What does the Law say about copyright infringement?

Monday, October 17, 2022


Do you want to know what steps you can take to save your Intellectual property against piracy? Read everything that experts say about online copyright infringement

According to a 2019 report, 500 hours of videos are uploaded each minute on Youtube, which is the second-most popular social media platform, the first being Facebook.

Considering the amount of content being uploaded every minute, and the unfettered access to a plethora of content online, it becomes pertinent to have a discussion on the critical bearing this has on the infringement of Intellectual Property.

The prevalence of copyright and trademark infringement has reached an all-time high with the development of technology, the widespread use of and access to the internet in general, and the rise in social media usage in particular. Therefore, it is crucial to first understand one’s rights and how to preserve them. Additionally, to keep up with the legal advancements, in order to exercise the rights conferred on the original creators or copyright owners to their fullest potential thus achieving the goal so intended by law.

The two most common types of infringements are :

  • Copyright Infringement
  • Trademark Infringement

We shall cover Copyright Infringement in this blog.

Copyright Infringement

Copyright infringement in cyberspace can be performed in myriad ways depending on what is being infringed. Below is a brief account of infringements that can occur and the ways in which they are performed.

This can be by way of hotlinking, which is a kind of theft, as hosting a link on one’s own website eats up the bandwidth of the site it was taken from whilst also depriving them of the benefit of increased traffic; Multimedia infringement is a whole category in itself as it encompasses the infringement of literary, artistic, cinematograph films, photographs, dramatic works, musical works including sound recordings. The infringement can be carried out by copying the works of the original creator without his or her permission, distributing the original work for purposes other than educational, printing the artistic or literary works without permission of the creator; Using a sound recording without the creator’s consent to dub it and sell it through any type of multimedia product.

In the social media realm, using the content that is available on the platform without the owner’s prior consent, re-posting and claiming ownership or production rights of previously protected works, re-posting and calming saving or sharing of works protected under copyright.

Software piracy is the unauthorised use of copyrighted software to reproduce and distribute the software and is also a kind of infringement.

In India, we have the Copyright Act, 1957 and the Copyright Rules which regulate, and lay down rules as to the registration, protection and penalties against Copyright infringement.

What if the copyright is not registered?

The law does not mandate the registration of copyright for the protection of original work as it is automatically acquired after the creation of workHowever, in the event that the original creator or owner wants to institute a civil or criminal proceeding against an infringement, copyright registration becomes mandatory. [1]

Why must one get their copyright registered?

  • The registration helps in proving one’s ownership over the original work created by them and in the exercise of the rights and remedies provided in law.
  • Enables taking legal action against infringements
  • It also proves beneficial for raising a loan for the further development of the copyrighted work.
  • Offers protection from monetary losses
  • Aids the compensation process by not only providing the actual damages and profits to the owner but also the attorney fees paid by them to institute legal proceedings.
  • Enables the creation of derivative works
  • The owner can sell rights if they have been registered
  • Facilitates video/ radio  transmission of copyrighted work
  • Invokes other rights such as integrity, paternity, and moral rights which helps the owner take action against unauthorised, derogatory adaption of the copyrighted work
  • Offers protection of content, and rights for its reproduction, broadcasting, and performance (in public) using online platforms/media, adding variations.
  • Provides the benefit of economic rights

Now that we are aware of the several advantages it has, it becomes essential to know the procedure for registering one’s copyright

How can one get their copyright registered? 

What can be registered – literary works, books, manuscripts,  artistic (paintings), cinematographic films, photographs, dramatic works, musical works including sound recordings, software, computer programmes, fashion designs

Who can register- The author, owner of exclusive rights over the original content, authorised agent (a person authorised to act on behalf of the author, owner of exclusive rights, copyright claimant), copyright claimant ( person or organisation)

Documentation required

  • Three copies for published work along with the year and address of first publication, year and country of subsequent publications.
  • Two copies of manuscripts if work is unpublished
  • Vakalatnama or Power of attorney – If filed by an attorney
  • An authorisation letter and no-objection certificate (NOC)  from the author/publisher are required if the work does not belong to the applicant
  • Details pertaining to the title and language of the work
  • Details of the applicant (Name, Phone number, Postal Address, E-mail address, Nationality)
  • If the applicant is not the author, the aforementioned details of the author are to be provided.
  •  If the author is deceased, the date of death must also be part of the details along with NOC from the legal heirs.  
  • For software, the source code and object code are required for verification
  • If the work contains a photograph of a third person, NOC from that person is required.
  • If work is used on a product, NOC from the Trademark office is required.
  • Demand Draft (DD) or Indian Postal Order (IPO)

The documents are to be submitted either by post or by hand. The applicant’s signatures must appear on the application.

Procedure 

  1. Application:  File an application physically in the copyright office, or by speed post/registered post, e-filing facility on the official website. Each work shall be accompanied by a separate application for the registration of copyright.
  2. Examination: Issue of dairy number for examination takes place. Minimum 30(thirty) days waiting period. The process proceeds depending on the objections raised in the examination process.
  3. Registration: On being satisfied with the documentation and the authenticity of the copyright claim the Registrar of Copyright enters the copyright details into the register and issues a certificate of registration.
  4. Receipt of the “Extract of the Register of Copyrights (ROC)” marks the completion of the Registration Process

What is NOT Copyright infringement?

Knowing what constitutes intellectual property infringement is vital, but understanding what categorically does not constitute infringement also becomes pertinent.

If found to be in consonance with the conditions prescribed in law an act can be regarded as NOT having infringed copyright. These are :

  • Fair Use (for the purpose of research, criticism, review, and reporting of current events)
  • Reproduction for the purpose of Judicial Proceedings
  • Performance (for no monetary gain) by an amateur club in front of an audience., etc. (exhaustively covered in Section 52 of the Copyright Act, 1957.

What to do when your registered copyright has been infringed?

Now that we know what is a copyright, what constitutes its infringement, and the protective measures we can adopt for preventing intellectual property infringement, it becomes essential to know the course of action to be followed in the event of the intellectual property being compromised.

  • A legal notice is required to be sent to the party violating the copyright.
  • If the Infringing party fails to do the needful according to the notice provided to them, the rightful holder of the copyright may institute Civil Proceedings (as per Section 55 of the Copyright Act, 1957) or Criminal Proceedings which may result in imprisonment or fine or search and seizure of infringing goods, and for them to be delivered to the copyright owner depending on the court order.

[1] Dhiraj Dharmadas Dewani vs Sonal Info Systems Pvt Ltd