INFRINGEMENT

OF COPYRIGHT

SUBMITTED TO SUBMITTED BY

Kislay Soni Garima Rajput

11LLB026

1
 INDEX

TABLE OF CONTENT PAGE NO.

 Introduction 3
 Types of infringement 5
 Remedies for infringement 10
 Conclusion 11
 Reference 12

2
 INTRODUCTION

Copyright is a form of protection provided to the creators of "original works of authorship,"

including literary, dramatic, musical and artistic works. The importance of copyright was
recognized only after the invention of the printing press, which enabled the reproduction of
books in large quantities. England's "Statute of Anne" is regarded as the first copyright law. This
law for the first time accorded exclusive rights to authors and limited the duration of such
exclusive rights to a certain number of years, after which all works would pass into the public
domain.

Copyright is a creation of a statute. Under the present law there is no such thing as a common
law copyright. The Act make it clear that no person shall be entitled to or unpublished copyright
or any similar rights in any work, whether published unpublished, otherwise than in accordance
with the provisions of the Act. Copyright is a form of IPR. The concept of IPR in the work as
distinguished from the physical Kaproperty in the material containing the words was developed
by leading philosophers like Kant Hegel and Schopenhauer.

Copyright is a multiple right, consisting of a bundle of different right in the same work. These
right can be assigned or license either as a whole or separately.

Infringement basic Definition

Copyright is infringed by a person who without a license of the copyright owner, does, or
authorizes another to do, any of the acts restricted by the copyright. Not only is copyright
therefore infringed by anyone who does not of the restricted acts without a license, but also by
anyone who without license authorizes the doing of any such acts. An infringing act of
authorization is a separate tort from the infringing act so authorized. In addition copyright is
infringed.

(a) by the doing of any act of these acts not only in relation to the whole of a work but also in
relation to any substantial part of it,
(b) by the doing of any of these acts indirectly as well as directly, it being immaterial
whether any act intervening themselves infringes copyright.

3
The doing of any of these acts by any person other than the copyright owner or one who is
permissible is therefore an infringement unless the act falls within the statutory permitted acts 1 or
os otherwise excusable. Each wrongful exercise of exclusive rights constitutes a separate tort.
Apart from these acts, however, other dealings with a work do not constitute a primary
infringement. It is thus a infringement of copyright to read a hard copy of a book or to resell a
copy which was purchased in a bookshop.

Exclusive right granted under the Act extend also to a translation or adaptation of the work or to
a substantial part thereof2. Thus copyright will be infringed if a substantial part of the work is
reproduced. What amount to a substantial part of the work is depend upon the case.

Sec 51 Statutory definition of infringement - When copyright infringed. -Copyright in a work

shall be deemed to be infringed-

(a) when any person, without a license granted by the owner of the copyright or the Registrar of
Copyrights under this Act or in contravention of the conditions of a license so granted or of any
condition imposed by a competent authority under this Act-

(i) Does anything, the exclusive right to do which is by this Act conferred upon the owner
of the copyright, or

(ii) permits for profit any place to be used for the communication of the work to the
public where such communication constitutes an infringement of the copyright in the
work, unless he was not aware and had no reasonable ground for believing that such
communication to the public would be an infringement of copyright; or

(b) When any person-

(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for
sale or hire, or

1
Licence; permitted act It is necessary ingredient of the tort that the act in question was done without the licence
of the copyright owner.
2
Sec14(a) of Copyright Act- (a) in the case of a literary, dramatic or musical work, not being a computer
programme,

4
 (ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially
the owner of the copyright, or

(iii) by way of trade exhibits in public, or

(iv) imports into India, any infringing copies of the work 103Provided that nothing in
sub-clause

(iv) shall apply to the import of one copy of any work for the private and domestic use of
the importer.

Explanation.- For the purposes 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".

5
 TYPES OF COPYRIGHT INFRINGEMENT

1. PRIMARY INFRINGEMENT

2. SECONDARY INFRINGEMENT

PRIMARY INFRINGEMENT

The exclusive right to prevent copying or reproduction of a work is the most fundamental and
historically the oldest, right of a copyright owner. Now-a-days copyrighted work is exist in all
the categories. But there are certain degree or test to be established whether a right is infringed or
not. Some points are common in considering that whether an act is deemed to be infringement or
not.

1. The right is the exclusive right of copying for thought to be infringed two elements must
be established there must be a sufficient degree of similarity between the two work and
the work is the result of the copyrighted work and there is a sufficient degree of similarity
between the two work and the work is the result of the copyrighted work and there is a
casual connection between the two.
2. When there is a copying of a substantial part of it.
3. There is a exclusive right to copy the work directly or indirectly.
4. Exclusive right is also extent to the making of copies which are transient or incidental to
some other use of the work.

Sufficient Similarity-There must be sufficient objective similarity between the two copyrighted
work and alleged copy.

(a) First the allegedly infringing work must be in real sense represent the claimant’s. Thus a
literary work consisting of instructor will not be in real sense represent the claimant’s.
Thus a literary work consisting of instructor will not be infringed by the making of an
article with respect to that instruction and an artistic work such as circuit diagram will not
be infringed by describing in content or words.

6
 (b) Second- when there is a no sufficient objective similarity between the two work then
there will be no infringement. Even if a copyrighted work has been used as a reference or
is a inspiration to what the defendant has been used done, this is by itself its not enough if
there is no such similarity. IDEA VS EXPRESSION- Copyright is only granted on the
expression on idea not on the idea itself.

When a person derives his work from the claimant but may have done too much in such a
way either deliberately or through completely which does not amount to infringement.

Casual Connection- There must be casual connection between the two work because there will
be no infringement unless there is a direct connection between the copyrighted work. There must
be casual connection between the copyrighted work or the infringing work .

Substantial Part- law never allows a defendant to escape a liability on the grounds that he has
not copied the plaintiff work exactly less than complete copying has always been an
infringement. In this it is laid down that copyright should not be allowed to become an
instrument of oppression and extortion. Infringement is not always when there is a exact copies
of the claimant work exactly less than complete copying is always an infringement.

Substantial part of the claimant work can usually be characterized

(a) The exact use of part of the work only( or where the extracts from literary work have
been taken verbatim)
(b) Some reworking of the whole of it( where the whole of literary work has been
paraphrased, dramatic or translated into another language, an entire artistic work imitated
in some other ways)
(c) Combination of these.

In determining whether there is a substantial part, applying the test and to determine whether the
whole work has been imitated, modified or otherwise altered without exact copying of any part.

7
In the case of

R.G Anand Vs Deluxe Films3

In these case court held that film produced by defendant cannot be said a substantial copy and
defendant cannot be held liable for copyright because both are different in story climax and
characteristics. Moreover copyright cannot be acquired in idea and copyright offers protection
only to the expression of ideas and not the idea itself. So, there is no infringement and allegation
made by plaintiff is not valid.

In the case of

Macmillan And Company Limited Vs K. and J. Cooper4

In these case action brought by the appellant to restrain the defendant a firm carrying on in
Bombay trade and publishing of educating books in which the relief was claimed was that the
copyright exist in such books.

In these case it is laid down that copyright is exist in original work and appellant work is not the
original work so there is no infringement of copyright and also there is no absolute verbal
identity of some of notes in both the books.

In Hindustan Pencils Ltd v Alpna Cottage Industries 5

The Copyright Board of Goa held that where the similarities between the artistic works of the
parties are fundamental and substantial in material aspects, it would amount to copyright
violation and the defendant’s copyright is liable to be expunged from the register of copyright

3
1978 AIR 1613,1979 SCR (1) 218
4
(1924) 26 BOMLR 292
5
AIR 1987 SC 426

8
SECONDARY INFRINGEMENT

It is basically based on the principle that it is necessary ingredient of the tort that the defendant
must have a degree of guilty knowledge before he can be liable. It is termed as primarily act of
an infringer.

Dealing with infringer copies-The main act of secondary infringement concern dealing with
infringing copies.

Person is also liable who knowingly possess or provide the means for making infringing copies.
Thus the copyright of a work is infringed by a person who, without the license of a work is
infringed by a person who, without the license of a copyright

(a) Makes
(b) Imports
(c) Possess in the course of a business
(d) Sells or lets for hire, or offers or expenses for sale or hire.

Copyright in a work is also be infringed by a person, who, without the license of the copyrighted
owner transmit the work by means of a telecommunication.

Where the copyright in a literary, dramatic or musical work is infringed by a performance at a

place of public entertainment, any person who gave permission for that place to be used for
performing is also liable for infringement unless he gave permission be believed on reasonable
ground that performance would not infringed copyright.

In the case of

Microsoft Files Copyright Infringement Case against KK Software

Microsoft has filed a copyright case against Kamlesh Kumar Jha, the owner of New Delhi-based

KK Software Solutions, and other defendants for allegedly indulging in software piracy and

counterfeiting Microsoft products, in the Delhi High Court for permanent injunction and

damages. CBI concluded its investigations and filed charge sheet against KK Jha and others

before the court of Chief Metropolitan Magistrate (CBI Cases), New Delhi in December 2011

9
citing violations of the Copyright Act 1957, the Information Technology Act 2000 and the

Indian Penal Code 1860. This criminal case is currently awaiting framing of charges by the

court, according to Microsoft Microsoft informed that at the hearing of the civil case on January

7, 2013, the Delhi High Court after examining the case has issued an ex-parte ad interim

injunction restraining the defendants from undertaking any further reproduction, storage,

installation and/or usage of infringing/unlicensed software of Microsoft.

In the case

John Richard Brady & Others. v. Chemical Process Equipment Pvt. Ltd, Delhi High
Court6

This is a case concerning the legal principle of copyright infringement involving trade secrets
and engineering. Brady was the owner of copyright in the drawings of the FPU and was entitled
to the exclusive right of publishing and reproducing the drawings whether two dimensionally or
three dimensionally as he considered apt. Defendant was falsely using the plaintiff pictures and
developed their own design.

Thus, the court restrained the Chemical Process Equipment Pvt. Ltd from manufacturing and
selling machines that were substantial imitation and reproduction of the drawings of Brady’s
FPU or from using in any other manner whatsoever the know-how, specifications, drawings and
other technical information about the FPU disclosed to them by Brady.

6
AIR 1987 Delhi 372

10
 REMEDIES FOR THE INFRINGEMENT OF COPYRIGHT

Copyright Act provides both civil and criminal remedies for the infringement of copyright.

Sec 557 which deals civil remedies for infringement. The owner of copyright shall be entitled to
all such remedies by way injunction, damages, account of difference and account of differences
as may be conferred by law civil. Civil suits are instituted at the appropriate district court having
jurisdiction including where the plaintiff resides.

7
Civil remedies for infringement of copyright.—

(1) Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise
provided by this Act, be entitled to all such remedies by way of injunction, damages, accounts and
otherwise as are or may be conferred by law for the infringement of a right: tc "55. Civil remedies for
infringement of copyright.—(1) Where copyright in any work has been infringed, the owner of the
copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of
injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a
right\:" Provided that if the defendant proves that at the date of the infringement he was not aware and
had no reasonable ground for believing that copyright subsisted in the work, the plaintiff shall not be
entitled to any remedy other than an injunction in respect of the infringement and a decree for the whole
or part of the profits made by the defendant by the sale of the infringing copies as the court may in the
circumstances deem reasonable. tc "Provided that if the defendant proves that at the date of the
infringement he was not aware and had no reasonable ground for believing that copyright subsisted in the
work, the plaintiff shall not be entitled to any remedy other than an injunction in respect of the
infringement and a decree for the whole or part of the profits made by the defendant by the sale of the
infringing copies as the court may in the circumstances deem reasonable."

(2) Where, in the case of a literary, dramatic, musical or artistic work, a name purporting to be that to the
author or the publisher, as the case may be, appears on copies of the work published, or, in the case of an
artistic work, appeared on the work when it was made, the person whose name so appears or appeared
shall, in any proceeding in respect of infringement of copyright in such work, be presumed, unless the
contrary is proved, to be the author or the publisher of the work, as the case may be. tc "(2) Where, in the
case of a literary, dramatic, musical or artistic work, a name purporting to be that to the author or the
publisher, as the case may be, appears on copies of the work published, or, in the case of an artistic work,
appeared on the work when it was made, the person whose name so appears or appeared shall, in any
proceeding in respect of infringement of copyright in such work, be presumed, unless the contrary is
proved, to be the author or the publisher of the work, as the case may be."

(3) The costs of all parties in any proceedings in respect of the infringement of copyright shall be in the
discretion of the court. tc "(3) The costs of all parties in any proceedings in respect of the infringement of
copyright shall be in the discretion of the court."

11
Sections 64-70 provides a range of criminal penalties for infringing copyrights which are
typically punishable with terms of imprisonment that “may extend up to three years” along with
a fine.

These offences would be taken cognizance of and tried at the court of the Metropolitan
Magistrate or Judicial Magistrate of the First class Sec 70, in the same manner as all cognizable
offences in India i.e., by following the procedures under the Code of Criminal Procedure, 1973.

Section 64 8 of the Copyright Act dealing with police powers was amended in 1984 to give
plenary powers to police officers, of the rank of a sub-inspector and above, to seize without
warrant all infringing copies of works “if he is satisfied” that an offence of infringement under
Sec 64.

Section 63, “has been, is being, or is likely to be, committed”. Prior to amendment, this power
could only be exercised by a police officer when the matter had already been taken cognizance of
by a Magistrate. Prima facie, this is a very sweeping power since its exercise is unsupervised by
the judiciary and only depends on the “satisfaction” of a police officer. To put matters in
perspective, under the Income Tax Act, dealing with the far more sensitive issue of tax evasion, a

8
Power of police to seize infringing copies.

(1) Any police officer, not below the rank of a sub-inspector, may, if he is satisfied that an offence under
section 63 in respect of the infringement of copyright in any work has been, is being, or is likely to be,
committed, seize without warrant, all copies of the work, and all plates used for the purpose of making
infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as
practicable, be produced before a Magistrate.] tc "64. Power of police to seize infringing copies.—5[(1) Any
police officer, not below the rank of a sub-inspector, may, if he is satisfied that an offence under section 63
in respect of the infringement of copyright in any work has been, is being, or is likely to be, committed,
seize without warrant, all copies of the work, and all plates used for the purpose of making infringing
copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable, be
produced before a Magistrate.]"

(2) Any person having an interest in any copies of a work 2[, or plates] seized under sub-section (1) may,
within fifteen days of such seizure, make an application to the magistrate for such copies 2[or plates]
being restored to him and the Magistrate, after hearing the applicant and the complainant and making
such further inquiry as may be necessary, shall make such order on the application as he may deem fit. tc
"(2) Any person having an interest in any copies of a work 1[, or plates] seized under sub-section (1) may,
within fifteen days of such seizure, make an application to the magistrate for such copies 1[or plates]
being restored to him and the Magistrate, after hearing the applicant and the complainant and making
such further inquiry as may be necessary, shall make such order on the application as he may deem fit."

12
search and seizure can only be conducted based on information already in the possession of the
investigating authority.

13
 CONCLUSION

The provision for the protection of copyright infringement in India is strong and effective. But it
is not enough making provision we cannot conclude that copyright protection is strong and it is
not going to infringed. It is easy to get a pirated music videos, movies, pirated Shopkeepers not
afraid to dealing with these pirated things and taking the law in his hands by dealing with these
copyrighted material. Police also sometimes also not take the appropriate action which is
required to protect the copyright infringement. There should be effective enforcement of law that
no infringement should be taken places. Now a day cyberspace infringement is very common so
there should be strict rules and regualation should be made to protect the cyberspace copyright
infringement. Judiciary also played a very important and effective role in protective of copyright
infringement.The situation is, however, not as alarming as it is perceived and the existing legal
system can effectively take care of any problems associated with copyright infringement.

14
 REFERENCES

 Copyright Act 2012

 Narayana P. Copyright and Industrial Designs, 3rd edn (Eastern Law House, Kolkata).
 Textbook on copyright law by Copier
 www.indiankanoon.com
 A copyright infringement aricle in Lawinfowire.com
 Pdf on copyright infringement by Mark Miller Jackson Walker L.L.P.
 Manupatra.com

15