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Copyright Protection and Infringement in India

In September 2019, Nintendo, a consumer electronics and video games company, filed a lawsuit against, a website involved in hosting pirated versions of Nintendo games, claiming that the site facilitated the infringement of its intellectual property by offering memberships that allowed the subscribers to download games faster than non-subscribers at a subscription fee of $30 per year. On 1st June 2021, was ordered to pay a compensation of $2.1 million to Nintendo which had sought $15 Million in potential damages.

The judgement brought a sense of relief to the companies who feared infringement of their copyrights and came as a warning to those who were involved in copyright infringement. Cases of copyright infringement have increased drastically amid the ongoing Covid-19 pandemic world because of increasing digitalization and internet usage. Everyone especially the educators has run headlong into the digital world without a thought to the application of copyright law to their works.

A copyright is a collection of rights that protect original works of authorship like literary, dramatic, musical, and artistic works. It exists from the moment the work is created and fixed in tangible form. Some works which are in the public domain can be copied.

These include works:
  1. which are willingly dedicated to the public,
  2. works for which copyrights have expired or
  3. the work for which the copyright was not renewed.
In India, all works published before January 1, 1925, have entered the public domain.

The Awareness of Copyright law has increased immensely among people since this global pandemic hit the world. IPR (Intellectual property rights) is playing a very crucial role in this fight against the ongoing Covid-19 Pandemic. On 30 January 2020 when the Covid-19 outbreak was declared a Public health emergency by the World Health Organization, it was decided that all nations will fight together to defeat this global pandemic.

But a question that arose was whether all countries are free to use resources that are patented in other countries. There were many instances where the transfer of technical know-how was denied to third parties to manufacture products essential to fight COVID-19. In the United States, the governor of the state of Kentucky admitted to difficulties in procurement and manufacturing N-95 masks owing to several patents.

Even Italian engineers desiring to manufacture ventilator valves through 3D printing technology were denied access to the designs of some components, forcing them to engage in reverse engineering. News like these created panic among the people as COVID-19 cases was on the rise in almost every country across the globe. Even the developed countries like the USA seemed clueless about how the virus could be tackled.

So a resolution of the World Health Assembly has worked out in which all the member states of the World Health Organization recognized the possible need for countries to adopt measures to ensure that Intellectual property rights do not constrain global equitable access to health technologies for Covid 19 through the full use of the flexibilities of the agreement on trade-related aspects of Intellectual Property Rights.

Even India had to amend its patent law to effectively enable foreign pharmaceutical companies to obtain patent protection for medicines. Antiviral Drug Remdesivir was patented by a company named Gilead. It has earlier granted a license to only 5 companies to produce Remdesivir. But this led to a shortage of the drug in the market. But after the TRIPS Agreement, a large number of Indian companies produced the product ensuring the availability of the same at an affordable price.

According to the International Intellectual Property Index, which was released by the US Chamber of Commerce Global Innovation Policy Centre and evaluates an economy's ecosystem-based on 50 unique indicators that the industry believes represent economies with the most effective Intellectual Property systems, India ranked 40th out of 53 global economies, while the Netherlands ranked first. It was reported that the global IP environment improved in 2020, with a positive score increasing in 32 out of the 53 economies measured by the IP Index. India scored 38.40 out of 100 which was a marginal decrease from the previous score of 38.46.

The Copyright Act, 1957 is the governing law for copyright protection in India. Section 13 of the Copyrights Act,1957 is the most important as it provides for the classes of works for which copyrights subsist. Section 14 of the Copyrights Act, 1957 states the exclusive rights which are issued once the copyrights have been granted.

During the ongoing Pandemic, there have been increasing cases of piracy especially in the field of Cinematography. Recently there have been two highlighted cases of piracy. One is the Amazon web series, �Family Man-2� and the other one is a Movie �Radhe: Your Most Wanted Bhai�. But these cases of copyright infringement are not something new to the movie industry in India. In 2016, XYZ Films filed a case against UTV Motion Pictures in 2016 alleging that their film, Raid: The Redemption was copied and compressed into the last twenty minutes of the movie, Baaghi and prayed for an order of injunction against the release of the film. The court applied the test laid down in the landmark judgement RG Anand vs Deluxe Films which stated:

�If the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original, then the copyrights have been infringed.�

Bombay High Court observed that the rival work is completely different. There is no similarity between the central theme of both movies. Copyright has not been infringed and therefore no injunction against the release of the movie was granted.

Many videos go viral of performers' work without their consent which leads to violation of their moral and economic rights. Article 7 of the Rome Convention gives protection to the rights of performers from broadcasting or communicating to the public without their consent. The right also prevents anyone from reproducing their work or commercially exploit it for their benefit. In 1994, Performers' rights were recognized under the Copyright Act 1957 in India.

Soon a dispute arose as to what will constitute a live performance. The Court solved the issue in the landmark judgement of Neha Bhasin vs Anand Raj by stating that whether the performance is recorded in the studio or front of the audience, both will be called live performance and if anyone uses such performance without the consent of the performer then performer�s rights are said to be infringed.

Both civil and criminal remedies have been provided by the Copyrights Act,1957 against infringement of copyrights. Civil remedies are given under Section 55 and 58 of the Copyright Act,1957 provides for Interlocutory Injunction, Account of profits, Compensatory damages, Rendition of accounts, Delivery, and destruction of infringing copies.

Criminal remedies are covered under chapter 13 of the copyright act,1957. The principal penal provision is section 63 which states that any person who knowingly infringes or abets the infringement of copyright or any other right covered by the Copyrights Act,1957 such person may be punished with imprisonment of a minimum term of six months and a maximum term of three years and a fine of between 50,000 and 2,00,000 rupees. It also provides for the seizing of infringing copies. The provisions are lenient as compared to the USA where the infringer may be imprisoned up to 5 years and fined up to $2,50,000.

The Infringement of copyrights leads to huge economic loss to the owner of the original work. For example, if a movie is copied and its pirated copy is being sold at half the price of the original copy every potential customer will buy it irrespective of whether it is legitimate or not. People also make copies for non-commercial purposes like making a copy for a friend which also leads to a loss in demand. This not only leads to economic loss for the owner who doesn�t get rewarded for his art but also the nation as fewer sales lead to loss of tax revenue to the Government.

To avoid infringement of copyrights the government should take the following measures:

  1. Establishment of an independent investigation team that knows the copyright laws so that it can decide to seize infringed copies. Though the Police officer not below the rank of sub-inspector has been given the power to seize all copies if they feel that copyrights have been infringed, it has been observed through surveys that Police Officers don�t pay attention to copyright matters as they give priority to murders, theft, etc. So there is a need to educate the police officers about copyright law and command them to pay equal attention to copyright matters.
  2. Establishment of a special cell for copyright enforcement in all the states and union territories. For instance, 19 out of 29 states have a special cell for copyright enforcement. The Central Government shall ensure that all states have an active special cell for copyright enforcement that monitors the activities of habitual infringers.
  3. A massive publicity campaign regarding the ills of copyright violation mentioning it's being a criminal offense, consequences, etc. could be launched. Everyone including the Government, local authorities, rights holders, associations, law enforcing authorities, etc have to join hands together. The campaign could be launched on a large scale through mass media like newspapers, journals. It is generally seen though people are aware of it being an offense still sees piracy as a medium of earning small amounts because there is no strict enforcement of copyrights law.
  4. There is a need to impose stricter punishment on infringement of Copyrights. The term of imprisonment should be increased upto5 years and the fine needs to increase up to 10 Lakh. It is because of the minimal punishment and the weak machinery to enforce Copyright law that people take these laws lightly leading to a rise in cases of copyright infringement.
  5. Registration of copyright should be made mandatory.
    The purpose of copyright laws is to protect the rights of the owners of original work and provide economic benefits to them for their creativity and diligence. It aims to balance the interests of those who create content with the public interest in having the widest possible access to that content. It is highly recommended to register as soon as your idea gets transformed into writing as it will be a strong proof to be presented before the court in case of infringement.

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