Copyright is a right which the law gives to the creator or owner of any literary, dramatic, musical, or artistic work and the work of producers in the form of cinematograph films and sound recordings.
The owners of the copyright have certain exclusive rights which enable them to use their property without disturbance and to prevent the misuse of their property. Copyright comes with a bundle of rights that include rights of reproduction, communication to the public, adaptation, and translation of the work.
In other words we can say that Copyright is a set of legal rights vested with a creator to protect his or her original work including literary, artistic, musical or any other creative work and to have exclusive right to publish and economically exploit his/her work. An author has the sole discretion in deciding to further grant or hiss his rights to others, for instance to a publishing house or a producer or a record company. If a third party reproduces or duplicates the work without the authorization or consent of the original creator or author, this amounts to infringement of the copyright. An author of an original work can pursue legal action in a situation that his copyright is infringed.
Rights of a Copyright Owner :
A copyright owner is entitled to the following rights-
- Produce their work in public
- Publish their work
- Perform their work in public
- Translate their work
- Make any cinematograph film or a record of their work
- Broadcast their work
- Make an adaptation of their work
- Make copies of their work and distribute them
- Make derivatives of their work
- Prevent others from making unauthorized use of copyrighted work
The term of copyright in case of literary, dramatic, musical, or artistic works is the lifetime of the author while for cinematograph films, records, photographs, posthumous publication, etc., the term exists for sixty years from the date of publication. In case of broadcasting, copyright exists for twenty-five years from the year in which the broadcast was made.
Meaning and concept of Copyright Infringement :
Copyright infringement occurs normally when an unauthorized use of the exclusive rights of the owner of a copyright whether it is in relation to the whole or a substantial part of the copyright and when unfair economic gains is made of this infringed work.
Remedies available against infringement of copyright :
Simply providing a person with a right is futile unless an effective remedy is provided alongside when the right is infringed. The Copyright Act, 1957 lays down entitles the copyright holder of an intellectual creation with certain remedies and they have been enumerated hereunder:
- Civil Remedies
- Administrative Remedies
- Criminal Remedies
Before discussing the provisions laying down the remedies for an aggrieved copyright holder we must take note of the requirements mentioned hereunder, that a copyright holder has to comply with before seeking remedy :
- The impugned work must be covered within the ambit of subject matter as mentioned in Section 13 of the Copyright Act, 1957.
- Further, the party claiming the remedy must be the owner of the work in accordance to Section 17 or a legal assignee of the copyright by complying with the due process laid down in Section 18 to 21 of the Act.
- Impugned work must satisfy the originality test and this could depend on circumstances and facts of each case.
I. Civil Remedies :
There are two types of civil remedies provided under Section 55 of the Copyright Act, 1957 that could be extended when copyright infringement ensues :
- Preventive civil remedies; and
- Compensatory remedies
All the civil remedies are subject to defendant’s knowledge regarding the infringement on the date of infringement and lack of reasonable ground to believe that copyright vested in the work. In case the defendant satisfies the proviso the plaintiff is only entitled to an injunction and entire or part of the profits made by the defendant following the sale of the impugned work.
Preventive measures –
Preventive are implemented on anticipation of infringement i.e. before the actual act of copyright infringement takes place. An interlocutory injunction is one of the remedies which can have a significant effect against copyright infringement. It is basically a legal process which restrains a delinquent threatening to intrude the equitable and legal rights of another by stopping the breach before it can commence or continue or by commanding to restore the right holder’s position prior to the commission of the infringement.
The idea behind the interlocutory injunction is to provide the copyright holder with immediate relief and abstain further damage to his creation. It is well within the discretion of a trial court to render a decision of interlocutory injunction. Furthermore, when a pirated work can be segregated from the unobjectionable part of the work then simply the publication of the pirated part is directed. However, in cases wherein the pirated version cannot be isolated from the copyrighted work then-interim injunction becomes imperative.
In India three factors are important to determine if granting an injunction is imperative and those are:
- Establishment of prima facie case
- Whether the balance of convenience is inclined towards the plaintiff
- Ensuring if the injury caused to the plaintiff will be irreparable if interlocutory injunction is not granted
Mareva injunction is a type of interlocutory injunction purported to restrain the defendant from discharging the assets of the plaintiff that may be important for the plaintiff’s claim or bereave the court of jurisdiction. Further, these injunctions are primarily sought ex parte, otherwise, prevention of such disposal cannot be constrained if the plaintiff is made to wait till the final judgement of the case.
In the case of Gujarat Bottling Company Ltd v. Coca Cola Company the Apex court observed that, “the decision whether or not to grant an interlocutory injunction has to be taken at time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence.
Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in his favour at the trial.
The need for such protection has, however, to be protected against injury resulting from his having been prevented from exercising his own legal right for which he could not be adequately compensated. The court must weigh one need against another and determine where the balance of conveniences lies.”
Generally, the appellate courts do not interfere with the order of a subordinate court unless it finds that the impugned order has overlooked the established principles of law that regulates the grant or denial of interim injunction or where it did not appreciate the material on record or nature of the controversy.
In another case Mirabai Films Pvt Ltd v. Siti Cable Network and Ors, ruled in favour of the plaintiffs holding that “we have no doubt that appellant had done its part as it claims that it owned the film’s copyright and enjoyed its exclusive right to deal with it, be that in its marketing, distribution or selling it or communicating it by whatever means including through cable networks in the films or any right to indulge in its exhibition or communication had gone uncontroverted in the absence of respondent’s written statement.
So has its plea that the balance of convenience was on its side and that it would suffer irreparable loss and injury even by a single telecast of respondents and their distributor, franchisees which could reach several lakhs of homes at one time.”
In the case of Barbara Taylor Bradford v. Sahara Media Entertainment Ltd., the court refused to order an interim injunction against the defendants on accounts of the immaturity of the interlocutory application. In Media Transata Ltd v. Indian Airlines Ltd, the plaintiffs were denied interim injunction as they delayed in filing the suit even after possessing the information related to the respondent’s activities.
Now, if the plaintiff successfully establishes that the defendant has caused copyright infringement then the court will entitle him to a permanent injunction restraining the delinquent from causing any future infringements for the duration until copyright subsists in the work. Attaining a permanent injunction does not require the proof of actual damage and mere proof of infringement of copyright is acceptable.However, the claim must show the evident likelihood of infringement and not a trivial claim.
Hereunder are certain grounds when the court may refuse the grant of a permanent injunction:
- No evidence exists to show that the defendant’s activities can threaten or intervene in the plaintiff’s enjoyment of copyright
- The intrusion of rights even if exists then they are theoretical in nature and which would to the maximum provide the plaintiff with nominal damages
- The extent of injury caused to the defendant and is higher than the advantage the plaintiff will derive from the injunction
Compensatory civil remedies –
Compensatory civil remedies against the infringement of copyright can be divided
into three parts:
- Damages for concession;
- Delivery up of infringing copies; and
- Account of profits.
Damages as a compensatory remedy : The purpose of an award of damages is to restore the plaintiff to his position before the infringement.Such damages are therefore compensatory.
Copyright infringement is a tort and the overriding principle in tort law is that damages should be compensatory.Damages in tort aim to put the victim back to his position before the tort. If infringement is established, damages are presumed.Nominal damages are always awarded where a legal right has been infringed irrespective of the actual damage.Generally, the damages are for an amount that the defendant would have paid had he got the licence from the copyright owner. Some more factors will also taken into consideration to assess the damages, e.g., diminution of the sales of copyright owner’s work, or the loss of profit which he might otherwise have made. The fact that the pirated work may have injured the reputation of the copyright owner is also a fact that may be taken into consideration in assessing the damages.
Additional Damages: In United Kingdom, the court has power, having regard to all circumstances and in particular to the flagrancy of the infringement and any benefit accruing to the defendant by reason of the infringement, to award such additional damages as the justice may require. Additional damages may also be rewarded where the conduct of the defendant has been deceitful and treacherous. In addition, the injury to the plaintiff’s feelings and the indignities and distress the plaintiff the plaintiff has suffered is also to be taken into consideration while granting additional damages.
In India, there is no provision in the Copyright Act, 1957 for the award of additional damages in special circumstances such as flagrancy of the infringement or the fortune reaped by the defendant by his misdeed. However, there is no bar for courts in India to award exemplary or punitive damages in appropriate cases.
Delivery up: damages for conversion: Damages for conversion as defined by Lord Atkin in Laneashire and Yorkshire Railway v. Mac Nicoll, are damages for dealing with goods in a manner inconsistent with the rights of the true owner, provided that it is also established that there an intention on the part of the defendant, in so doing, to deny the owner’s right, or to assert a right which is inconsistent with owner’s right.
In India, the Copyright Act, 1957 provides that all infringing copies of any work in which copyright subsists and all plates used or intended to be used for production of such copies shall be deemed to be the property of the owner of the copyright. It then entitles him to take proceedings for the recovery of possession of the infringing copies and plates or in respect of the conversion thereof.
In a claim for damages for conversion it is a defence if the defendant proves that at the time of conversion of infringing copies he was not aware and had no reasonable grounds for believing that copyright subsisted in the work or that he had reasonable grounds for believing that such copies do not infringe the copyright in the work.
The remedies of claiming recovery of possession of infringing copies or damages for conversion thereof are not available in respect of the construction of a building or structure which infringes or which, if completed, would infringe the copyright in some other work. The remedies of damages for infringement of copyright and for conversion, are cumulative and not alternative. The court may provide both the remedies in the appropriate cases.
Account of Profits: As a corollary to the injunction, equity may, in appropriate cases, require a defendant to account to a plaintiff for profits made from wrong doing such as the infringement of copyright. Thus, the plaintiff is entitled to require the defendant to account for the profits made by him by his infringement of former’s copyright. This is not a notional computation as with damages, but an investigation of actual accounts. The account is of net profits, i.e., the sale price of infringing article as deducted by the manufacturing and delivery cost. In Mohan Lal Gupta v. The Board of School Education, Haryana, the defendant was ordered to pay 20% of the profits to the plaintiff as the matter copied was less than one – tenth of the book.
A plaintiff is entitled to opt for damages or for an account of profits. He cannot obtain both an account of profits and damages. The basis on which an account is ordered is that there should not be any unjust enrichment of the defendant and that the defendant should be deprived of any profit which he earned by wrongful acts committed in breach of the plaintiff’s right .
The plaintiff would be refused an account of profits if there are no profits. In such a case the plaintiff may elect to claim damages and he would be bound by an election once made. The distinction between an account of profits and damages is that by the former the infringer is required to give up his ill-gotten gains to the party whose rights he has infringed whereas by the latter he is required to compensate the party wronged for the loss he has suffered.
Civil remedies under TRIPS Agreement :
Unlike other treaties on intellectual property rights, the TRIPs Agreement lays down comprehensive provisions for the enforcement of intellectual property rights. The Agreement provides for civil, administrative and criminal remedies for the infringement of intellectual property rights. The Agreement obliges Members to adopt procedures concerning enforcement of intellectual property rights which should be fair and equitable. Further, the procedures should not be unnecessarily complicated or costly, or entail unreasonable time limits or unwarranted delays.38 The procedures shall not impose overly burdensome requirements concerning mandatory personal appearances.
The TRIPS Agreement provides for the following remedies :
Injunctions: Article 44 of the Agreement provides that the judicial authorities in a Member State shall have the authority to order a party to desist from an infringement. Interalia to prevent the entry into the channels of commerce in their jurisdiction of imported goods that involve the infringement of an intellectual property right, immediately after customs clearance of such goods.
Provisional Measures: The judicial authorities in Member States shall have the authority to order prompt and effective measures:
- To prevent an infringement of any intellectual property right from occurring, and in particular to prevent the entry into the channels of commerce in their jurisdiction of goods, including imported goods immediately after customs clearance.
- To preserve relevant evidence in regard to the alleged infringement.
The Agreement also provides that judicial authorities in the Member States shall have the authority to adopt provisional measures inaudita altera parte where appropriate, in particular where any delay is likely to cause irreparable harm to the right holder, or where there is a demonstrate risk of evidence being destroyed. This means that in cases where there is a demonstrable risk of evidence being destroyed or delay may cause irreparable harm to applicant, the court may adopt provisional measures without hearing the other party. The applicant may be required to provide any reasonably available evidence in order to satisfy the court with a ‘sufficient degree of certainty’ that he is the right holder and his rights are being infringed or that such infringement is imminent. The applicant may be required to provide a security or equivalent assurance sufficient to protect the defendant and to prevent abuse.
Damages under TRIPs: The TRIPs Agreement provides that the judicial authorities in the Member States are authorized to order the infringer of copyright to pay the copyright owner damages adequate to compensate for the injury the copyright owner has suffered because of an infringement. It is, however, essential that the infringer has knowingly, or with reasonable grounds to know engaged in infringing activities. The infringer may also be required to pay expenses to the copyright owner which may include appropriate attorney’s fees. The judicial authorities may also order recovery of profits and/or payment of pre-established damages even where the infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity.
OTHER REMEDIES: DESTRUCTION OF INFRINGING GOODS –
The judicial authorities in the Member States have the authority to dispose of infringing good outside the channels of commerce in such a manner as to avoid any harm caused to the copyright owner without making any provision for the compensation of any sort. The infringing goods may also be destroyed if this is not contrary to the existing constitutional requirements. The materials and implements the pre – dominant use of which has been in the creation of the infringing goods may also be disposed of outside the channels of the commerce in such a manner as to minimize the risks of further infringements. The courts shall take into account the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interests of the third parties while making any such order.
II. Administrative Remedy :
Section 53 (1) of the Indian Copyright Act, 1957 authorizes the Registrar of copyright to make an order obstructing the importation of copies of work in which copyright subsists into India if brought without the permission of the copyright holder. Furthermore, clause (2) mandates that the Registrar of copyrights himself or any person authorised by him may enter any dock or ship or premise where any infringing copies are suspected to present and examine them. The provision is important to ensure that copies of infringed work of the applicant are stopped from being circulated.
Section 11 of the Customs Act, 1963 lays down that the Central Government if satisfied that it is imperative for the protection of copyrights, patents and trademarks, it may obstruct subject to certain conditions or absolutely the export and import of goods satisfying the aforementioned description. All the infringing copies seized under Customs Act shall not remain with the government but shall be delivered to the copyright holder of the work. Nevertheless, copyright infringement does not take place if an infringing copy of work is imported for private and domestic use by the person importing.
III. Criminal Remedies :
The owner of copyright can take criminal proceedings against infringer. The criminal remedy 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 cannot be dismissed merely on the ground that the dispute is civil in character.
Criminal remedies are more effective than civil remedies because the former can be disposed of quickly. In addition, criminal proceedings directly strike at the honour and social status of an infringer, as a consequence of which sometimes he comes for a settlement out of court to save his prestige. Knowledge or mens rea is an essential ingredient of the offence.
Section 63 to 70 of the Act deal with offences relating to copyright. Section 63 makes it an offence for any person knowingly to infringe:
- the copyright in a work; or
- any other right conferred by the Act (except the resale share right in original copies as provided by section 53A) or knowingly to abet such infringement.
It is, however, clarified that the construction of a building or other structure which infringes or which, if completed would infringe the copyright in same other work is not an offence and therefore not punishable.
The offence of an infringement of copyright is punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than Rs. 50,000/- but which may extend to Rs. 2 lakhs. The court has discretion to reduce the minimum term of imprisonment and the minimum fine for adequate and special reasons where the infringement has not been made for gain in the course of trade or business. For the second and subsequent convictions, the minimum term of imprisonment is enhanced to one year and minimum fine to Rs.1 lakh which may be relaxed for adequate and special reasons to be mentioned in the judgment where the infringement was not made for gain in the course of trade or business. There is, however, no change in the maximum punishment.
The offence under section 63 of the Copyright Act, 1957 is a non – bailable offence. The provisions of section 438 of the Criminal Procedures Code, can, thereof, be applied in respect of offence punishable under section 63 of the Act.
Knowing use of infringing copy of computer programme –
A new Section 63B which has been inserted by the Copyright (Second Amendment) Act, 1994 makes knowing use of infringing copy of computer programme an offence, under which the offender is punishable with imprisonment for a term which shall not be less than seven days but which may extend to three years and with fine which shall not be less than Rs. 50,000/- but which may extend to Rs. 2 lakhs. However, where the computer programme has not been used for gain or in the course of trade or business, the court for adequate and special reasons to be mentioned in the judgment, not impose any sentence of imprisonment and may impose a fine which may extend to Rs. 50,000/-
Seizures of infringing copies by police –
Prior to Copyright Amendment Act, 1984, seizure of infringing copies by police was possible only after a magistrate had taken cognizance of an offence relating to infringement under Section 6364, Moreover, such seizures could only be of infringing copies and did not extend to plates used for making infringing copies.
The Copyright Amendment Act, 1984 had widened the powers of the police. After the amendment, Section 64 provides that where any police officer not below or an abetment of infringement of copyright in any work of has been or is likely to be committed, he may seize without any warrant all copies of the work and all plates used for the purpose of making infringing copies of the work, wherever found. The copies so seized must be produced before a magistrate as soon as practicable.
In Girish Gandhi v. Union of India65, the constitutional validity of section 64 was challenged on the ground that since no procedure was laid down in the section, the power granted to police officer was arbitrary and hence violative of the constitutional right. The court while rejected this ground held that Section 63 clearly mentioned that police officer was to seize the material if he has satisfied. The word “satisfaction” would mean that police officer would not act until and unless he had got some type of information on the basis of which he was satisfied. His satisfaction should be objective. It could not be imagined that only because Section 64 empowered the police officer to seize the material to his satisfaction, that he would act mala fide or in an arbitrary manner. If he did so, there were ample remedies available in the appropriate courts and he aggrieved person was always free to safeguard his interest in that respect be restoring to the legal remedies. The power given to the police officer was not at all arbitrary.
Delivery of infringing copies to the owner of copyright –
In a criminal proceeding, the court may order that all infringing copies of the work or all plates for the purpose of making such copies which are in the possession of alleged offender be delivered up to the owner of the copyright. The court may make this order irrespective of the fact whether the alleged offender is convicted or not.
Punishment for contravention of section 52A –
Section 52A makes it mandatory to give certain information on the sound recordings or video films, regarding the name and address of the person who makes such sound recording or the video film; and the name and address of the owner of the copyright in such works, etc. section 68A provides that any person who publishes a sound recording or a video film in contravention of the provision 52A shall be punishable with imprisonment which may extend to three years and shall also be liable to fine.
In State of Andhra Pradesh v. Nagoti Venkararamane68, the Supreme Court examined the question whether the identification of the owner of the copyright was a precondition for the conviction of an offence under the Copyright Act, 1957. The court observed that the objective of introducing Section 52A was to prevent piracy of cinematograph film and sound records and protect the interest of the owner of copyright and the public. The Act mandated the punishment of accused in case of violation of the provisions. It would, therefore, be unnecessary for the prosecution to track on and trace out the owner of the copyright to come and adduce evidence of infringement of copyright. The absence thereof did not constitute lack of essential element of infringement of copyright. If the particulars on video films, etc. as mandated under Section 52-A did not find place, it would be infringement of copyright.
Criminal remedies under the TRIPs Agreement –
Article 61 of the TRIPS Agreement provides for criminal remedies against the infringement of copyright. The provision obliges members to provide for criminal procedures for penalties at least in cases of wilful copyright piracy on commercial scale. Criminal remedy shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes for a corresponding gravity. In appropriate cases, criminal remedies shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence. The Copyright Act, 1957 is in conformity with TRIPs Agreement as it provides for stricter punishment for the infringement of copyright.
REMEDIES FOR INFRINGEMENT OF NEIGHBOURING RIGHTS –
All the above discussed remedies are also available against the infringement of broadcast reproduction rights and performers’ rights in India. Section 39A of the Copyright Act, 1957 provides that Sections 53, 55, 64, 65 and 66, etc. shall apply mutatis mutandis in relation to broadcast reproduction rights and performers’ rights.
CAUTION AGAINST ADDITIONAL PROTECTION :
It can be seen, thus, that the remedies provided for copyright infringement in Indian law are slowly coming at par with those provided globally. It is perhaps the better implementation of these remedies that is required. However, in the light of the additional innovative remedies being introduced every now and then, it must be borne in mind that Copyright laws were never intended to create absolute monopoly. Copyright law has been considered to create equilibrium between the rights of copyright owner to generate a profit for their work and the benefit to society of learning from and building upon their works. The traditional principles of copyright, like the ‘fair use’ doctrine, were developed towards this end. With the advent of Information and Communication Technology revolution these traditional principles are losing their relevance. This Digital transmission technology is posing a major problem to copyright laws in the form of the Internet. To counter this, there is a wholesale transformation of copyright laws with the adoption of many layers of protections in the form of “technological protection measures” and through contract laws in addition to the copyright laws. This may tilt the balance in favour of the copyright owners. However, in an effort to set up a strict regime against infringement, the just exceptions to such protection must not be forgotten.
The Indian Copyright law is far from being fully developed and has plenty shades of grey when it comes to various copyright concepts, Indian Copyright Act with regard to infringements is adequate to decide and adjudicate on grievances filed under it. It has sufficient remedies under the Act to safeguard the interest of the authors from the infringement of their work and decide the course of these matters adequately.
An ideal regime for copyright protection would balance the rights of all stakeholders. On one hand, India faces major economic losses due to rampant piracy, especially online; on the other hand, the peculiar socio-economic conditions of the country make it imperative to overlook IPRs to an extent for the greater common good. In these circumstances, perhaps the stress should be on effective implementation of the existing remedies rather than introducing new remedies over and above the existing provisions, so that the genuine exceptions to IPRs are not whittled down. With the paradigm shift in the legal regime governing the subject in India, it remains to be seen how such a balance continues to exist.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
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