The Procedure to file copyright infringement case in court
First Step is How to institute The Suit:A suit is instituted by the Presentation of a plaint. The procedure to be followed in suits is contained in The Procedure to be followed in the suits is contained in Section 26 to 35A of the Civil procedure Code and the rules of procedure in the First Schedule. The more important of these provisions which are relevant in respect of suits relating to
copyright are summarized below.
The suit for infringement of copyright should be filed before the District Court having jurisdiction or before the High Court having original jurisdiction.
Who should be Parties to suit:All persons may be joined in one suit as plaintiff in
whom any right to relief in respect of or arising out of the same act or
transaction ar series of acts or transactions is alleged to exist, whether in
the alternative, where, if such persons brought separate suits, any common
question of law or fact would arise (Order: 1, Rule 1),
All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of act or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise (Order: 1, Rule. 3). one person may sue or defend on behalf of all in the same interest (Order: 1, Rule.8). Hence one or more of the co-owners of a copyright may sue on behalf of all the co-owners.
What should the Pleadings contain:Every pleading should contain a statement in a concise form lf
the material facts on which the party pleading relies for his claim or defence
as the case may be, but not the evidence by which they are to be proved (Order:
6, Rule. 2).
There is no special form prescribed for use in pleadings. One of the forms in Appendix “A" to the Civil Procedure Code may be used with suitable modifications (Order: 6, Rule. 3). Although pleadings must be concise, they must also be precise. All necessary particulars must therefore be stated in the pleading (Order: 6, Rule. 3).
A further and better statement of the nature of the claim or defence or further and better particulars of any matter stated in the pleading may be ordered by the court upon such terms as to costs and otherwise as may be just (Order: 6, Rule. 5 since omitted by the C.P.C. (Amendment) Act 1999 w.e.f. 1.7.2002).
The court may at any stage of the proceedings order to be struck out or amended any matter in any pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit (Order: 6, Rule. 16).
The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties (Order: 6, Rule. 17).
What should the Plaint Contain:The plaint shall contain inter alia (Or. 7, r. 1) the following
namely:(1) the name of the court in which the suit is brought;
(2) the name, description and place of residence of the plaintiff,
(3) the name, description and place of residence of the defendant, so far as they may be ascertained
(4) the facts constituting the cause of action and when it arose,
(5) the facts showing that the court has jurisdiction; and
(6) the relief which the plaintiff claims.
Where the plaintiff relies on any documents (whether in his possession or power or not) as evidence in support of his claim, he should enter such documents in a list to be added or annexed to the plaint (Order: 7, Rule. 14). Where any such document is not in the power or possession of the plaintiff, he should on or power it is (Or. 7, r. 15 since omitted if possible, state in whose possession or power it is. (Order: 7, Rule. 15 since omitted by the C.P.C. (Amendment) Act 1999 we.f. 1.7.2002).
How is the Written statement of defense to be:The defendant may, and if so required by the court, shall, present a written statement of his defence within the time granted by the court (Order: 8, Rule. 1). It is the duty of the defendant to produce documents upon which relief is claimed or relied upon by him (Order: 8, Rule. 1A) He must state all grounds of defence, besides raising by his pleading all matters which show the suit not to be maintainable (Order: 8, Rule. 2), A general denial of the grounds alleged by the plaintiff is not sufficient; each allegation of fact of which the defendant does not admit the truth must be specifically dealt with (Order: 8, Rule. 3).
Every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant will be taken to be admitted (Order: 8, Rule. 5).
Discovery and interrogatories (Order: 11, Rule. 1):In any suit the plaintiff or defendant by leave of the court may deliver interrogatories in writing for the examination of the opposite parties. Such interrogatories when delivered should state which of such interrogatories any particular person is required to answer.
No party should deliver more than one set of interrogatories to the same party without an order for the purpose. Further, interrogatories which do not relate to any matters in question in the suit will be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.
Leave will be given to such only of the interrogatories submitted as the court considers necessary either for dispensing fairly of the suit or for saving costs (Order: 11, Rule. 2).
The to whom interrogatories are delivered is not bound to answer them; he is at liberty to take any objection to answering an interrogatory (Order: 11, Rule. 6). Any interrogatories may be set aside or struck out on certain grounds (Order: 11, Rule. 7).
A party may, without filing any affidavit, apply to the court to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. Discovery will not be ordered if it is not necessary for disposing of the suit or for saving costs (Order: 11, Rule. 12).
The court has power, at any time during the pendency of the suit, to order the production by any party, upon oath of documents in his possession or power relating to any matter in question in such suit (Order: 11, Rule. 14).
A plaintiff is entitled to interrogate a defendant as to facts which tended to support the plaintiffs' case or to impeach the defendants' case, but not as to facts which supported the defendants' case.
Inspection of documents referred to in pleadings or affidavits: (Order: 11,
Rule. 15)Every party to a suit is entitled to inspect any document referred to in the
pleadings or affidavits of any other party, by giving notice to that party. Any
party not complying with such notice will not afterwards be at liberty to put
any such documents in evidence on his behalf in the suit unless he satisfies the
court that such document relates only to his own title, he being a defendant to
the suit, or that he had some other cause or excuse which the court will deem
sufficient for not complying with such notice. In such a case the court may
allow the documents to be put in evidence on such terms as to costs and
otherwise as it thinks fit.
How is the Verification of plaint done:Where the plaintiff is a company under the Companies Act, the plaint can be
signed by an officer of the Company authorised to sign and verify the plaint by
virtue of a resolution of the Board of Directors of the Company.
Pleadings and Plaint
What the plaintiff has to establish:
In a suit for infringement of copyright the plaintiff has to establish the following:(1) he is the owner of the copyright within the meaning of Section 54, i.e. he is the actual owner of the copyright, or he is one who is entitled to the remedies provided for infringement in Section 55.
(2) copyright subsists in the work infringed at the time the defendant committed the infringement
(3) particulars of the infringement complained of,
(4) the nature of the damage if any suffered by him or likely to suffer,
(5) what the defendant has done or is proposing to do (in a quia timet action) constitutes infringement of copyright.
Whats is the Tests for claim to copyright-(1) What are the work or works in which the plaintiffs claim copyright?
(2) Is each such work original?
(3) Was there copying from that work?
(4) If there was copying, has a substantial part of that work been copied?
What the plaint should contain:The plaint should contain such statements and documents which will go to establish the plaintiffs' case. Thus
it should contain the following particulars:
(1) the work which is alleged to be infringed is a work within the definition of Section 2(y); that is it is a literary, dramatic, musical or artistic work, or a cinematograph film or a sound recording,
(2) the plaintiff is the copyright owner of the work or an exclusive licensee
or any other person entitled to the remedies available under Section 55,
(3) copyright subsisted in the work at the time of the alleged infringement, or subsists at the time of filing the suit if it is a quia timet action,
(4) particulars of the defendants and particulars of the infringements complained of. If the alleged infringements consists of reproduction of the work a copy of the original work and an infringing copy should be annexed to the plaint,
(5) where parts of the work have been copied references to those parts and references to the corresponding parts of the infringing copy. Extracts of the respective parts should be annexed to the plaint,
(6)) the nature of the damage, if any, suffered by him or likely to suffer,
(7) particulars of conversion, if any.
(8) the source from which he got an infringing copy,
(9) facts necessary to show that the court has jurisdiction to try the suit.
The plaint should also contain prayers for any one or more of the following:(1) a declaration as to plaintiffs' right,
(2) permanent injunction and the nature of the injunction sought,
(3) damages including conversion damages and accounts of profits,
(4) delivery of infringing copies and plates used or intended to be used
for the production of infringing copies,
(5) costs of the suit.
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