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Copyright - Enforcement & Remedies

What constitutes copyright infringement?

A copyrighted work is infringed when any person, without authorization of the rightful owner of that work engages himself in any of the listed activities:
  • Does anything that, the exclusive right to do which is conferred upon the owner of the copyright, or
  • Permits any place to be used for the communication of the work to the public for profit where such communication constitutes an infringement of the copyright in the work, or
  • Offers for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, any infringing copy of the work, or
  • Distributes any infringing copy either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright,
  • By way of trade exhibits in public any infringing copy, or
  • Imports into India, any infringing copy of the work

What does not constitute copyright infringement?

The following acts shall not constitute an infringement of copyright in a work:
  • Computer Software:

    • Making of copies or adaptation of a computer program by the lawful possessor of a copy of such computer program, from such copy in order to utilize the computer program for the purposes for which it as Supplied; or to make back-up copies purely as a temporary protection against loss, destruction or damage in order only to utilize the computer program for the purpose for which it was supplied;
    • Doing of any act necessary to obtain information essential for operating inter-operability of an independently created computer program with other program by a lawful possessor of a computer program provided that such information is not otherwise readily available;
    • Observation, study or test of functioning of the computer program in order to determine the ideas and principles which underline any elements of the program while performing such acts necessary for the functions for which the computer program was supplied;
    • Making of copies or adaptations of the computer program from a legally obtained copy for non-commercial personal use;
  • Other Purposes:

    • Reproduction of a literary, dramatic, musical or artistic work for the purpose of a judicial proceeding or for the purpose of a report of a judicial proceeding;
    • Reproduction or publication of a literary, dramatic, musical or artistic work in any work prepared by the Secretariat of a Legislature exclusively for the use of the members of that Legislature;
    • Reproduction of any literary, dramatic or musical work in a certified copy made or supplied in accordance with any law for the time being in force;
    • Reading or recitation in public of any reasonable extract from a published literary or dramatic work;
    • Provided that not more than 2 passages from works by the same author are published by the same publisher during any period of five years, the publication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of educational institutions, and so described in the title and in any advertisement issued by or on behalf of the publisher, of short passages from published literary or dramatic works, not themselves published for the use of educational institutions, in which copyright subsists;
    • Reproduction of a literary, dramatic, musical or artistic work by a teacher or a pupil in the course of instruction or as part of the questions to be answered in an examination or in answers to such questions;
    • Performance, in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and students of the institution, or of a cinematograph film or a sound recordings if the audience is limited to such staff and students, the parents and guardians of the students and persons directly connected with the activities of the institution or the communication to such an audience of a cinematograph film or sound recording;
  • Sounding recording

    • Making of sound recordings in respect of any literary, dramatic or musical work, if
      • sound recordings of that work have been made by or with the license or consent of the owner of the right in the work;
      • the person making the sound recordings has given a notice of his intention to make the sound recordings, has provided copies of all covers or labels with which the sound recordings are to be sold, and has paid in the prescribed manner to the owner of rights in the work royalties in respect of all such sound recordings to be made by him, at the rate fixed by the Copyright Board in this behalf;
    • Causing a recording to be heard in public by utilizing it,
      • in an enclosed room or hall meant for the common use of residents in any residential premises (not being a hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein; or
      • as part of the activities of a club, society or similar organization which is not established or conducted for profit;
  • Other Purposes:

    • Performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given to a non-paying audience, or for the benefit of a religious institution;
    • Reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction;
    • Publication in a newspaper, magazine or other periodical of a report of a lecture delivered in public;
    • Making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge of a public library for the use of the library if such book is not available for sale in India;
    • Reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work whose author is unknown, kept in a library, museum or other institution to which the public has access; if the author is known, such reproduction can only be made more than 60 years after the author's death;
    • Reproduction or publication of any matter which has been published in any Official Gazette except an Act of a Legislature or any Act of a Legislature subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter or report of any committee, commission, council, board or other like body appointed by the Government if such report has been laid on the Table of the Legislature, unless the reproduction or publication of such report is prohibited by the Government or any judgment or order of a court, tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the court, the tribunal or other judicial authority, as the case may be;
    • Production or publication of a translation in any Indian language of an Act of a Legislature and of any rules or orders made there under, together with a notice that the translation has not been authorized or accepted as authentic by the Government
    • If no translation of such Act or rules or orders in that language has previously been produced or published by the Government; or
      • where a translation of such Act or rules or orders in that language has been produced or published by the Government, if the translation is not available for sale to the public;
    • Making or publishing of a painting, drawing, engraving or photograph of a work of architecture or the display of a work of architecture;
    • Making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic work, if such work is permanently situate in a public place or any premises to which the public has access; In relation to a literary, dramatic or musical work recorded or reproduced in any cinematograph film the exhibition of such film after the expiration of the term of copyright therein;
    • Making of an ephemeral recording, by a broadcasting organization using its own facilities for its own broadcast by a broadcasting organization of a work which it has the right to broadcast; and the retention of such recording for archival purposes on the ground of its exceptional documentary character; and
    • Performance of a literary, dramatic or musical work or the communication to the public of such work or of a sound recording in the course of any bona fide religious ceremony or an official ceremony held by the Central Government or the State Government or any local authority.
    • Use by the author of an artistic work, where the author of such work is not the owner of the copyright therein, of any mould, cast, sketch, plan, model or study made by him for the purpose of the work, provided that the author does not repeat or imitate the main design of the work;
    • Reconstruction of a building or structure in accordance with the architectural drawings or plans by reference to which the building or structure was originally constructed;
  • Cinematograph film

    • Inclusion in a cinematograph film of-
      • any artistic work permanently situated in a public place or any premises to which the public has access; or
      • any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the film;

Enforcement Remedies

As the copyright owner has the exclusive proprietary rights in its work, the copyright law in India provides for both civil and criminal remedies by which the rights holder can enforce its rights.

Remedy under Civil Law

A suit for infringement of copyright can be initiated, irrespective of the fact whether the copyright has been registered or not.
  • Jurisdiction and Venue

    The suit for infringement can be initiated either in the District Court or in the High Court depending on the valuation of the suit. The suit can be at the place where the rights holder or one of the rights holders actually and voluntarily reside or work for gain or carries on business.
  • Elements of the Complaint

    In the Complaint, the rights holder is required to demonstrate that (a) the alleged infringing act involves a work that is identical or similar to the copyright of the rights holder; (b) the unlawful act interfered with the copyright holder's rights of exclusive use or caused the rights holder economic loss.
  • Statue of Limitation

    As a general policy in India and as has been prescribed in the Limitation Act, the rights holder has a period of three years from the cause of action for filing the suit. However, as copyright infringement is a continuing offence and the infringer violates the exclusive proprietary right of the rights holder every time he commits a discreet infringing act, the limiting period will anew with each new act. Nevertheless, it is advisable that the legal action be initiated against the infringer as promptly as possible in order to establish the seriousness of the rights holder's intent before the Court.
  • Ex-parte Interim Injunction

    Most Indian courts will grant ex-parte interim injunctions should the rights holder establish its rights before the Court, establish the gravity of the offence and that the violation of its proprietary rights merit immediate consideration. Ex-parte interim injunction is a temporary injunction granted for the course of the trial restraining the infringer from use of the infringing work and without any notice to the infringer. These injunctions, depending on the gravity of the offence, could be granted on the first day of the hearing itself.
  • Appointment of the Local Commissioner

    Depending on the facts of the case, it is also advisable to ask the court to appoint a local commissioner on the first date of the hearing who will raid the premises of the infringer where the infringing good are stored in order to seize the goods.
  • Damages

    There has recently been a change in the mindset of the Indian judiciary and some of the courts grant damages to the rights holders. In the case of Microsoft Corporation v. Yogesh Papat & Anr {2005 (30) PTC 245 (Del)}, the Delhi High Court awarded damages against the Defendants for INR 19.75 lacs (approximately $49,375) for loading the software owned by Microsoft Corporation on the computer of their customers without seeking any permission from Microsoft Corporation for use of the software.

Criminal Law

The Act provides for remedies for infringement under the criminal laws too. Under the copyright laws, the police have the power to suo moto conduct raids and seizure operations. However, the use of such powers by the police is minimal.
Under the criminal laws, should the rights holder not be aware of the details (name, address, dates of infringement, etc.) of the infringers, it is advisable to procure a general search and seizure warrant from the local magistrate and thereafter organize search and seizure operations in that area. In the alternative, should the rights holder be aware of the details of the infringer a complaint can be lodged with the police authorities and raids organized accordingly. In a criminal proceed however, the litigation is between the State and the infringer and the rights holder has a limited role to play. Knowing infringement shall be punished by imprisonment of not less than 6 months or more than three years with a fine, which may extend to INR two lakhs (approximately $4,760).

Administrative Remedies

The Copyright Board is constituted under the Act, and its jurisdiction extends to the whole of India. The Board is entrusted with the task of adjudication of disputes pertaining to copyright registration, assignment of copyright, grant of licenses in respect of Indian works withheld from public, unpublished Indian works, production and publication of translations of works for certain specified purposes. It also hears cases in other miscellaneous matters instituted before it under the Act. Furthermore, the rights holder can make an application to the Registrar of Copyrights and the Registrar of Copyrights, who will conduct an inquiry, and can order that copies made outside of India, which if made inside India would infringe the work not be imported. Such copies will be deemed to be goods for which the import has been prohibited and/or restricted under the Customs Act, 1962, and the Registrar of Copyright or any person authorized by him can enter any ship, dock or premises where such infringing copies may be found and may examine such copies.

Remedy under Customs Laws

The Customs Authorities are authorized to seize goods infringing the copyrights of the rights holder at the border without obtaining any orders from the court. A rights holder may give a notice in writing, to the Commissioner of Customs or any other Customs officer authorized by the Commissioner and request suspension of clearance of such goods suspected to be infringing the copyrights of the rights holder.
Subsequent to the filing of such notice, the Commissioner notifies the rights holder within 30 working days regarding the acceptance or rejection of this notice. In case of acceptance of the notice, such registration shall be valid for 1 year during which Customs authorities will assist the rights holder to prohibit the importation of infringing goods at the border.
The Customs officers have the authority to suspend the clearance of such prohibited goods either by the information received by the rights holder or by initiating suo motto action, provided they have prima facie evidence or reasonable grounds to believe that the imported goods are infringing the copyrights of the rights holder.
When clearance of the goods is suspended, the Customs authorities must inform the rights holder, who must execute the requisite bond and join the proceedings against the importer. If the rights holder does not act within the prescribed period, the Customs authorities will release the goods.
The Customs officers can also destroy the goods under official supervision or dispose of them outside the normal channels of commerce if it has been determined that the goods detained have infringed the copyright of the rights holder and if no legal proceeding is pending in relation to such determination. These rules also prohibit the re-exportation of the goods infringing the copyright.
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