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Infringement of Copyright in India: A Comprehensive Guide

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Manish Jindal

December 15, 2023

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Infringement of Copyright in India: A Comprehensive Guide

The digital era has fundamentally changed how we produce, consume, and exchange material, but it has also given rise to copyright infringement issues that content providers are becoming increasingly concerned about.

Having their works stolen or copied without permission may be terrible for creators who spend years honing their craft and producing original products. Unfortunately, violations of authorship rights are a painful reality for many Indian content producers.

The problem of copyright infringement has become more common than ever before as the usage of digital media spreads.

Both consumers and content creators, need to be aware of the laws that regulate the infringement of copyright in India.

If we are aware of these regulations, we can safeguard our work and avoid inadvertently infringing on the rights of others.

This article will help you understand everything about the infringement of copyright in India.

So let’s explore the complicated realm of copyright infringement in India and discover how each of us may contribute to the preservation of creative works.

Definition of Copyright

Copyright is a vital legal concept that acts as a guardian of creativity and innovation. It is a legal right granted to creators and owners of original, intellectual, and creative works.

During a set amount of time, they have unrestricted permission to make copies, show their work publicly, or license it to others. This protection encompasses a diverse range of artistic and intellectual works, from books and paintings to music and software.

Copyright law provides a framework that promotes the production of new and original works by offering creators financial benefits and the ability to determine how their works are used.

By safeguarding creators’ rights, copyright encourages the continued growth and evolution of artistic expression and helps to maintain a thriving creative economy.

In essence, it is a powerful force that celebrates and protects the unique and imaginative works of our society.

A few examples of works that can be protected by copyright are mentioned below:

  1. A novel or short story: An author has exclusive rights over his work. He/she has the right over publication, distribution, etc.
  2. A piece of music: The composer of a song possesses the right to control the recording, performance, and distribution of their work, which includes the authority to grant licenses for its use in different types of media, such as movies or commercials.
  3. A photograph: The photographer who takes a picture has the right to control how it is used or displayed. This includes determining whether or not it can be published in magazines or newspapers, or sold as prints.

Suggested Reading: What is eligible for copyright

What Cannot Be Copyrighted?

Although many works can be protected by copyright, some categories of things are not eligible for protection under copyright statutes.

This law only covers how an idea or fact is expressed, not the idea or fact itself. Therefore, you cannot copyright an idea or a fact.

For instance, you cannot claim ownership of the concept of a robot that can travel through time. However, you can secure legal protection for a story that incorporates that concept.

Similarly, a mathematical equation or formula cannot be copyrighted. However, a book that explains how to apply it may be eligible for copyright protection.

Suggested Reading: How to copyright a mathematical formula?

Significance of Copyright

The ownership of copyright bestows creators with a major advantage in the marketplace, enabling them to prevent unauthorised use or reproduction of their work by others.

This gives creators the ability to license their works to others for a fee, which can generate substantial revenue streams.

Some of the importance of copyright are discussed below:

Encourages Creativity

Copyright provides creators with a financial incentive to create and share their works, which helps to drive innovation and creativity.

Protects the Rights of Creators

Copyright protection gives creators control over their works, allowing them to decide how their works are used, distributed, and reproduced.

Protects Economic Interests

It protects the economic interests of creators and their partners, allowing them to profit from their works and invest in new projects.

Helps to Maintain Quality Standards

Copyright protection can help to maintain quality standards by ensuring that only authorised copies of works are produced and distributed.

Fosters a Thriving Creative Industry

It helps to support a thriving and diverse creative industry by protecting works of creative expression and encouraging investment in new works.

Preserves Cultural Heritage

It plays a critical role in preserving works of cultural significance, ensuring that they are properly attributed, preserved, and made available for future generations.

Promotes Learning and Education

It helps to promote learning and education by ensuring that creators are fairly compensated for their works, and by facilitating access to educational resources.

Encourages Innovation and Technological Advancement

It can help to encourage innovation and technological advancement by providing creators with the legal protection they need to invest in new projects.

Encourages International Trade and Cooperation

By providing a common framework for the protection of intellectual property rights, copyright can help to encourage international trade and cooperation, fostering economic growth and development.

Note: Check out the linked article to know more about the importance of copyright.

Rights of a Copyright Owner

The rights of a copyright holder are outlined in the Indian copyright law and include the following:

  1. Reproduction right: The right to make copies of the work, either in whole or in part.
  2. Distribution right: The right to distribute copies of the work to the public.
  3. The public performance right: The right to perform the work publicly, such as in a live performance or on television.
  4. Public display right: The right to display the work or exhibits in public, such as in a museum or gallery.
  5. Derivative works right: The right to create new works based on the original work, such as adaptations or translations.
  6. Moral rights: The right to claim authorship of the work and the right to prevent others from using the work in a way that would harm the author’s reputation.
  7. Fair use: The right to make limited use of copyrighted material without the owner’s permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.
  8. First sale doctrine: The right to sell, lend, or give away a copy of the work after it has been lawfully acquired.
  9. Digital Millennium Copyright Act (DMCA) protection: The right to take action against individuals or entities that violate copyright laws online, such as through piracy or infringement on websites.
  10. Produce a cinematographic film or a recording of the work.

Overall, the sole owners have a range of rights that protect their intellectual property and allow them to control how their works are used, distributed, and reproduced. Such rights are bestowed upon the rightful owner irrespective of the copyright registration.

The duration of copyright for creative works such as literature, theatre, music, and the visual arts is the author’s lifetime.

The term applies for sixty years following the date of publication to other works, including cinematograph films, visual recordings, pictures, posthumous publications, and more.

The copyright period lasts for 25 years after the broadcast’s production in the case of broadcasting.

What Constitutes Infringement?

Copyright infringement is when someone uses, copies, shares, or changes a work that is protected by copyright law without permission from the person who created it.

Making copies, producing derivative works, showing the work in public, or any other type of unlawful usage are all examples.

Infringement of Copyright under the Copyright Act 1957

“Infringing copy” refers to a copy of a creative work that is made or imported in violation of the Copyright Act. The specific definition of infringing copy depends on the type of work in question:

  • For literary, dramatic, musical, or artistic works: Any reproduction of the work that is not in the form of a cinematographic film.
  • For cinematographic films: Any copy of the film made on any medium by any means.
  • For sound recordings: Any recording that embodies the same sound recording, made by any means.
  • For broadcasts, reproductions, or performer’s rights: The sound recording or a cinematographic film of the program or performance, if it is made or imported in violation of the Act of 1957.

In all cases, the copy is considered infringing if it is made or imported in violation of the provisions of the Copyright Act.

When Infringement Occurs in India?

Infringement against copyright happens in India when:

  1. As is the situation with online piracy, copies of works that are protected by intellectual property rights are created and sold without license or authorisation.
  2. The performance of a copy-protected work takes place in a public space.
  3. Infringing copies are circulated for commercial and individual advantage.
  4. The public presentation of copies that infringe on intellectual property rights is unfair to the owner.
  5. Copies that infringe on intellectual property rights are brought into India from elsewhere in the world.
  6. Incorporating the protected sound recording into a new recording.
  7. Reproducing a play, book, piece of art, or song in any other way except as a cinematograph film.

Examples of Copyright Violations

  1. Infringements occur when a user downloads a movie from an unofficial source.
  2. It occurs when someone copies a clip from a TV show without permission and then posts that clip on YouTube.
  3. It occurs when someone utilises the music from another song as the basis for their song.

Types of Copyright Infringement in India

Copyright infringement can be classified into primary and secondary infringement.

Primary infringement occurs when someone directly copies or reproduces a copyrighted work without the owner’s consent.

On the other hand, secondary infringement occurs when someone contributes to or facilitates the infringement by another person, such as distributing, importing, or selling pirated copies of copyrighted works.

Unlike primary infringement, the copyright infringer may or may not be aware of the violation in secondary infringement.

For instance, a seller may unknowingly sell pirated copies of copyrighted works, but if caught, they can be held liable for secondary infringement.

In contrast, in primary infringement, the infringer is aware of their violation because they are the ones who directly copy or reproduce the copyrighted work without permission.

What is Considered Non-Infringement of Copyright?

Certain actions do not constitute an infringement. Certain activities and uses of works protected by copyright are permitted without the owner’s consent.

In India, some of the following actions do not constitute infringement:

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    Reasonable use of an author’s work:
    • for one’s personal use including study or conducting research.
    • is for the objective of evaluation or analysis of the completed work
    • is for giving reports on recent occurrences (like current affairs), including the public speech that was given.
  2. The modification or creation of copies of a computer program for usage or data backup, as well as the archiving of a performance or work.
  3. Reproducing a work for study or research.
  4. Reproduce a work during the time of the judicial proceeding.
  5. A theatrical, literary, or musical work is performed by students and faculty in educational institutions, or a sound recording or cinematograph film is reproduced with just faculty and students in attendance.

Cases of Infringement of Copyright in India

Microsoft Corporation v Deepak Raval 2006

In the case of Microsoft Corporation v Deepak Raval in 2006, internet piracy was the issue at hand.

The plaintiff argued that their intellectual property rights were severely violated due to various forms of copyright infringement.

This includes the replication of their software and the bundling of that software, which misled customers into believing that they were buying authentic software.

Additionally, the defendant had also copied the plaintiff’s software onto a blank disc.

The Delhi High Court found the defendant guilty and awarded exemplary damages worth 12 lacs, as claimed in the lawsuit.

Dabur India Ltd. v K.R. Industries in 2008

Dabur India Ltd. v K.R. Industries is a significant case related to copyright infringement in India.

The Supreme Court, in this case, stressed that if someone is found guilty of infringement, they must pay for the damages caused.

To determine these damages, it may be necessary to account for the harm caused. That’s why the term “otherwise” has been used in the law.

This means that if there’s any other legal reason for the court to intervene under Section 55(1) of the Copyright Act, 1957, the court can grant remedies.

The court further clarified that an action for passing off is a common law right and does not determine the jurisdiction of the court.

For the court to exercise such jurisdiction, the provisions of the Code of Civil Procedure would be applicable. The Act of 1957 is a special law that would, therefore, take precedence over the general law, which is the Code.

In this case, the Supreme Court provided an important interpretation of the law related to infringement and highlighted the remedies available to the actual copyright holder.

Balaji Motion Pictures v. Saregama India Ltd., 2019

In this particular instance, the plaintiff claimed that the defendant had infringed on their Marathi song and used it in their film titled “Dream Girl.”

Defendants argued that the music in question from their film was only two lines played with the proper credits at the conclusion and was not a component of the movie.

In this legal dispute over copyright infringement of a song, the defendant argued that only a portion of the song was in question and that the rest of the song was original and unique, with a different theme.

They claimed that this portion of the song was at best an adaptive or transformative work, and not a direct copy of the copyrighted song.

Therefore, they argued that any damages that the plaintiff might claim in the suit should be limited, as the alleged infringement was restricted to only a part of the song.

According to the court’s ruling, since the defendants have already admitted to the plaintiff’s ownership and rights over the song in question, even if it is just at the initial stage of the case, the principles of estoppel would come into play and the title of the plaintiff should be recognised for the time being.

The court added that the music in the defendants’ upcoming movie includes the first song for which the plaintiff asserts copyright, and as a result, infringement has been proven, according to the court.

The plaintiff met the requirements of irreparable harm and balance of convenience. The court did award damages for the music in question, but only injunctions because the movie had not yet been released.

Suggested Reading: How to Use a Song Without Copyright Infringement?

Sai Ganesh Productions v. Yash Raj Films, 2019

Because the defendants had copied the plaintiffs’ film “Band Baja Barat” for their film “Zabardast,” the plaintiffs in this case, in addition to seeking other remedies such as a rendition of account and an injunction, demanded monetary damages in the amount of 20 lac.

The plaintiff claimed that the story, the manner the storyline developed, the handling of the theme, and the expression of those themes in the Plaintiff’s movie had been flagrantly copied in the contested movie.

According to her, there were significant and material similarities between the plaintiff’s film and the defendants’ movie in terms of theme, idea, storyline, character specifications, story, script, structure, and expression, among other things.

After giving careful consideration to the pertinent facts and circumstances of the case, the judge ruled in favor of the plaintiff and issued multiple remedies, one of which was monetary compensation for copyright violations in the amount of 20 lac.

Further Reading: Famous copyright infringement cases

Britannia Industries v ITC Ltd 2021

Britannia, a well-known biscuit maker, filed a case against ITC Ltd, accusing them of trademark infringement and passing off.

The lawsuit was filed to stop ITC from manufacturing or selling digestive biscuits in their current packaging.

According to Britannia, ITC’s packaging for “Sunfeast Farmlite 5-Seed Digestive biscuits” was confusingly similar to their own “Nutri Choice Digestive” biscuits packaging in terms of the packaging’s trade dress, color scheme, layout, and arrangement of features.

Despite Britannia’s claims that ITC’s packaging was misleadingly similar, a single-judge bench of the Delhi High Court held that the packaging for ITC’s “Sunfeast Farmlite 5-Seed Digestive” biscuits was not deceptively similar to that of Britannia’s product, at least at a prima facie level.

The Delhi High Court, in its verdict, emphasised that the perception of the average human mind, not just an idiot or amnesiac, is to be taken into consideration in cases of trademark infringement and passing off.

The court pointed out that the mind of an average person is not conditioned to only notice similarities and overlook differences.

The customer would not be confused between the two packagings unless they are situated at a great distance so that they can only see the colors and not the distinctive features of the packaging.

As a result, the court rejected Britannia’s claim, refusing to grant any relief on such grounds.

Suggested Reading: Legal Cases That Protect Brands Against Trademark Infringement

Kinds of Remedies

The owner of the copyright may file a lawsuit against anyone who violates the terms of anyone’s copyrighted works.

They can file a civil lawsuit in a court of competent jurisdiction to seek remedies such as damages, injunctions, and accountings.

Alternatively, they may choose to bring a criminal proceeding before a First Class Judicial Magistrate or a Metropolitan Magistrate.

If a corporation or LLP violates intellectual property rights, both the entity itself and the person responsible for its actions or in control at the time of the infringement may be held liable.

Civil Remedies

Civil remedies for copyright infringement typically involve the owner of the copyright seeking compensation or other forms of relief from the infringing party through a civil lawsuit. The remedies available to the rightful holder in such cases may include:

Injunction

An injunction is a common remedy for copyright infringement, which involves a court order that prohibits the infringer from continuing their infringing activities or requires them to restore the original state before the infringement occurred.

Damage

Damages are an important civil remedy in cases of copyright infringement, as they serve to compensate the copyright holder for the harm suffered due to the infringement.

The purpose of damages for copyright infringement is to restore the owner to the position they would have been in had the infringement not occurred.

The number of damages awarded can be based on various factors, including the amount of revenue lost by the copyright holder as a result of the infringement, any profits gained by the infringer, and the impact of the infringement on the owner’s reputation and sales.

Ultimately, the goal is to provide fair and just compensation for the owner’s losses.

Accounts

When an owner’s work is infringed upon, they may seek an account of profits from the infringer. This is a legal remedy that requires the infringer to provide an account of the profits they have made from the infringing acts.

The copyright holder can then be awarded an amount equivalent to the profits made by the infringer as compensation for the loss of profit suffered.

Criminal Remedies

Under the Copyright Act of 1957, intentionally infringing or aiding in the infringement of a copyrighted work is illegal.

In cases of violation under the copyright act of 1957,

  • the minimum penalty for a criminal suit is 6 months in jail, with the potential for up to 3 years, and
  • a minimum fine of Rs. 50,000 that can be increased up to Rs. 2 lakhs.

In case of a repeated criminal offense, the punishment is more severe, with a minimum sentence of one year and a maximum term of three years in prison, along with a minimum fine of Rs. 1 lakh and a maximum of Rs. 2 lakhs.

When a police officer suspects an infringement, they have the authority to confiscate the infringing copies without a warrant and present them to the Magistrate.

How to Avoid Copyright Infringement?

There are several ways to avoid the infringement of exclusive ownership rights:

  1. Obtain permission: The best way to avoid the infringement of copyright in India is to obtain permission from the content creator before using their work.
  2. Use the content of public domain: Public domain works are not protected by copyright infringement law in India and can be used freely.
  3. Use works with a Creative Commons license: Creative Commons licenses allow the owner of the copyright to grant specific permissions for others to use their work.
  4. Use works that fall under fair dealing: Fair use allows the limited use of copyrighted works for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.
  5. Create your original content: Creating your original content is a surefire way to avoid the violation of copyright.
  6. Use a plagiarism checker: Using a plagiarism checker can help you identify any potential ownership issues before publishing your work.

Further Reading: How to Avoid Copyright Infringement?

Conclusion

Infringement of copyright in India is a serious issue that can have significant consequences for both creators and infringers.

Understanding the copyright laws, knowing the different types of infringement, and being aware of the consequences are crucial for anyone dealing with copyrighted material.

Preventing infringement requires a combined effort of raising awareness, educating the public, and providing effective legal recourse.

FAQs on Copyright Infringement in India

What is copyright?

Copyright is a legal right granted to creators and owners of original, intellectual, and creative works, giving them exclusive rights to reproduce, distribute, perform, display, or license their work for a specified period.

What are 4 examples of copyright infringement?

Copyright infringement refers to the unauthorised use, reproduction, or distribution of copyrighted material, without permission from the actual copyright owner. Examples include piracy, plagiarism, unauthorised distribution/sales, and sampling without permission. It is important to seek permission or obtain legal advice to avoid infringing on someone else’s intellectual property.

What are the main features of the Indian Copyright Act of 1957?

The Indian Copyright Act of 1957, provides legal protection to various creative works, grants exclusive rights to creators, protects moral rights, and includes fair dealing provisions for specific uses of copyrighted works.

What is the difference between direct and indirect copyright infringement?

Direct infringement involves unauthorised reproduction, distribution, performance, or display of a copyrighted work, while indirect infringement occurs when a person or entity facilitates, enables, or contributes to the infringement of protected work by another party.

What are the consequences of copyright infringement in India?

The consequences of infringement of copyright in India can include civil remedies such as injunctions, damages, or accounts of profits, as well as criminal penalties like imprisonment, fines, or both.

How can copyright infringement be prevented?

Preventing copyright infringement requires raising awareness about copyright laws, educating creators, users, and businesses, and ensuring efficient legal recourse for copyright holders.

What is online copyright infringement?

Online copyright infringement refers to the unauthorised use of copyrighted material over the Internet. It occurs when someone uses or reproduces copyrighted material, such as music, movies, videos, images, software, or written content, without permission from the owner, and then distributes or makes that material available online. For example:
1. Downloading and sharing copyrighted material without permission from the creator.
2. Uploading and distributing copyrighted material without permission from the owner.
3. Streaming or broadcasting copyrighted material without permission from the owner of the copyright.

Why is copyright important?

Copyright is a crucial concept that gives creators the right to use, distribute, and display their original work. It also enables them to allow or prohibit others from using their work without their permission. This protection is essential for encouraging creativity, promoting innovation, and ensuring that artists, authors, musicians, and other creators can earn a living from their work.

What is eligible for copyright?

Once a creative work has met the requirements of being original and fixed in a tangible medium of expression, it is then eligible for protection. The enforcement of copyright is crucial to ensure that the creator’s rights to their work are respected and upheld. This includes the right to reproduce, distribute, display, and perform the work, as well as the right to create derivative works. The infringement can result in legal action, which may include damages and injunctions to prevent further unauthorised use of the protected work.

What is the impact of violating copyright laws?

If someone violates the rights of creators, he/she has the right to take legal action for copyright infringement to enforce their rights and seek damages for any losses they have suffered. Infringing can result in significant penalties, including monetary damages, injunctions, and even criminal charges in some cases. It is essential to respect copyright law and obtain permission before using someone else’s creative work.

What is not considered copyright?

In the case of R. G. Anand vs. Delux Pictures, AIR 1978 SC 1613, the Supreme Court found that the plaintiff did not have reasonable grounds for claiming copyright over the theme, concept, subject matter, plot, or historical fact used in the defendant’s work. The court ruled that the infringement only applies to the expression or organisation of an idea, and not to the idea itself.

Which act provides for civil proceedings against the infringement of copyright in India?

The provisions for taking a civil action against the violation of copyright are outlined in Section 55 of the Copyright Act. In other words, if someone has violated a copyright, the owner of that copyright can pursue legal action in civil court to seek a remedy for the infringement.

How to prove the ownership of the content?

Unless proven otherwise, the author or publisher whose name appears on a work of literature, theatre, music, or the arts is believed to be the actual author of such works.

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