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This is the introduction to copyright law in India

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Origin and Development of Copyright Law By Shri. Vivek Yeshwant Dhupdale, B.Com., LL.B., LL.M.:

Origin and Development of Copyright Law By Shri. Vivek Yeshwant Dhupdale , B.Com., LL.B., LL.M.

Contents:

Contents Introduction Intellectual Property (IP) Classification of IP Industrial Property Patent, Trade Marks, and Industrial Designs. Copyright Law and Neighbouring Rights :- Original Literary, Dramatic, Musical and Artistic works All these rights are products mainly of human Intellect. Hence they are called as rights in Intellectual Property. P.T.O.

Slide 3:

Contd… Copyright Law Introduction Historical Evolution Meaning of Copyright Characteristics of Copyright Copyright Law in India Subject Matter of Copyright Term of the Copyright Author and Ownership of Copyright Economic Rights of Copyright Author’s Moral Rights Transfer of Copyright Assignment Licence P.T.O.

Slide 4:

Contd… Copyright Office, Copyright Board and Registration of Copyright Infringement of Copyright Remedies for Infringement of Copyright 1. Civil Remedies a. Injunction Temporary/Perpetual b. Damages or Account of Profit c. In certain cases – Conversion Damages. 2. Administrative Remedies 3. Criminal Remedies (Offences & Penalties) Appeals Conclusion

Introduction:

Introduction Meaning of Intellectual Property (IP): 1. IP has been assumed central importance throughout the world in the recent past. 2. IP is the creative work of the human intellect. 3. The main motivation of its protection is to encourage and reward creativity. 4. It is one of the intangible property. The IP law confers property rights on intangibles as compared to Tangible properties. 5. IP plays an important role in the economic development of a country. Classification of IP:- IP is broken down into two major branches:- a)    Industrial property and b)    Copyright Law . P.T.O.

Slide 6:

Contd… Industrial Property:- - includes – Patent, Trade Marks, and Industrial Designs. Copyright Law and Neighbouring Rights :- - includes – Original Literary, Dramatic, Musical and Artistic works. IP has been given an official recognition by the International Community with establishment of WIPO (World Intellectual Property Organization), a specialized agency of United Nations (UN).

Copyright Law:

Copyright Law Introduction:- The concept of ‘copyright’ and ‘neighbouring’ rights have assumed significance due to scientific, economic, social, political and legal environment in the entire world. Historical Evolution of Copyright Law Confined to books only World’s First Copyright Law was passed in 1709 in England. Thereafter in 1911 by name Copyright Act, 1911 Copyright Law in India First Act was passed in 1914 This Act was based on the Act of 1911 The Act of 1914 underwent revision due to advent of advancement of Science and Technology Thereafter the Copyright of 1957 was passed.

Meaning of Copyright :

Meaning of Copyright Copyright is a legal term describing the economic rights given to creators of literary and artistic works, including- the right to reproduce the work, to make copies, and to perform or display the work publicly. Copyrights offer essentially the only protection for music, films, novels, poems, architecture, and other works of cultural value. As artists and creators have developed new forms of expression, these categories have expanded to include them. Computer programs and sound recordings are now protected, too.

Characteristics Of Copyright:

Characteristics Of Copyright Creation of a Statute Some for of Intellectual Property Monopoly Right Multiple Rights Copyright only in the form not in idea; and Neighbouring Rights – include Performer’s Rights and the Broadcast Reproduction Rights.

Copyright Law In India:

Copyright Law In India Introduction First Copyright Act was passed in 1914 It was a replica of English Copyright Act of 1911 Then the Copyright Act, 1957 was passed which is still in force today.

Subject-Matter of Copyright:

Subject-Matter of Copyright Section 13 deals with the Subject-matter of Copyright Copyright subsists in the following works: Original Literary, Dramatic, musical and Artistic works, Cinematograph films, and Sound Recording. 1. Original Literary Work :-includes- Computer Programmes, Tables, Compilations including Computer Databases. Condition-author must expend his labour, skill and capital. In Express Newspapers plc v Liverpool Daily Post & Echo plc , the court held that random selected by computer for a newspaper competition called ‘Millionaire of the Month’ were held to be protected by copyright. P.T.O.

Slide 12:

Contd… In University of London Press v. University of Tutorial Press , the Hon’ble Court held that the words “literary work’ covered words which was expressed in print or in writing. 2. Original Dramatic Work:- includes- Choreographic work, entertainment in dumb show, scenic arrangement, and acting forms Fixed In writing but does not include cinematograph film. 3. Original Musical Work:- Means a work consisting of Music and includes any graphical notations of such work. But does not include any work or action intended to be sung, spoken or performed with the music. P.T.O.

Slide 13:

Contd… 4. Original Artistic Work:- means- A painting, a sculpture, a drawing, an engraving or a photograph, architectural work, etc. or any other work of artistic craftsmanship. In Merchandising Corporation of America v Harpbond , it was held that facial make-up was not a painting within the meaning of artistic work. 5. Cinematograph Film:- means- Any visual recording produced through process from which a moving image is produced and includes sound recording accompanied such recording. 6. Sound Recording:- means- A recording of sounds from which such sounds may be re-produced.

TERM OF THE COPYRIGHT:

TERM OF THE COPYRIGHT Sec.22 to 29 of the Copyright Act, 1957 deal with this aspects:- Term varies as per the- Nature of the work; or Whether author is natural/legal person, or Whether work is anonymous or pseudonymous. In case of - Literary, Dramatic, Musical or Artistic Works; Term is for Lifetime and thereafter for 60 years; Joint Owners – 60 years starts after death of last owner; Anonymous/Pseudonymous works- 60 Years from the year of publication If identity disclosed, term extended to 60 years after the death of the author. P.T.O.

Slide 15:

Contd… Photographs- 60 years from the year of publication Cinematograph Film- 60 years from the year of publication Government undertaking- 60 years from the year of publication International Organisation- 60 years from the year of publication Performer’s Rights- 25 years from the year of performance Broadcasting Reproduction Rights- 25 years from the year of Broadcast

Author and Ownership of Copyright :

Author and Ownership of Copyright Ownership in Literary, Dramatic and Musical Works : Ownership in Respect of Ideas Joint Authorship In Najma Heptulla v Orient Longman Ltd. , Court held that the work India Wins Freedom was the product of the active, & closed intellectual collaboration between Azad & Kabir. Author of Compilation Work made in the Course of Employment Contract of Service and Contract for Service In Stephenson, Jordan and Harrison v Macdonald and Evans , Lord Denning held that under a contract of service a man is employed as part of the business, & his work is done as an integral part of it; but under a contract for services, his work, although done for the business, is not integrated into it, but is only accessory to it. P.T.O .

Slide 17:

Contd… Ownership of Artistic Work:- The author of an artistic work is the artist. Ownership in Computer Programmes:- The author will be the person who causes the work to be created. Ownership in Cinematograph Films:- The author in this work is the producer of the film. Ownership in Sound Recording:- The author in this work is the producer of sound recording.

Economic Rights of Copyright:

Economic Rights of Copyright Literary, Dramatic and Musical Work :- Following are the Economic Rights:- a) To reproduce or store the work. b) To issue copies to the public. c) To perform the work in public. d) To make cinematograph film or sound recording. e) To make Translation of the work. f) To make adaptation of the work, Artistic Work:- Following are the Economic Rights:- a) To reproduce the work. b) To communicate the work to public. P.T.O.

Slide 19:

Contd… c) To include the work in cinematograph film. d) To make adaptation of the work. Cinematograph Film:- Following are the Economic Rights:- a) To make copies of the film. b) To sell or give on hire a copy of the film. c) To communicate the film to the public. Sound Recording :- Following are the Economic Rights:- a) To make any other sound recording embodying it. b) To sell or give on hire a copy of the sound recording. c) To communicate the sound recording to the public.

Author’s Moral Rights Sec.57:

Author’s Moral Rights Sec.57 Introduction :- An author is entitled to claim his moral rights even after the assignment of his copyrights. Kinds of Moral Rights :- a) Right of Paternity ( Droit de paternite ) An author has a right to claim authorship of his work and can prevent all others from claiming authorship of his work. He can also demand to include his name to appear in all the copies of his work at appropriate place. b) Right of Integrity ( Droit de respect de l’oeuvre ):- An author has a right to prevent distortion, mutilation or other alteration of his work, etc., which would be prejudicial to his honour and reputation. It is essential where a licence or assignement has been granted to adapt or alter the work in some way, eg. Novel into play, play into film, etc. P.T.O.

Slide 21:

Contd… In Manu Bhandari v Kala Vikas Pictures Ltd , the Court held that Sect.57 is a statutory recognition of the Intellectual Property of the author and, therefore, it should be protected with special care.

Transfer of Copyrights:

Transfer of Copyrights Introduction :- Besides exploiting the copyright by himself, the owner can also share his work with others for mutual benefits by way of assignment or by licensing it to others. 1. Assignment of Copyright:- Assignment can be for the whole or part of the work. In case of assignment the ownership gets transferred to the assignee. Mode of Assignment:- In Jogendranath Sen v State , the court held that the assignee was to be treaded as the owner of the copyright in the work in respect of the exclusive right to publish the work and, therefore, it was well within his right to get the book published by any one.

Slide 23:

Contd… Licences:- The owner of copyright in a work may grant any interest in his copyright to any person by licence in writing. Difference between Assignement and Licence:- In Gramophone Company of India Ltd. v Shanti Film Corporation , the court held that it is the intention of the parties whether it was assignment or grant of licence to use should, in the normal course, be gathered from the writing itself and the words used therein.

Copyright Office, Copyright Board and Registration of Copyright:

Copyright Office, Copyright Board and Registration of Copyright Copyright Office:- Sec. 9 Copyright Office is at New Delhi, which is under the control of Registrar of Copyright, who is under the supervision and control of the Central Government. Registrar and Deputy Registrar:- appointed by the Central Government. They possess certain powers of the civil court. Register of Copyright:- Consist of six parts- Part I – Literary work but not computer dramatic works. Part II – Musical Works. Part III – Artistic works. Part IV – Cinematograph films. Part V – Sound Recordings. Part VI – Computer Programmes, etc . P.T.O.

Slide 25:

Contd… Register also consist of indexes for each of the above mentioned parts of the Register. The Register remains open to inspection at all reasonable times. A certified copy of the entries in the Register is admissible in evidence. Copyright Board:- Sec. 11 Constituted by the Central Government to discharge judicial functions. It consists of- A Chairman and 2 to 4 other members. Functions of the Board:- To decide whether work has been published or not. To decide disputes arising out of assignment of Copyright. P.T.O.

Slide 26:

Contd… To direct the Registrar to grant compulsory licenses under various circumstances. To rectify the Register. Powers and Procedure of the Board:- Can to regulate its own proceedings. Ordinarily hear proceedings instituted within the zone. Territory of India is divided into 5 zones. These are:- 1. Northern Zone – includes States of Haryana, Punjab, Himachal Pradesh, Jammu & Kashmir, Rajasthan, and Union Territories of Delhi and Chandigarh. 2. Central Zone – includes Utter Pradesh Madhya Pradesh. 3. Eastern Zone – includes Bihar, West Bengal, Orissa, Assam, Manipur and Tripura. 4. Western Zone – includes Gujarat, Maharashtra and Goa and the Union Territories of Dadra and Nagar Haveli, Daman and Diu; and P.T.O.

Slide 27:

Contd… 5. Southern Zone – includes Andhra Pradesh, Tamil Nadu, Karnataka, Kerala and Union Territory of Pondicherry Benches of the Board:- Chairman may constitute Benches to exercise its powers. Each bench may consist of not less than 3 members. Registration of Copyright:- Secs. 44 to 50A. Registration of Copyright is optional and not mandatory. It is not pre-requisite conditions to claim Copyright. Copyright subsists as soon an the work is created. In Kumari Kanaka v Sundara Rajan , (1972) Ker. LR 536, the Hon’ble Court held that registration of Copyright is not required either for acquiring the copyright or for its enforcement. P.T.O.

Slide 28:

Contd… Procedure for Registration of Copyright:- The Author or the publisher, etc may apply for registration to the Registrar in Form IV alongwith prescribed fees. The application must be made in triplicate. The applicant is required to give a notice of his application to every interested person to invite for any objections. If no objections are received within 30 days of the notice, the Registrar, if satisfied that the contents of the application if correct, enter the contents in the register of Copyright If he receives the objections or if he is not satisfied regarding the correctness of the information given, may after an inquiry, enter the information accordingly in the register of Copyright. Appeals:- Any person aggrieved by any final decision or order of the Registrar may appeal to the Copyright Board within 3 months from the date of the decision.

Infringement of Copyright:

Infringement of Copyright Introduction :- Grant of certain exclusive rights to the author. To enable him to rip the fruits of his labour. But, if a person uses any of these rights without his permission, he has infringed the copyright. Infringement of Copyright by Copying :- Copying can be done in three ways- Direct Copying:- Reproduction of the author’s work falls under this category. But difficulty may arise if the infringer insteat of copying the entire work may copy some portion of the copyrighted material. In ladbroke v William Hill , the Hon’ble Court held that the question whether the defendant has copied the substantial part of the work depends upon the quality and not quantity of the work copied. But the law is different in case of cinematograph films and sound recording. P.T.O.

Slide 30:

Contd… In Telmak Teleproducts ( Aust ) Pty Limited v Bond International , it was held by the Court that as the defendants made their own film, though it was similar to the Plaintiff’s film, the making of the Defendants’ film was not an infringement of Copyright in that film. In Norowzian v Arks Limited and Others , the Court held that for the second to infringe the copyright in the first film, it had to be an actual copy of the first film. 2. Indirect Copying:- Means copying the work of a person by changing its form. E g ., If the work in a drawing has been copied by in three dimensions by the Defendants, Or if the novel is turned into a stage play which in turn converted into a ballet. 3. Subconscious Copying:- This copying may occur subconsciously where a person reads, sees or hears a work, forgets about it but then reproduces it, genuinely believing it to be his own. P.T.O .

Slide 31:

Contd… Rights are protected in form and not in ideas:- Copyright subsists in work and not in ideas. Idea is not a subject-matter of Copyright. Copyright is a work is not infringed, if someone takes the essential idea from it and develops his own work. Infringing Copy :- Sec.2(m) Infringing copy means:- In relation to literary, dramatic, musical artistic work, a reproduction thereof; In relation to a cinematographic film, a copy of the film; In relation to a sound recording, any other sound recording embodying the same sound recording; P.T.O.

Slide 32:

Contd… In relation to any programme or performance in which the broadcasting reproduction or performer’s rights subsist, the sound recording or the cinematographic film of such programme or performance. In Gramophone Company of India Ltd v Super Cassette Industries Ltd , it was held by the Court that if a there is a version recording released by the Defendants of a popular film (in this case ‘ Hum Aapke Hain Kaun’ ), do not prima facie fall within the definition of ‘Infringing Copy’. Permitted Acts in Relation to Copyright:- Introduction: The Copyright law allows people to make some free use of the copyright material. Reason of this provision is to strike a balance between individual interest of the author and the interest of the society at large. Common Law Exceptions :- At common law, protection is denied to works which are contrary to the public interest eg., where the work was of an illegal, immoral or irreligious nature. In Beloff v Pressdram Ltd , the Hon’ble Court refused to to enforce copyright in a particular work on the ground of public interest inorder to permit disclosure of misdeeds of a serious nature such as breach of national security or of law. P.T.O.

Slide 33:

Contd… Statutory Exceptions (Permitted Uses): Section 52:- Apart from the above exceptions, the Act of 1975 also provides for statutory exceptions. These are:- Fair Dealing for Research and Private Study:- Uses of work for the purposes such as research, private study, news reporting, teaching etc., come under the category of Fair Dealing and hence cannot be termed as infringement of Copyright in that work. Fair Dealing for Criticism or Review:- In Hubbard v Vosper , Lord Denning observed that if the work is used as a basis for comment, criticism or review that may be fair dealing, but if ir is used to convey the same information as the author, for a rival purpose, it may be unfair dealing. That is for eg., taking long extracts and attaching short comments may be unfair, but taking short extracts and long comments my be fair. Fair Dealing for reporting Current events:- No infringement if the work has been used to report current events in a newspaper, magazine etc., provided that the matter must be current, and not matters of history. Reproduction for Judicial Proceedings :- No infringement if Judicial proceedings are reproduced. Reproduction in Legislature’s Work:- If a work is reproduced or published which is prepared by the members of the Legislature exclusively for their use does not amount to infringement of copyright. P.T.O.

Slide 34:

Contd… 6. Reading or Recitation in Public:- Reading or reciting in pubic of any reasonable extract from a published work shall not amount to infringement, provided that the act must be accompanied by an acknowledgement as required under provisio to Sec.52(1). 7. Anthologies for Educational Use:- In a collection of works in which Copyright does not subsist for the use of schools, it is lawful to include shall passages from published literary or dramatic works. 8. Use of Copyright Material in the Course of Education:- The Act provides that the reproduction of a work: (i) by teacher or a pupil in the course of instruction; or (ii) as part of the questions to be answered in the examination; or (iii) in answers to such questions, shall not constitute infringement. 9. Performance of a Work in Course of Education:- Performance by a staff and students of the institution in the course of the educational activities is not an infringement P.T.O.

Slide 35:

Contd… 10. Making Sound Recordings in Respect of Literary, Dramatic or Musical Work in Certain Cases:- No infringement if done with the license or consent of the author and a notice must be issued to the author of his intention to make the sound recording. In Gramophone Company of India Ltd v Super Cassette Industries Ltd. , (1995) PTR 64 , the Hon’ble Court held that where the records made by the defendants which were only a version recording of a songs of a popular hidi movie by using another voices and with different musicians and arrangers did not amount to infringement of copyright. 11. Reproduction of a Work in a Certified Copy mad under any Law:- Reproduction of a work in a certified copy is not an infringement of that work. 12. Causing of a Recoding to be Heard in Public:- No infringement by the causing of a recording to be heard in public by utilising it: a) in an enclosed room or hall meant for the common use of residential premises (not being a commercial establishment); or b) as a part of the activities of a club or a similar organisation which is not established and conducted for profit. P.T.O.

Slide 36:

Contd… 13. Performance of a Work by Amateur Club or Society:- It is not an infringement if it is given to a non-paying audience, or for the benefit of a religious institution. 14. Reproduction of Articles on Current Topic in Periodicals etc:- It is not an infringement to reproduce and article on current economic, political, social or religious topics in a newspaper, magazine, or other periodical, unless the author has expressly reserved to himself the right of such reproduction. It is essential that the person who is reproducing such an article must accompany it with an acknowledgement identifying the work by its details. 15. Publication of Report of a Lecture in Periodicals:- Publication of a lecture delivered in public, in a newspaper, magazine, etc. is not an infringement of copyright. 16. Reproduction for Use of Libraries:- The person in charge of a public library or any other person under his direction may make not more than 3 copies of a book, including a pamphlet, sheet of music, map, chart or plan for the use of the library without infringing copyright in the book, if such book is not available for sale in India. P.T.O.

Slide 37:

Contd… 17. Reproduction or Publication of Unpublished Works:- Any unpublished work kept in a library, museum or other institution to which the public has access may be reproduced for the purposes of research or private study or with a view to publication without infringing copyright in the work. 18. Reproduction or Publication of any matter in Official Gazette, Act of Legislatures, Judgments of Courts etc.:- The reproduction of following material is permitted as to the number of copies:- (i) matter published in any Official Gazette except an Act. (ii) any Act of a legislature subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter. (iii) the report of any committee, commission, council, board etc., appointed by the Government, unless the reproduction of which is prohibited by the Government. (iv) any judgment of order of a Court, tribunal etc., unless its reproduction or publication has been prohibited by the Court. In S.K. Dutt v Law Book Co. AIR 1954 All 570 , the Hon’ble Court observed that the decision reported in law reports are ‘common property’ for commentators on the law, they have to have recourse to them because without their reference no commentator can give his readers a correct idea of the law. P.T.O.

Slide 38:

Contd… Also in Eastern Book Co. v Navin J Desai (2001) PTC 57 (Del) , the Hon’ble Court held that there is no copyright in judgments, and they are in public domain once published. 19. Publication of Translation of Acts of Legislatures:- It is permitted to produce or make publication of a translation in any Indian language of an Act of a legislature and of any rules or orders made thereunder- (i) if no translation of such Act etc. in that language has been already produced or published by the government; or (ii) where a translation of such Act etc. in that language has been produce or published by the government, if the translation is not available for sale to the public. 20. Making or Publishing of Painting, Photograph, etc of a Work of Architecture:- No infringement if done so. 21. Making or Publishing of Painting, Photograph, etc of a Sculpture or other Artistic Work:- No infringement if such work is permanently situated in a public place or any premises to which public has access. P.T.O.

Slide 39:

Contd… 22. Incidental Inclusion of Artistic Work in Cinematograph Film:- No infringement if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the film. 23. Use of Artistic work by the Author Himself in Certain cases:- No infringement where the author is not the owner of the copyright therein. The author is not to repeat or imitate the main design of the work. 24. Reconstruction of a Building in Accordance with Architectural Drawungs:- No infringement if it is so constructed but it is mandatory that the original construction should have been made with the consent or licence of the owner of the copyright in such drawings and plans. 25. Exhibition of Cinematograph Film After the Expiration of Copyright Term in Literary, Dramatic or Musical Work:- No infringement if a work is reproduced in a film after expiry of the term in such work. 26. Performance of Communication of a Work in Official Ceremony:- No infringement if performed or communicated to the public of a work in the course of any bonafide religious ceremony such as marriage processions, etc., or an official ceremony held by the Central/State Government. P.T.O.

Slide 40:

Contd… 27. Ephemeral Recording for the Purpose of Broadcast:- Recording by a broadcasting organisation of a work using its own facilities for its own broadcast, which it has right to broadcast, is not an infringement. 28. Adaptations:- No infringement if done with the permission of the author.

Remedies Against Infringement:

Remedies Against Infringement There are three types of remedies available for infringement of copyright: 1. Civil Remedies, and 2. Administrative Remedies. 3. Criminal Remedies 1. CIVIL REMEDIES:- Secs. 54 to 62 deal with these concepts. These are of two types:- a) Preventive Civil Remedies, and b) Compensatory Remedies. a) Preventive Civil Remedies:- These are of following types:- (i) Interlocutory Injunction:- It is granted by the Court to stop the infringing work of the Defendant from continuing. To claim injunction, the plaintiff must prove the following three things:- (a) establishment of prima facie case, (b) balance of convenience must tilt in his favour, (c) that an irreparable loss to the plaintiff if injunction is not granted, (d) that the plaintiff has reasonable likelihood of success on merits. P.T.O.

Slide 42:

Contd… (ii) Mareva Injunction:- the purpose of this injunction is to restrain the defendant from disposing of or removing them from the jurisdiction of the Court assets which may be required to satisfy the plaintiff’s claim. This injunction are usually sought ex parte. Injunction is is founded on equity and cannot be sought as a matter of right. In Gujarat Bottling Company Ltd v Coca Cola Company, AIR 1995 SC 2372 , the Court held that the object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he cannot be compensated in terms of money. In Mirabai Films Pvt Ltd v Siti Cable Network and ors (2003) 26 PTC473 (Del.) , the appellant was the producer of the film ‘Monsoon Wedding’ and respondents were cable operators. The respondents were habitual offenders in telecasting pirated copies of films, and were about to do the same with the appellants film. Therefore, to restrain the respondents from doing so the Court granted the temporary injunction. P.T.O.

Slide 43:

Contd… In Khajanchi Film Exchange and Another v State of Madhya Pradesh and ors. (2003) 26 PTC 183 (MP). , the producers had not released the video rights of film ‘ Kabhi Khushi Kabhi Gam’ , therefore, violation of copyright by illegal duplication of film and screening thereof would cause them immense financial loss. A writ petition was filed in the M.P. High Court against this act. The Hon’ble Court dismissed the petition and concluded unless the demand was put across and reaction awaited for some time, approaching the court is premature and unsustainable. In Barbara Taylor Bradford v Sahara Media Entertainment Ltd., (2004) 28 PTC 474 (Cal.), the plaintiff sued the defendants forinfringement of her copyright in 1979 best seller ‘ A Women of Substance ’. She wanted to stop a serial of 300 episodes of the defendants called ‘ Karishma – A Miracle of Destiny ’. The Court held that since nothing could possibly be known about the serial to be produced and telecast, this is simply not enough. And hence the Court held that the interlocutory application was premature. The plaintiff would hardly suffer any loss of value of her book. The balance of convenience was laid in favour of the defendants. P.T.O.

Slide 44:

Contd… Acquiescence or Delay : This on part of the plaintiff may disentitle him to an interlocutory injunction. In Media Trans Asia Ltd & Another v Indian Airlines Ltd and ors. , the appellants, in spite of possessing the information regarding the respondents activities, did not take immediate legal action. The delay in filing the case proved fatal and interim injunction was denied to them. Innocent Infringement : if the defendant proves that at the date of infringement, he was not aware that copyright subsisted in the work, the plaintiff shall not be entitled to any remedy other than an injunction in respect of the infringement and a decree for the part of the profit made by the defendant. (iii) Permanent Injunction :- If the plaintiff succeeds at the trial in establishing infringement of copyright, he will normally be entitle to a permanent in junction to restrain future infringements. This injunction will operate only during the un-expired term of the copyright. In KPM Sundhram v Rattan Prakashan Mandir , AIR 1983 Del 461 , the plaintiff filed a suit against the defendants for injunction, restraining them from printing, publishing and selling the specified books and also for the accounts of profits made illegally. The Court held that the plaintiff has a strong prima facie case with a success, and the balance of convenience is also in his favour. P.T.O

Slide 45:

Contd… When Permanent Injunction be Refused : Normally, the Court will refuse injunction in the circumstances where: (i) there is no evidence that the defendant has done or threatens to do anything which would interfere with the enjoyment of any right vested in the plaintiff; or (ii) invasion of the right, if any, of the plaintiff, is of a theoretical nature, which would at the most give the plaintiff a right to claim nominal damages; or (iii) the injunction would inflict far more injury on the defendant than the advantage which the plaintiff could drive from it. (iv) Anton Piller Orders:- This order enables the plaintiff’s solicitor to take possession of infringing copies and documents and other relevant materials or require the defendant to keep infringing stock, thus securing or preserving the evidence. This order is known as ‘ Anton Piller Order ’ named after one of the first reported cases in Anton Piller KG v Manufacturing Processes Ltd & Others (1976) RPC 719, in which such an order was passed. P.T.O.

Slide 46:

Contd… Conditions for making Anton Piller Order :- It is made only in most extreme cases. It is normally made accompanied by a maeeva injunction. This combination of injunctions may have a drastic effect on the business of the defendants. Therefore, three conditions must be satisfied:- (a) the plaintiff must show that he has extremely strong prima facie case; (b) he must show that he has suffered, or is likely to suffer very serious and irreparable damage if order is not made; and (c) there must be clear evidence that that the defendant has in his possession incriminating documents or things and that there is a real possibility of its being destroyed before any inter parte application is made. If the plaintiff misuses this right, the defendant is entitled for damages. (b) Compensatory Civil Remedies:- These remedies can be divided into three parts: damages, damages for conversion / delivery up of infringing copies, and account of profit. (i) Damages :- Copyright infringement is a Tort and the overriding principle in Tort law is that damages should be compensated. In Hawkins Cookers Ltd v Magicook Appliances Co., AIR 2003 Del 191 , The Defendants reproduced passages from the plaintiff’s cook books of P.T.O.

Slide 47:

Contd… the Plaintiff. The Hon’ble Court held that the Plaintiff was entitled to damages. They were also directed to handover all their cook books to the Plaintiff. Also in PN Krishna Murthy v Co-operative for American Relief Everywhere , AIR 2001Del 258, infringed of a comic book. The book was freely distributed in Kerala and also plaintiff could not prove his actual loss of profit. Therefore the Hon’ble Court held that since the book was freely distributed, exemplary damages cannot be granted against the defendant. (ii) Damages for Conversion / Delivery Up:- Damages for conversion means to deny the owner’s rights of the true owner or to assert a right which is inconsistent with owner’s rights. (iii) Account of Profit:- It is an investigation of actual account of net profit, ie., the sale price of the infringing articles as deducted by the manufacturing and delivery cost. A plaintiff can opt for damages or an account of profits but not the both. P.T.O.

Slide 48:

Contd… 2. ADMINISTRATIVE REMEDIES:- There is provision under Sec.53(1) of the Copyright Act, 1975 which makes available effective and quick remedy to the owner of Copyright. It is useful in preventing importation of infringing copies in India. In Gramophone Co. of Indian Ltd. v Birendra Bhadur Pandey and Others , AIR 1984 SC 667 , a consignment of pre-recorded cassettes to be dispatched to Nepal. A writ of mandamus was file in the Calcutta High Court to compel the Registrar to pass an order under Sec.53 to prevent the release of the cassettes from the custody of the customs authority. The Hon’ble High Held that there was no importation when the goods entered India en route to Nepal. Appellant filed an appeal before the Supreme Court. The Hon’ble Supreme Court held that the word ‘import’ means ‘bringing into India from outside India’, and it was not limited to importation for commerce only, but included importation for transit across the country. Sec. 53(2) of the Act empowers the Registrar to- a) enter any ship, dock or premises where any such infringing copies may be found; and P.T.O.

Slide 49:

Contd… b) examine such copies. This is to determine whether the such copies infringe the copyright in the work of the applicant. 3. CRIMINAL REMEDIES (Offences and Penalties):- Sec.63 to 70 - Can be availed simultaneously along with civil. - more effective than civil because it can be disposed of quickly. - it directly strikes at the honour and social status of an offender - as a result sometimes the offender comes for a settlement out of court. - Knowledge or mens rea is an essential ingredient of the offence. OFFENCES:- Sec. 63 makes it an offence for any person who knowingly infringes – a) the copyright in a work; or b) any other right conferred by the Act or knowingly abets such infringement. P.T.O.

Slide 50:

Contd… PUNISHMENT:- the offence is punishable with – imprisonment for a term which shall not be less than six months, but may extend to three years and with fine which shall not be less than Rs.50,000/-, but may extend to Rs. 2 lakhs. The offence under this section is non-bailable offence. Computer Program:- Se.63B makes knowing use of infringing copy of computer program as offence, under which the offender is punishable with imprisonment for a term which shall not be less than seven days, but may extend to three years and with fine which shall not be less than Rs.50,000/-, but which may extend upto Rs. 2 lakhs. Power of Police to Seize Infringing Copies:- Sec.64 provides that any police officer not below the rank of sub-inspector of police is satisfied that an infringement or an abetment thereof has been or is likely to be committed, he may seize without any warrant all copies of the work and all plates used for the said purpose. The copies so seized must be produced before the magistrate as soon may be practicable. P.T.O.

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Contd… Aggrieved party may apply to the magistrate within 15 days of such seizure for restoration. Magistrate after hearing shall dispose off the application. Any person aggrieved by the Magistrate’s order may appeal to the appellate court within 30 days. In Girish Gandhi v. Union of India AIR 1997 Raj 78 , the constitutional validity of Sec . 64 was challenged on the ground that since no procedure was laid down in it, the power granted to police officer was arbitrary, and hence violative of the constitutional right. The Court held that Sec.64 clearly mentions that the police officer was to seize the material if he was satisfied which means that police will act until he had got some information on the basis of which he was satisfied. Possession of Plates for making Infringing Copies:- Sec.65 says provides that any person knowingly makes, or has in his possession, any plate for the purpose of making infringing copies of any work in which copyright subsists shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.

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Thank You