Imagine spending years creating a piece of music or writing a book, only to have someone else profit from your hard work without your permission.
Unfortunately, copyright infringement is a common issue that many creators face.
There are legal options available for copyright holders to address instances of copyright infringement and protect their rights.
This article on: “remedies for infringement of copyright in India” will provide you a valuable insight into infringement and the remedies of violation that exist to address this problem.
Intellectual Property Rights
Intellectual property rights (IPR) are a set of legal rights that protect the creations of the human mind.
These creations can take various forms, including inventions, literary and artistic works, designs, symbols, and names.
Intellectual property rights are designed to encourage innovation and creativity by giving creators exclusive rights over their creations for a certain period.
The four main types of intellectual property rights are patents, trademarks, copyrights, and trade secrets.
Patents protect inventions, trademarks protect brand names and logos, copyrights protect original creative works, and trade secrets protect confidential information that gives a business a competitive advantage.
By providing legal protection for intellectual property, IPR helps promote innovation and creativity by allowing creators to profit from their work without fear of it being copied or stolen.
At the same time, IPR also helps ensure that consumers can trust and rely on the quality and authenticity of the products and services they purchase.
What is Copyright All About?
Copyright is a type of intellectual property right that protects original creative works, such as literary, artistic, musical, or dramatic works, sound recordings, and cinematography films, from unauthorised use.
This means that the copyright holder has the exclusive right to reproduce, distribute, exhibits in public, as well as to create derivative works based on it.
Copyright protection is automatic and begins as soon as a work is created and fixed in a tangible form, such as being written down or recorded.
The content creator can also register their copyright with the government to establish a public record of their ownership and to gain additional legal protections.
It is a way of protecting the works of creators so that they have a reason to keep creating.
It does this by giving creators the exclusive right to use and distribute their works, preventing others from copying or using them without permission. This exclusivity is limited to a certain period of time and helps to promote creativity and innovation.
However, it also takes into account the public’s interest. For example, fair use allows limited use of copyrighted material without permission, such as for education or criticism. This helps to balance the rights of creators with the needs of society as a whole.
What is Not Considered a Copyright?
Copyright law protects the original expression of ideas, but not the ideas themselves.
This means that while you can copyright a particular creative work, such as a book or a song, you cannot copyright the underlying concept or idea.
For example, you cannot hold exclusive rights over the idea of a love story, but you can copyright a specific written expression of that idea, such as a novel or screenplay. Similarly, you cannot copyright the idea of a recipe, but you can hold the ownership rights over the specific written instructions for preparing a dish.
It’s important to note that copyright law only applies to original creative works that have been fixed in a tangible form.
Ideas that have not been expressed in a fixed form, such as brainstorming sessions or conversations, are not subject to such legal protection.
Rights Granted by Copyright
Copyright law grants creators a bundle of exclusive rights, including the right to:
- Reproduce the work
- Create derivative works based on the original
- Distribute copies of the work to the public
- Perform or display the work publicly
For example, if an author writes a book, they hold the copyright to that book and have all the exclusive rights listed above. However, anyone else who wants to use the book in these listed ways must obtain permission from the author or risk infringing on their authorship rights.
Types of Rights
Copyright laws protect two types of rights, economic rights, and moral rights.
Economic rights enable the content creator to derive financial benefits from their intellectual creation. These rights are not uniform across all works protected under Indian copyright law, and they vary depending on the type of work.
For example, there are distinct variations in the economic rights between a film and a book.
Moral rights are the author’s moral principles that give their work its essence. These rights enable the author to protect, preserve and nurture their creativity.
These rights remain distinct from the rights stated before and endure with the author, even if they relinquish or assign all of their economic rights to a third party.
As a result, these rights remain with the author and cannot be relinquished.
In essence, copyright statutes ensure that creators have control over the use of their work and are entitled to benefit financially from their creation while also retaining their moral rights over their work.
What is Copyright Infringement?
Infringement occurs when a copyright infringer uses, reproduces, distributes, displays, or performs copyrighted work without the permission of the content architect. This can include using a work in whole or in part, or creating a derivative work based on the original.
Examples of copyright infringement include:
- Reproducing or distributing copyrighted music, movies, or books without permission from the content creator.
- Using copyrighted images or artwork without permission or proper attribution.
- Posting copyrighted content, such as articles or photographs, on a website without permission.
- Creating a new work based on an existing copyrighted work without permission, such as creating a movie based on a book without obtaining the necessary rights.
- Performing copyrighted work in public without permission, such as performing a song at a concert without the permission of the owner of that song.
Copyright infringement can result in legal action by the copyright owner, which may include a lawsuit for damages and an injunction to stop the infringing activity. It is important to respect the rights of content producers and obtain permission before using or distributing copyrighted works.
Types of Infringement
There are two main types of copyright infringement: primary infringement and secondary infringement.
Primary infringement occurs when someone directly infringes on a copyright owner’s exclusive rights. This includes activities such as reproducing, distributing, displaying, or performing copyrighted work without permission.
Secondary infringement, on the other hand, occurs when someone facilitates or enables primary infringement. This includes activities such as knowingly providing the means for others to infringe on a copyright, such as selling or distributing tools or software that can be used to circumvent digital rights management (DRM) or other copyright protection measures.
Secondary infringement can also include activities such as inducing or encouraging others to infringe on the ownership rights, such as providing instructions on how to download and share copyrighted works without permission.
Both primary and secondary infringement of copyright can result in legal action by the architect of the content, which may include damages and an injunction to stop the infringing activity. It is important to respect their rights and obtain permission before using or distributing copyrighted works.
Remedies for Infringement of Copyright in India
When copyright is infringed upon, there are various remedies available to the copyright owner to seek justice.
These remedies can be broadly categorised into three types: civil, criminal, and administrative.
Civil Remedies for Copyright Infringement in India
Copyright infringement can have serious consequences for the maker of the content, which is why the Copyright Act of 1957 provides for civil remedies to protect their rights.
An interlocutory injunction is a powerful tool that provides immediate interlocutory relief to the tailor of the content who is suffering ongoing harm as a result of the breach.
It allows them to halt the infringing activity while the case is ongoing, giving them time to pursue other remedies against copyright infringement, such as seeking monetary damages
Requirements for Interlocutory Injunctions
To obtain an interlocutory injunction in a copyright infringement case, the plaintiff must generally satisfy three main requirements:
- Prima facie case: The plaintiff must demonstrate that they have a strong likelihood of success on the merits of the case. This means they must show evidence of ownership of a valid copyright and potential infringement by the defendant.
- Balance of convenience: The court will consider the potential harm to both parties and determine whether granting the injunction would be more beneficial to the plaintiff or more detrimental to the defendant. The court will weigh factors such as the impact on business operations, potential harm to reputation, and financial consequences.
- Irreparable harm: The plaintiff must prove that they would suffer irreparable harm if the injunction is not granted. This means the harm cannot be adequately compensated by monetary damages alone. In copyright infringement cases, this could include damage to the reputation, market share, or artistic integrity of the creator of the content.
Anton Piller Order
The Anton Piller order, named after a notable case, allows a plaintiff in a copyright violation case to obtain a court order authorising entry into the defendant’s property for the purpose of inspecting and searching for evidence to support their claim.
However, in order to be granted this order, the plaintiff must demonstrate that they have a valid cause of action and have suffered damages.
The plaintiff is also required to present specific evidence to the court as part of their case against the defendant.
It is important to note that an Anton Piller order is not a search warrant and does not grant the plaintiff unlimited access to the defendant’s property. Rather, it allows for a limited inspection and preservation of evidence.
Failure to obtain court approval and the defendant’s consent could result in trespassing. This type of order is commonly used in conjunction with injunctions, which seek to prevent the defendant from moving assets outside the jurisdiction of the court.
The Mareva injunction is a legal tool used by courts when they suspect that a defendant is attempting to stall or interfere with the implementation of a court order.
In such cases, the court can order the defendant to put their assets or a portion of them under the court’s control to ensure that the court’s order is satisfied.
Order XXXVIII, Rule 5 of the Civil Procedure Code(CPC), 1908 governs this legal mechanism.
Under the Copyright Act of 1957, copyright owners have three options to seek compensation if someone has used their work without consent.
- The first option is called an account of profits, which means the owner can ask for the same amount of money that the person who used their work earned from it.
- The second option is compensatory damages, which means the owner can ask for money to make up for the damage caused by the violation.
- The third option is conversion damages, which means the proprietor can ask for the value of the work that was used without authorisation.
Norwich Pharmacal Order
A Norwich Pharmacal Order is a legal tool that allows a person or organisation to get information from someone who has it, even if that person doesn’t want to share it.
This is typically used when the person with the information has done something wrong, like committing copyright infringement, and the person seeking the information needs it to prove their case.
The Copyright Act of 1957 offers several solutions for infringement known as criminal remedies. These criminal remedies for infringement of copyright in India include:
- Imprisonment for a minimum of 6 months up to a maximum of 3 years
- A fine of no less than 50,000 but up to 2,00,000.
- Additionally, infringing goods can be searched and seized
- And the copyright owner can demand the delivery of these goods.
The court can provide remedies to the owner of a copyrighted work if they prove that their work has been copied or used without their permission. These remedies may include injunctions to stop the infringing activity, compensation for damages suffered, and the delivery or destruction of infringing copies of the work.
However, in cases where the infringement is related to architecture, the owner of the work does not have any legal remedies available to them. This means that the owner of an architectural design may have limited options to protect their work under the object of copyright law.
Administrative Remedies for Infringement of Copyright in India
Administrative remedies for copyright owners are available in cases of infringement through importation. In such cases, content owners can approach the Registrar of Copyrights and file a petition to impose a restriction on the import of infringing copies into India. This means that any goods infringing upon the copyright will not be allowed to enter the country for sale.
Furthermore, if infringing copies have already been imported, the copyright owner can request the confiscated copies to be delivered to them. This provides an effective way for them to prevent infringing copies from being sold within India and protect their rights.
The fair dealing defense is an integral part of the law of copyright. It allows for certain usage of literary works that would otherwise be an infringement of copyrights.
The purpose of copyright defense is to prevent the inhibition of creativity that the said law is intended to promote.
According to Section 52 of the Copyright Act in India, fair dealing may serve as a defense against claims of copyright infringement.
However, the Act does not provide a clear definition of fair dealing, so Indian courts rely on English authorities.
The case of Hubbard vs Vosper is often cited, which holds that fair dealing must be a question of degree and a matter of impression. The tribunal decides on the facts of the case.
The best part of fair dealing is that it strikes a balance between the rights of copyright owners and the interests of the public.
It allows for certain uses of copyrighted material that are deemed to be fair, such as used for comment, criticism, or review.
This is important because it ensures that the aforementioned law does not stifle creativity and allows for the benefits of creativity to be enjoyed by society as a whole.
An example of fair dealing under copyright law in India could be the use of a copyrighted song in a movie review. In this scenario, the reviewer is allowed to use a small portion of the song for the purpose of commenting and reviewing the movie, which is considered fair dealing.
However, if the same reviewer were to use the entire song as background music for the review without permission or compensation, that would not be considered fair dealing and could be deemed an infringement of ownership rights of that song.
So, fair dealing allows for limited use of copyrighted material for specific purposes such as commentary, criticism, review, research, and news reporting.
This exception strikes a balance between the interests of content creators and those of society, by allowing for creative and innovative works to be created while still protecting the rights of the creators.
Copyright Infringement Cases in India
Twentieth Century Fox and Sohail Maklai Entertainment Ltd.
In 2010, Twentieth Century Fox Film Corporation accused the producers of the Bollywood film, ‘Knock Out’, of infringing the copyright of their 2002 film, ‘Phone Booth’.
The makers of ‘Phone Booth’ filed a suit in the Bombay High Court, alleging copyright infringement and seeking an injunction.
Bombay High Court ruled that the ‘idea’ of a man held hostage in a telephone booth by a sniper was novel and protected under copyright.
The court held that there were similar scenes in both the cinematographic films, and if those were removed from ‘Knock Out’, it would rob the essence of the movie, indicating copyright infringement.
Sohail Maklai Entertainment Ltd., the producer of ‘Knock Out’, settled the case by paying 1.25 crores to Fox Studios.
Najma Heptulla V. Orient Longman Ltd., Air 1989 Del 63,
In this case, the petitioner was the legal heir of Maulana Abdul Kalam Azad, who had given Prof. Humanyun Kabir the right to translate and narrate his work. The plaintiff had assigned the copyright to the publisher and received 50% of the royalty for 30 years.
The court ruled that the publisher had the right to publish the book after the term had ended and that the plaintiff could not prevent them from doing so. The plaintiff had assigned the copyright to the publisher and had no control over the publication of the book after the term had expired.
Related article: Check out the linked article to figure out some more copyright infringement cases.
In a Nutshell
Copyright laws grant authors and creators exclusive rights to their works. This means that they have the sole authority to reproduce and distribute their works, publicly perform and display them, and create derivative works based on them.
Infringement occurs when someone uses the copyrighted work without permission or beyond the scope of the permission granted.
The content maker has the right to take legal action against the infringer and seek remedies such as injunctions to stop the infringing activities, monetary damages, and even criminal sanctions in some cases.
Remedies for infringement aim to compensate the owner for the loss suffered due to the violation and to deter others from overstepping on the owner’s rights.
It is important to respect and protect copyright laws as they play a vital role in encouraging creativity and innovation in various fields such as literature, music, art, and technology.
By respecting and enforcing copyright laws, creators and artists can earn a living from their works and be motivated to continue producing new and exciting content for the benefit of society.
What is an infringement of copyright and remedies in India?
Infringement of copyright refers to the unauthorised use of copyrighted material without the owner’s permission. The remedies available to the owner of the copyrighted work include imprisonment, fines, confiscation of infringing goods, and delivery of such goods to them.
What are 3 ways to infringe copyright?
Three ways to infringe the ownership rights are reproduction, distribution, and creation of derivative works without the owner’s permission.
What are the elements of copyright infringement?
The three elements of copyright infringement are ownership of a valid copyright, unauthorised use of the copyrighted material, and substantial similarity between the infringing work and the original copyrighted work.
What is the law for copyright infringement in India?
The Copyright Act of 1957 is the governing law for the violation of ownership rights of content in India. It provides sufficient remedies such as imprisonment, fines, confiscation of infringing goods, and delivery of such goods to the creator of the content.
Why is copyright infringement illegal?
Infringement is illegal because it violates the exclusive rights of the copyright owner to control the use and distribution of their creative work. It deprives them of their right to profit from their work and may harm their reputation or goodwill.
How can copyright infringement be prevented?
To avoid copyright infringement, you can get permission from the owner of the content to use their work, use the copyrighted material in a way that is considered fair use, or create your own unique content that doesn’t violate existing copyrights.
Is it likely to face legal action for unintentionally using copyrighted material?
Yes, you can be sued for the action for copyright infringement even if you didn’t know that you were using copyrighted material. Ignorance of the law is not a defense.
What are statutory damages?
Statutory damages refer to a predetermined amount of damages that are established by statute in a civil lawsuit. Unlike actual damages, which require the plaintiff to prove the exact amount of harm suffered, statutory damages provide a fixed amount of compensation that the plaintiff can recover.
What are the benefits of copyright protection?
1. Copyright protection offers several benefits, such as providing exclusive rights to the content creator to use and monetize their work, incentivising creativity and innovation, and encouraging investment in creative industries.
2. It also enables creators to prevent unauthorised use and distribution of their work, allowing them to maintain control over their creations and receive appropriate compensation for their efforts.
3. It also promotes the development of a knowledge-based economy, which is crucial for economic growth and development.
What are pecuniary remedies?
Pecuniary remedies for copyright violation refer to the monetary compensation awarded to the aggrieved party as a result of legal action. In a legal proceeding, once the aggrieved party has established the defendant’s liability for the harm suffered, the court may order pecuniary remedies as a way of compensation.