Copyright Infringement: Meaning, Cases, Remedies

Author: Keithellakpam Hiyaileima Chanu

University- Galgotias University, Greater Noida

INTRODUCTION: 

Copyright provides exclusive rights to the copyright holder, such as the right to distribute,  reproduce, perform, or display the copyright-protected work. The usage of copyright protected work without the authorisation/permission of the copyright owner results in  copyright infringement. 

Thus, copyright infringement means the unauthorised use of someone’s copyrighted work for  a profit. It results in the infringement of certain rights of the copyright holder, such as the  right to distribute, reproduce, perform, or display the protected work. 

RIGHTS OF A COPYRIGHT OWNER 

The name of the author or publisher that appears in the copies of dramatic, literary, artistic, or  musical work is presumed to be the author/copyright owner of the work. A copyright owner  has the following rights in the copyrighted work: 

• Right to produce the work in public 

• Right to publish the work 

• Right to perform the work in public 

• Right to translate the work 

• Right to make a cinematograph film or a record of the work 

• Right to broadcast the work 

• Right to make an adaptation of the work 

• Right to take copies of the work and distribute them 

• Right to prevent others from unauthorised usage of the copyrighted work 

COPYRIGHT INFRINGEMENT IN INDIA 

Under the Copyright Act, 1957, copyright infringement occurs when someone uses a  copyrighted work without the owner’s permission. This can be intentional or unintentional  and involves using or copying the work without giving credit. 

There are two types of infringement: 

1.Primary infringement- This occurs when someone directly copies the work. 2.Secondary infringement – This occurs when someone is involved in unauthorised actions like  selling or importing pirated copies. In this case, the person is aware of the infringement, while  in primary infringement, they may or may not know. 

The following elements should be present for copyright infringement: 

• The copyrighted work is the original creation of the author 

• The copyright infringement work is copied from the work of the author INSTANCES WHERE COPYRIGHT INFRINGEMENT OCCURS

As per the Copyright Act, 1957, a copyright infringement occurs in India in the following  cases: 

• Copies of copyrighted work are made for hire/sale without authority or permission,  such as online piracy 

• Infringing copies are distributed for personal and trade gains 

• Copyrighted work is performed in a public place 

• Infringing copies are imported into India 

• Public exhibition of infringing copies prejudicial to the owner 

• Reproduction of a dramatic, literary, artistic or musical work other than in the form of  a cinematograph film 

• Creating a recording embodying the copyrighted sound recording 

• Copy of the cinematographic film 

COPYRIGHT INFRINGEMENT CASES: 

Super Cassettes Industries Limited vs YouTube and Google 

Super Cassettes Industries Limited (SCIL) claimed that the YouTube business model makes a  substantial profit from using the copyrighted work uploaded without approval from the  copyright owners and without paying a royalty for the same. The court opined that YouTube,  the video streaming giant and Google should stop distributing, reproducing, displaying or  transmitting on their portal any audio-visual works in the exclusive ownership of the SCIL. 

YRF vs Sri Sai Ganesh Productions 

In this case, YRF filed a copyright infringement suit against Sri Sai Ganesh Productions on  the grounds that it copied their movie ‘Band Baaja Baaraat’ and produced ‘Jabardasht’ movie  which had substantial and material similarities in terms of concept, theme, character, plot,  story, script and expression amongst other things. The court extended the test of originality  since the films are protected like original works, to distinguish between the two films based  on ‘foundation, substance and kernel’ and understand the average moviegoer’s viewpoint as  to whether they would have an impression that one work was a copy of the other. The court  held that Sri Sai Ganesh Productions had blatantly copied the YRF film’s essential,  fundamental and distinctive features, resulting in copyright infringement. 

What does not qualify as Copyright Infringement? 

The following are the acts that do not qualify in copyright infringement in India are: • A fair dealing with a work for the purposes of: 

• Personal or private use, including research 

• Review or criticism of the work 

• Reporting of current affairs and events, including the lecture delivered in  public 

• Adaptation or making of copies of a computer programme by the possessor of a copy  of such computer programme to: 

• Usage of the computer programme for which it was supplied 

• Make backup copies as a temporary protection against destruction, loss or  damage 

• Storage of a performance or work 

• Reproduction of work in a judicial proceeding 

• Reproduction or publication of a work prepared by the Secretariat of a Legislature for  the exclusive use of the Legislature members

• Reproduction of work in a certified copy supplied or made as per law • Recitation or reading in public of reasonable extracts from a published dramatic or  literary work 

• Publication in a collection composed of non-copyright matter intended for  instructional use of short passages from published dramatic or literary works • Reproduction of a work by a teacher in the course of instruction, as part of the  questions to be answered in an examination, or as answers to such questions • Performance of a dramatic, literary or musical work in an educational institution by  the students and staff or reproduction of a sound recording and cinematograph film  when the audience is limited to staff and students 

• Causing a recording to be heard in public in any residential premises in an enclosed  hall or room meant for the common use of residents or as part of the activities of a  club or organisation not conducted/established for profit 

• Performance of a dramatic, literary or musical work by an amateur society or club, if  the performance is given for the benefit of a religious institution or to a non-paying  audience 

REMEDIES FOR COPYRIGHT INFRINGEMENT 

The authors/copyright owners can take legal action against a person or entity infringing their  copyrighted works. The copyright owner can file a civil case in a court having authority and  is entitled to remedies by way of damages, injunctions, and accounts. A criminal suit can also  be filed in a court of a First-Class Judicial Magistrate or Metropolitan Magistrate. In the case of copyright infringement by an artificial judicial person like a company or  Limited Liability Partnership (LLP), the company/LLP and all persons in charge at the time of committing the offence or responsible for the conduct of the business would be liable for  the infringement. 

CIVIL REMEDIES 

Where a copyrighted work has been infringed, the copyright owner is entitled to remedies of  injunction, damages, and accounts. However, when the infringer proves that he/she was  unaware and had no reasonable ground for believing that copyright existed in work at the  infringement date, the copyright owner will not be entitled to any remedy except an  injunction. 

Injunction: Injunction is the effective remedy for copyright infringement. An injunction  means a judicial process through which the infringer is restrained to continue the infringing  acts or is ordered to restore the position which stood before the infringement. Damages: Damages are compensation provided to the copyright owner. The purpose of  ordering to provide the damages to the copyright holder is to restore the owner to the earlier  position. There are various factors to determine the damage amount. Generally, the damages  are the amount the copyright holder would have gotten from the infringing acts if the  infringer had obtained the licence for such acts. Various other factors, such as loss of  reputation, loss of profit to the copyright holder, decrease in the sale of the copyright holder’s  work, etc., determine the damages amount. 

Accounts: The infringer can be asked to submit an account of profits made from the sale of  the copied works and pay such an amount to the copyright owner. 

CRIMINAL PROSECUTION FOR COPYRIGHT INFRINGEMENT

When a person knowingly infringes or abets the infringing act of a copyrighted work, then  the offence is a criminal offence under the Copyright Act, 1957. When the copyright owner  files a criminal suit for copyright infringement, the minimum punishment for the  infringement is imprisonment for six months, which can extend to three years, with a  minimum fine of Rs. 50,000, which can extend up to Rs.2 lakhs. 

In the case of a subsequent and second conviction, the punishment is imprisonment for a  minimum of one year, extending to three years and a fine of Rs.1 lakhs, extending to Rs.2  lakhs. Any police officer (not below the sub-inspector rank) can seize the infringing copies  without a warrant when the police officer is satisfied that a copyright infringement offence in  any work has been committed and produce them before the Magistrate. Copyright aims to protect the author’s rights and provide them with economic benefits. The  scope of copyright protection extends to all original works which demand creativity,  including computer software and databases. 

REFERENCE: 

https://cleartax.in/s/copyright-infringement#authorBio 

The copyright Act, 1957