Copyright Infringement- What Constitutes A Copyright Infringement
Copyright Infringement- What Constitutes A Copyright Infringement

 

The concept of copyright is very important when it comes to artistic, dramatic, and literary work. Copyright is the actual sense is not a positive right but a negative right. What this means is that other players in the industry cannot use your work except with the express permission of the rightful owner if the copyright.

Copyright laws provide certain levels of rights to the holders of copyright such as the right to distribute, reproduce, display, perform or make a derivative work. The use of a copyright protected work without the permission of the copyright holder is a criminal offense and regarded as a copyright infringement. This article will take a look at the Infringement of copyright in India.

 

WHAT IS AUTHOR’S RIGHT?

The right of an author is derived from the French tradition known as “Droit d’auteur”. These rights are protected by both European Union and International legislation. Most civil law countries have adopted the concept of copyright with a view to protecting the interest of content creators.

The author of an artistic or literary work has the authors’ rights. The right is made up of moral and economic rights. Economic rights are those rights that protect the authors’ work from unauthorized use. An economic right can be licensed or transferred. Whenever anyone attempts to use an author’s economic right, the person must pay, except the author decided not to charge a fee for reusing his/her work.

Apart from economic rights, authors’ right also grants a moral right to an author. Moral right protects an author’s work from being used in such a way that it would be detrimental to the author. This right cannot be traded because it is personal and it empowers the authors to exercise control over their contents.

 

WHAT IS COPYRIGHT INFRINGEMENT AND DIFFERENT TYPES OF INFRINGEMENTS-

Copyright infringement is the act of using a copyright-protected work (artistic, dramatic, and literary work) for the purpose of selling, displaying, reproducing or for financial benefits.

The following are the common types of copyright infringement;

  • Duplicating a copyright protected work for sale with the intent of making money.
  • Performing copyright protected work in public places
  • Distributing copyright infringing works.
  • A public exhibition of copyright infringing works.
  • Importing copyright infringing works into India.

 

Under the copyright laws of India, if any person or business is engaged in any of the above-listed copyright infringement types, then they are liable for prosecution.

 

STATUTORY DEFINITION OF INFRINGEMENT

The following are the statutory definition of infringement under section 51;

(a)    When a business or a person without the authorization of a copyright holder or the Copyright Registrar under the Act:

  • Does anything, the right which is conferred on the copyright owner, or
  • Permits to use any part of the work to make financial gain where such act constitutes a copyright infringement unless the copyright owner was not aware

(b)    When any person,

(i)    Hires or sell any infringing copies of the work, or

(ii)    Display to members of the public any infringing copies of the work, or

(iii)    Bring in infringing copies of a copyright-protected work into India, except for the domestic use of the importer

An infringing copy will be deemed to be an infringement of copyright when there is a reproduction of musical, literary, dramatic, and artistic work on the form of a cinematograph.

 

WHAT CONSTITUTES A COPYRIGHT INFRINGEMENT?

Copyright laws confer upon a copyright holder certain privileges with respect to the reproduction of the holder’s work and other acts which provide financial benefits to the copyright holder for exercising such right. Under the Act, if any part of the copyright protected work is duplicated without the permission of the owner or a competent authority, it constitutes an infringement on the copyright.

 

Since copyright is granted for a specific period of time, there won’t be any infringement if the work is reproduced after the expiration of the copyright. The right conferred on a copyright holder depends on the nature of the invention in which copyright subsists as seen on the table below;

 

Nature of work Explanation
(a) Literary, dramatic or musical work (1) to reproduce the work in a material form;
(2) to store the work in any media by electronic means;
(3) to issue copies of the work to the public;
(4) to perform the work in public or communicate it to the public;
(5) to make cinematograph film or a sound recording of the work;
(6) to make translation or adaptation of the work;
(7)to do any of the acts specified under items (1) to(5) inr elation to an adaptation of the work.
(b) Computer Program: (1) to do any of the acts specified under (o) above;
(2) to sell or give on hire or offer for sale or hire any copy of the computer program, regardless of whether any such copy has been sold or given on hire on earlier occasions.
(c) Artistic work: (1) to reproduce the work in any material form including depiction in three dimensions of a two-dimensional work or in two dimensions of a three-dimensional work;
(2) to communicate the work to the public;
(3) to issue copies of the work to the public, not being copies already in circulation;
(4) to include the work in a cinematograph film;
(5) to make any adaptation of the work;
(6) to do in relation to an adaptation of the work in any of the acts specified in relation to the work in items (1) to (4).
(d) Cinematograph film: (1) to make a copy of the film including a photograph of any image forming Part thereof;
(2) to sell or give on hire, or offer for sale or hire any copy of the film regardless of whether such copy of the film has been sold or given on hire on earlier occasions;
(e) Sound recording (1) to make any other sound recording embodying it;
(2) to sell or give on hire, or offer for sale or hire any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions;
(3) to communicate the sound recording to the public’

 

 

Conversely, the Act which constitutes Infringement also depends on the nature of the invention. Generally, section 51 of the Copyright Act clearly defines copyright infringement. Section 52 categorically listed all the acts that don’t constitute copyright infringement.

 

The right conferred on a copyright holder under the Act also extends to adaptation or translation of the work. Thus, there is an infringement of copyright if the work is reproduced. The circumstances of the case will determine what amount to a substantial part of the work.

Copyright is an exclusive right; hence its Infringement is punishable under the Act.

 

HOW TO CLAIM COPYRIGHT OWNERSHIP?

Unless the contrary is proven, the name of a publisher or the author which appears on the copies of the work in the case of a dramatic, literary, artistic or musical work is presumed to be the owner of the work.

 

THE REMEDY FOR COPYRIGHT INFRINGEMENT IN INDIA

Holders of copyright can institute a legal action against any person or entity that infringes on a copyright protected work. The copyright holder can file a civil remedies case in a court of competent jurisdiction and is entitled to damages such as financial benefits. Furthermore, under the Copyright Act, no inferior court to that of a Judicial Magistrate or a Metropolitan Magistrate can try any copyright offense.

In case of an infringement by a private limited company or a limited liability partnership, the company and all those involved in the copyright infringement shall be held responsible and would be liable for prosecution.

 

CRIMINAL PROSECUTION FOR COPYRIGHT INFRINGEMENT

Under the Copyright Act, anybody that infringes on the copyright of a work knowingly is a criminal offender. The minimum punishment that would be meted out to a copyright infringement offender is imprisonment for a period of six months and a fine of Rs. 50,000. However, in the case of a second offender, the minimum punishment is a prison for a period of one year and a fine of Rs. 1,00,000

 

COPYRIGHT INFRINGEMENT A COGNIZABLE OFFENCE

A cognizable offense is an offense which grants the police the powers to arrest an offender without a warrant of arrest and to proceed with an immediate investigation without a court order. Copyright infringement falls into this category of offense. A police officer not below the rank of a sub-inspector have the powers to seize any infringe copies of the work without a warrant and charge the offender to a competent court of jurisdiction.

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EXCEPTIONS TO COPYRIGHT INFRINGEMENT IN INDIA

The 1957 Copyright Act exempts some acts from the cover of copyright infringement. In India, it is very common to see people describe the term “copyright’” as fair use. This practice is factually wrong.

Although the United States and other countries use the term fair use exception, India’s case is a bit different with respect to copyright infringement. India adopts a hybrid approach that allows a fair dealing when it comes to the issue of copyrighted work.

While the fair use approach adopted by the United States can be applied in any copyright infringement situation, the Indian fair dealing approach is clearly limited for personal or private use such as education, research, review or criticism, current affairs, reporting of current events, as well as the reporting of public lectures.

The term “fair dealing” has not be defined anywhere in the 1957 Copyright Act, although the concept of fair dealing several times being a subject of discussion in various judgments. For instance, the Supreme Court of India decision with respect to the Academy of General Education v. B. Malini Mallya in 2009, as well as, the High Court of Kerala decision in the case involving Civic Chandran v. Ammini Amma.

 

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