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Infringement Of Copyright And The Remedies Available Against Infringement Under The Copyright Act

Intellectual properties are creation of intellect that is the human mind. It protects what a human mind creates. It could be a research, logo, invention, drawing or painting, musical compulsions, et cetera. All been the products invented from human mind. Intellectual property laws provides the owner of such right to exclusively uses intellectual property at his desire, and also prevent others from using it without the owner's permission. Intellectual properties and intangible right exercisable in respect of a tangible work. It is treated as a movable property and can be assigned and transferred.

Copyright is a species of intellectual property. The right, which a person acquires in our work, which is the result of intellectual labour, is called copyright. The primary function of a copyright law is to protect the fruits of a man's work, labour, skill or test from being taken away by other people. The word copyright is derived from the expression "copier of words". Copyright as defined in the Oxford English Dictionary is an exclusive right given by law for a certain term of years to an author, composer et cetera (or his assignee) to print, publish and sell copies of his original work.

The statutory definition of copyright means the exclusive right to do or authorise others to do certain acts in relation to:
  • Literary, dramatic or musical works;
  • Artistic work;
  • Cinematograph film;
  • Sound recording.

Infringement Of Copyright
The copyright act in general provides for, in what works the copyright subsists, the rights of the author of the copyright, when that right is said to be infringed and when not, and the penal consequences of such infringement. The purpose of recognizing and protecting the copyright of an author is to statutorily protect his work and inspire him to exercise his creative faculties further. A copyright confers exclusive right on the copyright, owner, inter alia, to the reproduction of the work in a material form, storing the work in any medium by electronic means, publication of the work, performance of the work in public, making of it, adaptations and translations.

These rights are conferred on the owner of the copyright to enable him to reap monetary benefits. If any of the above acts are carried out by a person other than the owner of the copyright, without a license from the owner, it constitutes infringement of the copyright. Copyright is granted for a specific period of time. Whether an act is an infringement or not, would depend on the fact whether copyright is subsisting in the work or not. In case the copyright in the work has expired, the work falls in the "public domain" and any act of reproduction of the work by any person other than the author would not amount to infringement.

A poem was written by a poet in 1820. The poet expired in 1888. Thereafter, the poem was copied verbatim by another author in a chapter of his book in the year 1970. There is no infringement of copyright in such a case because the term of copyright for literary work subsists for a period of sixty years after the death of the author.

Acts Which Constitute Infringement
Since the forms of creative works of numerous that is literary, dramatic, musical artistic et cetera. The acts which would constitute infringement would depend upon the nature of the work. Section 51 of the Act defines infringement of a copyright name of specifically with respect to each kind of creative work, but in general terms. According to section 51 of the copyright in a word shall be deemed to be infringed:
  1. When any person without a license from the owner or the registrar of copyright does anything, the exclusive right to do which is by this Act conferred upon the owner of copyright, a permits for profit, any place to be used for the communication of the work to the public, unless he was not aware and had no reasonable ground for believing that such communication would be an infringement of a copyright; or
  2. When any person:
    • Makes for sale or hire or sells or lets for hire or by any way of trade displace or offers for sale or hire any infringing copies of the work covered by copyright; or
    • 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
    • Exhibits in public by way of trade any infringing copy of the work; or
    • Imports into India, any infringing copies of the work except the copy of any work for the private and domestic use of the importer.

For the purpose of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an infringing copy.

Gopal Das V Jaganath Prasad[1]
In this case, the plaintiffs were the printers and publishers of the book. The book titled " Sachita Bara Kok Shastra '' was printed for the first time in the year 1928 and had run into four editions since. The defendant printed and published another book titled " Asli Sachita Kok Shastra" in 1930. The plaintiff's case was that the book published by the defendant was a colorable imitation of their book and an infringement of plaintiff's copyright. It was held by the court that the plaintive is compiled their book with considerable labour from various sources and digested and arrange the matter taken by them from other authors.

The defendant instead of taking the pains of searching into all the common sources, and obtaining his subject matter from them, obtained the subject matter from the plaintiff's book and availed himself of the labour of the plaintiff and adopted their arrangement and subject matter and, thus, such a use of plaintiff's book could not be regarded as legitimate.

It was held at a person whose work is protected by copyright, if he has collected the material with considerable labour, compiled from various sources of work in itself, not original, but which he has digested and arranged, the defendant could not be permitted to compile his work of the like description, instead of taking the pain of searching into all the common sources and obtaining the subject matter from them to adopt his arrangement with a slight degree of colorable variation, thereby saving pains and labour which the plaintiff has employed. The act of the defendant would be illegitimate use.

The factors to be considered while checking out whether an act is infringement or not are:
  • Weather copying has a causal connection, deliberately made or is an unintentional, indirect coping. Casual connection can be found where the infringer has some overt motive to produce a copy, for instance reaping monetary reward.
  • In determining whether an act amounts to infringement, the extent of defendants alteration of the original work; the manner in which defendant attempts to take advantage of the plaintiff's work; the nature and extent of plaintiff's effort involved in the original work; are the material factors considered.

Essential Ingredients
Under the copyright act, the defendant is not at liberty to take away the result of another man's intellectual labour or the benefits arising out of the product of such labour. Thus the essential ingredient that are needed to be present to make an act, an "infringement" within the meaning of the copyright act are:
  • Substantial copying; and
  • Direct evidence of copying from the source in which copyright subsists.

Substantial Copying
There must be a substantial copy of the work that is a significant part of the work in which copyright exists has been used by another without prior permission from the owner. In order to hold a particular form of copying as substantial, copying, the following factors may be considered:
  • The volume of the material borrowed by the defendant. Here the volume does not only mean the quantity but also includes the quality of work which is borrowed by the defendant. Thus it is decided on the basis of the significance and importance the work holds in the intellectual property.
  • Whether the substantial copying on the part of the defendant has been made with the intent of saving himself from the labour of doing it by its own.
  • The extent to which the plaintiff's and defendant's work are competing with each other.
All the factors together or individually help decide whether infringement of the copyright has been committed or not.

D. Narayan Rao v. Prasad[1]:
Considering the factor of volume of the material borrowed by the defendant, in the present case, the defendant had borrowed a part of the speech which was only of 2 1/2 minutes duration in a three hour film. Yet, it was held that a substantial part of the speech has been copied.

Direct Evidence Of Copying
Although the process of collecting direct evidence is difficult in the case of copyright infringement, it can be deduced from surrounding circumstances. For instance, evidence can be found when the defendant's work contains the same errors, mistakes as those present in the plaintiff's work; similarity in the language and writing style of both works.

Copying the copyrighted work even with minor additions, omissions or alterations, would still amount to infringement of the copyright because such minor additions, omissions or alterations in the copied work would not make it original work. In cases where similarities in the true works are due to coincidence and necessities inherent in the nature of the work. For example, calendars, dictionaries, logarithmic tables, etc. the question of infringement by copying is irrelevant.

Other Forms Of Copying
Indirect Copying
Infringement can be by indirect copying when a work may be copied by making a copy from a pre-existing copy of the same work. It is infringement of copyright to produce a work similar to the original copyrighted work even if the defendant has never seen the plaintiff's work, but has copied an intermediate copy.

Schlesinger v. Turner[2]
It was held that plays based upon novel which in turn were based upon original plays amounted to infringement of the original play.

Conscious copying is when the infringer is perceptually aware, i.e, he has self-knowledge that he is copying the work of another. Thus, it is a form of copying that is done intentionally by a person.

Copying can be unconscious when the flow of idea and its expression from the mind of the author is spontaneous. He has no self-knowledge that the work created by him is similar to the work of another. In such a case, a definite causal connection has to be established to prove infringement.

Subconscious copying is when, the author, having already been familiar with the work of the first, original author creates a work which bears marked similarity to the original work though the person himself does not consciously aim to imitate the first author. However, It was held in Francis Day and Hunter v. Bron, 1963 that subconscious popping is sufficient to constitute infringement of copyright, provided substantial familiarity with the work alleged to be copied is shown.

Reproduction Amounting To Infringement
Reproducing the work in a different medium is considered infringement. For instance, reproduction of a literary dramatic or musical work in Form of a record or a cinematograph film will amount to infringement. In case of literary and dramatic work, reproduction means copying a substantial part of the work and passages from the original work. in musical works, where the bars of one musical work are borrowed substantially, there would be copying.

Reproduction by use of modern equipment like Xeroxing machines, is called reprography. Under the act it is defined as:
"Reprography means the making of copies of a work by photocopy a similar means."

Duplicating machines are used for reproduction of literary work, documents and drawings. Tape Recorders are used for reproducing music and video-grams are used for reproducing films. Infringement of copyright by means of 'reprography' is a worldwide phenomenon. Such infringement is more often at domestic levels and thus prevention of such infringement is rather difficult.

X buys is the cassette containing songs of the latest popular Hindi film. This cassette is shown in the market by HMV Company. His friend borrows the cassette and makes his own copy by recording the same in his cassette recorder. Such an act is reprography which is a subtle form of infringement, but the present copyright act does not provide any remedy for such form of infringement.

Remedies For Infringement
The Copyright Act does not only define acts which will constitute infringement but also provides remedies to the Owner whose right has been duly infringed. The three kinds of remedies available against infringement of copyright under the Act are:

Civil Remedies
Under the civil law, the owner can avail following of the three remedies
  • Anton Pillar Order:
    Under this order, the court may on application by the plaintiff, pass an ex-parte order requiring the defendant to allow the plaintiff accompanied by the attorney to enter his premises and make an inspection of relevant documents and take copies thereof or remove them for safe custody. Such orders are passed when the plaintiff and the Court have apprehension that the regular procedure would give time to the defendant to destroy relevant document and copied of articles, defeating the ends of justice.
  • Interlocutory Injunction
    Interlocutory injunction secures the immediate protection of copyright from an existent infringement or from the continuance of infringement or an anticipated infringement. A plaintiff may pray for an interlocutory injunction pending trial or further orders.
  • Damages on Account of Profits
    On account of infringement, the plaintiff is entitled to damages for the infringement of his copyright as well as for conversion of his copyrighted work into another form. A plaintiff, if successful, is also entitled to account of profits as an alternative to damages.

Criminal Remedies
In addition to civil remedy, the plaintiff can initiate criminal proceedings against an infringer. Though civil and criminal remedies are distinct remedies, both can be invoked simultaneously. The infringement of copyright has been declared as an offence, punishable with imprisonment which may be extend from a minimum period of six months to a maximum of three years and with a fine of Rs. 50,000/- to Rs. 2,00,000/-

Administrative Remedies
Administrative remedies consist of moving the Registrar of Copyrights to ban the import of infringing copies into India when the infringement is by way of such importation and the delivery of the confiscated infringing copies to the owner of the copyright and seeking the delivery.
  1. (1979) 2 APLJ 231
  2. AIR 1938 AII 266
  3. (1890) 63 LT 764

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