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Copyright In A Nutshell

"If a creative person steals your idea, he's killing his creative ability, if he steals your art, he's killing his art, if he makes it available to the world, it won't create the impact you could have created, because it wasn't from the right source”

Protecting the expression of ideas is much crucial than ideas themselves. Even though technology helps in creating new ideas, the wrong use of technology by infringing person poses a threat to the privacy of the owner of creative work by disrupting the balance between shared material and original material. The past few years have witnessed countless instances of copyright infringement and the recent being infringement by YouTube and Telegram.

The owner of creative work has the right to seek remedies as set out in the copyright rules. The copyrighted work has to be protected as it promotes innovation and contributes to economy by creating economic value.

What is copyright?

Copyright is protecting the expression of ideas of creator's than the ideas themselves. The two people with the same ideas can express it differently and the copyright protects "different expression of ideas of the creator” The creator of original work is entitled to enjoy the benefits of copyright for his or her lifetime plus 60 years following the death. In India, the protection to the copyright holder is governed under The Copyright Act of 1957.

Copyright protects original works of authorship, such as literary works, artistic works, pantomimes and choreographic works, sound recordings, architectural works and computer software and so on. The copyright protection provides certain privileges like rights to modify, distribute, perform, create, display and copy the work to the copyright holder. The copyright protects works fixed in the tangible medium expression such as words on a piece of paper or music notes written on a sheet.

Benefits of Copyright

Economic growth:
Copyright is all about protecting innovative ideas. Innovations which is hallmark of technological progress helps a country to grow economically. The application of new and unique ideas creates a work which is beneficial for people and satisfied their mutual demand. Copyright protects creator's right and encourages them to make many more innovations and this helps a country to grow economically.

Exhibition of copyrighted work:
One of the main advantage of copyright protection is that copyrighted work can be exhibited without any fear of getting infringed and also the author or creator can pass on the rights of his or her work to other person only as per his or her consent. Copyright restricts the sales of copied work of original product created by the author or creator and thus prevents the original author from the losses.

Cultural Growth:
India, a land of different cultures and traditions. From many centuries the Indian cultural artworks are been liked by the other people globally and sold in the international market due to high demand because of the rich quality and variety. As we all know a high demanded products attract fraud people for duplicating the product and as a result our country's cultural value was diminishing. Copyrighting the cultural artworks will prevent the duplication of the work and hence our country's cultural value will be enhanced once again.

Legal protection:
It means a claim or a right is protected by a law or an act and it's violation is punishable. Since copyright protection comes under the Copyright Act, 1957, therefore, any violation of rules mentioned their is punishable as per the law.

Foster developments:
There is a lot of risk associated with the innovation. The capital invested can prove worthless if the unique work is being copied and due credit is not received by the creator. A copyright ensures that the expression of ideas is protected. Copyright will drive innovation in creative industry. As the work is being copyrighted, creators will keep making innovations. And so, copyright industry in next few years will be at a higher position. Therefore, copyright will foster developments in our country.

What is Copyright Infringement?
Copyright infringement is illegal use of the copyrighted work which are registered by the respective authors or creators or publishers. Infringers violate the exclusive rights granted to the copyright holders.. It implies that the rights afforded to a copyright holder, such as the exclusive use of a ‘work' for a set period of time, are being breached by a third party.

Acts involving copyright infringement:
When any person, without the licence provided by the owner of the copyright or the Registrar of copyright under Copyright Act or in contravention of the conditions of the licence or of any Condition imposed by a competent authority under Copyright Act:
  • does anything, which is an exclusive right of the owner of the copyright, or
  • permits for profit any place to be used for the communication of the work to the public and if such work constitutes copyright infringement in the work, only if that person was aware and had reasonable ground to believe, or
When any person:
  • makes infringing copies for sale or hire or lets them for hire or displays or offer for sale or hire by way of trade
  • distributes infringing copies either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright
  • publicly exhibit infringing copies by way of trade
  • imports infringing copies of work into India
Civil Remedies
The civil remedies are the most common remedies availed in case of infringement of copyright and the civil remedies are covered under section 55 of the Copyright Act, 1957.

Civil remedies for infringement of copyright:
  1. Interlocutory Injunctions
    When any work subsists copyright infringement, the owner of the copyright can seek interlocutory injunction, the most important remedy. The owner of the copyright is entitled to all remedies such as injunction, damages and accounts. However, if the defendant proves that at the date of infringement, he was not aware and had no reasonable grounds to believe that copyright subsisted in the work. In such a case, the plaintiff cannot seek remedies other than injunction and a decree for whole or part of profit made by the defendant by selling the infringing copies as the court deems reasonable.

    In the case of literary or artistic work, the name of the author or the publisher will appear on the copies of the work published or on the work when it was made as the case may be and if the issue of copyright infringement is raised, the person whose name so appears or appeared shall be considered to be the author or publisher of the work unless the contrary is proved.

    The cost of all parties involved in a copyright infringement case shall be in the discretion of the court.
  2. Pecuniary Remedies
    Under section 58 of the Copyright Act, 1957; copyright owner can seek his rights against a person possessing or dealing with infringing copies. If any person uses infringing copies of any work which subsists copyright and all plates used or intended to be used for the production of such infringing copies are considered to be the property of copyright owner and for the recovery of the possession or conversion, he can initiate the proceedings. However, copyright owner cannot seek remedy for the conversion of infringing copies if the opponent proves:
    1. That he wasn't aware of the fact that copyright subsisted in the infringing copies and there was no reasonable ground to believe
    2. That he had reasonable ground to believe that infringement of copyright was not involved in such copies and plates.
  3. Mareva Injunction
    Copyright owner can also seek for Mareva injunction 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. In general sense it means freezing injunction which means a court can order which restrains someone from removing their assets. It is nothing but an interim relief which is granted or given during the pendency of a court proceedings or at the completion of proceedings. It is essential as it restricts the respondent to deal with his assets in his ordinary business course. This injunction differ from others as it includes such assets which are not necessarily the part of the subject matter of the case.
  4. Anton Pillar Orders
    Copyright owners can also seek for Anton Piller orders, as if necessary, the court in a civil action to allow an applicant to enter the respondent's premises to inspect, search, seize in order to preserve and prevent the destruction of incriminating evidence. The order was originated in England but has been very useful for applying in Indian cases like National Garments vs National Apparels, Mohit Bhargava vs Bharat Bhushan Bhargava and Ors, and the list goes on.

Criminal Remedies

Criminal remedies define certain copyright infringement as criminal wrong and provide for the punishment and prosecution for the infringing individual or a legal entity. The criminal remedies are secured by the state. To have legal protection in cases of wilful trademarks, counterfeiting or copyright piracy, Article 61 of the TRIPS agreement requires member nations across the world to provide criminal procedure and penalties. In India the subject of the criminal offence for the copyright violations are covered under Chapter XIII (Sections 63 to 70) of the Indian Copyright Act of 1957. A person, who knowingly infringe or abets in the infringement of copyrighted work is liable to be punished under section 63. However, as per the provision of section 63, the lower punishment would be imposed by the court with regard to amount of fine and term of imprisonment if the infringement was not made for the gain in the course of trade or business.

Criminal remedies under the act provides for:
  • Imprisonment of a minimum term of six months and a maximum term of three years
  • Fine imposed shall not be less than Rs 50,000 and may extend upto Rs 2,00,000
  • Search and seizure of infringing goods
  • Delivery of copyrighted goods to the copyrighted owner.

The High Courts in India have different outlooks as to whether Section 63 is a cognisable offence or not. The Delhi High Court in State Govt. Of Nct Of Delhi vs Naresh Kumar Garg stated that the offence under Section 63 is bailable. The Kerala High Court in Abdul Sathar vs Nodal Officer stated that the offence is cognizable. Recently Bombay High Court has reiterated that non-IPC offences punishable with "up to three years” and, will be categorised as cognisable and non-bailable.

Cases involving copyright infringement
UTV Software Communication Ltd. And Ors Vs 1337x. To. And Ors.
In the case of UTV Software Communication Ltd. and Ors Vs 1337x. To. and Ors, the plaintiff, UTV Software Communications Ltd, were involved in the business of content creation, production and distribution of cinematographic films around the world including India. It filed 8 suits against defendants claiming that the defendants, certain identified websites ‘John Doe' (Defendant's website) along with Ministry of Electronics and Information Technology, Department of Telecommunication and various ISP were involved in hosting pirated content and allowed downloading and unauthorized streaming of Plaintiffs' copyrighted works without their authorisation. To all this, an effective remedy was sought by the plaintiff in the form of injunction.

The Delhi High court held that Defendant Websites were hosting copyright infringing content and were rogue websites. The high court granted permanent injunction in favour of the plaintiff and also awarded the cost of litigation. The High Court recommended MeITY and DoT to frame a policy in which fines may be levied against the viewer who continues to watch infringing content.

Sajeev Pillai v. Venukunnapalli And Anr
In the case of Sajeev Pillai v. Venukunnapalli and Anr, the appellant, Sajeev Pillai, a film director and a script writer claimed that he has researched the history of ‘Mamankan', a festival held once every 12 years. He prepared a script based on that. Pillai signed Memorandum of Understanding with Kavya film Company which was linked with Kunnapalli, the 1st respondent and supposed to be the producer in the movie. Pillai who was appointed as director was terminated and replaced by someone else. To this Pillai filed suit for relief. He also filed an interim injunction application to restraint the respondent from releasing, distributing and exploiting the films and restrain from pre-release publicity till proper authorship is not given to Sajeev.

The court held that as per Section 57(1) of Copyright Act, the author has the right to claim authorship even after an argument of copyright in a work. And so Pillai has a legal right to claim authorship over it.

Impacts of Copyright Infringement on Society

Cause of unemployment:
Copyright is generally a protection tool used in entertainment, media, publishing and journalism industry. Copyright infringement of work from the above industries can create a huge negative impact on the minds of the author or creator of the work and can be the cause of unemployment.

Tax revenue loss:
Loss for government because if non copyrighted material will be sold in the market, it costs would be less than the original material and therefore the government will receive less tax.

Lack of credit:
If the contributions made by the authors are not valued, they might not be interested in making further innovations and so there could be absence of creativity in fields like art and literature. The lack of credit will demotivate them and this will ultimately lead to less inventions.

Protection of consumer:
In a world captivated by digital media, many pirated websites pose a harm to its viewers. If a viewer visits any pirated website and if the website is not safe or have some features that could violate viewers privacy so this could impact the viewer also and hence the protection of consumer comes into question.

Increase in criminal activities:
By copyright infringement, infringers are making huge money which creates a negative impact in the society as it can boost the other people to do the same and they can make huge money in short duration as a result increasing in criminal activities in our country.

For the last two decades, India has been one of the world's most growing economy. The growing industries and new inventions have helped in boosting the Indian economy. The successful run of any business is important for an economy to run smoothly and copyright law has helped in protecting the work and advancing the business under hassle free environment. Even though digitalization has provided opportunities to the creators to showcase their talent or creative work but at the same time issue of copyright infringement has also been raised. Despite of having provisions of punishment, incidents of copyright infringement are on rise. Several efforts have been made to solve this issue. However, in this current competitive world, still a lot has to be done.

Written By:
  1. Shubham Rungta - BBA LLB-2 YEAR) from Shri Navalmal Firodia Law College, Pune. and 
  2. Bhargavi Nimje - BBA LLB-2 YEAR) from Shri Navalmal Firodia Law College, Pune.

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