Answer 4th

Introduction;
Infringement of copyright can be done by various means of primary acts such as direct copying,
indirect copying etc. To prove that there is infringement of copyright of the owner, he has to
establish that, the alleged infringer has necessarily copied the copyright owner’s work and it’s
not his independent and original creation and that the nature and amount of the work which
defendant took amounts to improper appropriation.
The infringement of Copyright can be over the economical, moral or the neighboring rights
depending upon the situation. The section 51(a) (i) talks about the primary infringement. Section
51(b) and section 51(a) (ii) talks about the secondary infringement.
The primary infringement is over the exclusive rights and the rights which are conferred upon
the author/owner and they are being infringed without the permission of the author or the owner.
For e.g. the reproduction of a work i.e. the producing of copies of a book. The communication of
this infringed work in the public would be called as the secondary infringement. The secondary
infringement is the indirect infringement of the work and the secondary infringement facilitates
the primary infringement.
The copyright owner can prove “copying” by contending that direct copying has been done by
defendant through mechanical process such as photocopying. This could be done by electronic
process such as making copies of a compact disc holding the copyright owner’s work.
In most cases, finding direct evidence of copying is difficult as defendant do not admit admit
that he has copied the copyrighted work directly . In such cases, the copyright owner can prove
copying by establishing two ways.
1. Defendant had access to the Plaintiff’s copyrighted work- Here copyright owner can
prove that copyright’s owner work was accessed by defendant through various means as
follows:
a. A copyright owner can show that the Defendant had access to the copyrighted work
by proving that his work was easily available and thus it must be presumed that the
Defendant accessed his copyrighted work for his own benefit.
b. copyright owner can also bring evidence to show that the Plaintiff provided the
Defendant direct access to the copyrighted work
c. Under the inverse proportionality rule, where there is a very high degree of similarity
between the Plaintiff’s work and the Defendant’s allegedly infringing work, a Court
may infer access insofar as the evidentiary requirement to prove direct or indirect
access may be watered down. Thus higher the degree of similarity, lower is the
threshold to prove access to the Plaintiff’s work
d. Copyright owner can prove that Defendant has even copied the errors in the
Plaintiff’s work to show such high degree of
e. That the resemblances of the Plaintiff’s work and the Defendant’s infringing work are
substantial enough to infer the act of copying
2. Plaintiff’s and the Defendant’s work are substantially similar-The second
requirement to prove copyright infringement is that the Defendant must have taken a
substantial part of the elements of the Plaintiff’s work such that the Plaintiff’s and the
Defendant’s work are substantially similar.
In, MansoobHaider versus Yashraj Films Pvt. Ltd, The Plaintiff who was scripter
registered a script with the Copyright Board. the Plaintiff contended that he submitted his the
film script to the Defendant, Yashraj Films Pvt. Ltd. Which happens to be a renowned film
studio. Dhoom 3 was released with substantial similarities between the Plaintiff’s script and
the Defendant’s film and claimed deliberate attempt by the Defendant to copy the Plaintiff's
script which amounts to copyright infringement. The Court opined that the expression in the
two narratives was very different. The Court agreed the two scripts have common themes
also several sequences logically followed and must be reflected as scenes à faire but cannot
be considered as copyright infringement.
The Supreme Court in R.G. Anand versus Delux Films laid test of substantial similarity
and the conclusions reached by the Supreme Court was based on few test which are
enumerated below:
 Where the same idea is developed in a different manner, it is apparent that the source
is common and similarities will definitely occur. In such circumstances, the courts
should look whether the similarities are on fundamental or substantial aspects of the
expression in the copyrighted work or not. To be held actionable under copyright
infringement, the copy must be a substantial and material one which infers piracy by
defendant. Test laid down by the Supreme Court does not necessitate identity of the
Plaintiff’s and the Defendant’s work howver ‘some variations’ among the two
copyrighted works do not dispel the nature of substantial similarity.

 Most important element of test for copyright infringement is that the Defendant has
copied the work as opposed to independently creating it. The Plaintiff can either bring
direct evidence of copying or indirect evidence of access and substantial probative
similarity that leads to an inference of copying

 One certain test to determine whether or not there has been copyright infringement is
to seeing the reader, spectator or the viewer after having read or seen both the works
is clearly of the opinion and gets an unmistakable impression that the subsequent
work is result of copying of the original work. It is also known as effect test.