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Copyright Infringement: Remedies To The Aggrieved

Copyright which constitutes the essential element of the development process of our country ensures the cultural, social and economic development. Mere creation of various intellectual creations would not suffice. The most important aspect upon which the creations and development depend, is the "Protection afforded to these intellectual creations".

When the Law ensures sufficient protection, authors are motivated to expand their intellectual creations. Numerous challenges have been seen by the copyright laws forcing them to go through amendments. The copyright law of our country at present not only protects the rights of the copyright owner, but also has entered the digital arena which is full of technological creations.

The present article will initially talk about the basic concept of the copyright law, it shall therefrom move to the infringement of copyright and shall conclude with the remedies available for a person who is aggrieved due to copyright infringement.

What Is Law Of Copyright?

Promotion and progress of science and useful arts is the main objective of copyright Law. In this regard copyright law assures the author the right to their original expression. The twofold objectives of the law are, i) to assure the authors, artists, composers and other creative people the right to their original expression ii) to encourage other persons to build freely upon the ideas conveyed in the work. These twofold objectives ensures that a balance is maintained between the interests of the copyright owner and the interests of the society.

Copyright law protects the fruits of a man's work, labor, and skill.[1] The idea in providing the copyright a statutory protection is to encourage art and originality and not to stifle it.[2]

What Is Copyright's Nature?

Copyright, being an incorporeal property in nature, is justified by the fact that the owner has created or made it. The property is an intellectual property i.e. it originates from the minds of the persons before it is reduced to some material form. It is pertinent to note here that copyright exists only in expression of ideas and not in mere ideas. Rights guaranteed under the copyright law are a bundle of rights which are negative in nature since they prevent other persons from the copying the work.

What Is The Duration?

The copyright protection accorded to the copyright owner is for a limited duration i.e. for a period of 60 years. Post that it falls into the public domain. After the expiry of the said 60-year period the public can use the copyrighted creation without paying any royalty or fees.

What Are The Subject Matters Of Copyright?

Original literary works, dramatic works, musical works, cinematograph films, and sound recordings, etc. Section 13 of the copyright act, 1957 has envisaged the subsisting copyright in the above mentioned works.[3] Original works as well as derivative works are protected by the Copyright Law as laid down in the copyright act, 1957. [4]

The definition given under Section 2(y) does not include performer's rights, however it has to be read with Section 38 which provides for the performer's right in his performance. Therefore, performance is a work in which a copyright is created under the copyright Act, 1957[5].

What Is Originality Test?

In order to be an original work, it is of utmost importance that it has not been copied from another work. It is pertinent to note here that copyright law is not concerned about the "originality" of ideas, but with the expression of the said idea. There must be originality in the idea expressed.

Does Copyright Exist In Ideas?

If an idea for a story, picture, or play is communicated and the production which is the result of the communication of the idea is the copyright of the person who has clothed the idea in form.[6]

What Is Infringement Of Copyright?

The notion behind the protection accorded to the copyright owner is to ensure that he enjoys the fruits of his labor and investment to the exclusion of others. So, any person uses any of the exclusive rights of the owner of copyright without his prior permission or without any license granted by the Registrar of copyright, that person is said to have infringed copyright provided such use doesn't fall under the category of permitted uses under Section 52.

What Are Primary Acts Of Infringement?

  • When any person, without the owner's license or registrar's license does something, which he is not authorized to do or contravenes the conditions of a license granted, he is said to have committed an act which constitutes infringement.
  • If any person permits for any place to be used for communication of the work to the public for profit, such communication amounts to infringement.[7]

What Are Secondary Acts Of Infringement?

  • When any person for sale or hire makes, 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,
  • Distributes any infringing copies of the work either for the purpose of trade or to such extent in order to affect the owner of the copyright or,
  • Exhibits in public, any infringing copies of the work by way of trade.

It's noteworthy to mention here the case of Divya Sood Proprietor vs. Renu Bajaj Proprietor, 2011 (45) PTC 307 (Del) at P.311, in which it was held that "In order to constitute infringement there should be direct or indirect use of those features of the plaintiff's works in which copyright subsists".[8]

What Are The Remedies For Copyright Infringement

Civil Remedies

In the case of infringement of copyright, Section 55 of the Copyright Act, 1957 authorizes the copyright owner to avail the remedy by way of damages and injunction in accordance with the said provision.[9]

While dealing with Section 55, the Hon'ble Supreme Court of India in Dabur India Ltd. vs. K.R. Industries, 2008 (37) PTC 332 (SC) at PP. 340-41, Industries held that, "Section 55(1) provides for the remedies in terms whereof the plaintiff shall be entitled to all the reliefs by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right"[10].

Preventive Civil Remedies

Interlocutory Injunction
Injunction is a very important remedy when copyright infringement occurs. Injunction is a judicial process by which one who is threatening to invade the legal rights of another, is restrained.

Factors to be taken into consideration before granting injunction:
  • Prima facie case
  • Balance of convenience
  • Irreparable injury

Perpetual Injunction:
In the trial if the plaintiff is successful in proving the copyright infringement, he is entitled to a permanent injunction to restrain future infringements. Permanent injunction is granted in accordance with Section 38 of the Specific relief Act, 1963.

Permanent injunction can be granted only after hearing and deciding upon the merits of the case.[11]

Compensatory Civil Remedies

The purpose of an award of damages is to restore the plaintiff to his position before the infringement. Such damages are compensatory in nature. Copyright infringement is a tort and the overriding principle in Tort Law is that damages should be compensatory.

Criminal Remedies

The copyright owner can take Criminal proceedings against infringer. This also is referred to as criminal remedies. The Criminal proceedings is distinct and independent of other remedies and can be availed simultaneously to stop further infringement and punish the infringer. The pendency of a civil suit does not justify the stay of Criminal proceedings in which the same question is involved. In addition a criminal complaint is not to be dismissed merely on the ground that the dispute is civil in character. [12]

Mens rea is an essential ingredient of the offence. Sections 63-70 of the Copyright Act, 1957 deal with offences related to copyright. No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of First class shall try any offence under this Act.[13]

The offence of infringement of copyright is punishable with imprisonment for a term which shall not be less than 6 months but which may extend to 3 years and with a fine which shall not be less than 50,000 but which may extend to 2 Lakhs.

Thus, the copyright Law provides sufficient remedies for when the copyright owner's right has been infringed. Protection granted to these intellectual creations" is the factor that has the biggest impact on creations and development. The Law has ensured that in no way the nation's development and the intellectual creations are hampered. Therefore, remedies accessible to a person who has been wronged as a result of copyright infringement are clear and perfect to serve justice to the aggrieved.

  1. Sulamangalam R Jayalakshmi vs. Meta Musicals, Chennai, 2000 PTC 681
  2. Aamir Raza Husain vs. Cinevistaas Limited, 2003 (27) PTC 425 (Bom) (DB)
  3. Section 13, Copyright Act, 1957
  4. Section 13(a) and Section 13(b),(c), Copyright Act, 1957
  5. Star India Pvt. Ltd. vs. Piyush Agarwal, 2014 (58) PTC (Del) at P.175
  6. R.G. Anand vs. Delux Films, AIR 1978 SC 1613
  7. Section 51(a), Copyright Act, 1957
  8. 2011 (45) PTC 307 (Del) at P.311
  9. Section 55, Copyright Act, 1957
  10. 2008 (37) PTC 332 (SC) at PP. 340-41
  11. Mirabai Films Pvt. Ltd. vs. Hathway Cable and Datacom Pvt. Ltd., 2002 (25) PTC 148 (Del) at P.152
  12. V.S. Sharma vs. Dharma Rao, AIR 1942 Mad 124
  13. Section 70, Copyright Act, 1957

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