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COPYRIGHT INFRINGEMENT

Author: Vaishali Yadav, IV year of B.A.,LL.B. from Shambhunath Institute of Law


Introduction

Copyright is the exclusive right given by law for a certain term of years to an author, composer etc. to print and sell copies of his original works. A copyright is a type of intellectual property that gives it owner the exclusive right to copy and distribute a creative work, usually for a limited time. Copyrights are granted by public law and are in that case considered territorial rights. It means that copyrights granted by the law of a certain state, & do not extend beyond the territory of that specific jurisdiction. The concept of copyright developed after the printing press came into use in Europe in 15th and 16th centuries. The concept of copyright firstly developed in England. In reaction to the printing of “scandalous books and pamphlets”, the English parliament passed the Licensing of the Press Act 1662[1], which required all intended publications is to be registered with the government- approved stationers company. Copyright is a form of property, capable of being created by an individual or a corporate author, and once created susceptible to commercial exploitation in the same way as any other form of property, the component rights bring exclusively directed to security enjoyment of the economic potential of the property.


Description

1. Object of copyrights

The two main objectives of copyright are –

  • Encouragement of original works

  • Protection to the originator

2. Purpose of copyright

  • To promote the progress of useful arts and science by protecting the exclusive right of the creator.

  • To encourage the creators to come with a new ideas.

  • And also provide incentive and rewards to the creators.


What is a Copyright Infringement?

It refers to the unauthorized use of someone’s other work. Infringement of copyright is a trespass on a private domain owned and occupied by owner of the copyright, and, therefore, protected by law and infringement of copyright, consist 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.


Infringement of Copyright

The Copyright Act, 1957 does not defined the word Infringement but under Sec- 51 of the Act defines the varieties of acts which infringe copyright and other rights of the owner created by the Act. Copyright is deemed to be infringed if:

  • A person without the permission of the copyright holder does any act which only the copyright holder is authorized to do.

  • If person imports infringing copies of a work.

Copyright infringement examples

  • When a person uses someone’s song as background music in her music video then she could be made liable for copyright infringement.

  • And when a person downloads movies or songs from unauthorized sites then it will also amount to copyright infringement.

  • If a person download a TV program then it is ok if they distributes it to others then it become copyright infringement.


Copyright issue

There are many numbers of issues that can amount to copyright:

1. Plagiarism- If someone copies the copyright material and pretend that it to be his original work.

2. Ownership- It arises when an employer work for an organization.

3. Derivative works- are those works which use the already existing work of someone. Ex- translating a book into another language.


Types of Copyright Infringement

1. Primary Infringement- It refers to the real act of copying the work of the copyright holder. Ex- photocopying a book and then distributing it for commercial purposes.


2. Secondary Infringement- It refers to the infringement of copyright work without actually copying it. This can happen in following ways-

  • Providing a place for copyright Infringement

  • Selling Infringement copies

  • Distributing Infringing copies

  • Importing Infringing copies


Test for copying Infringement

To test whether the work is copyrighted or not, the court follows the Three- factor test:

1. Quantum of the work copied.

2. Purpose of copying the work.

3. The likelihood of competition between the two works.


Remedies for Infringement of Copyright

1. Civil remedies: Acc. to Sec. 55 of The Copyright Act, 1957, where copyright in any work has been infringed upon, the owner of the copyright shall be entitled to all such remedies by way of injunction, damages & accounts.


2. Criminal remedies: Acc. to Sec.63 of the Copyright Act, 1957, the copyright holder can take criminal proceedings against the infringer, where there is a provision of at least 6 month imprisonment, which may be extended to 3years and with a fine of Rs. 50,000 and

Which may extend to 2 Lakh?


Discussion

Foreign cases-

Rogers vs. Koon’s[2]

Fact

Rogers is a professional’s photographer whose “puppies” photo had been reproduced as a note card. Koon’s is an artist and sculptor who often use images from mass culture to comment upon society. Koon’s modeled a three-dimensional sculpture entitled “strings of puppies” after Rogers image. He gives his artisans Roger’s note card and directed them to create a reproduction “just like the photo”. Rogers sue Koon’s for copyright infringement.


Observation

The court looked at the effect that Koon’s work would have on demand for the original photograph and authorized derivative works. The court determine that Koon’s had produced “string of puppies” for monetary gain, and that it prejudiced the market for the licensing of reproductions and derivative works of the original work by decreasing demand for similar works.


Indian cases

Ratna Sagar Pvt. Ltd. V. Trisea Publications & Ors.[3]

The petitioner renowned publisher of children’s books “living science”, sued respondent, who published the book “unique science” for the copyright infringement. According to the plaintiff, the content available in the defendant’s book is deceptively similar to theirs. After examining the publication, the court held that respondent guilty of copyright infringement and imposed the perpetual injunction on such an act as per section 14 & 19 of the Act.


Super Cassettes Industries Limited vs. YouTube & Google[4]

SCIL claimed that YouTube business model reaps substantial profit from the use of copyrighted work uploaded without availing approval from the rightful copyright owners and without royalty for the same. The High Court opined that video streaming giant and Google should stop reproducing, distributing, transmitting, or displaying on their portals any audio-visual works which are in the exclusive ownership of SCIL.

Conclusion

The purpose of copyright is to protect the rights of the owners of original work and provide economic benefits to them for their creativity and diligence. Although the registration of work is not necessary, but it is highly recommended to register as soon as one’s idea is transforming into writing as it will be strong proof to be presented before the court in case of infringement. If a person infringers the copyrighted work of someone then he will be liable for both the criminal liabilities and civil liabilities. Copyright owners deserve compensation for the creation of their works. It is an issue of property rights and practical necessity.

[1] Copyright in Historical perspective, p. 136-137, Patterson, 1968, Vanderbilt Univ. Press [2]960 F.2d 301 [3]64 (1996) DLT 539 [4]960 F.2d 301