REMEDIES FOR COPYRIGHT INFRINGMENT AND PIRACY
Copyright is basically a bundle of rights that protects original literary, dramatic, musical, artistic and cinematographic works. The dimension of operation and enforcement of copyright has expanded multifold since the onset of digital revolution, advent of which was exacerbated by COVID-19 pandemic. As per the copyright law in India, any use of copyright work without permission of owner of copyright amounts to copyright infringement. It could take place in a direct form by actually copying a certain work or indirectly by dealing in export or import of such works in which copyright subsists. Examples of copyright infringement rampant in India include, online piracy, performing copyright work in public place, public exhibition of infringing copies, copy of cinematographic film, using a son’s music in the background of one’s own creation. Infringement of copyright leads to tremendous economic loss to the original creator leading to decreased sales and eventually loss of tax revenue to the government. Piracy on the other hand is defined as the unauthorised use of someone else’s work. Piracy in its literal and conceptual sense termed as “the unauthorised use of another’s production, invention, or conception, especially in the infringement of copyright.” Unauthorized reproduction of another person’s creation is a violation of his copyright. Piracy has grown in popularity in parallel with technological advancements. Piracy is most prevalent in the film industry. Pirated content is frequently downloaded from various illegal websites. Downloading or uploading any copyrighted materials from these websites, whether it’s a simple video, song, or movie, constitutes a violation of the owner’s copyright. Making the registration mandatory, imposition of strict punishment etc could be useful methods that can be devised in the long run to strengthen the IP protection ecosystem. At Knowledgentia Consultants, we provide best copyright registration services in India along with counterfeiting legal action in cases of infringement.
REMEDIES FOR INFRINGEMENT
There are three types of remedies a person can get for copyright infringement in India – civil remedies, criminal remedies and administrative remedies:-
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. There are three requirements for seeking the relief of interlocutory injunction – Firstly, there needs to be 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.
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 – AN EXCEPTION TO INFRINGEMENT
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.
SARLA A. SARAOGI & ORS VS. KRISHNA KISHORE SINGH , CS(COMM) 187/2021
The Delhi High Court declined to impose an interlocutory order against the distribution and broadcast of cinematograph films relating to Sushant Singh Rajput because his parents failed to establish prima facie evidence, and the ratio of advantage was in favor of the respondents. ‘NYAY The Law,’ ‘Suicide or Death,’ and ‘Roughly in the middle,’ according to the plaintiffs in the lawsuit, must be inducted and prohibited from being disclosed, printed, and conveyed to the world. The Complainant claimed violations of publicity and security rights and the right to due process, slander, and infringement of the Indian Constitution’s Article 21.
The Complainant struggled to create a legitimate argument for copyright infringement of famous person or licensing because the Court stated that famous rights may cease to exist after the demise of the star and that plaintiffs may use information from the official information without responsibility. Finally, the Court concluded that a libel claim is hypothetical with no access to the offensive content. The Court further stated that no breach of the legal right to a fair trial might be considered a result of news or film coverage. It continued to say that when it comes to material that is part of the public domain, freedom of speech and expression takes precedence over Article 21. While rejecting the order, the Court requested the plaintiffs provide accounts to reimburse any losses.
SPARTAN ENGINEERING INDUSTRIES PVT. LTD. ANR. VS. DASSAULT SYSTEM SOLIDWORKS CORPORATION & ANR. , CS (COMM) 34/2021
The Delhi High Court addressed the problem of software copyright infringement in this judgment. Defendant No. 1 is a French firm that created the program ‘Solidworks.’ This program makes it easier to model and build goods in a 3D setting. Defendant no.2 is a sister corporation founded by Defendant no.1 to handle all of Defendant no.1’s business in India.
Defendants No. 1 and 2 (“Defendants”) claim that the program was created as a job for pay by their workers and that the Petitioners own the copyright. The Defendants argue that the software package and its accompanying training materials are copyright literary work by the Act of 1957 (Act). Because the United States and India are both signatories of the Convention in Berne, the World Trade Organization’s Agreement, and the Universal Copyright Convention, India’s program is protected in Section 40 of the Copyright Act on trade-related. Plaintiff argued that they acquired evidence in May 2018 about the Respondents’ commercial usage of copied and unlicensed part “Software duplication is a serious matter that requires to be addressed in the bud,” the judge said in granting the decision. Accordingly, the Petitioners were given a close substitute ex-parte injunctive relief prohibiting the Plaintiffs from using, replicating, or disseminating any illegally downloaded, non-licensed, or unapproved software packages governed by the Complainants, and also typesetting their computer networks and trying to erase any data related to aiding others in infringing the Complainants’ copyright.
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