This article has been written by Tannu Gogia, pursuing a Diploma in International Business Law from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Introduction 

I want to protect myself from any harm that may be caused to me. This harm is not limited only to bodily harm but also extends to my work, my creation, or something that is the result of effort, skill, and labour. I am sure this is not the case that applies to me only; everyone is possessive of their possessions, be it a small child, an adult, an organisation, or an entity, as it is their pride and joy, based on which they can flaunt their skills and show how proficient they are at what they can do.

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A simple question, if you can answer it: Will you let anyone else take credit for your work or let them reap benefits from your work? No, you will not, because it is not only a matter of any economic value what other person may gain from your work, but it also questions the high power of justice to call them out on their wrongdoings and to set an example for society that a wrongdoer shall be punished for misdeeds. Works like literary, artistic, dramatic, sound recording, cinematograph film, etc. are protected under the Copyright Act of 1957. The term protection means no other person has the right to copy, use, or recreate the work without the express authorization of the owner of the work; if done otherwise, it will result in infringement of copyright. 

The purpose of copyright law is to promote creativity among people, encourage them to create innovative works, and guarantee them exclusive rights over their work for a specific period. Also, in the Copyright Amendment Bill of 2012, one of the objectives was “Protection against Internet Piracy”. The protection of copyright owners against the theft of their work found traces in the Berne Convention. The danger to copyrighted works has been persistently recognised in various laws, which makes it an important subject of deliberation.

Understanding the nuances of copyright infringement

As per Section 14 of the Copyright Act, a copyrighted work encompasses several rights, like the right to reproduction, the right to communicate the work to the public, the right to make adaptations of the work, the right to make translations, etc., when all or any of the rights to use the work in any way are snatched from the true owner or are violated by the unauthorised use, resulting in copyright infringement. For example, there are many websites and applications where a new movie, even before its release date or after a few days of its release, without proper licencing arrangements, is made available at a lower charge and violates the rights emanating from a copyrighted work. There is an author, Mr. A, from India, who, after months of laborious work, has produced a novel named “Feathers of a Broken Bird” based on the true story and got it published through ABC Publishing House. Copies of such work are made available through paperback and ebook, which can be bought for Rs. 1760, but later he came to know that his book was made available on a website for free of charge. He can see his efforts, on which he worked diligently, going down the drain. When a copyrighted work is made available to the public via illegal channels, this conduct has a damaging effect both on the creators and the creative industry, so a person not only loses his hard-earned money but also suffers from reputational damage, self-doubt, security risks, loss of trust, costly litigation, devaluation of intellectual property, irreparable damage to the brand’s reputation, discouragement of innovation and creativity, etc. A creative industry suffers from the loss of investment in the production and distribution of its works, which has a damaging effect on its growth. Because of these reasons, it is crucial to protect intellectual property and stop it from falling into the wrong and malicious hands.

Legal framework

The first law that was directed towards protecting literary copyright was the Licencing Act of 1662 in Germany. This law prohibited the printing of any book that was not licenced. Later in the year 1709, a law named the Statute of Anne came into force. It was the world’s, or we can say England’s, first copyright law, and one of its purposes was to give authors protection against piracy. This act’s protection was limited only to literary work, but other works such as music, paintings, or photographs were protected under other legislation like the Engraving Copyright Act of 1734 and the Fine Arts Copyright Act of 1862. Later, all the legislation was merged into the Copyright Act of 1911, under which unpublished works were also entitled to protection.

From the perspective of protecting the creation of authors, the Berne Convention, adopted in 1886, can be considered paramount, as its goal was to safeguard the rights of artists and authors in their works. Here a few principles were adopted, but one such principle of significant importance was the principle of automatic protection. As per this principle, the works of an author or artist shall be guaranteed the same level of protection against infringement in the member countries as they enjoy in their country of origin, and this protection shall not be conditional upon the satisfaction of any formality.

Before the Independence of India, many copyright acts existed, like the India Copyright Act of 1847, the Copyright Act of 1911, and 1914, but the first copyright law after independence was passed in 1957, the Copyright Act of 1957, and this enactment is still in force. As per Section 2(y), literary, dramatic, musical, artistic, cinematographic film, and sound recording are considered works, and they are protected under the Copyright Act, irrespective of their registration. As per the Madras High Court in the case of Sulamangalam R. Jayalakshmi And … vs. Meta Musicals And Ors. (2000), “Copyright law is to preserve the fruits of a man’s effort, labour, talent, or test from annexation by other persons.” Section 2(m) of the Copyright Act, 1957, explains what “infringing copy” means and, as per this subsection, any reproduction of literary, dramatic, musical, or artistic work; making a copy of a cinematograph film on any medium; making a recording of any sound recording on any medium; and making a sound recording or cinematograph film of a program or performance in which performance rights or broadcast reproduction rights subsist.

In Blackwood And Sons Ltd. and Ors. vs. A.N. Parasuraman and Ors. (1958), Madras High Court held that “translation of literary work is itself a literary work and is entitled to copyright protection; reproduction of publication of translation without consent or licence of the owner of copyright in the original would amount to infringement.” Section 51 of the Copyright Act defines under what conditions an act will be considered an infringement of copyright:

  • Any act without express permission of the copyright holder or any act beyond the permissible limit;
  • Where a condition has been imposed in the licencing agreement stipulating that certain work shall not be communicated to the public beyond the allowed jurisdiction, violating such condition shall be considered copyright infringement;
  • Reproduction of the work of the copyright holder without express permission;
  • Importing infringing copies into India;
  • Exhibition of infringing copies by way of trade;
  • Distribution of infringing copies for trade, which results in economic loss to the copyright owner;
  • Making of the infringing copies of the work for sale or hire or offering for sale or hire.

Types of copyright infringement

Infringement of copyright can take place in two ways: primary infringement and secondary infringement. If one likes, they can be called direct and indirect infringement.

  1. Primary infringement: Primary infringement indicates the actual deed of making infringing copies of the work of the copyright holder, for example, making a recording of a new cinematograph film and then uploading it on the websites.
  2. Secondary infringement: This type of infringement means contributing to the principal act of copyright infringement. It is a legal theory that makes a person responsible for copyright infringement for partaking in activities such as selling, distributing, and importing infringing copies and providing a place that can be used for communication of work to the public.

Notable copyright infringement cases

Whenever something exceptional occurred in India’s history, it became part of our daily teachings to learn the surrounding circumstances, reasons, how the situation was dealt with, and the consequences of the same; similarly, there are some exceptional precedents present in the history of copyright, and it has become important to learn what the situation of copyright was and what was achieved with the help of the Hon’ble Courts of India:

R.G Anand vs. Deluxe Films and Ors. (1978)

Facts of the case

In this case, the plaintiff or appellant is a play producer, and he wrote a play called “Hum Hindustani” in 1953, which was the first time played in 1954 of the same year. As the play was enjoyed by many and gained popularity, Defendant No. 2 approached the plaintiff for a copy of the play to determine whether to make a movie on the play or not, but later in May 1955, it was announced that the defendant was making a movie titled “New Delhi,” which was released in September 1956. After watching the film “New Delhi”, the plaintiff sued defendant no. 2 for infringement of his copyright in the play “Hum Hindustani”, He alleged that defendant no. 2 had imitated his play and made a movie based on it. Defendant No. 2 denied all the allegations and argued that as the play is based on the idea of “provincialism,”, there cannot be copyright in the idea itself, and everyone has a right to present their idea in whatever manner they find acceptable. They further asserted that there are significant differences in the content, spirit, and climax of the movie, and even if there is any similarity, it is only because they share the same course, which is “provincialism.” Both the trial court and the Delhi High Court ruled in favour of the defendants that there had been no infringement of the plaintiff’s copyright. 

Issues involved in the case

The issue before the Supreme Court was whether the defendants had infringed upon the copyright of the appellants in the play “Hum Hindustani” by making the film “New Delhi.”

Rule

The Supreme Court relied on the concept of the idea-expression dichotomy, the reasoning of the viewer of the works, and Section 13 of the Copyright Act.

Analysis

The Supreme Court ruled in favour of the defendant, and according to the court under Section 13 of the Copyright Act, the idea of “provincialism,” based on which both the play and movie are created, is not protected, as it protects literary, musical, theatrical, creative works, sound recording, and cinematographic films. The Copyright Act protects the expression, the manner, or the arrangement in which an idea is presented, not the idea per se. If the source of two or more works is the same, then some similarities are inevitable, and whether a particular work infringes on the copyright of another or not should be decided by the viewer. If, after reading or watching the work, a viewer is certain that the latter work seems to be a copy, then it would be labelled as copyright infringement.

Conclusion

Hence, the Supreme Court held that the plaintiff failed to prove that the defendant had in any way imitated the play. As there are no apparent and significant similarities between the play and the movie, aside from the idea of “provincialism,”, the film cannot be perceived as an imitation of the original play, so there is no infringement of copyright by the defendant.

Ratna Sagar Pvt. Ltd. vs. Trisea Publications and Ors., (1996)

Facts of the case

In this case, the plaintiff started its publishing business in 1982 and was involved in publishing books for children for educational purposes. The plaintiffs published five volumes of a book titled “LIVING SCIENCE” an educational book for children to make them aware of the features of plants and animals. The plaintiff was the owner of the copyright in these 5 volumes of the books published by them and had the sole right to use them; no one else had. The first defendant was the publisher of a series of books under the title ” UNIQUE: SCIENCE”, Volumes III, IV, and V, and defendants no. 2 and 3 were the editors of the said works. As per the allegations of the plaintiff, the series of books published by the first defendant under the title “UNIQUE SCIENCE” was a replica of the books published by the plaintiffs. The defendants contended that the work of the plaintiff and the defendants was derived from common sources, and the works are dissimilar; therefore, there is no question of any infringement of copyright. The defendants further alleged that the Copyright Act doesn’t protect the original thought or information; what it protects is the work, which may have the same source as that of the other work but has a completely different way of expressing the thoughts and information; it was produced with skill and labour. A person is entitled to further develop the idea derived from the common source. The work of the defendant, though derived from a common source, is not in any way similar to the alleged work of the plaintiff, where the idea being taken from a common source is developed differently, and similarities are bound to occur.

Issues involved in the case

Whether defendants are guilty of infringement of the copyright in the books published by the plaintiff?

Rule

The Court relied on the provisions of sections 13, 51, and 55 of the Copyright Act of 1957.

Analysis

Based on a thorough study, the court reviewed the materials presented by the parties as well as the arguments of the learned counsel for the parties. It has viewed the plaintiff’s books as well as the defendants’ books, and a detailed inspection of the books leaves the impression that the defendants duplicated the plaintiff’s work. No doubt, both the plaintiff and the defendants got their book ideas from nature, but what we’re interested in here is how the plaintiff and defendants portrayed the things that exist in nature. The notion of combining thoughts into a picture and words would serve as the pivot for every person’s work. As a result, where it is recognised that the plaintiff had previously published the work, its rights must be safeguarded. As a result, based on the facts and circumstances of the case, I have no hesitation in concluding that the defendants are guilty of violating the plaintiff’s copyright in the books, and the plaintiff has put out a prima facie strong case for an injunction. The plaintiff also wins on the balance of convenience.

Conclusion

It has been held by the court that the defendants have infringed the copyrighted work of the plaintiff, and accordingly, there shall be an injunction restraining the defendants from printing, publishing, selling, and/or offering for sale, advertising, directly or indirectly dealing in the infringing literary works titled “UNIQUE SCIENCE,” which works are an infringement of the copyright of the plaintiff.

Shree Venkatesh Films Pvt. Ltd. vs. Vipul Amrutlal Shah and Ors. (2009)

Facts of the case

In this case, the plaintiff/respondent is a producer and director of Hindi films, and in 2007, Vipul Amrutlal & Ors released a film named “Namastey London”. The film was a megahit, earning more than Rs. 100 crore through the box-office collection. But in July 2009, a Bengali film titled “Poran Jaye Joliya Rae” was released, which was supposedly an imitation of the film “Namastey London,” produced by the plaintiff/respondent. On the 28th of July 2009, after the release of the film, attempts were made to negotiate between the plaintiffs and the Bengali film producer for assigning the rights in the movie in favour of the plaintiffs, but the negotiations proved to be a complete failure. Later, 10 days after the release of the Bengali film, the plaintiffs filed a suit and interlocutory application to restrain the exhibition of the film as it infringed the plaintiff’s copyright in their Hindi film. The Hon’ble First Court passed an ad-interim order stopping the defendants (Shri Venkatesh Films Pvt. Ltd.) from exhibiting their film. The appeal was filed against the injunction order of the Hon’ble First Court in the Calcutta High Court.

Issue involved in the case

The issue before the Calcutta High Court was whether defendants or appellants were guilty of infringing the copyright of the plaintiffs or respondents in the film “Namastey London”? 

Rule

Here, the Calcutta High Court interpreted the term “copy” in Section 14(d)(i) of the Copyright Act, 1957.

Analysis

The Court interpreted the term “copy” in Section 14(d)(i) and stated that “making a copy” of the film is not just limited to duplicating the film by storing it in any electric device or other, but it also points out that “copying of the film” would also mean and include the making of another film that fundamentally or substantially resembles the original film, copying that portion without which the movie or film has no structure to lean on. So, the Calcutta High Court pressurised giving broad meaning to the term “copy” in Section 14(d)(i). The court observed that where, in the opinion of the viewer, a film shows substantial similarity with another film, there is copyright infringement. The court further states that the two films have been compared scene by scene, and on a prima facie basis, it was held that the Bengali film is a coherent version of the Hindi film as a whole. So, there is an infringement of the story and screenplay in the Bengali film.

Conclusion

The Calcutta High Court confirmed the injunction order passed by the Hon’ble First Court and further restrained the defendants from making adaptations or copies of the film for any regional film. 

Test for copyright infringement 

The work is copied: Once the plaintiff has been successful in proving his right of ownership, the next task is to show that the defendant has, through any means possible, actually copied the work from the plaintiff’s work.

Substantial similarity: The next test to prove infringement of copyright is the substantial similarity test. It is often used by the courts even though there is no exact formula to determine whether a work is substantially similar or not, but there are few standards for the courts to use. One such method is to see how much work is copied from the original work and whether the presence of a copied version in a new work is trivial or substantial. This can be understood with a simple example: imagine that you are writing an article and you took a 250-word paragraph from a 5000-word research paper. The court may consider this trivial, but if you are writing a poem and you took one most important line from a 5-line poem, then there might be a good argument to make about the substantial similarity between the original and the new work.

Another portion of this test is to determine the similarity element. An idea might be similar to hundreds, but the creative way to present such an idea is what matters most. The choice of works, the order maintained in the work, the punctuation, the usage of graphs, etc., are what make the work of one person different from another. So, the court must compare the two works to find out whether the new work so clearly resembles the original work that it was most likely copied.

Lay observer’s test: The next test to determine copyright infringement is “the audience test.” Here, the plaintiff must prove that if the audience finds the expression in the defendant’s work substantially similar to the plaintiff’s work, in other words, the observer, or, as we can say, a layman, would find the two works so substantially similar that they would not be able to differentiate between the two, therefore the substantially similar work would not enjoy protection as it infringes the copyright of another. This test is also called “the observer test”.

Legal enforcement and remedies

Civil remedies: As per Section 55 of the Copyright Act, civil remedies for copyright infringement are: When a copyright owner files a suit for infringement of copyright before the trial starts, he also files for an interlocutory injunction. Such injunctions are filed to prevent the infringer from further utilising the copyrighted work and to provide immediate and temporary relief to the copyright owner, which can last until a trial is concluded or any subsequent orders are given. To provide an interim injunction, the following conditions must be fulfilled:

  • A prima facie case has been made.
  • The balance of convenience lies in the favour of the plaintiff.
  • Refusal of such an injunction would result in irreparable injury to the plaintiff.

Monetary remedies are also provided, as the court deems sufficient according to the facts and circumstances, to the copyright holder for infringement of his work:

  • Monetary damages are provided to the owner to restore him to his earlier position, which is the result of a loss of reputation, trust, a decrease in sales, etc.
  • Account of profits made by the sale of the infringing copies.
  • Cost of proceedings.

Criminal remedies: As per Section 63 of the Copyright Act, any person who intentionally infringes or abets the infringement of copyright in a work or any other rights involved in copyright conferred by the Copyright Act, 1957, shall be punished with imprisonment for six months, which may extend to three years, and with a fine, which shall not be less than fifty thousand rupees but may extend to two lakh rupees. In a situation where copyright in a work has been violated but not with the intent to gain in the course of trade or business, the court may punish such a violation for a term of less than six months and a fine of less than fifty thousand rupees.

Administrative remedies: When goods are brought into a country from abroad for sale, it is called importation, and sometimes limits are imposed on goods, which means that they won’t be sold in a particular territory or that their sale would be restricted to particular territories. Any act done contrary to such stipulations results in infringement of copyright through importation, so the injured party can approach the Registrar of Copyright to restrict the import of infringing copies to the copyright owner.

Technology and copyright infringement

Whenever someone faces any complication beyond his or her capacity, the one thought that overtakes one’s mind is “I cannot do this” or “I was not prepared to deal with this situation”. In the same way, our Copyright Act was not made with the intent to deal with the challenges of technological advancement and the digital age; however, it was the sheer willpower of the Parliamentarians to protect the integrity of the works produced by the authors and artists, so here we are today with a few amendments at par with all the issues that emerged from the digital age.

To deal with the emerging issues in the digital environment, the World Intellectual Property Organisation introduced two treaties, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). The WCT was added as a special agreement under the Berne Convention, which pertains to protecting the works and rights of their authors in the digital world. Now, because of the WCT, computer programmes and the compilation of data are protected under copyright laws. It recognises the right to communicate work to the public, the right to distribute, and the right to rent, among other rights recognised by the Berne Convention.

The India Copyright Act of 1957 has been amended five times, preceding the 2012 amendments. This Copyright Amendment Act of 2012 was brought in to bring the Indian Copyright Act on par with WIPO’s “Internet Treaties” and some other amendments that go beyond these Internet Treaties. This amended statute introduces technological protection measures to make sure that authors and artists do not fall prey to the dangers of the digital era. Some examples of such amendments are given below:

  • The amendments made regarding sections 14(c), (d), and (e) of the Copyright Act, in respect of artistic work, cinematograph film, and sound recording, respectively The purpose was to interpret terms like the right to reproduce, the right to make a copy of the film, and the right to make a copy—to say that these terms mean the storing of it in any medium by electronic or other means—to create liability for the Internet service providers.
  • The next amendment modified the definition of cinematograph film under Section 2(f), and the amended definition is “any work of visual recording on any medium.” To define “visual recording,” clause (xxa) was added to propose that recording in any medium with any method possible, including storing it in electronic means from which it can be reproduced or communicated.
  • Another amendment complied with the “Internet Treaties” of WIPO by adding performance to Section 2(ff): Communication to the public means “making any work or performance available.” Looking back, this “Communication to the Public” was introduced by the 1994 Amendment to extend the rights to the Internet, and the rights that were only limited to the authors now have been extended to the performers as well, the reason being that the performers’ rights have been recognized by the WPPT and brought to the Indian Copyright Law by bringing sections 38 A, 38 B, etc. 
  • To prevent infringement in digital media, digital locks called Technological Protection Measures were devised to prevent infringement of works, but simultaneously, circumvention of technologies was developed to beat the digital locks used by the copyright holders, so Section 65A has been introduced to punish any individual who circumvents digital locks used for protecting the rights of the copyright holders with imprisonment, which may extend to two years, and shall be liable for a fine.

The above-mentioned points were some significant amendments that have a direct impact on the rights in the works due to the technology; otherwise, many have been introduced by the Copyright Amendment Act of 2012.

Strategies for copyright protection

Protecting your intellectual property is important not only from a business perspective but also for building trust and security in your work. So, here are some important tips to consider in your daily life to steer clear of dangers to your copyrighted work:

  • Register your copyright: Even though there is no mandatory statutory requirement to register your copyright, it will certainly make your life easy and provide great help in establishing your ownership of the created work.
  • Utilise copyright notices: By copyright notice, I mean to use the copyright symbol ©, the year in which a particular work is created, and your name or the name of your organisation. By incorporating a copyright notice on your work, you inform others that your work is protected.
  • Digital watermarks: A digital watermark means a piece of code is embedded in the digital data. They are very helpful in detecting and eliminating data piracy to protect digital assets. So, if you are providing your work in digital form, this can help in the protection of your creation from online malicious acts.
  • Contractual clarity: While sharing your work with someone else for any reason, it can be licencing agreements, giving reproduction rights, etc., what you need to do is establish ownership in the work and demarcate which rights are restricted to them and what they are allowed to do.
  • Diligent monitoring: To identify any unauthorised use of your work, you need to diligently monitor the internet to take any timely action. This can help you remove the problem from its root and save time, energy, and resources.
  • Document your creation process: While creating a work, you need to document everything, like notes, rough drafts, timelines, research history, any downloaded material for reference, etc. This will provide significant assistance in establishing your claim on your work in case of disputes.

Conclusion

This is not the end; it is just the first step, which starts with gaining knowledge and then applying such knowledge to your daily life. In the intricate web of artistic and intellectual creation, the issue of copyright infringement in India has emerged as a formidable challenge, demanding both vigilance and adaptability. This article has delved into the multifaceted landscape of copyright protection in the country, highlighting the complexities and offering insights into potential solutions. In a nation as diverse and vibrant as India, where artistic expression knows no bounds, creators, consumers, and policymakers must be well-informed about copyright laws. Awareness empowers creators to protect their works, encourages consumers to respect intellectual property, and guides policymakers in crafting legislation that strikes a balance between innovation and protection.

The evolving digital landscape has ushered in both new opportunities and challenges. While it has democratised creativity, it has also amplified the scope of copyright infringement. However, technology is not the enemy; it is a tool that can be harnessed for good and can offer hope for a future where creators can safeguard their intellectual property more effectively.

References

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