Remedies for Infringement of Copyright

1. INTELLECTUAL
PROPERTY RIGHTS
REMEDIES FOR INFRINGEMENT OF
COPYRIGHT
SUBMITTEDTO – Mr.Vipin Kumar Mishra.
SUBMITTED BY – KhyatiTongia,
BBA.LL.B,VI Semester.

2. COPYRIGHT - MEANING
Copyright is a bundle of rights given by the law to the creators of literary, dramatic,
musical and artistic works and the producers of cinematograph films and sound
recordings. The rights provided under Copyright law include the rights of
reproduction of the work, communication of the work to the public, adaptation of
the work and translation of the work. The scope and duration of protection
provided under copyright law varies with the nature of the protected work.
In a 2016 copyright lawsuit, the Delhi High Court states that copyright is "not an
inevitable, divine, or natural right that confers on authors the absolute ownership
of their creations. It is designed rather to stimulate activity and progress in the arts
for the intellectual enrichment of the public. Copyright is intended to increase and
not to impede the harvest of knowledge. It is intended to motivate the creative
activity of authors and inventors in order to benefit the public.
The Indian copyright law protects literary works, dramatic works, musical works,
artistic works, cinematograph films and sound recordings.

3. COPYRIGHT INFRINGEMENT
Copyright infringement refers to the unauthorized use of someone’s
copyrighted work. Thus, it is the use of someone’s copyrighted work without
permission thereby infringing certain rights of the copyright holder, such as
the right to reproduce, distribute, display or perform the protected work.
Section 51 defines infringement of copyright generally. Section 52 gives a
long list of acts which do not constitute infringement of copyright.
Infringement is usually classified into two categories i.e. Primary
Infringement and Secondary Infringement.
DIFFERENCE -:
Primary infringement is the actual act of copying, while secondary
infringement includes unauthorized dealings like selling the pirated books,
importing, etc. In the case of secondary infringement, knowledge of
infringement is present with the infringer while in the case of primary
infringement, knowledge may or may not be present.
INFRINGEMENT ISTHE FOUNDATIONOF COPYRIGHT LIABILITY

4. REMEDIES AVAILABLE AGAINST
INFRINGEMENT OF COPYRIGHT
-
The Act provides two sorts of machineries for the
enforcement of copyright –Judicial and Administrative.
Administrative machineries include Registrar of
copyright, Copyright board and Custom authorities.
Judicial machinery provides civil and criminal remedies.

5. A. CIVIL REMEDIES
Sections 54 to 62 of the Copyright Act provide civil remedies.
As per Section 55 of the Act in the case of infringement of copyright
“the owner of the copyright shall except as otherwise provided by this
Act, be entitled to all such remedies by way of injunction, damages,
accounts and otherwise as are or may be conferred by law for the
infringement of a right.”
Preventive civil remedies - These remedies are used prior in time to the
occurring of the actual act of infringement or before the damage
ensues. These are, for this reason, also the most popular among the
remedies and there are Compensatory Remedies which compensate.

6. I. INJUNCTIONS
INJUNCTIONS - The main remedy sought in most Copyright suits is an
injunction to restrain the defendant from continuing to do acts which
constitute infringement. It is the only remedy available against a defendant
who proves that at the date of the infringement he was not aware and had
no reasonable grounds for believing that copyright subsisted in the work
(the innocent infringer).
TYPES OF INJUNCTIONS –
a. INTERLOCUTURY INJUNCTIONS
b. ANTON-PILLERORDER
c. MAREVA INJUNCTION
d. JOHN-DOEORDER
e. PERMANENT INJUNCTIONS

7. 1. Interlocutory Injunction - It is granted under Rules 1 and 2 of Order
XXXIX of CPC 1908. In most case the application filled is for
interlocutory relief and the matter rarely goes beyond the
interlocutory stage.There are three requirements for there to be a
grant of interlocutory injunction – Firstly, a prima facie case.
Secondly, there needs to be a balance of convenience. Finally, there
needs to be an irreparable injury.
2. Anton Pillar Order - 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.

8. 3. Mareva Injunction- It 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.
4. John Doe Order- It is an injunction sought against someone whose
identity is not known at the time it is issued. It has been passed by High
Courts of India in number of cases against anonymous offenders. For
example, Mirabhai Films got a John Doe order against all cable operators
before the release of “MonsoonWedding”.
5. Permanent Injunction- The perpetual injunction, which lasts up to the
unexpired term of the copyright, is granted in order to prevent any further
repetition of the infringing action.All infringing copies are deemed to be
the property of the owner of the copyright, who accordingly make take
proceeding for the recovery of possession thereof.

9. II. COMPENSATORY
DAMAGES
1. Damages: The damages are an important remedy available to a
copyright owner. The object of an award of damages to a copyright owner
is to restore the copyright owner to the position he would have been had
his copyright not been infringed.
There are two types of damages available to the owner of a copyright: one
u/s 55 that arise from infringement of copyright and; the other u/s 58 that
arise from conversion. Conversion is dealing with goods in a manner
inconsistent with the right of the true owner
Dealing with claims for infringement and with claims arising out of conversion,
LORD WRIGHT in Sutherland Publishing Co. versus Caxton Publishing Co. [1936]
observed: “both are claims for a wrong, each wrong being different from the
other. The former is for a wrong done to an incorporeal right, copyright, the
latter is for conversion of particular chattels, the infringing copies. A plaintiff
may claim both damages for infringement and those for conversion as they are
cumulative and not mutually exclusive.

10. 2. Account of Profits: Remedy for damages and remedy of account are
mutually exclusive. They cannot be joined .
In a suit of account of profit, the defendant may be asked to account to
plaintiff the profits earned by him on account of infringing the copyright of
plaintiff. For this purpose, there has to be an investigation of actual
accounts of defendant. The account is of net profits, i.e., the sale price of
infringing article as deducted by the manufacturing and delivery cost.
In M.L. Gupta versus The board of School Education Haryana, (1925),
the defendant was ordered to pay 20% of the profit to the plaintiff, as the
matter copied was less than one-tenth of the book.
The plaintiff would be refused an account of profits if there are no profits. In
such a case the plaintiff may elect to claim damages and he would be bound by
an election once made. The distinction between an account of profits and
damages is that by the former the infringer is required to give up his ill-gotten
gains to the party whose rights he has infringed whereas by the latter he is
required to compensate the party wronged for the loss he has suffered.
A plaintiff is entitled to opt for damages or for an account of profits. He cannot
obtain both an account of profits and damages.

11. B. CRIMINAL REMEDIES
Besides availing civil remedy, a copyright owner resort to criminal
remedies under the Act. This remedy is independent of civil remedy
and can be availed of simultaneously with the civil remedy. There are
varieties of criminal remedy the copyright owner can avail of and get
the accused punished. They all depend upon the nature and
circumstances of the case.
Section 63 to 70 of the Act deal with offences relating to copyright.
The Act provides that infringement of copyright is a cognizable
offence non-bailable in nature, and mens rea in the form of
knowledge is an essential element to constitute this offence.

12. According to section 63 of the Act, any person who knowingly infringes or abets
the infringement of: (a) the copyright in a work, or (b) any other rights conferred
by this Act, shall be punishable with imprisonment for a term which shall not be
less than six months but which can extend to three years and with fine which
shall not be less than fifty thousand rupees but which may extend to two lakhs
rupees.
However, this right cannot be availed against the infringement of rights
conferred u/s 53A. Again, when the infringement is not followed for the gain in
the course of trade or business, the court may impose less terms of
imprisonment or less fine than the prescribed minimum in the Act. The Act does
not treat construction of building or other structure which infringes the copyright
in some other work as offence. For the second and subsequent conviction, the
Act raises the minimum caps up to: one year for terms of imprisonment and
one lakh in terms of fine. [Section 63A].
To facilitate the criminal proceeding the Act give some power to police officer not
below the rank of sub-inspector. If he is satisfied that an infringement or an abetment
of infringement of copyright in any work has been or is likely to be committed, he
may seize without any warrant all copies of the work and all plates used for the
purpose of making infringing copies of the work, wherever found and all copies and
plates so seized shall, as soon as practicable, should be produced before a magistrate.
[Section 64].

13. The Act provides punishment for some other activities too:
a. Knowingly using the infringing copy of computer program [Section 63B];
b. Knowingly making or possession any plate for the purpose of making infringing copies of
any copyright work [Section 65];
c. Circumventing an effective technological measure applied for the purpose of protecting
any of the right conferred by this Act with an intention of infringing such rights [Section
65A]
d. Knowingly removing or alters any right management information without authority
[Section 65B];
e. Making or causes to be made a false entry in the Register of copyright kept under this
Act; [Section 67];
f. Making a false statement or representation knowing the same to be false, with a view to
deceiving any authority under the Act [Section 68].
g. Publishing a sound recording or video film in in contravention of the provision of section
52 A [i.e., without displaying the particulars, namely the name address of the person who
made it, name and address of the copyright owner and years of its Publication, etc.]

14. C. ADMINISTRATIVE
REMEDIES
(i) Registrar of Copyrights: Registrar of copyright has important role in
the process of registration of copyright work. A copyright office is
established for the purposes of this Act. It is under the immediate control
of Registrar of copyright who acts under the superintendence and
direction of the Central government [Section 9 and 10].
All the application for the purpose of registration of the work is to be
made before the Registrar of the copyright. On receipt of an application
in respect of any work, he may, after holding such inquiry as he may
deem fit, enter the particulars of the work in the Register of Copyright.
The Act confers upon him, in the prescribed cases and subject to the
prescribed condition, power to amend or alter the Register by correction.
[Chapter X, section 44- 50A]

15. (ii) Copyright Board: A copyright Board is constituted by the Central
Government under the Act for the discharge of certain judicial functions.
It consists of a chairman and two other members. The Chairman of the
Board is of the level of a judge of a High Court. [Section 11]. The Board
has power to regulate its own procedure, including the fixation of place
and time of its sitting. The board is deemed to be a civil court for the
purpose of section 345 and 346 of the code of criminal procedure, 1973,
and all proceedings before the board shall be deemed to be judicial
proceedings within the meaning of section 93 and 228 of the Indian
Penal Code [Section 12]. Some powers of Board are to –
a. hear appeals against the orders of the Registrar of Copyright [Section 72];
b. hear applications for rectification of entries in the Register of Copyrights
[Section 50];
c. adjudicate upon disputes on assignment of copyright [Section 19 A];
Other powers under Sec 31, 31A, 31B, 31C, 31D, 32 and 32A.

16. (iii) Custom Authority: As section 51 provides that a copyright in a work shall
be deemed to be infringed when any person imports into India any infringing
copies of the work, this machinery is used when the person concerned to
copyright want to prevent the transborder movement of infringing material.
‘Infringing copy’ is defined in section 2(m).
The remedy available to copyright owner under Section 53 is different from
and in addition to the civil remedy available for the infringement of copyright
under Section 55. The remedy available under Section 53 of the Act is quasi –
judicial in nature as an appeal can be made to the Copyright Board against
the order of Registrar under Section 72 of the CopyrightAct.
The use of this machinery is given in section 53. Accordingly, the owner of
copyright work or any person on his behalf, in respect of work or any
performance embodied in such work, may give notice in writing to the
commissioner of Custom or any person authorized on this behalf : (i) that he
is the owner of the said right, with proof thereof; and (ii) that he request the
commissioner for a period specified in the notice, which shall not exceed one
year, to treat infringing copies of the work as prohibited goods, and that
infringing copies of the work are expected to arrive in India at a time and a
place specified in the notice.

17. CONCLUSION
In addition to intensifying raids against copyright infringers, the
government has taken a number of measures to strengthen the
enforcement of copyright law. It include setting up of Copyright
Enforcement Advisory Council, organization of seminars/workshops to
create greater awareness about copyright law among the enforcement
personnel and the general public, setting up of collective administrative
societies and creation of separate cells in state police headquarters.
The Act provides not only civil but also criminal remedies, in case of
infringement of copyright, against infringer. The two remedies are distinct
and independent and can be availed of simultaneously. The Copyright Act,
1957 prescribes mandatory punishment for piracy of copyrighted matter
commensurate with the gravity of the offense with an effect to deter
infringement, in compliance with the TRIPs agreement.