COPYRIGHT - Infringement

 COPYRIGHT INFRINGEMENT

Copyright infringement (or copyright violation) is the unauthorized or prohibited use of works covered by copyright law in a way that violates one of the copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work or to make derivative works.

For electronic and audio-visual media, unauthorized reproduction and distribution are also commonly referred to as piracy.

Copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

Meaning and types of infringement

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.

Infringement can be broadly classified into two:-

• Primary infringement;
• 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.

REMEDIES

The remedies for copyright infringement are:

• Civil
• Criminal, and
• Administrative

CIVIL REMEDIES

INTERLOCUTORY INJUNCTIONS: 

Requirements for the grant of interim injunction, namely,

• Prima facie case
• Balance of Convenience; and
• Irreparable injury

PECUNIARY REMEDIES: The plaintiff, under sections 55 and 58, can seek recovery of all three remedies, namely 

• account of profits 
• compensatory damages and 
• conversion damages which are assessed on the basis of the value of the article converted.

ANTON PILLER ORDERS: Anton Piller Order has the following elements:

• An injunction restraining the defendant from dealing in the infringing goods or destroying them;
• An order that the plaintiff's solicitors be permitted to enter the premises of the defendants, search the same and take goods in their safe custody; and
• An order that the defendant be directed to disclose the names and addresses of suppliers and customers and also to file an affidavit within a specified time giving this information.

ASSET FREEZING (MAREVA INJUNCTION):  is an order which temporarily freezes the assets of a defendant, thus preventing the defendant from frustrating the judgement by disposal of such assets. (after the case Mareva Compania Naviera SA v International Bulkcarriers SA, [1975])

NORWICH PHARMACAL ORDERS: These are orders by which information can be discovered from third parties. It is granted against a third party that has been innocently mixed up in wrongdoing, forcing the disclosure of documents or information. By identifying individuals, the documents and information sought are disclosed in order to assist the applicant for such an order in bringing legal proceedings against individuals who are believed to have wronged the applicant. (A Norwich Pharmacal order was first granted in 1974 by the House of Lords in Norwich Pharmacal Co. v Customs and Excise Commissioners)

CRIMINAL REMEDIES

Any person who knowingly infringes or abets the infringement of the copyright in any work commits a criminal offence under Section 63 of the Copyright Act.

The minimum punishment for infringement of copyright is imprisonment for six months with a minimum fine of Rs. 50,000/-. 

In the case of a second and subsequent conviction, the minimum punishment is imprisonment for one year and a fine of Rs. one lakh.

Any police officer, not below the rank of a sub-inspector, may, if he is satisfied that an offence 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.

JURISDICTION

No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under the Copyright Act.

ADMINISTRATIVE REMEDIES

Administrative remedies consist of moving the Registrar of copyrights to ban the import of infringing copies into India when the infringement is by way of such importation and the delivery of the confiscated infringing copies to the owner of the copyright and seeking the delivery.

DEFENSES TO INFRINGEMENT

A defendant in an infringement action may rebut the presumption of copying by a showing of independent creation. 

It is possible for an author to create a work independently while bearing similarities to another. 

If access is not established, there is no copying, even if there is a striking similarity between the two works. 

For this reason, corporations will destroy or return unsolicited mailings from authors as a policy.

Some acts that would otherwise be a copyright infringement are excused through the concept of "fair use." 

The statute states that use for purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is fair use. 

As to works not in these categories, the statute states that the factors to be considered include the purpose and character of the use, including whether it is of a commercial nature or for non-profit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon a potential market for or value of the copyrighted work. 

This involves balancing the interests of the copyright owner and the one copying the material.

FAIR USE

The doctrine of fair use or fair dealing is an integral part of copyright law. 

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.

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 designated to foster. 

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 balanced against user rights. 

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”

EXEMPTIONS

Subject to certain conditions, the law allows any use of a work without the permission of the owner of the copyright. Some of the exemptions are the uses of the work:

• for the purpose of research or private study,
• for criticism or review,
• for reporting current events,
• in connection with a judicial proceeding,
• performance by an amateur club or society if the performance is given to a non-paying audience, and
• the making of sound recordings of literary, dramatic or musical works under certain conditions.