INFRINGMENT OF COPYRIGHT
Published by: Satamita Ghosh
Copyright in simple terms is the right provided under the Copyright Act, 1957 to the ‘Author’ of literary, dramatic, artistic and musical works and producers of sound recordings and cinematograph films. It is a kind of property right that subsists in certain types of creative work vested with the author or creator of the original literary, dramatic, artistic and musical work. The term ‘Work’ has been defined under section 2(y) of the Copyright Act, 1957. Therefore this law protects a wide range of artistic and literary expressions such as books, poetry, dance, computer programs, sculptures, paintings, photographs etc. The Act does not actually protect the idea itself but it protects the particular expression of the idea is protected. The ownership of a valid Copyright protects the owner from unauthorised copying, public display and adaptation of his work, which can be termed as infringement of copyright. It also entitles the holder to control the sale and distribution of the work of which he holds a valid copyright. One more very important thing that the Copyright Act, 1957 provides for is what all fall within the ambit of infringement of copyright and what are the things which cannot be categorised as infringement. Infringement of Copyright means to use or reproduce the literary, artistic, dramatic etc. work of the true owner with obtaining any license or authorization from him. Copyright in a literary work is said to be infringed only in cases where a substantial part of the work is made use of without any authorization from the owner of the work.
The term Copyright under Section 14 of the Copyright act, 1957 includes various rights. It is a bundle of exclusive rights vested in the owner to do or authorise reproduction of the work, performance of the work in public, to make translation and adaptation of the work, to sell or give on hire or communication of the work etc. The provisions of the act protect the author from unlawful reproduction or exploitation by other people who are no licensed or authorised. In the case of Eastern Book Company & Ors. vs. D B Modak & Anr., it is held that “Copyright is a right to stop others from exploiting the work without the consent or assent of the owner of the copyright. A copyright law presents a balance between the interests and rights of the author and that of the public in protecting the public domain, or to claim the copyright and protect it under the copyright statute. One of the key requirements is that of originality which contributes, and has a direct nexus, in maintaining the interests of the author as well as that of public in protecting the matters in public domain. It is a well accepted principle of copyright law that there is no copyright in the facts per se, as the facts are not created nor have they originated with the author of any work which embodies these facts.”
Enforcement of Copyright is resorted to when there is an infringement of the right under this Act occurs. Without obtaining license or permission from original author reproduction of a literary, dramatic, musical, artistic work and cinematographic work in any material form is deemed to be an infringement of copyright. Section 51 of the Act provides for the conditions when copyright is infringed, it lays down situations which can be termed as infringement. Copyright is said to have been infringed when any person without the authorisation of the owner or a license granted by the owner of the copyright does anything which is an exclusive right conferred on the owner by the Copyright Act 1957. For ex. If a person has a copyright of a literary work and any other person without any license from such owner of the copyright, produces or reproduces the same it shall be termed as infringement of copyright.
HISTORY AND DEVELOPMENT OF COPYRIGHT:
Only we the humans are capable of creative thinking, for example be authors, composers, artists and designers etc for making their original works. Generally, they alone are entitled to relish the exclusive rights to do or authorize others to do certain acts in relation to right vested with them. Copyright is the primary right which gained recognition in the world as intellectual property right as well as legal right. The right which someone acquires in his work, which is a result of his intellectual labour is called Copyright. In ancient days, writers, musicians and artists, wrote, composed and created their work for fame and recognition instead of earning a living. The actual importance and need of protection of copyright was recognised after invention of printing press in 15th century. This enabled the large number of copies of books practicable. First copyright Act was enacted in the year 1709 is the Great Britain, as the Statute of Anne, which is the first statute to provide Copyright which was regulated by the Government and courts instead of the private parties. It also stated that the author of any book which has already been printed will have the sole right of printing the same.
In the case of Donaldson V. Beckett, which is the ruling by the UK House of Lords denied the continuing existence of perpetual common law copyright and command that copyright was a creation of statue and will be restricted in its period, copyright is an intellectual property, the importance of which gained drastically importance in this modern hi-tech era in which everything is on the tip of fingers on us because of technological advancement. Intellectual copy right arises automatically now a days because of modern technologies and hi-tech volition too. Copyright is not a monopoly it not shield the owner to monetize the work. It doesn’t shield the ides, what copyright protects is that the type within which the work is expressed. As regards to social control, Indian agencies are working aggressively against the copyright infringer’s and there is notable decrease in piracy on different levels. Copyright enforcement advisory Council, organisation of seminars or workshops to make larger awareness regarding copyright law among the enforcement personnel and therefore the general public, setting up of collective body societies and creation of separate cells in police headquarters. Copyright is totally implemented with court of law therefore copyright act is exactly according to the TRIPS obligations. The act provides civil as well as criminal remedies in case of infringement of copyright against the infringer. Both remedies are distinct and independent so can be availed at same time the copyright act provides punishment as per the gravity of infringement.
There is no such protection known as “UNIVERSAL PROTECTION FOR COPYRIGHT” which automatically protects the authors right automatically universally on this Globe. Protection against unauthorized use during a specific country depends, basically, on national laws of the country. However many countries provide protections to foreign national works because being the party to different treaties like WPP, TRIPS and Berne Conventions etc. The worldwide economy and international trade has fully grown, it has become very important that copyright property be protected on international basis poses substantial issue as a result of every country operates independently with its own laws, There is no such factor as a global copyright law that might give copyright protection on world basis. Instead most countries have their own copyright laws, which are not applicable outside of their borders. The United States copyright Act, as an example has no impact on outside their border. If a work copyrighted under United States Copyright law is infringed in another country and that country is not party to any of the conventions then the United States has no jurisdiction over that issue.
To completely comprehend copyright encroachment, we should comprehend what rights we hold as a copyright holder. A proprietor of a copyright possesses a "pack" of rights. Each of these rights can be sold or allotted independently. Copyright encroachment happens when one of those rights are utilized without the express assent of the copyright proprietor. The rights claimed by the proprietor of a copyright include:
The Right to Reproduce the Work: This is the privilege to replicate, duplicate, copy or interpret the work in any altered structure. Copyright encroachment would happen in the event that somebody other than the copyright proprietor made a duplicate of the work and exchanged it.
The Right to Derivative Works: This is the privilege to adjust the work to make another work. Another work that is based upon a current work is a "subordinate work." Copyright encroachment would happen here on the off chance that somebody composed a screenplay taking into account his most loved John Grisham book and sold or appropriated the screenplay, or on the off chance that somebody discharges or remixes of one of your melodies without your assent.
The Right to Distribution: This is just the privilege to disseminate the work to the general population by deal, rental, rent or loaning. The music business claims focusing on document sharing web administrations assert that these administrations damage the privilege to dissemination held by record names.
The Public Display Right: This is the privilege to demonstrate a duplicate of the work specifically to the general population by hanging up a duplicate of the work in an open spot, showing it on a site, putting it on film or transmitting it to the general population in whatever other way. Copyright encroachment happens here if the somebody other than the copyright holder offers a work for open showcase.
The Public Performance Right: This is the privilege to recount, play, move, act or demonstrate the work at an open place or to transmit it to the general population. Copyright encroachment would happen here on the off chance that somebody chose to give exhibitions of the musical "Oliver!" without acquiring authorization from the proprietor.
THE EXCEPTIONS- WHAT ACTS DO NOT CONSTITUTE COPYRIGHT INFRINGEMENT
There are three exemptions to the copyright encroachment rules, which permit one to duplicate another's work without getting a permit or task of rights:
Reasonable Use: This is a regulation which allows the generation of copyrighted material for a restricted motivation behind educating, investigating, artistic feedback and so forth. Without the "reasonable use" regulation, books and films couldn't be checked on and universities and secondary schools would not have the capacity to study works by individuals like Arthur Miller. This is additionally how TV projects, for example, The Daily Show can utilize copyrighted material in their editorial.
Open Domain: This alludes to works which are no more secured by copyright law. For instance work of Shakespeare
Fair dealing: It means and includes personal use, use for educational courses together with research, criticism or overview of that work, reporting current routine in a newspaper, using for the purpose of legislative work or judicial decision making and judgments, for the purposes of issuing certified copies under any law and making sound recording in special instances performance of a work in authentic ceremony. Section52 explain fair use clauses, acts that will not come in the preview of infringement of copyright. Some of the major amendments have been made in 2012 copyright act, existing clause (1) (a) has amended and broaden, so it says any work, except computer programme for the private and personnel use .After this amendment the fair dealing provision extended to cinematograph and musical work.
COPYRIGHT AMENDMENT ACT, 2012 AND FAIR DEALING
Fair dealing use in 2012 amendment extended to take in specially the word “ANY WORK” to help the reproduction for course of judicial proceedings, publications or reproductions of any work by legislation or certified copies given by law. The new clause Section 52(1)(w) explains that the making of a 3 dimensional object from a 2 dimensional work, like technical drawing for industrial application of any purely functional part of a useful device shall not constitute infringement. This provision is to help reverse engineering of devices. The new clause Section 52(zc) has been inserted to give importance to literary or artistic works like; labels, company logos or promotional or explanatory material that is incidental to products or goods being imported shall not constitute infringement of copyright. Also this clause supports to the parallel import provision which are embedded in the Trade Marks Act, 1999. Provisions for disabled persons are given in Clause (zb) and (zc).
Fair dealing provisions are extended to the digital environment. Any transient and incidental storage of any work even temporary purpose also covered under exceptions as per the international provisions. Even unintentional storing of such works and unauthorized reproduction or distribution of such works also amounts to infringement under Section 51 attracting civil and criminal liability. Exceptions in this section have been extended to educational and research purposes work, which are available in digital formats or in the internet. The scope of these provisions is to ensure that introduction of new technology should be covered under this new provision. Also an explanation has inserted in clause (1)(a) of Section 52 to clarify that storing of any work in any electronic medium for the specified purposes in clause, including the incidental storage of a computer programme which itself is not an infringed copy, shall not be an infringement. Section 52 clause (b) provides that transient and incidental storage of a work or performance purely in the process of electronic distribution or communication to the public in general shall not constitute an infringement of copyright. Same, in clause (c) transient and incidental storage of a works or performance or literature for the purposes of providing electronic hyperlinks, access or integration, where the right holder has not expressly objected on such links, access or integration, shall not constitute infringement. To help in digitization of libraries a new clause (n) has been introduced, to equip the library with digital copy storage of a non-digital version. Because of this act the service provider activity will be suspended if found with the unauthorized use of copyright. The new clause of Section 52 clause (c), while exempting from transient or unintentional storage of works, also ensures the internet service provider’s liability when we read this provision with the additions of rights of storage and definition of infringement.
A provision added to this clause to provide a safe hub as per international practice to internet providers, as they are only carriers of data (information) provided by others. This is popularly known as ‘notice and follow procedure’. If the person is responsible for the storage of the copy for which he has received a written complaint from the actual owner of copyright in the work, that the incidental storage is an infringement, than such person is responsible for the storage shall suspend from the facilitating such access for a period of 21 days or till he receives further orders from the court refraining from facilitating access. In case no order is received before the expiry of 21 days or period mentioned by the court, then he may continue to provide the access for same.
Special Provision for Disabled as per the Amendment Act 2012
Compulsory License for access of the Disabled: Clause (b) Section 31 mandates for compulsory license in works for the disabled, it is for benefit of them. The Copyright Board, on an application from any person who is working for the benefit of disabled persons on a profit basis or for business may dispose such application within a period of 2 months, from the date of receipt of application. The compulsory license issued must specify clearly the means and format of publications, also the period during which the compulsory license will be exercised and the exact number of copies that may be issued including royalty.
Fair Use Rights for the Disabled persons: The new clause (zb) introduced to section 52(1) for the fair use of work for the benefit of disabled, facilitates adaptation, reproduction, issue of copies or communication to the public of any work in any accessible format, for the disabled persons to access works which also includes sharing of work with disabled person for private or personal use, educational purposes or research work. These rights are available to any person or NGO or organization working for the benefit of the disabled.
Right of author to relinquish copyright given under Section 21: The amendment empowers relinquishment of copyright by way of public notice, under Sub-section 1 of the act .Now provides relinquishment of copyright either by giving notice to the Registrar of Copyrights or by way of public notice.
Strengthening Enforcement and Protecting against Internet Piracy
Section53, deals with the importation of infringing copies. A new section has been instituted which provides detailed measures to strengthen enforcement of rights by making provision to control import of infringed materials by the Customs Department, disposal of infringed materials and presumption of authorship under civil remedies.
Protection of Technological Measures
The new section 65A, substituted for protection of modern technological protection measures used by a copyright owner to protect his rights in work, makes circumvention of it a criminal offence punishable with imprisonment.
So, any person who tries to circumvents an mostly effective technological measure applied for the protection of the rights, with the intention of infringing such rights, punishable with imprisonment, which may extend to 2 years and shall also be liable to fine. The rationale is to preventive measures for high rate infringement (digital piracy) in the digital world.
Digital Rights Management Information
Section 65B has been inserted to provide protection to right management information, which has been defined under clause (xa) of section 2.
The idea behind this amendment is to prevent the removal of the rights management information without distributing any work, fixed performance or phonogram, after removal of rights management information. so, any unauthorized or intentional removal or alteration of any rights management information is a crime offence punishable with imprisonment, which may extend to 2 years and fine.
This technological protection measure and rights management information was introduced in WCT and WPPT as strong measures to defend infringement of copyright in present digital world. The insertion of Sections 65A and 65B will be helpful expected for the film, music and publishing industry in fighting against piracy.
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? 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.
JUDICIAL DISCOURSE: TEST FOR DETERMINING INFRINGEMENT
In the case of R.G Anand v M/s delux Films it was held that the most definite and safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original work.
In the case of The Chancellor, Master and Scholars of The University Of Oxford & Ors. vs. Rameshwari Photocopying Services and Anr., the Hon’ble Court analyzed the legality of copying extracts from books. Section 52 of the Indian Copyright Act provides that using/reproducing/distributing parts of a copyrightable work, without making payments to the copyright holder, can be permissible. This is the essence of 'fair dealing'. However, the court passed an interim injunction restraining Rameshwari Photostat and the Delhi University from reproducing substantial parts of the works of three publishers, Cambridge University Press, Oxford University Press and Taylor & Francis who launched the legal suit on the ground that the making of course material by the photocopying outlet was not covered under the defence of fair dealing for purposes of private use or research.
In the case of Vodafone India Ltd vs. M/S RK Productions & Ors., The Plaintiffs apprehending large-scale piracy of the movie ‘3’ after its release in theatres over the internet, filed a qua-timet action before the Madras High Court seeking ex-parte interim injunctions against 15 Internet Service Providers. The court ordered for prohibition of infringement of copyright through different mediums such as CDs, DVDs, VCDs, Cable-TV, pen-drives.
In 2010 Oracle filed a lawsuit against Google: claiming that the search engine violated their copyrights and patents in the creation of the Android mobile operating system. On the copyright side of things, the issue centred around the Java programming language’s application programming interface (API). An API is basically a set of instructions that tell an application how to interact with something else on the computer. Google, wanting to make Android accessible to JAVA developers, copied the Java API though nothing else from the language was copied. Oracle sued claiming, in part, copyright infringement in the API. However, the lower court ruled that APIs could not be protected by copyright, siding with Google. Oracle then appealed that ruling, which was overturned. Google has put case in Supreme Court, which in turn has asked for advice from the federal government.
In the case of N.T. Raghunathan & Anr. vs. All India Reporter Ltd., Bombay, it was held that copyright law did not protect ideas but only the particular expression of ideas. In that case, the Bombay High Court however held that the defendant had copied not only the ideas but also the style of abridgment, the expression of ideas and the form in which they were expressed and thus held that a case for violation of copyright was made out.
In the case of K. R. Venugopalan Sarma v. Sangu Ganesan was a case of infringement of copyright in picture and it was held that an infringement of the copyright was complete even though the reproduction was not exact, but the effect on the mind by study of the two pictures was that the respondent's picture was nothing but a copy of the plaintiff's picture.
Protection of Multimedia works
Digital technologies have made possible the creation of works with much more versatility than before. A work my now consist of literary, artistic, musical and dramatic elements and may also include a phonogram and a cinematographic film, but Copy right act is silent on that..,
In conclusion it can be said that fair dealing doctrine is the heart of copyright law. Its object is to balance public interest in respect of copyrighted work and legislature is trying to balance between public interest and individual interest by amending section 52 time to time.
Lastly I would like to conclude by saying that, it is opportune for India to consider emulating the international copyright practice to accommodate certain widely recognized exception to enrich our copyright jurisprudence and keep it abreast with international practice.