and the minimum fine 1,00,000/-. The imposition of lesser penalties than the minimum prescribed in the Act has been restricted to cases where the infringement has not been made for gain in the course of trade and business. In other words, courts have been given a discretion to impose a lesser penalty where the infringement is of a technical nature and not motivated by business considerations.
Administrative remedies include moving to the Registrar of copyrights office to ask him to ban the import of infringing copies into India in case the infringement is through such importation and the infringing copies must be delivered to the owner of the copyright.
Rationale behind getting copyright: The main reason for getting copyright is to avoid replication or duplication of an original work by some other person who is not the owner of that work. It is at the same time very easy to prove in court of law that the copyright has been infringed by some other person for which the original owner has not given permission. Administrative remedies consist of moving the Registrar of Copyrights under Section 53 to ban the import of infringing copies into India and the delivery of infringing copies confiscated to the owner of the copyright.