ABSTRACT
The motive behind granting copyright protection is to safeguard the creation of someone’s skill, labor, and capital. Protection basically promotes creativity. It encourages the creators to come up with new ideas and their expressions. Copyright assures them that no other person will use their work without their permission or authorization. Still, if someone tries to violate the exclusive rights of copyright owner’s by using their work without permission, the Act itself provides them the remedies which will eventually restore those exclusive rights or will compensate for the breach surely.
This paper aims to discuss Copyright as Exclusive Rights, its infringement and the effectiveness of remedies provided in the statute.
KEYWORDS
Copyright, Infringement, Remedies, Civil, Global
OBJECTIVE
This research paper aims to study the effectiveness provided to the copyright owners in case of infringement of their exclusive rights. The remedies are readily available to the owners of the copyrighted work across the globe but upto what extent they are effective is being dealt under the present research paper.
RESEARCH METHODOLOGY
There are two kinds of sources of research : Primary sources and Secondary sources. Primary sources include surveys, sample test, questionnaires, etc. while secondary sources include books, reports, journals, articles, publications, etc. In the present research paper, I have relied on secondary sources of research like books, reports, journals, articles etc.
INTRODUCTION
Copyright are exclusive rights which are possessed by the owners only, it basically refers to “right to reproduce the work”. In India, the copyright is governed under the provisions of the Copyright Act, 1957.
Copyright is purely a creation of the statute under the 1957 Act. What rights the author has in his work by virtue of his creation, are defined in Section 14 & 17 of the Act.
The owner of copyright in a work enjoys negative rights. The right enjoyed by the copyright owner is a negative one i.e. it is the right to prevent others from using his work in certain ways, and to claim compensation for the usurpation of that right.[1]
The Copyright conferred under S.14 of the Act consists of a bundle of rights. The owner of a copyright is entitled to assign and license each of those rights separately or in bundles. The bundle of rights could vary in complexity depending upon the nature of the work – literary, dramatic, musical recording or cinematographic films.
Infringement –
Copyright is considered to be infringed when someone uses the copyright protected work of the original owner of any work, without the owner’s permission.
Whenever a work gets protection of copyright, it cannot be used by anyone without the copyright owner’s consent or authorisation.[2]
How infringement actually takes place –
The Copyright Act, 1957 extends copyright protection to the work by conferring certain exclusive rights on its author. The rationale of providing copyright protection to the owner of the work is to enable him to reap the fruits of his labor and investment to the exclusion of others. But at the same time, the public has also been given certain rights in his work under Sec.52 ( Permitted uses).
Thus, if a person uses any of the exclusive rights available to the owner of copyright without his prior permission or without any license granted by the registrar of copyright, he shall be deemed to have infringed copyright provided as such act was also not allowed under Sec 52.[3]
There was a landmark case in which the US Supreme Court discussed Infringement of a copyright. The Case was Bobbs – Merrill Company v. Isidor Strauss and Nathan Strauss[4], the US Supreme Court held that —
Infringement of a copyright is a trespass on a private on a private domain owned and occupied by the owner of the copyright, and therefore, protected by law, and infringement of copyright,or piracy which is a synonymous term in this connection, consists in the doing by any person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by the statute on the owner of the copyright.[5]
As per Sec. 51 of the Copyright Act, 1957, Copyright in a work is 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
(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:
Provided 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”.
When Copyright deemed to be infringed :
Copyright in a work is deemed to be infringed when any person, without a license granted by the owner of the copyright does anything, which is the exclusive right to do conferred by the Act upon the owner of the copyright. Where a person has copyright in a literary work, and any other person produces or reproduces the work or any substantial part thereof in any material form, he is committing an infringement of copyright. This was held in the case of Fateh Singh Mehta v. OP Singhal.[6]
It is not necessary that the alleged infringement should be an exact or verbatim copy of the original but its resemblances with the original in a large measure is sufficient to indicate that it is a copy. Held in R.G. Anand v. Delux Films.[7]
REMEDIES FOR INFRINGEMENT OF COPYRIGHT
The Copyright Act,1957 extends protection to the work by conferring certain exclusive rights on the author. In case of infringement, the copyright owner is entitled to certain remedies under the Act. Where the several rights comprising the copyright in any work are owned by different persons, the owner of any such right shall, to the extent of that right, be entitled to the remedies provided by this Act.
There are basically three types of remedies which are provided under the Act :
1) Civil Remedies (Sec. 54 – 62)
2) Criminal Remedies (Sec. 63 – 66)
3) Administrative Remedies (Sec. 53)
CIVIL REMEDIES –
Section 55 of the Act provides for civil remedies in the cases of infringement of copyright. The said provision empowers and authorizes the owner of a copyright to remedies by way of injunction/damages or otherwise as may be conferred, on infringement of a right under the Act in respect of any work.
Civil Remedies as stated under statute —
(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.
(2) Where, in the case of a literary, dramatic, musical or artistic work, a name purporting to be that of the author or the publisher, as the case may be, appears on copies of the work as 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 at the discretion of the court.
The Supreme Court while dealing with Section 55, observed in Dabur India Ltd. v. K.R. Industries,[8] That section 55(1) provides for the remedies in terms whereof the plaintiff shall be entitled to all reliefs by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right. It must be read as Ejusdem Generis. It must take its color from the words “any proceeding” namely the right to obtain a decree by way of injunction, decree for damages, accounts or other incidental relief which can be granted by a civil court.
The Civil remedies for infringement of copyright as envisaged under Section 55 of the Act can also be enforced by the copyright society.[9] The right to claim infringement on the basis of copyright under section 55 of the Act has been given to ‘owner’ as defined in section 17 of the Act and not to a “Prospective owner”. It cannot be said that “films” which have not been conceived or after being conceived are under production can become subject matter of an infringement action relating to cinematographic films under Section 55 of the Act.
Existing owners of cinematographic films cannot get an omnibus interim injunction order for cinematographic films of which they may become owners in future. The Act itself does not postulate and give any such right to the appellants-plaintiffs.[10]
The Civil Remedies for infringement of copyright are of two kinds :
Preventive Civil Remedies
Compensatory Remedies
1) Preventive Civil Remedies —
Interlocutory Injunction
Ad interim injunction & temporary injunction
Mareva injunction
Injunction in future cinematographic films
Innocent Infringement
Permanent/ Perpetual Injunction
Anton Piller Orders
John Doe Order
2) Compensatory Civil Remedies —
a) Damages
b) Additional and Punitive Damages
c) Damages for Conversion/ Delivery up
d) Account of Profits
e) Delay and Laches
2. CRIMINAL REMEDIES –
The owner of copyright can take criminal proceedings against the infringer. The criminal proceeding is distinctive and independent of other remedies and can be availed simultaneously to stop further infringement and punish the infringer. The pendency of a civil suit does not justify the stay of criminal proceedings in which the same question is involved. In addition, a criminal complaint cannot be dismissed merely on the ground that the dispute is civil in character.[11]
Criminal remedies are more effective than civil remedies because the former can be disposed of quickly. In addition, criminal proceedings directly strike at the honor and social status of an infringer, as a consequence of which sometimes he comes for a settlement out of court to save his prestige.[12]
Section 63 – Offense of infringement of copyright or other rights conferred by this Act :
Any person who knowingly infringes or abets the infringement of-
(a) the copyright in a work, or
(b) any other right conferred by this Act, [except the right conferred by section 53A]
[shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees :
Provided that [where the infringement has not been made for gain in the course of trade or business] the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.]
Explanation.-Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offense under this section.
Section 63 makes it an offense for any person who knowingly infringes (a) the copyright in a work,or (b) any other rights conferred by the Act or knowingly abets such infringement. It is, however, clarified that the construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work is not an offense and therefore not punishable.
In A.K. Mukherjee v. State[13], the Delhi High Court Observed that – A bare perusal of the provision would go to show that emphasis is on the words “knowingly infringes” the copyright in a work. These words clearly postulate a knowledge on the part of the accused that he was infringing the copyright in a work. Mere possibility of his having known it would not suffice. There has to be a clear and conclusive proof of the requisite knowledge. Even the existence of reasonable means of knowing would not be enough would not be enough.
3. ADMINISTRATIVE REMEDIES —
Administrative remedies include moving to the Registrar of copyrights office to ask him to ban the import of infringing copies into India in case the infringement is through such importation and the infringing copies must be delivered to the owner of the copyright.
It is provided under Section 53 of the Copyright Act,1957.
Sec 53. Importation of Infringing Copies.
EFFECTIVENESS OF REMEDIES PROVIDED UNDER INDIAN COPYRIGHT LAW
The main reason for getting copyright is to avoid replication or duplication of an original work by some other person who is not the owner of that work. It is at the same time very easy to prove in court of law that the copyright has been infringed by some other person for which the original owner has not given permission.
The remedies provided under Indian Copyright law are stringent in nature. The Copyright Act was in compliance with the TRIPS Agreement from Day 1 of Enforcement of TRIPS, which implies that the remedies which were mentioned in the statute were in accordance with the International remedies.
In India, the criminal remedies are more effective as compared to the civil remedies as they are expeditious in nature. They Can be disposed of quickly. Criminal remedies are independent of other remedies and they can be availed simultaneously to stop further infringement and to punish the infringer. Knowledge or mens rea is an important ingredient of the offense.
EFFECTIVENESS OF REMEDIES IN GLOBAL ARENA
From 1886 several countries had tried to come together to create a universal / global convention or union of countries, giving protection to works of member countries, if an infringement had taken place. Treaties and conventions have been adopted by major countries including the Berne Convention and the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement which are among the major global treaties that render global protection of copyright works.
The Berne Convention
The Berne Convention was intended to promote copyright protection for authors by setting minimum standards, eliminating any formalities for granting protection, and achieving national treatment by ending discrimination between domestic and foreign authors.
In simple terms, the Berne Convention ensures foreign right holders the same legal protection in other countries as those countries afford to their own nationals. For example, the United Kingdom copyright law applies to infringement in the United Kingdom of any content which may have been published only in India.[14]
The three salient features of the Berne Convention are:
Works originating in one of the member countries must be given the same protection in each of the other member countries as they grant to the works of its own nationals.
Protection must not be conditional upon compliance with any formality.
Protection is independent of the existence of protection in the country of origin of the work.
The Berne Convention assures and ensures the following protection to the right holders in each member country:
the right to translate,
the right to make adaptations and arrangements of the work,
the right to perform in public
the right to recite in public,
the right to communicate to the public
the right to broadcast
the right to make reproductions
If there is a breach or infringement of these rights of a right holder in India and it takes place in the United Kingdom, then the right holder in India, can seek redress for the infringement through courts in the United Kingdom.
Similarly, an entity based in the United Kingdom, can seek redress from an Indian Court for infringement of rights pertaining to works which were published in the United Kingdom and infringement of the rights taking place in India.
The TRIPS Agreement
The TRIPS agreement is an international treaty between the members of the World Trade Organization, adopted in the year 1994. Amongst other rights, TRIPS deal with protection of copyright and to ensure protection of copyright by all the member signatories, TRIPS have adopted the Berne Convention (save and except Article 6). The TRIPS agreement ensures similar protection to works of member countries as protected under the Berne Convention.
United Kingdom Copyright Law
The main source of copyright legislation in the United Kingdom is the Copyright, Designs & Patents Act, 1988 (CDPA). The act offers protection to literary, dramatic, musical, artistic works and sound recordings, films, broadcasts, typographical arrangements of published editions.
The United Kingdom is a signatory to both the Berne Convention and the TRIPS agreement like India. This is reflected in Section 208(1)(a) of the CDPA, which extends the protection under CDPA to individuals of “Convention Countries”. Convention Countries are part of any international treaty / convention / agreement to which the United Kingdom is a signatory. Therefore, by the virtue of both India and the United Kingdom being signatories to the Berne Convention and the TRIPS, both the countries offer reciprocal protection of copyrighted works.[15]
The UK Copyright law provides similar remedies as of Indian Law —
Injunctions
Damages
Delivery up
Seizure
Forfeiture
Prevention of Importation
Undertaking to take License
US Copyright Law
Remedies for copyright infringement in US Law includes:
payment to the copyright owner of any profits the infringer received and of any losses suffered by the copyright owner, or ‘statutory damages’ as an alternative to actual profits and losses;
a court order restraining the infringer from continuing the infringing activity;
confiscation and destruction of the infringing items; and
attorneys’ fees.
Monetary damages are available for copyright infringement. A party found liable for copyright infringement may be found liable for either the copyright owner’s actual damages and any additional profits of the infringer, or statutory damages, as provided by the Copyright Act. However, statutory damages are only available if registration for the infringed work was obtained within certain time requirements.
Criminal Copyright Provisions in US —
The Copyright Act has criminal provisions. It is a criminal offense to wilfully infringe a copyright if the infringement was committed:
for either commercial advantage or private financial gain;
by the reproduction or distribution, including by electronic means, during a 180-day period, of one or more copies or phonographic records of one or more copyrighted works, which have a total retail value of more than US$1,000; or
by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.
placing a fraudulent copyright notice on any article, or publicly distributing or importing for public distribution any article bearing such fraudulent notice;
removing or altering any notice of copyright appearing on a copy of a copyrighted work with fraudulent intent;
knowingly making a false representation of a material fact in an application for copyright registration, or in any written statement filed in connection with the application; and
wilfully and for purposes of commercial advantage or private financial gain violating the provisions of the Act concerning circumvention of technological protection measures or those concerning protecting the integrity of copyright management information.[16]
CONCLUSION
The Copyright law aims to provide protection to the original creations of the authors. People use their intellect, skill, labor, capital to create an original work, and instantly they acquire an exclusive right over the work. If any other person uses the work without the authorisation or permission from the owner of the work, it will lead to infringement.
In order to stop the infringement & to protect the interest of the copyright owners, statute provides for some sort of remedies in case of infringement. Indian & UK Copyright Law provides for similar remedies like Injunction, Compensation etc. US Copyright Law provides for payments, confiscation and destruction, monetary damages.
[1] Hugh Laddie et. al., THE MODERN LAW OF COPYRIGHT (London,1980), p.45
[2] https://blog.ipleaders.in/copyright-intellectual-property-rights/#Infringement_of_copyright
[3] VK Ahuja, Law relating to IPRs, Third Ed. Chapter 13, p.141
[4] 210 US 339 : (1907) 52 L Ed 1086
[5] VK Ahuja, Law relating to IPRs, Third Ed. Chapter 13 p.141
[6] AIR 1990 Raj 8
[7] AIR 1978 SC 1613
[8] 2008 (37) PTC 332 (SC), pp. 340-41
[9] Entertainment Network (India) ltd. v.Super Cassette Industries Ltd., 2008 (37) PTC 353 (SC) at p.378
[10] Time Warner Entertainment Company, L.P. v. RPG netcom, 2007 (34) PTC 668 (Del) (DB)
[11] V.S. Sharma v. Dharma Rao, AIR 1942 Mad 124
[12] V.K Ahuja, Law Relating To IPRs, Third Ed. p. 201
[13] 54 (1994) DLT 461
[14] International protection of Copyright in India and United Kingdom Page 1 of 0 – Marsans Gitlin Baker % (mgb.law) last accessed on 15-09-2022
[15] International protection of Copyright in India and United Kingdom Page 1 of 0 – Marsans Gitlin Baker % (mgb.law)