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.

Anton Piller order takes its name from a decision of the English Court of
Appeal in Anton Piller K.G. v. Manufacturing Processes Ltd., [1976] Ch.
55 (C.A.). The appellant, Anton Piller, was a German manufacturer of motors and
electric generators used in the computing industry. The respondent was the
appellant's agent in the United Kingdom. As agents the respondents had received
confidential information surrounding the appellant's business. The appellants found
out that the respondents had been in secret communication with other German
companies called Ferrostaal and Lechmotoren with a view to giving those
companies detailed plans and drawings of the appellant's products so that they
could be copied. The appellants were about to launch a new product and feared that
details of it might get into the hands of competitors if the respondents were
forewarned that the appellants were aware of the respondents' breaches of
confidence. Anton Piller commenced ex parte proceedings seeking an injunction to
restrain copyright infringement as well as a court order to permit entry to the
respondent's premises to search and remove all confidential information owned by
the appellants. The injunction was granted but the order for inspection and removal
was refused. The appellants appealed the denial of the latter order. In the Court of
Appeal the order was granted. From this initial order has grown the jurisprudence
on Anton Piller orders, commonly known as civil search warrants.

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.

A Mareva injunction is a type of court order used in England and the United
Kingdom. It is a type of interlocutory relief designed to freeze the assets of a
defendant, in appropriate circumstances, pending determination of a plaintiff's
claim. Mareva injunctions are often used to prevent a defendant from transfering
assets out of the Court's jurisdiction as soon as a claim is served, in order to
frustrate enforcement of any ensuing judgment. The injunction is named after the
1975 UK case, Mareva Compania Naviera SA v International Bulkcarriers SA 2
Lloyd's Rep 509 [1975]. A Mareva injunction can also be called a freezing
injunction.
The granting of a Mareva injunction does not give the plaintiff property, nor does it
give the plaintiff a lien on the defendant's property. It gives no priority to the
potential creditor over other claimants before or after judgment, nor does it affect
the laws relating to insolvency. The defendant is restrained from disposing of his
assets in the sense that to do so will constitute contempt of court, but the injunction
does not affect the defendant's power to dispose of his assets.

Criteria For Grant Of The Mareva Injunction

Essentially an interlocutory injunction, the elements that a plaintiff needs to
establish in order to get a Mareva order are along the lines of any interim
injunction – i.e. a prima facie case, balance of convenience and irreparable injury.
Over the years, the criteria have been clearly laid down and include:

(1) a cause of action must exist at the time the order is to be granted, and the
plaintiff must demonstrate a good arguable case;

(2) the defendant must have assets within the jurisdiction of the court;

(3) the balance of convenience must be in favour of the plaintiff being granted the
injunction;

(4) the plaintiff must establish that the defendant lacks probity and that there is a
real risk of dissipation of assets; and
 (5) there has been no delay in applying for the injunction. These were enlisted in
the matter of Dynasty Rangers v. SBSK Plantations.

5) Norwich Pharmacal Order

The Norwich Pharmacal Order is usually passed when information needs to be
discovered from a third party.

Criminal Remedies
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[1]. 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.[2]”