INFRINGEMENT OF COPYRIGHT-

Copyright protection gives exclusive rights to the owners of the work to

reproduce the work enabling them to derive financial benefits by exercising
such rights. If any person without authorisation from the owner exercises
these rights in respect of the work which has copyright protection it
constitutes an infringement of the copyright. If the reproduction of the work
is carried out after the expiry of the copyright term it will not amount to an
infringement.
In Penguin Books Ltd., England v. M/s India Book Distributors &
Others AIR 1985 Del. 29, it was observed that whenever there is
misappropriation of intellectual property of which the primary beneficiary is
the copyright owner there is infringement of copyright. Copyright is a property
right. Throughout the world it is regarded as a form of property worthy of
special protection in the ultimate public interest. The law starts from the
premise that protection would be as long and as broad as possible and should
provide only those exceptions and limitations which are essential in the public
interest.
Section 51 of the Act contemplates situations where copyright in a work
shall be deemed to be infringed. As per this section copyright in a work is
infringed when any person without a licence granted by the owner of the
copyright or the Registrar of Copyright or in contravention of the conditions
of a licence so granted or of any condition imposed by a competent authority
does
(1) anything for which the exclusive right is conferred upon the owner
of the copyright, or
(2) permits for profit any place to be used for the communication of the
work to public where such a 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 would be an infringement of
copyright.
(3) when any person (i) makes for sale or hire or lets for hire or by way
of trade display or offers for sale or hire, or (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.
However, import of one copy of any work is allowed for private and
domestic use of the importer. Explanation to Section 51 clarifies that the
reproduction of literary, dramatic, musical or artistic work in the form of
cinematograph film shall be deemed to be an infringing copy. The copyright
in a work shall be deemed to be infringed by any person who, without the
consent of the owner of the copyright, does anything, the sole right to do which
is conferred on the owner of the copyright. Kartar Singh Giani v. Ladha Singh
& Others AIR 1934, Lah 777 (DB). The concept of honest and concurrent user
found in Section 12(3) of the 1958 Act for securing concurrent registration is
totally irrelevant as defence in a suit for infringement and copyright arising
out of a different Act, namely, 1957 Act (M/s Power Control Appliances &
Others v. Sumeet Machines Pvt. Ltd. (1994) 2 SCC 448).
In Ushodaya Enterprises Ltd v T.V. Venugopal, 2001 PTC 727, the
division bench of the Andhra Pradesh High Court held that even though the
defendant has registered the carton under the Trademark Act, that may not
come to the aid of the defendant as the case of the plaintiff is that it owns a
copyright of the artistic work under the Copyright Act and no registration is
required for the same. Thus the court held that the plaintiff was justified in
alleging infringement of his artistic work. One of the surest test to determine
whether or not there has been a violation of copy right is to see if the reader,
spectator, or the viewer after having read or seen both the works would be
clearly of the opinion and get an unmistakable impression that the
subsequent work appears to be a copy of the first.
In other words, dealing with the question of infringement of copy right
of the applicant’s work by the respondent’s work, the Court is to test on the
visual appearance of the object and drawing, design, or artistic work in
question and by applying the test viz., `lay observer test’ whether to persons
who are not experts in relation to objects of that description, the object
appears to be a reproduction. If to the `lay observer’, it would not appear to
be reproduction, there is no infringement of the artistic copy right in the work.
A bare look at these two artistic works `Sharp’ and `Sharp tools’.
 Moreover, the work `sharp’ in the work of the appellant is embedded in
a semi-circle design with rays emitting from it as if it were a rising Sub;
whereas, in the respondent’s work it is plainly `Sharp Tools’ with no design
super imposing it. Judging by the eye alone, they appear to Court to be totally
different. One does not think that any one looking at these two works would
say that they are similar in any manner nor do any one would say the design,
the lay-out and the manner in which the words written in the works of the
respondent was on obvious imitation, much less an imitation of the
appellant’s work. Applying the various tests set out above, it cannot be said
that the respondent had committed an act of piracy by way of copying the
copyright of the appellant. As rightly pointed out by the Copyright Board that
there can be no copyright in the word or words, but the right can only be in
the artistic manner in which the same is written, and in this case the works
were totally dissimilar. [Associated Electronic & Electrical Industries
(Bangalore) Pvt. Ltd. v. M/s Sharp Tools AIR 1991 Kar 406].
M/s. Video Master & another v. M/s. Nishi Productions & others,
1998(3) Bom. CR 782. The given case examined the circumstances under
which the exhibition of film by various modes infringed copy rights. The
plaintiff was assigned video playback and cable T.V rights and he objected to
the defendants being given the satellite broadcasting rights. The Court
observed that there were various modes of communication to public and each
one was separate and divisible. It was held that each of the modes of
communication could exist in different persons at the same time without
infringing copy right of the other.
The Bombay High Court in Hindustan Lever Ltd., v. Nirma Private
Limited, Ahmedabad, AIR 1991 held that the dissimilarities were totally
inadequate to wipe out general impression of the unwary purchaser. Thus,
there was prima facie infringement of copyright. The case dealt with the
infringement of the copyright in the label when there were only few changes
made in the colourable imitation of label.
In Eastern Book Company & Others v. Navin J. Desai & Another 2001
PTC (21) 57 Del., Delhi High Court has held: Copyright is a limited monopoly
having its origin in protection. There cannot be any monopoly in the subject
matter which the author has borrowed from public domain. Others are at
liberty to use the same material. Material in which no one has a copyright is
available to all. Every man can take what is useful from the, improve, add and
give to the public the whole comprising the original work with his additions
and improvements. Under the guise of the copyright, the plaintiffs cannot ask
the Court to restrain the defendants from making this material available to
public. Judgements/orders published by the plaintiffs in their law reports
‘Supreme Court Cases’ is not their original literary work but has been
composed of, complied and prepared from and reproduction of the judgements
of the Supreme Court of India, open to all. Merely by correcting certain
typographical or grammatical mistakes in the raw source and by adding
commas, full stops and by giving paragraph numbers to the judgement will
not their work as the original literary work entitled to protection under the
Copyright Act. Plaintiffs, therefore, have no copyright in the judgements
published in their law reports. There being no copyright in the plaintiffs, there
is no question of the defendant infringing any alleged copyright. Plaintiffs have
failed to make out any prima facie case in their favour and are, therefore, not
entitled to any relief in the application.
In Godrej Soaps (P) Ltd. v. Dora Cosmetics Co.2001 PTC (21) 407 Del.
It was held that the Delhi High Court held that where the carton was designed
for valuable consideration by a person in the course of his employment for
and on behalf of the plaintiff and the defendant had led no evidence in his
favour, the plaintiff is the assignee and the legal owner of copyright in the
carton including the logo.
Crowning Glory carton was designed for valuable consideration by a
person who produced the said work in the course of his employment with
advertising company under a contract of service for and on behalf of the
plaintiff. By the reason of the circumstances in which the said artistic work
was produced, the plaintiff is the owner of the legal and equitable title in the
artistic work. As a matter of abundant caution the copyright in the carton was
assigned to the plaintiff. Plaintiff has proved that it is the assignee of the
copyright in the carton for ‘Crowning Glory’.
STATUTORY EXCEPTIONS –
 Certain exceptions to infringement have been stipulated by the
Copyright Act. The object of these exceptions is to enable the reproduction of
the work for certain public purposes, and for encouragement of private study,
research and promotion of education. The list of acts which do not constitute
infringement of copyright has been provided under Section 52 of the Act.
These include (i) A fair dealing with literary, dramatic, musical or
artistic work, not being a computer programme, for the purposes of— • private
or personal use, including research; • criticism or review, whether of that work
or of any other work; • reporting of current events and current affairs,
including the reporting of a lecture delivered in public. • It may be noted that
storing of any work in any electronic medium including the incidental storage
of any computer programme which is not itself an infringing copy for the said
purposes, shall not constitute infringement of copyright.
(ii) The making of copies or adaptation of a computer programme by the
lawful possessor of a copy of such computer programme, from such copy in
order to utilise the computer programme for the purposes for which it was
supplied; or to make back-up copies purely as a temporary protection against
loss, destruction or damage in order only to utilise the computer programme
for the purpose for which it was supplied.
(iii) the doing of any act necessary to obtain information essential for
operating inter-operability of an independently created computer programme
with other programmes by a lawful possessor of a computer programme
provided that such information is not otherwise readily available.
(iv) the observation, study or test of functioning of the computer
programme in order to determine the ideas and principles which underline
any elements of the programme while performing such acts necessary for the
functions for which the computer programme was supplied.
(v) the making of copies or adaptation of the computer programme from
a personally legally obtained copy for non-commercial personal use.
(vi) the transient or incidental storage of a work or performance purely
in the technical process of electronic transmission or communication to the
public.
 (vii) transient or incidental storage of a work or performance for the
purpose of providing electronic links, access or integration, where such links,
access or integration has not been expressly prohibited by the right holder,
unless the person responsible is aware or has reasonable grounds for
believing that such storage is of an infringing copy.
It may be noted that if the person responsible for the storage of the copy
has received a written complaint from the owner of copyright in the work,
complaining that such transient or incidental storage is an infringement, such
person responsible for the storage shall refrain from facilitating such access
for a period of twenty-one days or till he receives an order from the competent
court refraining from facilitating access and in case no such order is received
before the expiry of such period of twenty-one days, he may continue to
provide the facility of such access.
(viii) the reproduction of any work for the purpose of a judicial
proceeding or for the purpose of a report of a judicial proceeding.
(ix) the reproduction or publication of any work prepared by the
Secretariat of a Legislature or, where the Legislature consists of two Houses,
by the Secretariat of either House of the Legislature, exclusively for the use of
the members of that Legislature.
(x) the reproduction of any work in a certified copy made or supplied in
accordance with any law for the time being in force;
(xi) the reading or recitation in public of reasonable extracts from a
published literacy or dramatic work.
(xii) the publication in a collection, mainly composed of non-copyright
matter, bona fide intended for instructional use, and so described in the title
and in any advertisement issued by or on behalf of the publisher, of short
passages from published literary or dramatic works, not themselves published
for such use in which copyright subsists.
However, not more than two such passages from works by the same
author are published by the same publisher during any period of five years.
In the case of a work of joint authorship, references in this clause to passages
from works shall include references to passages from works by any one or
more of the authors of those passages or by any one or more of those authors
in collaboration with any other person.
(xiii) the reproduction of a literary, dramatic, musical or artistic work—
• by a teacher or a pupil in the course of instruction; or • as part of the
questions to be answered in an examination; or • in answers to such
questions.
(xiv) the performance, in the course of the activities of an educational
institution, of a literary, dramatic or musical work by the staff and students
of the institution, or of a cinematograph film or a sound recording if the
audience is limited to such staff and students, the parents and guardians of
the students and persons connected with the activities of the institution or
the communication to such an audience of a cinematograph film or sound
recording.
(xv) the causing of a recording to be heard in public by utilising it,- • in
an enclosed room or hall meant for the common use of residents in any
residential premises (not being a hotel or similar commercial establishment)
as part of the amenities provided exclusively or mainly for residents therein;
or • as part of the activities of a club or similar organisation which is not
established or conducted for profit; • as part of the activities of a club, society
or other organisation which is not established or conducted for profit.
(xvi) the performance of a literary, dramatic or musical work by an
amateur club or society, if the performance is given to a non-paying audience,
or for the benefit of a religious institution.
(xvii) the reproduction in a newspaper, magazine or other periodical of
an article on current economic, political, social or religious topics, unless the
author of such article has expressly reserved to himself the right of such
reproduction.
(xviii) the storing of a work in any medium by electronic means by a
noncommercial public library, for preservation if the library already possesses
a non-digital copy of the work.
(xix) the making of not more than three copies of a book (including a
pamphlet, sheet of music, map, chart or plan) by or under the direction of the
person in charge of a non-commercial public library for the use of the library
if such book is not available for sale in India;
(xx) the reproduction, for the purpose of research or private study or
with a view to publication, of an unpublished literary, dramatic or musical
work kept in a library, museum or other institution to which the public has
access.
However, where the identity of the author of any such work or, in the
case of a work of joint authorship, of any of the authors is known to the
library, museum or other institution, as the case may be, the provisions of
this clause shall apply only if such reproduction is made at a time more than
sixty years from the date of the death of the author or, in the case of a work
of joint authorship, from the death of the author whose identity is known or,
if the identity of more authors than one is known from the death of such of
those authors who dies last;
(xxi) the reproduction or publication of- • any matter which has been
published in any Official Gazette except an Act of a Legislature; • any Act of a
Legislature subject to the condition that such Act is reproduced or published
together with any commentary thereon or any other original matter; • the
report of any committee, commission, council, board or other like body
appointed by the Government if such report has been laid on the Table of the
Legislature, unless the reproduction or publication of such report is
prohibited by the Government; • any judgement or order of a court, tribunal
or other judicial authority, unless the reproduction or publication of such
judgment or order is prohibited by the court, the tribunal or other judicial
authority, as the case may be.
(xxii) the production or publication of a translation in any Indian
language of an Act of a Legislature and of any rules or orders made
thereunder- • if no translation of such Act or rules or orders in that language
has previously been produced or published by the Government; or • where a
translation of such Act or rules or orders in that language has been produced
or published by the Government, if the translation is not available for sale to
the public: • however, such translation contains a statement at a prominent
place to the effect that the translation has not been authorised or accepted as
authentic by the Government.
(xxiii) the making or publishing of a painting, drawing, engraving or
photograph of a work of architecture or the display of a work of architecture.
(xxiv) the making or publishing of a painting, drawing, engraving or
photograph of a sculpture, or other artistic work failing under sub-clause (iii)
of clause (c) of Section 2, if such work is permanently situate in a public place
or any premises to which the public has access.
(xxv) the inclusion in a cinematograph film of- • any artistic work
permanently situate in a public place or any premises to which the public has
access; or • any other artistic work, if such inclusion is only by way of
background or is otherwise incidental to the principal matters represented in
the film.
(xxvi) the use by the author of an artistic work, where the author of
such work is not the owner of the copyright therein, of any mould, cast,
sketch, plan, model or study made by him for the purpose of the work.
However, he does not thereby repeat or imitate the main design of the work.
(xxvii) the making of a three-dimensional object from a two-dimensional
artistic work, such as a technical drawing, for the purposes of industrial
application of any purely functional part of a useful device;
(xxviii) the reconstruction of a building or structure in accordance with
the architectural drawings or plans by reference to which the building or
structure was originally constructed . However, the original construction was
made with the consent or licence of the owner of the copyright in such
drawings and plans.
(xxix) in relation to a literary, “dramatic, artistic or” musical work
recorded or reproduced in any cinematograph film the exhibition of such film
after the expiration of the term of copyright therein .However, the provisions
of sub-clause (ii) of clause (a), sub-clause (a) of clause (b) and clauses (d), (f),
(g), (m) and (p) shall not apply as respects any act unless that act is
accompanied by an acknowledgment- • identifying the work by its title or
other description; and • unless the work is anonymous or the author of the
work has previously agreed or required that no acknowledgement of his name
should be made, also identifying the author.
(xxx) the making of an ephemeral recording, by a broadcasting
organisation using its own facilities for its own broadcast by a broadcasting
organisation of a work which it has the right to broadcast; and the retention
of such recording for archival purposes on the ground of its exceptional
documentary character.
(xxxi) the performance of a literary, dramatic or musical work or the
communication to the public of such work or of a sound recording in the
course of any bona fide religious ceremony or an official ceremony held by the
Central Government or the State Government or any local authority. However,
religious ceremony including a marriage procession and other social festivities
associated with a marriage.
(xxxii) the adaptation, reproduction, issue of copies or communication
to the public of any work in any accessible format by any person to facilitate
persons with disability to access to works including sharing with any person
with disability of such accessible format for private or personal use,
educational purpose or research; or any organisation working for the benefit
of the persons with disabilities in case the normal format prevents the
enjoyment of such works by such persons. However, the copies of the works
in such accessible format are made available to the persons with disabilities
on a non-profit basis but to recover only the cost of production and the
organization shall ensure that the copies of works in such accessible format
are used only by persons with disabilities and takes reasonable steps to
prevent its entry into ordinary channels of business.
It may be noted that “any organization” includes and organization
registered under Section 12A of the Income-tax Act, 1961 and working for the
benefit of persons with disability or recognized under Chapter X of the Persons
with Disabilities (Equal Opportunities, Protection or Rights and full
Participation) Act, 1995 or receiving grants from the government for
facilitating access to persons with disabilities or an educational institution or
library or archives recognized by the Government.”.
 (xxxiii) the importation of copies of any literary or artistic work, such as
labels, company logos or promotional or explanatory material, that is purely
incidental to other goods or products being imported lawfully.
REMEDIES AGAINST INFRINGEMENT OF COPYRIGHT –
Protection of rights under the copyright law, which is basically a
negative right is as much a problem of complying with the mandatory
provisions of the procedural law as the effective exercise of investigative and
adjudicatory functions by the enforcing authorities and the courts. Section 54
to Section 62 of the Copyright Act provide for civil remedies under the Act.
Section 55 provides that where copyright in any work has been infringed, the
owner of the copyright can, except as otherwise provided in the Act, be entitled
to all remedies like injunctions, damages and accounts as are conferred by
law for the infringement of a right.
However, if the defendant proves that at the date of the infringement he
was not aware and had no reasonable ground to believe that copyright
subsisted in the work, the plaintiff will 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.
In Zee Telefilm Limited v. Aalia Productions & Others 2000 PTC 382
Bom. there was a dispute relating to transfer of copyright in TV serial ‘India’s
Most Wanted’. It was held that in the absence of any specific rights assigned
by the defendants in respect of concept/script/story/synopsis/structure
and/or format of programme, the plaintiffs cannot seek injunction against the
defendant. The assignment agreement executed between the plaintiff and the
defendants as regards structure, format, concept, synopsis and script vague
and uncertain, the plaintiffs are not entitled to any interim relief.
The case of Hawkins Cookers Ltd. v. Magicook Appliances Co.,
100(2002) DLT698 discussed the grant of permanent injunction to the
plaintiff for restraining the defendant from using a label for pressure cookers,
which was deceptively similar to the registered trade mark ‘HAWKINS’ of the
plaintiff – On non-appearance of the plaintiff, an ex-parte order was passed
and it was ruled that, the unjust enrichment by the infringing party, was a
mischief and the plaintiff was to be protected from it as per Section 55 of the
Copyright Act, 1957. Hence permanent injunction was granted.
In any civil proceedings under the Copyright Act for infringement of
copyright, it is the District Court which will have jurisdiction over such
matters. Section 62 (2) further provides that notwithstanding anything
contained in the Civil Procedure Code, 1908 or any other law for the time
being in force, the District Court within the local limits of whose jurisdiction
the person instituting the suit is actually or voluntarily residing or carrying
on business or personally working for gain will have jurisdiction in the matter.
Administrative remedies consist of moving the Registrar of Copyrights
under Section 53 to ban the import of infringing copies into India and the
delivery of infringing copies confiscated to the owner of the copyright.
Criminal remedies provide for the imprisonment of the accused or
imposition of fine or both, seizure of infringing Copies and delivery of
infringing copies to the owner of the copyright. Prior to the maximum
punishment for infringement of copyright under Section 63 of the Copyright
Act, 1957 was one year's imprisonment and fine. These punishments were
enhanced by the Copyright (Amendment) Act, 1984 with a view to curbing
widespread piracy in video-taping and musical records. Under these
provisions, a person who knowingly infringes or abets the infringement of
copyright in a work or any other right conferred by the Copyright Act, is
punishable with imprisonment for a term of not less than six months but
which may extend to three years and fine which shall not be less than `
50,000/-, but which may extend to ` 2.00,000/-. However, the court has the
discretion to reduce the minimum term of imprisonment and the minimum
fine for adequate and special reasons. For the second and subsequent
convictions, the minimum term of imprisonment has been prescribed as one
year and the minimum fine ` 1,00,000/-. The amendment in 1994, has further
restricted the discretion of the court to impose lesser penalties than the
minimum prescribed in the Act.
The imposition of lesser penalties than the minimum prescribed in the
Act has been restricted to cases where the infringement has not been made
for gain in the course of trade and business. In other words, courts have been
given discretion to impose a lesser penalty where the infringement is of a
technical nature and not motivated by business considerations. Section 54
defines the term owner of copyright.
In Rupendra Kashyap v. Jiwan Publishing House 1996 PTC (16) 439
Del., it was held that CBSE is a public undertaking; examination papers are
literary work made under the direction and control of CBSE and applicability
of Section 17(dd) of Copyright Act is squarely attracted to the facts of the case.
CBSE is the first owner of the copyright in the examination papers on which
examinations are conducted by it.
Section 58 entitles the owner of the copyright to initiate proceedings for
the possession of infringing copies and other materials related thereto. In this
context, the section clarifies that all infringing copies of any work in which
copyright subsists and all plates used or intended to be used for the
production of such infringing copies shall be deemed to be the property of the
owner of the copyright.