COPYRIGHT INFRINGEMENT: APPRAISING THE LEGAL RECOURSES
Recently, Salman Khan starrer “Radhe” was released on the OTT platform “Zee5”, but are you aware that the film became a victim to rampant piracy through the social media platform? As a result, the Zee5 entertainment enterprises filed a complaint about Copyright Infringement on the distributing right. Unfortunately, this is a reality of the present times. Such kind of shameful acts are not uncommon and are happening persistently with a pervasive growth in media and technology. Therefore, the significance of Copyright Laws, pertaining to the current scenario, has increased exponentially.
In order to understand the topic, it becomes important to ascertain the meaning of the term ‘Copyright law’ and the work that it includes within its ambit.
In simple words, Copyright law is a mechanism that prevents any other person from using the original work of the copyright owner. Copyright is a part of Intellectual property rights which is recognized as a crucial aspect of any business operating in this brisk business world. Earlier, it was believed that copyright law only holds ground for book authors, musicians, and film producers but gradually every businessman, whether having a small turnover or being a millionaire discern the value of copyright law. It has a wide scope, covering poetry, music, songs, Tv shows, poetry, novel, etc. Copyright revolves around five major aspects, which are sheltered by The Indian Copyright Act of 1957. These are dealt with herein under:
1. Literary works – The world of literary works is not pint-sized. It is a common notion that a literary work only includes a piece of literature. But it is not so. Copyright law in correlation with literary work covers a vast amount of subjects such as an essay, a novel, brochures, manuals, blog posts, and articles.
2. Artistic works – Aesthetics such as painting, drawing, and photographs created by various artists are also protected by copyright law. Even a not-so-famous artist’s work can become the target of infringement, therefore, to be under the shed of artistic work covered by the Indian Copyright Act 1957, it is not necessary for any artist to possess a high level of skills. Furthermore, many packages designs, logos, and design of software also form part of artistic works.
3. Musical works – Likewise the previous categories when one enters the zone of musical works, everything seems sweet and sorted but this is not the truth, the actuality is that there is a lot of chaos in musical works. Some mix it with sound recordings while others remain in dilemma whether words are part of musical works or not.
We all must have heard Nokia’s restarting tone, even such kinds of tune and instrumental notions are guarded in Musical works under Copyright Law. Although, sound recordings and words are excluded from this category.
4. Cinematography films – The word Cinematography denotes the visual recordings. The Indian copyright Act, 1957 ensures that such cinematography work should be secured from any unauthorized use. Films, TV programs, documentaries even cartoon movies fall under the umbrella of cinematography.
5. Dramatic works - Nowadays, everyone is fond of dramas be it in their life or in a Korean drama series. But only a few know that the smoother they look in an episode the harder it is to make and compile them in such a way. There goes a lot of dedication and hard work of committed forces behind that one episode that you like so much. Copyright law makes sure that the hard work of such a person does not go in vain, by protecting the concept of such a drama film. Dramatic works include screenplay, choreographic shows, and various scenarios from a film, though not the entire film.
PREROGATIVE OF THE OWNER
Copyright law renders the sole authority of the creation to the copyright owner. It provides numerous rights to the owner of the copyright including the right to distribute, the right to make a change in the work, and the exclusive right to make copies of the work. For instance, in the case of literary work, the owner retains the right to make copies of his work along with the distributing rights.
Every right is accompanied by its remedies because without a remedy, a right is meaningless. The law not only confers the aforementioned rights but also provides a series of recourses to be availed by the copyright owner in case of infringement. But what exactly is copyright infringement? How does it happen?
Copyright infringement can be defined as an act which a person performs, without the permission of the copyright owner, which undermines or contravenes the rights of the copyright owner as provided by the law. It includes unauthorized publishing of the work, performing the work in public, communication of the work to the public, making copies of the work, etc.
When a copyright owner becomes a victim of such acts, he can opt for any of the three primary legal recourses available against the infringement of copyright as provided under the Indian Copyright Act, 1957.
Civil Recourse against infringement (Section 55 of the copyright act, 1957): The ambit of civil recourse against copyright infringement involves the following major remedies:
Injunction: The foremost remedy against infringement of copyright is injunctions. An injunction is a judicial order restraining a person from initiating or continuing an action threatening or invading the legal right of another person. The injunction can further be categorized in the following heads:
Interlocutory Injunction: It is an injunction granted prior to the legal course. This injunction is like paracetamol to a high fever i.e. it provides rapid and effectual relief to the copyright owner from the inconveniences he is facing due to the infringer. If the court grants such an injunction to the owner, he can ask the defendant to stop infringing his rights. However, to accord the interlocutory injunction, the court follows three prerequisites provided in English case law “American cyanamid vs Ethicon Ltd”. The following are the three requirements for interlocutory injunction.
1. Presence of Prima facie case against the defendant.
2. Balance of convenience in favour of the plaintiff is required
3. The injury suffered by the plaintiff should be irreparable.
Mareva Injunction: Such an injunction is used to restrain the defendant from disposing of the assets which may be used to satisfy the plaintiff’s lawsuit. This injunction is a tool used by the court when it feels that the defendant is hindering the execution of the decree.
Permanent Injunction: Unlike temporary injunction, a permanent injunction concludes the injunction suit perpetually that is why it is also known as a Perpetual Injunction. In a particular case, if the honourable court believes that the facts of the case are leaning towards the plaintiff, the court may convert the temporary injunction into a permanent injunction, however, the court may revoke the temporary injunction if it observes that no infringement is committed by the defendant.
Anton Pillar orders: We all are well aware when any person infiltrates the premises of any other person without his permission he is liable for trespassing but Anton pillar order is a civil remedy against infringement of copyright law and it is a kind of an exception to the concept of trespassing as it permits a plaintiff to enter into the defendant’s premises for inspection of infringing copies or documents and other requisite material which is abetting the copyright infringement. In such order, the plaintiff is accompanied by the assigned officer of the court. To satisfy the court for granting Anton Pillar order, the plaintiff has to fulfil the following requirements:-
1. Strong prima face case against the defendant.
2. Plaintiff may suffer irreparable damage.
3. There must be proper evidence that the defendant holds infringing copies and he may manipulate them.
Pecuniary Damages: The pecuniary damages fall under the head of compensatory civil resource. This recourse is further divided into three major parts, namely-
1.Account of profits: The profit made by the defendant, by selling such infringed copies, belongs to the plaintiff. This remedy allows the plaintiff to recover the possession of the gain which is illegally made by the defendant.
2. Compensatory damages: The amount which a sufferer claims from the guilty party for the losses he suffered due to the defendant’s wrongful act is called the compensatory amount. The compensatory damages are provided to the plaintiff to restore his original position before the infringement. Numerous factors are taken into consideration while deciding the compensatory proportion.
3. Conversion damages: As per the Indian copyright act 1957, the infringing copies and the plates used or going to be used for the production of such copies belong to the copyright owner. This recourse provides the plaintiff with the power to have the recovery of possession of the infringed copies and the plates.
Criminal Recourse against Infringement (Section 63 of Copyright Act, 1957): Section 63 of the Indian Copyright Act 1957 makes any person liable under criminal offence who with proper knowledge infringes or abets the infringement of Copyright.
Besides, the civil recourse, a copyright owner is also entitled to initiate criminal proceedings against such infringement. Even though criminal recourse, is not the first recourse an owner usually prefers but it provides promising results as the accused, in the apprehension of harming his reputation, often comes clean and stops such infringement. The first information report is the initial step in the criminal proceedings. The copyright owner has to inform the local police about the infringement of his copyright, thereafter the next step of the suit operates.
Copyright is punishable under the Indian Copyright act 1957 for imprisonment not less than 6 months but which may extend to three years, accompanied by a fine which shall not be less than fifty thousand rupees but may extend to two lakh rupees. Furthermore, the court may order to seize the infringing copies including the plates, and to deliver the possession of copies to the actual owner.
Administrative Recourse (Section 53 of Indian Copyright Act 1957): The prior recourses are efficacious when the infringer is manipulating the infringing copies within the territory of India. But Administrative recourse is opted by a copyright owner when he discovers that someone is importing copies in India which infringe his copyright. Section 53 of the Indian copyright act 1957 explains that if any copyright owner gets to know that importation of copies that disturbs his copyright work is taking place in India he may reach out to the Registrar of copyright through the form of application. The registrar after making proper inquiry may order to stop the importation of such infringing copies in India. Furthermore, this section grants the Registrar or any person appointed by him to enter into the premises of another person who is importing such infringing copies.
The purpose of copyright is to protect the rights of the owners of original work and provide economic benefits to them for their creativity and due diligence. As discussed in the article, the Indian Copyright Act 1957 provides the copyright owner with three major recourses and each recourse is equally important and makes the copyright owner more powerful than the counterfeiter. Although, registration of work is not necessary but it is advisable to get the work registered as soon as the idea transforms into actual work product as it serves as a concrete proof to be presented before the Court in case of infringement.
1. Bareact of The Indian Copyright Act, 1957.
2. Book on Law of copyright by Jatindra Kumar Das.
3. Book on Copyright Law by Dr. Ishita Chatterjee.
Name: Vansh Bajaj
Institution name: Chanderprabhu.Jain College of higher studies and School of Law, New Delhi
Course: BBALL.B (Hons).
Year of study: 3rd year