In this article, Nikita Sukhathankar, pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata discusses on how to write a copyright infringement notice.
Introduction
Intellectual Property Rights, as the term suggests, is a right over the work which involves human intellect. Copyright, just like any other intellectual property, grants the author or creator the exclusive right over their work.
What is a copyright?
As stated above, copyright is an intellectual property right that grants the creator or author of a certain work involving human intellect the exclusive right over the said piece of work. Copyright is seldom termed as a ‘bundle of rights’ due to its quality of protecting a diverse set of artistic and literary works. According to Section 13 of the Copyright Act 1957, a person can claim copyright over original literary, dramatic, musical and artistic work, cinematograph films, and sound recording. Subsequently, Section 14 gives a brief description of the exclusive rights vested in the copyright holder which is elaborated further in this paper.
Legislative framework
The copyright law in India has been made in compliance with the international copyright conventions of which India is a signatory, such as the Berne Convention 1886, The Universal Copyright Convention of 1951, The Rome Convention 1961 and The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
There have been slow paced but progressive changes in the copyright law in India. The first post-independence copyright law, vis-à-vis, Copyright Act, 1957 has been amended 6 times in all. The latest amendment of 2012 have been made to make the copyright law in compliance with the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT)
How copyright helps the creator of the work?
If a person is a creator of a certain work, it is only fair for him/her to want to protect her work from commercial exploitation or from false claims of ownership of the said work by others. A copyright helps the owner of the work from possible circumstances of such misappropriation. For instance, a person writes a draft of a novel and is willing to publish it, however, due to some unfortunate reason, his work is leaked and someone else publishes it and gains the rights of ownership over that work with subsequent credit for the book and the commercial benefits arising out of it. Had the original author registered for a copyright for his/her work, he/she could have avoided the possibility of going through a potential copyright infringement suit. A creator of a certain work has an exclusive right to his/her work, may it be published or unpublished. A copyright comes into existence the moment the work comes into existence in a tangible medium. Although it is not a mandate to register a copyright, it has been recommended to do so to avoid conflicts.
Copyright infringement
Copyright infringement simply put, is the use of work protected under the Copyright Act 1957 in such a way, the exclusive right of which subsists with the holder of the copyright alone. The copyright holder could be the creator of the work or could be an assignee of the copyright under Section 18 of the Copyright Act 1957. To make a certain use of works protected under the Copyright Act 1957, a person needs to seek permission from the copyright holder in the form of a licence from the owner of the copyright. For instance, the original author of a book reserves an exclusive right to distribute his work and for such distribution, he shall grant a certain bookstore the licence to distribute his work. However, if a certain bookstore fails to obtain a licence from the author and despite that, distributes the copies of his books, it will amount to copyright infringement.
To understand copyright infringement, it is important to understand which exclusive rights are vested with the holder of the copyright and Section 14 of the Copyright Act 1957 helps to understand the same:
In case of literary, dramatic or musical work:
- to reproduce the work in any material form including electronic medium;
- to perform, communicate or issue copies of the work to the public;
- translation and adaptation of work;
- to make any cinematograph film or sound recording.
In case of computer programme:
- any above acts;
- to sell or commercially rent a computer programme.
In case of artistic work:
- to reproduce the work in any material form including storage in an electronic medium; or
- the depiction of a three-dimensional work as two-dimensional and depiction of two-dimensional work as three-dimensional.
In case of cinematograph film:
- to make a copy of the film including a photograph out of the film or storing it in any medium;
- to sell or commercially rent any copy of the film;
- to communicate the film to the public.
In case of sound recording:
- to make any sound recording which incorporates the original work;
- to sell or commercially rent a copy of the sound recording.
The copyright legislation has created a demarcation between acts that qualify as an infringement and the ones that do not within the provisions of Sections 51 and 52 respectively, of the Indian Copyright Act 1957. Section 51(a) of the Indian copyright act 1957 talks about the ‘acts’ that lead to infringement by way of commercially exploiting the copyright by any person who has no interest in the exclusive right that is granted to a copyright holder and Section 51(b) talks about distribution, sale, import, etc of such infringing copies of the work. Further, Section 52 talks about certain acts that do not amount to infringement, for instance, using a work protected by copyright for the purpose of research or personal use does not amount to infringement.
Notice of a copyright infringement
Once the copyright holder is informed about his/her copyright being infringed, the immediate thing to do is send a copyright infringement notice to the infringing party. A copyright infringement notice is like any other legal notice which contains the ingredients of a cease and desist notice. Sending a notice is the step that comes before the copyright holder could avail his civil or criminal remedies under the Copyright Act 1957.
What is a cease and desist notice?
A cease and desist notice is a legal notice that prohibits a person from doing certain acts that violate the legal right of a certain person. The extent of legal validity of a cease and desist notice is that it helps the plaintiff prove to the court of law that there has been a reasonable amount of efforts put in by them in order to avoid litigation. In Midas Hygiene Industries P. Ltd. and Anr. v. Sudhir Bhatia and Ors., 2004 (3) SCC 90, Supreme Court held that a cease and desist notice acts as a very important and useful tool to pronounce injunctions. Hence, the notice is considered an important tool for adjudicating cases relating to copyright infringement in favour of the copyright holder.
Ingredients of a copyright infringement notice
Different legal notices have certain particulars that they need to mention to complete the purpose of the notice. Following are the ingredients of a copyright infringement notice:
- name of both parties;
- the work protected by the copyright;
- date of creation of the work;
- date when the work was first published;
- date of copyright registration (if applicable);
- description of the violation of the copyright;
- demands with respect to compensating the infringed party (fine);
- demands with respect to the course of action to be taken by the infringing party with a view to cease the violation of rights of the copyright holder;
Below is a sample draft of a cease and desist notice for a copyright infringement with the abovementioned particulars, where M/s XYZ have illegally distributed copies of books written by Mr. Ramesh. M/s XYZ had not obtained a licence from the copyright holder to do so:
Mr. Ramesh,
58-B, Magnus tower, Kanjurmarg, Mumbai
Tel. no. – 9999999999
Email id – [email protected]
Subject – Cease and desist letter for copyright infringement.
To,
M/s XYZ,
I, Mr. Ramesh, am the sole owner of my authored work named ‘Metamorphosis’ which is in the form of a novel and I retain all the rights of this copyrighted work. I have written this book on 1st June 2012 and it was first published on 1st July 2013. I got my book registered as a copyright on 1st July 2012. It has come to my notice that, your bookstore, M/s XYZ has been making an unauthorized distribution of the copies of my book. I have not granted a licence to your bookstore for distribution of the copies of my book and under section 14 of the Copyright Act, 1957, I as the sole copyright holder, reserve the right to distribution of my literary work.
I would like to bring to your notice that, since your act amounts to infringement of my legal rights granted under section 63 of the Copyright Act, 1957, you could be liable to a fine ranging from Rs.50,000 to Rs. 2,00,000 and also for imprisonment term of 6 months to 3 years.
I hereby, demand that you,
- cease the unauthorized use of my copyrighted work;
- provide me with a written assurance that you will desist from making any further unauthorized use of my copyrighted work;
- you shall return back all the copies of my work that you retain.
I hope that you understand the civil and penal charges that such an infringement of my legal right attracts and hope that you will work on the issue expediently. Looking forward to resolving the issue amicably, however, I’m willing to use my rights against such infringement if necessary.
Yours truly,
Mr. Ramesh
Take down notice under Copyright Rules 2013
With the dynamic developments in Information Technology, there has been an ease in availability of content on the World Wide Web. This has also led to illegal circulation, publication and or communication of various copyrighted works. Section 52(1)(c) of the Copyright Act, 1957 necessitates the copyright holder whose work has been infringed on a certain website to send the required intermediary a notice on whose website such infringed work is visible.
An intermediary in this section refers to an intermediary in section 2(c) of the Information Technology Act, 2000 as any person who on behalf of another person stores, transmits or receives data or provides any other service with respect to that data. The Information Technology (Amendment ) Act, 2008 takes a step further by specifically including telecom service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online auction sites, online marketplaces and cyber cafes in the definition of intermediaries.
Subsequently, under the powers vested under section 78 of the Copyright Act, 1957, the parliament set up Copyright rules,2013. Rule 75 of the Copyright Rules, 2013 (see the rules here) requires a person whose copyright has been infringed on the internet to serve a notice to the intermediary for taking down of the infringing content. According to rule 75 (2), a take-down notice must contain the following particulars:
- description of the work;
- details establishing that the complainant is the owner or exclusive licence holder of the copyrighted work so infringed;
- details establishing that the copy of the work which is the subject matter of the transient or incidental storage is an infringing copy of the of the work owned by the copyright holder and the act of the infringing party is not covered under section 52 of the Copyright Act 1957;
- details of the location where the transient or incidental storage of the work is taking place;
- details of the person who has uploaded the copyrighted work which amounted to its infringement, if available; and
- an undertaking that the complainant shall file a suit against the infringing party in a competent court and produce before the intermediary the order of the competent court, within 21 days from the receipt of the notice.
Section 75(3) further mandates the intermediary to take down the content complained of within 36 hours for a period of 21 days or until the order of such competent court is received by the intermediary with regard to the status of the case whichever is earlier.
Conclusion
It can now be inferred from this paper that although the development of Copyright law is only recent in India, the efforts to providing better protection of copyright is visible through the latest legislation. Especially, the Copyright Rules, 2013 purports the attempt of drawing parallels between Indian and the international Copyright legislations for instance, the takedown notice rule (rule 75 discussed above) shows the attempt of legitimizing the incorporation of copyright law within information technology which has been given legislative backing in the United States of America namely, in the Digital Millennium Copyright Act, 1998. Copyright infringement notices are a fair means of attempt in avoiding litigation and settling the issue outside of court. The notice acts as a legal threat to the party infringing the copyright and brings to his attention the liability that he has attracted towards the holder of the copyright.
