This article is written by Rupsha Banerjee who is pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from Lawsikho.

Introduction

Copyright implies the set of legal rights vested with a creator to protect his or her original work including literary, artistic, musical or any other creative work and to have exclusive right to publish and economically exploit his/her work. An author has the sole discretion in deciding to further grant or hiss his rights to others, for instance to a publishing house or a producer or a record company. If a third party reproduces or duplicates the work without the authorization or consent of the original creator or author, this amounts to infringement of the copyright. An author of an original work can pursue legal action in a situation that his copyright is infringed.

What is copyright infringement?

Copyright infringement occurs normally when an unauthorized use of the exclusive rights of the owner of a copyright whether it is in relation to the whole or a substantial part of the copyright and when unfair economic gains is made of this infringed work. 

What remedies are available against infringement of copyright?

The Copyright law in India provided for remedies to be made available to the author against a copyright infringer. The Copyright Act, 1957 provides to an author both Civil, Criminal and border enforcement remedies. They are:

1. Civil remedies: provide for injunctions, damages, interpretation of accounts, delivery and destruction of infringing copies and damages for conversion.
2. Criminal remedies: provide for imprisonment, fines, seizures of infringing copies and delivery of infringing copies to the owner.
3. Border enforcement: also provides for prohibition of import and destruction of any imported goods that infringe the copyright of a person with the assistance of the customs authorities of India.

What are civil remedies?

The more common remedies availed by authors in case of Copyright Infringement are mostly civil in nature. Civil remedies are available to an aggrieved author of a copyright under Section 55 of the Copyright Act, 1957. The various civil remedies are:

• Interlocutory Injunctions: One of the most important remedies for copyright infringement, in most cases, the relief is granted by injunction. An injunction may either be interlocutory, one which is granted prior to the trial and only until after the trial or further order, or it may be final and permanent. Applications for interlocutory injunctions are frequently made in actions for infringement of copyright since damages are rarely an adequate remedy for the injury suffered by the plaintiff. The objective of an interlocutory injunction is to provide the plaintiff immediate and temporary protection against any continuous violation of his rights for which he cannot be adequately be compensated in terms of damages. After the English case American Cyanamid v. Ethicon Ltd, three prerequisites to grant a interlocutory injunction were laid down – 

1. Firstly, there needs to be a prima facie case. 
2. Secondly, there needs to be a balance of convenience. 
3. Thirdly, there needs to be an irreparable injury.

In the Gujarat Bottling Co Ltd. V. Coca Cola Company and Ors, 1995 (5) SCC 545, the Hon’ble Supreme Court, inter alia, observed that “The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated n damages recoverable in the action if the uncertainty were resolvd in his favour at the trail. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the “balance of convenience lies.”

• Pecuniary Remedies: Copyright owners who face infringement issue also have the option to seek pecuniary remedies under Section 55 and 58 of the Copyright Act, 1957. Under the above section, an aggrieved plaintiff can seek the following remedies:

1. Accounts of profits which allows the Author of the right to claim the sum of money equivalent to the profit which was made by the infringer through their unlawful conduct.
2. Compensatory damages which allow the Author of the right to claim the adequate compensation and damages due to him for any loss he may have suffered due to the infringement of his work.
3. Conversion damage allows the Author to assess the quantification of damages on the basis of the full value of the article converted.

• Anton Pillar Orders: Only made in the most extreme of circumstances, this type of order is drastic and its effects are far reaching. Deriving its name from the Court of Appeals decision; Anton Piller AG v. Manufacturing Processes it has the following elements:

1. It can be an injunction which restrains the defendant from engaging with the infringed work or destroying them.
2. It can be an order that permits the plaintiff’s solicitors to enter the premises of the defendants, to search the same and take any of the infringed goods into their safe custody.
3. It can also be an order which directs the defendant to disclose the names and addresses of any suppliers and/or customers who the defendant may have done any business with using the infringed good and is directed to also file an affidavit 

This form of order has, in various copyright and passing off matters, has extended to the aggrieved author the desired effect. This is because the defendant has no knowledge about the proceedings initiated against him until he is required by the order of the court to admit the Plaintiff and his representatives into his premises.

Three conditions have to be satisfied before the court will even consider making an order:

1. The Plaintiff must show that he has a strong prima facie case.
2. The Plaintiff must show that he has suffered or is likely to suffer grave and irreparable loss if an order is not made in his favour.
3. The Plaintiff must have clear evidence against the Defendant and must show the incriminating infringed goods in the Defendants possession and there is a real possibility that if an order is not passed against the Defendant, the goods may be destroyed by the Defendant before any application can be made on notice.

• Mareva Injunction: It is an order in the form of an injunction which restrains defendant by freezing his assets temporarily, thus preventing the defendant from removing his assets outside the jurisdiction while pending hearing. This is so that the Plaintiff can obtain the redressal from the decree or award that may be passed in the action or in reference. This form of injunction is quite recent, dating back to the 1975’s and is derived from the case Mareva Compania Naviera SA v. International Bulk Carriers SA.

Further, this type of injunction is provided under Order XXXVIII, Rule 5 of the Civil Procedure Code, 1908. The Court may also order the Defendant to place part or whole of the infringed property under the Court’s disposal if the Court deems that the Defendant is trying to hinder or obstruct the execution of the Decree.

• Norwich Pharmacal Order: Orders of this kind are granted to determine relevant information from third parties to support any evidence which is presented before the court by either the plaintiff or the defendant. These orders are most commonly preferred when copyright infringement takes place online, which requires the disclosure of the infringers from online service providers. In India, one of the first Norwich Pharmacal Order was passed in the case of Souza Cruz v. N.K. Jain, also known as the Hollywood Case, the Court directed the Commissioner of Customs and Excise at Hyderabad to disclose the complete details of the infringing goods, cigarettes in this case, which were being exported in from Ukraine.  

Conclusion 

Although the Indian Copyright law is far from being fully developed and has plenty shades of grey when it comes to various copyright concepts, Indian Copyright Act with regard to infringements is adequate to decide and adjudicate on grievances filed under it. It has sufficient remedies under the Act to safeguard the interest of the authors from the infringement of their work and decide the course of these matters adequately. Although not as developed as the American Copyright law, Indian courts post the D.B. Modak case have started following the US concept of Copyright protection, thus taking stricter measures for Copyright disputes and infringements.

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