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This article has been written by Ajay Kumar, pursuing the Diploma in Intellectual Property, Media, and Entertainment Laws from LawSikho. This article has been edited by Aatima Bhatia (Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho).

Introduction

Copyright refers to the legal rights vested with a creator to protect his original work, artistic, literary, musical work or any other types of creative work and the exclusive right to publish and financially exploit his work. An author has the sole discretion to decide whether to grant or further his rights to other people, such as a publishing house, producer, or record company. If any third party reproduces or replicates a work without the permission or consent of the original creator or author, it is a copyright infringement. The author of an original work can take legal action in the event that its copyright is infringed.

Innocent infringement

Innocent or unintentional copyright infringement occurs when a person who engages in the infringing activity does not know that his conduct is infringing, perhaps most commonly when they intentionally imitate the work of another but reasonably believe that the copy thereof is not infringing.

Innocent infringement is one of the most frequently claimed defences in copyright infringement lawsuits. Many defendants assertively over-emphasise the defence without completely understanding what it means and what is needed to establish it successfully. Understanding what an innocent violator defence is and what it isn’t is essential for the defendant to know how and when to claim a defence or for the Plaintiff to understand how to overcome a defence.

Innocent infringement in The United States

The defence of an innocent infringer is covered under Section 504(c)(2) of the Copyright Act. This section provides in the relevant part that “in a case where the violator bears the burden of proving, and the Court thinks that such violator was not knowledgeable and had no purpose to believe that his acts have infringed copyright, the Court may at its discretion to deduct the award of statutory damages to an amount of at least $200.

Although copyright infringement has not always been a strict liability, the first copyright statute only provides liability for “knowing the infringement”. However, the Copyright Act of 1909 removed the requirement to know for liability, and the Copyright Act of 1976, the current copyright law, retained that omission.

While unintentional infringement is a requirement for defence, it is not the only requirement to claim it. Section 504 states that the defendant not only “did not know” that the work he was using infringed the Plaintiff’s copyright but also that he “had no reason to believe” that his acts constituted infringement. The Court has found that unintentional infringers also had ground to believe they were infringing where:

(1) the work included copyright notice

(2) the events surrounding the acquisition of the defendant’s work were questionable (such as Internet downloading), and

(3) where the nature of the work indicated that it was possibly copyrighted.

Additionally, courts have held that the defence will be available only to the “unsophisticated” parties and preclude sophisticated parties such as large companies from affirming the defence.

Another misconception about defence is that it applies regardless of the Plaintiff’s type of damages for the infringement. The defence, however, is seen in Section 504(c)—the section that deals with the grants of lawful damages. Section 504 does not provide for diminishing the award of actual damages if the defendant proves that it is an ingenuous violator. Thus, a plaintiff who wants to avoid the availability of defence for an infringer must seek an award of actual damages under Section 504(b) rather than statutory damages under Section 504(c).

Innocent infringement in India

The proviso to Section 55(1) of the Copyright Act, 1957 talks about the innocent infringement of copyright. Section 55(1) provides that if the defendant at the date of the infringement proves that he was not aware and had no reasonable basis to believe that copyright existed in work, then the Plaintiff is not entitled to any remedy other than an injunction concerning the infringement and the whole or any part of the profit made by the defendant from the sale of infringing copies of a decree, as the Court may deem fit in those circumstances. In short, we can say that Plaintiff will have only civil remedies against the infringer defendant.

In Ghaffur Baksh v. Jwala Prasad, the Court held that in case if the work is vast and the pirated portion is separable from the unobjectionable part, the pirated work will be stopped from publishing but where pirated work cannot be separated from the legal work the Court will not delay in granting to restrain the publication of the whole of work.

Preventive civil remedies

The most common remedies used by authors in the case of copyright infringement are primarily civil. Civil remedies are available to the aggrieved copyright author under Section 55 of the Copyright Act, 1957.

Interlocutory injunction

The injection is the most crucial remedy against copyright infringement. Injection means a judicial process by which one who is frightened to violate or has violated the legal or impartial rights is restrained from initiating or sustaining such an act or is directed to restore the matter to the position in which they stood previous to the action.

In R.M Subbiah v. N. Sankaran Nair, the Madras High Court held that “Injunction is an adequate remedy granted by a court in use of its judicial discretion. It has to be considered from various facets that arise from each case’s particular set of circumstances. There may be matters in which the grant of an injunction, whether temporary or permanent, will only reach the ends of justice, and an alternative safeguard for the preservation of the rights of the challenging party cannot at all be thought of. There may also be cases where the injunction remedy has to be made resilient and adjustable to the situations arising in each case. A firm invocation without considering flexibility in applying the rule as to the grant of injunction might sometimes result in difficulty that cannot be cured later.”

Factors to be considered for the grant of interlocutory injunction

It is settled law that in granting the interlocutory injunction, three factors are taken into consideration:

  • Establishment of prima facie case,
  • Balance of convenience in favour of Plaintiff,
  • Irreparable injury would be caused to Plaintiff.
  1. In Dalpat Kumar v. Prahlad Singh, the Hon’ble Supreme Court explained the meaning of the phrases prima facie case, balance of convenience and irreparable injury.
  2. In Gujarat Bottling Co Ltd. V. Coca Cola Company and Ors., The Hon’ble Supreme Court observed that the primary purpose of the interlocutory injunction is to protect the plaintiff against damage by a violation of his right. He could not be adequately compensated and damages recoverable in the action if the ambiguity were resolved in his favour at the trial. However, the need for such protection must be measured against the relevant need to protect the defendant from injury, which may prevent him from exercising his legal rights for which he may not be sufficiently compensated. The court must balance one demand against another and decide “where the balance of convenience lies”.

Compensatory civil remedies

Compensatory civil remedies against copyright infringement can be divided into three parts:

  • Damages, 
  • Damages for conversion or delivery up of infringing copies and 
  • Account of profit.

Damages

The object of an award of damages is to reinstate Plaintiff to his position before the infringement. Such injuries are compensatory. Copyright infringement is a tort, and the prevailing principle in tort law is that losses should be compensatory. Damages in tort strive to put the victim back to his place before the tort. If the infringement is proved, damages are presumed. 

In Microsoft Corporation v. K Mayuri, the Delhi High Court observed that damages in cases where the blatant infringing activities of the defendant are found can be awarded under the three heads:

  • Compensatory actual damage,
  • Damages to goodwill and reputation,
  • Exemplary punitive damages.

In Indian Performing Rights Society Ltd. v. Debashis Patnaik, the Delhi High Court observed that Damage has traditionally been defined as ‘pecuniary compensation, obtainable by success in action, for a wrong which is a tort or breach of contract’. Thus the general concept of damages is to compensate a petitioner for loss and injury and can also be applied to as compensatory damages, which are awarded to recompense a plaintiff for damages which he has suffered or is expected to suffer and to reinstate something that the plaintiff has suffered or is likely to fail because of the wrongful act of the defendant. The main purpose of the damages is to restore those losses to the plaintiff. However, as tort litigation has emerged, the concept of damages is not limited to compensation for loss and damages alone. There are 3 kinds of damages awarded by courts: nominal damages, exemplary damages, and compensatory damages.

Damages for conversion or delivery up

In a case for damages for conversion, it is a defence if the defendant at the time of conversion of the infringing copies proves that he was not aware and had no rational grounds to believe that copyright subsisted in work or that he had reasonable grounds for believing that such documents do not invoke infringement of the copyright in work. The remedies of damage for infringement of copyright and conversion are cumulative and not alternative. The Court may provide both the remedies in the appropriate cases.

Account of profits

A plaintiff is allowed to opt for damages or an account of profits. He cannot get both an account of profits and damages.  Plaintiffs would be denied an account of profits if there were no profits. In such a case, the Plaintiff may elect to claim damages, and he would be bound by an election once made.

Conclusion

Innocent or unknowing copyright infringement occurs when someone engages in infringing activity not knowing that her conduct constitutes infringement— perhaps most commonly when she knowingly copies from another’s work but reasonably believes that her copying is not infringing or erroneously believes that their copying is permitted, not prohibited, by copyright law. Because copyright law seeks to support such non-infringing copying, the probability of holding innocent infringers liable should be worrisome if it stops potential users from using copyrighted material in ways that might eventually be found non-infringing. However,  the only safeguard that copyright law grants innocent infringers today is little remedial relief, a weak defence against the threat that liability will hinder permitted uses of copyrighted works. 

This encourages the question as to whether to impose liability on innocent infringers and how do we better protect innocent infringers from liability as copyrights widen and the limits of acceptable use remain unclear.

References


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