In this blogpost, Haridya Iyengar, Student, Jindal Global Law School, Haryana writes about the different remedies available for copyright infringement in India
Remedies for Copyright Infringement in India
This paper looks at the different remedies a person has for copyright infringement in India. There are three types of remedies a person can get for copyright infringement in India – civil remedies, criminal remedies and administrative remedies. This paper will be analysing each of them in detail.
Types of Copyright Infringements
Copyright infringement has become a serious issue in the modern world. Infringement occurs when a person intentionally or unintentionally copies the work of another creator. Infringement is usually classified into two categories – primary infringement and secondary infringement.
Rights of Copyright Owners
It is important to first understand the rights held by a copyright owner before tackling the remedies for infringement. Authorized copyright owners have the right to:
- Publish the work
- Perform the work in public
- Produce the work in a material form
- Produce, reproduce, perform or publish any translation of the work
- Make any adaptation of the work
- Communicate the work through broadcast, radio or cable
The original creator of the work enjoys a few exclusive rights to:
- Make copies of the work
- Make a derivative based on the original
- Distribute the work
- Perform the work publicly
- Display the work in a commercial setting
- Seek remedies for unauthorized use of the copyright work
Civil Remedies for Copyright Infringement
The civil remedies for copyright infringement are covered under Section 55 of the Copyright Act of 1957. The different civil remedies available are:
1) Interlocutory Injunctions
The most important remedy is the grant of an interlocutory injunction. In most case the application filled is for interlocutory relief and the matter rarely goes beyond the interlocutory stage. There are three requirements for there to be a grant of interlocutory injunction – Firstly, a prima facie case. Secondly, there needs to be a balance of convenience. Finally, there needs to be an irreparable injury.
2) Pecuniary Remedies
Copyright owners can also seek three pecuniary remedies under Section 55 and 58 of the Copyright Act of 1957. First, an account of profits which lets the owner seek the sum of money made equal to the profit made through unlawful conduct. Second, compensatory damages which let the copyright owner seek the damages he suffered due to the infringement. Third, conversion damages which are assessed according to the value of the article.
3) Anton Pillar Orders
The Anton pillar order gets its name from the holding in Anton Pillar AG V. Manufacturing Processes. The following elements are present in an Anton Pillar Order – First, an injunction restraining the defendant from destroying or infringing goods. Second, an order permitting the plaintiff’s lawyer to search the defendant’s premises and take goods in their safe custody. Third, an order that the defendant be directed to disclose the names and addresses of suppliers and consumers.
4) Mareva Injunction
The Mareva injunction comes into play when the court believes that the defendant is trying to delay or obstruct the execution of any decree being passed against him. The court has the power to direct him to place whole or any part of his property under the court’s disposal as may be sufficient to satisfy the decree. This is provided in Order XXXVIII, Rule 5 of The Civil Procedure Code, 1908.
5) Norwich Pharmacal Order
The Norwich Pharmacal Order is usually passed when information needs to be discovered from a third party.
Under the Copyright Act, 1957 the following remedies are provided for infringement:
- Imprisonment up to 3 years but, not less than 6 months
- Fine which may not be less than 50,000 but, may extend up to 2,00,000
- Search and seizure of infringing goods
- Delivery of infringing goods to the copyright owner
Fair Dealing under Copyright Law in India
The defence of fair dealing is an integral part of copyright law. The fair dealing defence allowed certain usage of literary works which, would have otherwise been an infringement of copyrights. The fair dealing defence states that copyrights must not stifle the very creativity that law is meant to foster. It is “a key part of the social bargain at the heart of the copyright law, in which as a society we concede certain limited individual property rights to ensure the benefits of creativity to a living culture.”
The Indian Copyright Act under Section 52 makes fair dealing a valid defence for copyright infringement. This defence places the burden of proof on the copyright owner to establish infringement. However, the Copyright Act has not defined fair dealing which led the Indian court to rely on the definition of English authorities. The court usually relies on the case of Hubbard vs Vosper which held that “It is impossible to define what is “fair dealing.” It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may also come to mind. But, after all, whatever said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal decides on facts of the case. In the present case, there is material on which the tribunal of fact could find this to be fair dealing.”
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 Sharma Ayush, Indian Perspective of dealing with Copyright law: Lex Lata or Lex Ferenda?, Journal of Intellectual Property Rights (2009)
 Hubbard v Vosper,  2 Q.B. 84