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  • Infringement of Copyright


    What constitutes infringement:

    Copyright law confers upon the owner of the work a bundle of exclusive rights in respect of the reproduction of the work and other acts which enables the owner to get financial benefits by exercising such rights. If any of these acts relating to the work is carried out by a person other than the owner without a licence from the owner or a competent authority under the Act, it constitutes infringement of copyright in the work. Since copyright is granted only for a limited period, there will be no infringement if the reproduction of the work or other acts concerned are carried out after the term of the copyright has expired. The exclusive rights conferred on the owner depends on the nature of the work in which copyright subsists.

    Accordingly the type of acts which will constitute infringement will also depend upon the nature of the work. Section 51 defines infringement of copyright generally. section 52 gives a long list of acts which do not constitute infringement of copyright. These are in the nature of exceptions to the exclusive rights conferred upon the copyright owner. They also serve as defence in an action for infringement of copyright.

    The exclusive rights granted under the Act extends also to a translation or adaptation of the work or to a substantial part thereof. Thus copyright will be infringed if a substantial part of the work is reproduced. what amounts to a substantial part of the work will depend upon the circumstances of the case.

    Copyright is a proprietary right and accordingly its infringement is actionable without proof of damage or likelihood of damage. If therefor. infringement is established there is no need to consider whether the defendant's work is likely to compete with the plaintiffs' work.

    Statutory definition of infringement

    Section 51: Copyright in a work is deemed to be infringed-
    (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:

    (i) does anything, the exclusive right to do which is conferred upon the owner of the copyright, or

    (ii) permits for profit any piece to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had. no reasonable ground for believing that such communication to the public would be an infringement of copyright, or

    (b) when any Person,
    (i) makes for sale or hire, or sells or lets for hire or by way of trade displays or offers for sale or hire any infringing copies of the work, or

    (ii) distributes, either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, any infringing copies of the work, or

    (iii) exhibits in public by way of trade any infringing copies of thework, or

    (iv) imports into India any infringing copies of the work except one copy of any work, for the private and domestic use of the importer.

    The reproduction of a literary dramatic, musical or artistic work in the form of a cinematograph film will be deemed to be an infringing copy.

    Definition of infringement under U.K. Law- Section 16(2), Section 16(3) and Section 16(4) of the 1988 Act-

    (2) Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the
    acts restricted by the copyright.

    (3) References in this part to the doing of an act restricted by the copyright in a work are to the doing of it-
    (a) in relation to the work as a whole or any substantial part of it, and

    (b) either directly or indirectly, and it is immaterial whether any intervening acts themselves infringe copyright.

    (4) This Chapter has effect subject to-
    (a) the provisions of Chapter III (acts permitted in relation to copyright works), and

    (b) the provisions of Chapter VII (provisions with respect to copyright licensing).

    The Act also exhaustively deals with
    (a) infringement of copyright by copying (S. 17);
    infringement by issue of copies to the public (S.18);
    infringement by rental or lending the work to the public (S. 18A);
    infringement by performing, showing or playing of work in public (S. 19);
    infringement by broadcasting or inclusion in a cable programme (S. 20);
    infringement by making adaptation or act done in relation to adaptation (S. 21)

    The exclusive rights conferred on the owner of the copyright depends upon the nature of the work Briefly stated they are as follows:
    (a) Literary, dramatic or musical work:
    (1) to reproduce the work in a material form;
    (2) to store the work in any media by electronic means;
    (3) to issue copies of the work to the public;
    (4) to perform the work in public or communicate it to the public;
    (5) to make cinematograph film or a sound recording of the work;
    (6) to make translation or adaptation of the work;
    (7)to do any of the acts specified under items (1) to(5) inr elation to an adaptation of the work.

    (b) Computer Programme:
    (1) to do any of the acts specified under (o) above;
    (2) to sell or give on hire or offer for sale or hire any copy of the computer programme, regardless of whether any such copy has been sold or given on hire on earlier occasions'

    (c) Artistic work:
    (1) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work;
    (2) to communicate the work to the public;
    (3) to issue copies of the work to the public, not being copies already in circulation;
    (4) to include the work in a cinematograph film;
    (5) to make any adaptation of the work;
    (6) to do in relation to an adaptation of the work in any of the acts specified in relation to the work in items (1) to (4).

    (d) Cinematograph film:
    (1) to make a copy of the film including a photograph of any image forming Part thereof;
    (2) to sell or give on hire, or offer for sale or hire any copy of the film regardless of whether such copy of the film has been sold or given on hire on earlier occasions;

    (e) Sound recording:
    (1) to make any other sound recording embodying it;

    (2) to sell or give on hire, or offer for sale or hire any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions;

    (3) to communicate the sound recording to the public'

    What copyright protects:

    Copyright protects the skill and Labour
    employed by the author in the production of his work. In relation to literary work that skill and labour embraces not only the language originated and used by the author, but also such skill and labour as he has employed in selection and compilation.

    Another person may originate another work in the same general form, provided he does so from his own resources and makes the work he so originates a work of his own resources by his own labour and industry bestowed upon it. In determining whether there is an infringement where the subject-matter of the plaintiff's work is not original, the question is how far an unfair or undue use has been made of the work?

    If a person instead of obtaining the subject-matter from common sources avails himself of the labour of his predecessor, adopts his arrangements and quotations, or adopts them with a colourable variation it is an illegitimate use. In the case of works not original in the proper sense of the term, but composed of' or compiled or prepared from materials which are open to all, the fact that one man has produced such a work does not take away from anyone else the right to produce another work of the same kind, and in doing so to use all the materials open to him.

    "The true principle in all these cases is that the defendant is not at liberty to use or avail himself of the labour which the plaintiff has been at for the purpose of producing his work, that is in fact  merely to take away the result of another man's labour or, in other words, his property.

    Illustration:
    In Harman Pictures N.V. v/s Osborneo the Judge was confronted with the well-known book by Mrs. Cecil Woodham Smith entitled The Reason why and, also the script for a motion picture written by John Osborne.

    The question which the judge posed was (at page 736): "did John Osborne work independently and produce a script which, from the nature of things, has much in common with the book, or did he proceed the other way round and use the book as a basis, taking his selection of incidents and quotations there from, albeit omitting a number and making some alterations and additions by reference to the common sources and by some reference to other sources?"

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