6.1.

Meaning and types of infringement

Copyright infringement issue has raised an alarm in today‘s world. When a person
intentionally or unintentionally copies or uses the work of another creator, without his
prior consent or permission, or any contract or license or assignment with the author as
covered by the copyright law, it amounts to infringement.[4] Infringement can be broadly
classified into two:-

1. Primary infringement;

2. Secondary infringement.

Primary infringement deals with the real act of copying, while secondary
infringement deals with other kinds of dealing like selling the pirated books, importing
etc.

6.2 Causal Connection

When two works are similar and when the defendant has access and opportunity to copy
the plaintiffs work the court may infer causal connection. One factor which may be very
helpful in providing this causal link is the fact that infringing works contain the same
mistakes that occur in the first work.

What is copying? It can be accumulation of insubstantial taking, subconscious copying.

Music composers sometimes subconsciously copy songs that they had heard a decade
ago.

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6.3 Copyright protection

Copyright protection is automatic. The work is protected the moment it is created and
copyright notice is placed on work for its protection. Registration of copyright is not
compulsory either for acquiring copyright or for by enforcing by way of suit against the
infringement of the copyright [5].

A copyright notice should contain: I the word ―copyright‖ II A ―©‖ in a circle III the
name of either the author or the owner of all the copyright rights in the published work.
For example Copyright ©2002 NID, means the work was published in the year of 2002
and the copyright belongs to NID[6]. As per Berne Convention (to which India is a
signatory) for protection of literary and artistic works, use of copyright notice is optional.
However, it is advisable to incorporate a copyright notice.

6.4- Rights of Copyright Owner

The Copyright owner is authorized to do the following:

1. To produce the work in a material form

2. To publish the work

3. To perform work in public

4. To produce, reproduce, perform or publish any translation of the work

5. To make any cinematograph film, or a record in respect of the work

6. To communicate the work by broadcast by radio, cable or satellite

7. To make any adaptation of the work

8. To do in relation to a translation or any adaptation of the work

Copyright provides a bundle of rights enjoyed by the original author and their heirs.

They have exclusive rights to:

1. Make copies of the work

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2. Make derivative work based on the original work

3. Distribute the work

4. Perform the work publicly

5. Display the work in a commercial setting

6. Prevent others from making unauthorized use of copyrighted work

6.5- Term of Copyright

In case of literary, dramatic, musical or artistic works, the term is lifetime of the author
plus sixty years. In case of cinematograph films, records, photographs, posthumous
publication, works of Government and international agencies, the term is sixty years
from the date of publication. In case of broadcasting the term is of twenty-five years from
the year in which the broadcast was made [7].

Assignment

Assignment of copyright has to be in writing and signed by the assignor or by his duly
authorised agent [8]. Copyright is a multiple right, consisting of a bundle of different
rights in the same work, which can be assigned or licensed either as a whole to one party
or separately to different parties. For example, take any book say ――ONE WITH THE
WINDE‖‖- separate right exist in the same work – viz. reproduction in hard back and
paperback edition, right of serial publication in a magazine, right of dramatic version or
cinematograph version, translation, adaptation etc.

The deed of assignment must specify the `rights assigned‘, the duration and territorial
extent of assignment. When duration of assignment is not specified, it is presumed to be
for five years and when territorial extent is not specified, it is presumed to extend within
India (this presumption is applicable to assignments made after 1994).

44
An assignment of a Copyright is exempted from Stamp Duty [9]. In the Deed of
Assignment, assigning copyright along with some other property say trademarks, it is
advisable to state as to what part of consideration is towards the assignment of copyright.

Other rights

In addition to Copyrights, the Act also recognises moral rights of the author, which exist
with the author even after assignment of the work. These rights are – to claim authorship
of the work; and to restrain and claim damages in respect of any distortion, mutilation,
modification or other act in relation to the work, which is done before the expiration of
the term of copyright, if such distortion etc. would be prejudicial to his honour or
reputation.

6.6- Extent of copyright protection

In case of a published work the copyright will subsists in India if, the work is published
in India OR if the work is published outside India – the author at the time of publication
(if alive at that date) or at the time of his death is citizen of India.

In case of an unpublished work, the copyright subsists in India if: The author at the time
of making of work was a citizen or domicile of India. In case of architectural work, if
work is located in India.

6.7. Indian perspective of Fair dealing under copyright Law;

The doctrine of fair use or fair dealing is an integral part of copyright law[10]. It permits
reproduction of the copyrighted work or use in a manner, which but for the exception
carved out would have amounted to infringement of copyright. It has, thus, kept out the
mischief of the copyright law[11]. The defence of fair dealing originated as an equitable
doctrine allowing certain uses of literary works that copyright would otherwise have
prohibited, if prohibiting such uses would stifle the very creativity which that law is

45
designated to foster[12]. Fair dealing also serves as an answer to those ―fair‖ copyright
proponents who actively argue that copyright, not being a patent, is not an absolute right
and should therefore be balance against user rights[13]. Indeed the fair dealing doctrine is
―a key part of the social bargain at the heart of the copyright law, in which as a society
we concede certain limited individual property rights to ensure the benefits of creativity
to a living culture”[14].

India‘s fair dealing doctrine, along with that of other former UK colonies, has been
perceived as having the weak imperial import. Fair dealing, as found in the United
Kingdom‘s copyright framework has been widely characterized as restrictive, featuring
an exhaustive list of defined exceptions[15]. In contrast to Indian and UK provision,
which are traditionally applied only to a work used one of the closed list of enumerated
purposes, fair use in the US allows any use of a work to be fair pursuant to a set of
factors that aid in the decision making process. Apart from this, the US copyright code
offers an open list of permissible purposes[16]. The US fair use defence is said to offer
flexibility at the expense of certainty, fair dealing, on the other hand, is said to offer
certainty but is very rigid[17].

Members of WTO are obliged to conform with the essential factors of exceptions to
copyright as provided by the Berne Convention and Article 13 of the TRIPS agreement
which lay down a 3 step test[18], i.e.; exception must be ‗special‘; it must not conflict
with normal exploitation and it must not be unreasonably prejudice the legitimate
interests of rights holders. It is to be noted that even the TRIPS equations of fair dealing
has been considered to be closely aligned with the US doctrine of fair use[19]. Therefore,
the US doctrine fair use provision has been construed as the ‗fairest‘ of all.[20]

6.8- Legislative context of fair dealing in India

In India, the doctrine of fair dealing is statutorily entrenched under Section 52 of the
Indian Copyright Act, 1957. The English Copyright Act, 1842 was held to be applicable
in India by the Bombay High Court in McMillan V. Khan Bahadur, even when the Act
was not made expressly applicable to India.[21] In 1914, the Indian Legislature passed
the Copyright Act 1914, which was essentially the extension of the British Copyright

46
Act, 1911. The Indian Legislature; however had a very limited power of modification and
addition.[22]

Fair dealing was first statutorily introduced in 1914 as a more duplication of section
2(1)(i) of the UK Copyright Act, 1911, providing that copyright would not be infringed
by ‗any fair dealing with any work for the purposes of private study, research, criticism,
review or news paper summary‖.[23] The current Indian Copyright Act increased the
scope of fair dealing and section 52 of the same Act has been amended thrice.

6.9- Raison D’être

The Indian Copyright Act, 1957 amended the law prevailing before its enforcement and
consolidates the law relating to copyrights. The statement of objects and reasons of the
Indian Copyright act reflects the recognition that the new copyright regime in India was
to be built on the bedrock of growing public consciousness of the rights and obligations
of the authors. The new statute also sought to acclimatize the legislation to advances in
technology and make the domestic copyright law consonant with India‘s international
obligations.[24]

Recently, the Delhi High Court, in the case of Chancellors Masters, has aptly summed up
the policy behind the defence of fair dealing. The court held that fair dealing
‗….legitimizes the reproduction of the copyrightable work. Coupled with a limited
copyright term, it guarantees not only a public pool of ideas and information, but also a
vibrant public domain in expression, from which an individual can draw as well as
replenish. Fair use provisions then must be interpreted so as to strike a balance between
the exclusive rights granted to the copyright holder, and the often competing interest of
enriching the public domain.

6.10- REMEDIES

The remedies for copyright infringement are:

a) Civil

b) Criminal, and

47
c) Administrative

It is only the first two remedies, namely civil and criminal, which are

of any real practical importance.

6.11-CIVIL REMEDIES:

The most importance civil remedy is the grant of interlocutory injunction since most
actions start with an application for some interlocutory relief and in most cases the matter
never goes beyond the interlocutory stage. The other civil remedies include damages –
actual and conversion; rendition of accounts of profits and delivery up.

1) INTERLOCUTORY INJUCTIONS: The principles on which interlocutory injunctions

should be granted were discussed in detail in the English case of American Cyanamid v
Ethicon Ltd. (1975). After this case, it was believed that the classic requirements for the
grant of interim injunction, namely,

a) Prima facie case

b) Balance of Convenience; and

c) Irreparable injury

2) PECUNIARY REMEDIES: Under Indian law, however, there is a departure made and
the plaintiff, under sections 55 and 58, can seek recovery of all three remedies, namely
(a) account of profits (b) compensatory damages and (c) conversion damages which are
assessed on the basis of value of the article converted.

3) ANTON PILLER ORDERS: The Anton Pillar Order derives its name from a Court of
Appeal decision in Anton Pillar AG V. Manufacturing Processes [1976]. An Anton Piller
Order has the following elements:

a) An injunction restraining the defendant from dealing in the infringing goods or

destroying, them;

b) An order that the plaintiffs solicitors be permitted to enter the premises of the
defendants, search the same and take goods in their safe custody; and

48
c) An order that defendant be directed to disclose the names and addresses of suppliers

and customers and also to file an affidavit will a specified time giving this information.

4) MAREVA INJUNCTION: Mareva Injunction is an order which temporarily freezes

assets of a defendant thus preventing the defendant from frustrating the judgement by
disposal of such assets.

5) NORWICH PHARMACAL ORDERS: These are orders by which information can be

discovered from third parties.

6.12- CRIMINAL REMEDIES:

Criminal remedies for copyright violation include:

I. Punishment through imprisonment which, under Indian law, may not be less than six
months but which may extend to three years;

II. Fines which, under Indian law, shall not be less than Rs.50.000. and which may
extend to Rs.200, 000.

III. Search and seizure of the infringing goods including plates which are defined as
including blocks, moulds, transfers, negatives, duplicating equipment or any other device
used or intended to be used for printing or reproducing copies of the work.

IV. Delivery up of infringing copies or plates to the owner of the copyright.

49
6.13-References:

[1]http://www.lawmart.com/searches/cp-circ1.htm

[2]http://books.google.co.in/books?id=y6mhbFjuOucC&pg=PA147&dq=conventions+de
aling+with+copyright&source=web&ots=vO-XmVm&sig=Oc5_kbJvr6DwvZJBDpCR3oT-
SY&hl=en#PPA148,M1

rd
[3]Justice P.S.Narayana,‖Intellectual Property Rights‖, 3 Ed., 2004.

[4] www.pressreleasepoint.com/copyright-infringement-and-its-remedies.

[5] http:/www.indiainbusiness.nic.in/investment/copyrights.htm

[6]http:/www.nid.edu/national institute of design

[7] http:/www.kipro.org/copyright.htm

[8]Section 19.

[9] Article 25 of Schedule I of the Bombay Stamp Act, 1958

[10] The Chancellors Masters and Scholars of the University of Oxford V. Narendra
Publishing House and Ors. 2008(38) PTC 385(Del) at para 2

[11] S.K. Dutt V. Law Book Company & Ors., AIR 1954 All 570 at Para 12

[12] Harper and Row Publishers V Nation Enterprises, 471 US 539 at 550

[13] A.Giuseppina D‘Agostino, Healing for Fair Dealing? A comparative copyright

analysis of Canada‘s fair dealing to UK fair dealing and US fair use, McGill law Journal
53 (2008) 309-363

[14]Association of video and filmmakers, documentary filmmaker‘s statement of best

practices in fair use (18 november 2005) at 1-2.

[15] Sing Jayakumar, Hansard Parliamentary debates, 78 (2004) 10.

50
[16]The US copyright code, 17 USC section 107 (2000) provides that the fair use of
copyrighted work for purposes such as criticism, comment, news reporting,
teaching(including multiple copies for classroom use), scholarship, or research‘ does not
infringe copyright.

[17] Justice Ladie, Copyright: Over-strength, over-regulated, European Intellectual

Property Review, 18 (5) (1996) 253-260.
[18] Ficsor M, How much of What? Three step test and its application in recent
WTO dispute settlement cases, RIDA, 192 (2002) 111-251.

[19] Gervais Daniel J, Canadian Copyright Law post-CCH, intellectual property journal,

18 (2004) 131-167.

[20]Nimmer david, Fairest of them all and other fairy tales of fair use, Law
& Contemporary problems, 66 (2003)263-287.

rd
[21] (1895) ILR Bom 557 in Lal, The Copyright Act, 3 Edn (Law Publishers India,

Allahabad), 1995, p.6.

rd
[22] (1895) ILR Bom 557 in Lal, The Copyright Act, 3 Edn (Law Publishers India,
Allahabad), 1995, p.7-8.

[23] UK, 1 & 2 Geo V, Clause 46, section 2(1)(i), Burrell Robert, Reining in copyright
law: Is fair use the answer? Intellectual Property Quaterly, 4 (2001) 361-388.

rd
[24]Narayana P. Copyright and Industrial Designs, 3 edn (Eastern

Law House, Kolkata).

51