INTELLECTUAL

PROPERTY RIGHTS

ASSIGNMENT ON

INFRINGMENT OF COPYRIGHTS

SUBMITTED TO: SUBMITTED BY:

Mr Nitya Nand Pandey

Faculty IPR

Jasleen Rajpal

Btech Biotech

7th Semester

(4th year)

COPYRIGHT

Copyright is concerned with protecting the work of

the human intellect. The domain of copyright is the

protection of literary and artistic works. These

include writings, music, and works of the fine arts,

such as paintings and sculptures, and technology-

based works such as computer programs and

electronic databases.

The Berne Convention (1886), which is the oldest

international convention governing copyright, states

the following in its Article 2:

"The expression 'literary and artistic works' shall

include every production in the literary, scientific and

artistic domain, whatever may be the mode or form

of its expression, such as books, pamphlets and

other writings; lectures, addresses, sermons and

other works of the same nature; dramatic or

dramatic-musical works; choreographic works and

entertainments in dumb show; musical compositions

with or without words; cinematographic works to

which are assimilated works expressed by a process

analogous to cinematography; works of drawing,

painting, architecture, sculpture, engraving and

lithography; photographic works, to which are

assimilated works expressed by a process

analogous to photography; works of applied art;

illustrations, maps, plans, sketches and three-

dimensional works relative to geography,

topography, architecture or science. Translations,

adaptations, arrangements of music and other

alterations of a literary or artistic work shall be

protected as original works without prejudice to the

copyright in the original work. Collections of literary

or artistic works such as encyclopaedias and

anthologies which, by reason of the selection and

arrangement of their contents, constitute intellectual

creations shall be protected as such, without

prejudice to the copyright in each of the works

forming part of such collections."

There is no requirement that the literary and artistic

work should be good or have artistic merits. It

should, however, be original. The exact meaning of

this requirement varies from country to country, and

it is often determined by case law. In very general

terms one may say that in countries belonging to the

common law tradition very little is required, other

than that the work must not be a copy of another

work and that the author should have displayed a

minimum amount of skill, labour and judgement in

making it.

In countries belonging to the civil law tradition, the

requirement is often stronger, for example that the

work must bear the stamp of the author's

personality. A creative effort would be required from

the author that may go beyond mere skill, labour or

judgement.

COPYRIGHT INFRINGEMENT

ABSTRACT

Copyright infringement is the use of works

protected by copyright law without permission,

infringing certain exclusive rights granted to the

copyright holder, such as the right to reproduce,

distribute, display or perform the protected work, or

to make derivative works. The copyright holder is

typically the work's creator, or a publisher or other

business to whom copyright has been assigned.

Copyright holders routinely invoke legal and

technological measures to prevent and penalize

copyright infringement.

Copyright infringement disputes are usually resolved

through direct negotiation, a notice and take down

process, or litigation in civil court. Egregious or

large-scale commercial infringement, especially

when it involves counterfeiting, is sometimes

prosecuted via the criminal justice system. Shifting

public expectations, advances in digital technology,

and the increasing reach of the Internet have led to

such widespread, anonymous infringement that

copyright-dependent industries now focus less on

pursuing individuals who seek and share copyright-

protected content online, and more on expanding

copyright law to recognize and penalize – as

"indirect" infringers – the service providers and

software distributors which are said to facilitate and

encourage individual acts of infringement by others.

The following are some of the commonly known acts

involving infringement of copyright:

Making infringing copies for sale or hire or

selling or letting them for hire;

Permitting any place for the performance of

works in public where such performance

constitutes infringement of copyright;

Distributing infringing copies for the purpose of

trade or to such an extent so as to affect

prejudicially the interest of the owner of copyright ;

Public exhibition of infringing copies by way of

trade; and Importation of infringing copies into

India.

REMEDIES AVAILABLE TO COPYRIGHT

OWNERS

Remedies are the measures of relief that the Court

can grant to a person whose rights are infringed. In

civil lawsuits, remedies for copyright owners include

injunctions (to stop someone from doing something),

damages (whether actual damages, as proved, or

statutory damages), and account of profits. Where it

is proper to do so, considering the flagrancy of the

infringement, the Court may also order additional

damages to be paid by the infringing party to the

copyright owner. An award of statutory damages is a

remedy (instead of damages) that the Court may

order against the infringing party without the need

for the copyright owner to prove the loss he has

suffered as a result of the infringement. This is

subject to a per-work ceiling of $10,000 and to an

aggregate ceiling of $200,000 for a particular action.

REMEDIES AVAILABLE AGAINST

COPYRIGHT INFRINGEMENT IN INDIA

The Copyright Act 1957 provides three kinds of

remedies - administrative remedies, civil remedies

and criminal remedies. The administrative remedies

provided under the statute include detention of the

infringing goods by the customs authorities. The civil

remedies are provided under Chapter XII of the

Copyright Act 1957 and the remedies provided

include injunctions, damages and account of

profits. The criminal remedies are provided under

Chapter XIII of the statute and the remedies

provided against copyright infringement include

imprisonment (up to 3 years) along with a fine (up to

200,000 Rupees).

Jurisdiction [Place of Suing] Under Copyright

Act, 1957 - Recently in 2015 the Jurisdiction law

regarding Copyright Violation has gone a drastic

change by the following judgement of the Hon'ble

Supreme Court - Jagdish Singh Khehar and Arun

Mishra, JJ. – Civil Appeal Nos. 10643 – 10644 of

2010 with 4912 of 2015 [arising out of SLP [c] No.

8253 of 2013], Dated 01/07/2015 – Indian

Performing Rights Society Ltd. Vs. Sanjay Dalia and

another - - Copyright Act [14 of 1957 ] , Section 62 –

Trade Marks Act [47 of 1999], Section 134 – Civil

Procedure Code Section 20 – Suit for infringement

of Copyright of Trade Mark – Place of suing – Place

where plaintiff resides or carries on business or

works for gain – Is an additional forum made

available to plaintiff by Section 62 of 1957 Act and

Section 134 of 1999 Act – Applicability of Section 20

of Civil Procedure Code is not completely ousted

thereby – If cause of action has arisen wholly or in

part in place where plaintiff resides or is doing

business suit has to be filed at such place.

FACTORS IN DETERMINING STATUTORY

DAMAGES

In determining the amount of statutory damages, the

Court is to consider these factors:

nature and purpose of the infringing act,

including whether the infringing act was of a

commercial nature or otherwise;

flagrancy of infringement;

if the act was done in bad faith;

any loss suffered or likely to be suffered by the

copyright owner;

any benefit shown to have accrued to the

defendant;

conduct of both parties before and during

proceedings;

the need to deter similar instances of

infringement; and

All other relevant matters.

CIVIL REMEDIES FOR COPYRIGHT

INFRINGEMENT

The civil remedies for copyright infringement are

covered under Section 55 of the Copyright Act of

1957. The different civil remedies available are:

1) Interlocutory Injunctions

The most important remedy is the grant of an

interlocutory injunction. In most case the application

filled is for interlocutory relief and the matter rarely

goes beyond the interlocutory stage. There are three

requirements for there to be a grant of interlocutory

injunction – Firstly, a prima facie case. Secondly,

there needs to be a balance of convenience. Finally,

there needs to be an irreparable injury.

2) Pecuniary Remedies

Copyright owners can also seek three pecuniary

remedies under Section 55 and 58 of the Copyright

Act of 1957. First, an account of profits which lets

the owner seek the sum of money made equal to the

profit made through unlawful conduct. Second,

compensatory damages which let the copyright

owner seek the damages he suffered due to the

infringement. Third, conversion damages which are

assessed according to the value of the article.

3) Anton Pillar Orders

The Anton pillar order gets its name from the holding

in Anton Pillar AG V. Manufacturing Processes. The

following elements are present in an Anton Pillar

Order – First, an injunction restraining the defendant

from destroying or infringing goods. Second, an

order permitting the plaintiff’s lawyer to search the

defendant’s premises and take goods in their safe

custody. Third, an order that the defendant be

directed to disclose the names and addresses of

suppliers and consumers.

4) Mareva Injunction

The Mareva injunction comes into play when the

court believes that the defendant is trying to delay or

obstruct the execution of any decree being passed

against him. The court has the power to direct him to

place whole or any part of his property under the

court’s disposal as may be sufficient to satisfy the

decree. This is provided in Order XXXVIII, Rule 5 of

The Civil Procedure Code, 1908.

5) Norwich Pharmacal Order

The Norwich Pharmacal Order is usually passed

when information needs to be discovered from a

third party.

CRIMINAL REMEDIES

Under the Copyright Act, 1957 the following

remedies are provided for infringement:

Imprisonment up to 3 years but, not less

than 6 months

Fine which may not be less than 50,000 but,

may extend up to 2,00,000

Search and seizure of infringing goods

Delivery of infringing goods to the copyright

owner

FAIR DEALING UNDER COPYRIGHT LAW IN

INDIA

The defence of fair dealing is an integral part of

copyright law. The fair dealing defence allowed

certain usage of literary works which would have

otherwise been an infringement of copyrights. The

fair dealing defence states that copyrights must not

stifle the very creativity that law is meant to foster. It

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.”

The Indian Copyright Act under Section 52 makes

fair dealing a valid defence for copyright

infringement. This defence places the burden of

proof on the copyright owner to establish

infringement. However, the Copyright Act has not

defined fair dealing which led the Indian court to rely

on the definition of English authorities. The court

usually relies on the case of Hubbard vs.

Vosper which held that “It is impossible to define

what is “fair dealing.” It must be a question of

degree. You must consider first the number and

extent of the quotations and extracts. Are they

altogether too many and too long to be fair? Then

you must consider the use made of them. If they are

used as a basis for comment, criticism or review,

that may be fair dealing. If they are used to convey

the same information as the author, for a rival

purpose, that may be unfair. Next, you must

consider the proportions. To take long extracts and

attach short comments may be unfair. But, short

extracts and long comments may be fair. Other

considerations may also come to mind. But, after all,

whatever said and done, it must be a matter of

impression. As with fair comment in the law of libel,

so with fair dealing in the law of copyright. The

tribunal decides on facts of the case. In the present

case, there is material on which the tribunal of fact

could find this to be fair dealing.

SUMMARY

Only human beings are capable of creativity. They

can be authors, composers, artists and designers for

creating their original works. Generally, it is they

alone who will be entitled to enjoy the exclusive

rights to do or authorize others to do certain acts in

relation to rights vests with them. Copyright was the

first intellectual property which received legal

recognition in the world. “The right which a person

acquires in a work which is the result of his

intellectual labour is called copyright.”

In ancient days, creative writers, musicians and

artists wrote, composers and made their work for

fame and recognition rather than to earn a living.

The importance of copyright was recognised only

after the invention of printing press in 15th century

which enabled the reproduction of books in large

number practicable. The first copyright Act in

England which was in fact first copyright Act in the

world was passed in 1709 called the “Statute of

Anne” which provided that the author of any book

already printed will have sole right of

printing. Donaldson V. Beckett, 1774 is the ruling

by the United Kingdom House of Lords that denied

the continued existence of a perpetual common law

copyright and held that copyright was a creation of

statute and could be limited in its duration.

Copyright is a kind of intellectual property the

importance of which has increased enormously in

this era of modernisation where rapid changes are

taking place in the field of printing, entertainment,

film, media and music and computer industries.

As an intellectual property right, copyright has a

great advantage that it arises automatically. It comes

into existence as soon as the work is created. There

is no registration form or fee. It is noteworthy that

there are strict limits to the protection copyright

affords. Unlike a patent, copyright is not a true

monopoly. It does not protect the idea as such. What

copyright protects is the form in which the work is

expressed.

As regards the aspect enforcement, Indian

enforcement agencies are now working very

effectively and there has been a notable decline in

the levels of piracy in India. In addition to intensifying

raids against copyright infringers, the government

has taken a number of measures to strengthen the

enforcement of copyright law. It include setting up of

Copyright Enforcement Advisory Council,

organisation of seminars/workshops to create

greater awareness about copyright law among the

enforcement personnel and the general public,

setting up of collective administrative societies and

creation of separate cells in state police

headquarters. Copyright enforcement can be

enforced through court of law and the copyright Act

is now fully conformity with the TRIPs obligations.

The Act provides not only civil but also criminal

remedies, in case of infringement of copyright,

against infringer. The two remedies are distinct and

independent and can be availed of simultaneously.

The Copyright Act, 1957 prescribes mandatory

punishment for piracy of copyrighted matter

commensurate with the gravity of the offense with an

effect to deter infringement, in compliance with the

TRIPs agreement.

RECENT CASES: