COPYRIGHT LAW AND INFRINGMENT OF COPYRIGHT

DR. SHAKUNTALA MISRA NATIONAL REHABILITATION

INTELLECTUAL PROPERTY LAW

SUBMITTED TO- SUBMITTED BY-

Sandeep Mishra Saurabh Kumar Yadav

Guest Faculty B.COM LL.B (HONS)

DSMNRU, (5th) Semester

LUCKNOW DSMNRU, LUCKNOW

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 COPYRIGHT LAW AND INFRINGMENT OF COPYRIGHT

ACKNOWLEDGMENT

I would like to express my special thanks of gratitude to Sir Sandeep Mishra, who gave me

the golden opportunity to do this wonderful topic “Copyright law and infringement of

copyright”, which also helped me in doing a lot of Research and I came to know about so

many new things I am really thankful to them.

Saurabh Kumar Yadav

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 COPYRIGHT LAW AND INFRINGMENT OF COPYRIGHT

INTRODUCTION
The law does not permit one to appropriate to himself what has been produced by the labour skill
and capital of another. This is the very foundation of copyright law. The scope of intellectual
property is expanding very fast and attempts are being made by persons who create new creative
ideas to seek protection under the umbrella of intellectual property rights. Copyright is a kind of
intellectual property the importance of which has increased enormously in recent times due to the
rapid technological development in the field of printing, music, communication, and
entertainment and computer industries. Copy right according to Black’s Law Dictionary is the
right in literary property as recognized and sanctioned by positive law. An intangible
incorporeal right granted to the author or originator of certain literary or artistic production
whereby he is invested for a specific period with the sole and exclusive privilege of multiplying
copies of the same and publishing and selling them”. Copyright as defined in the Oxford English
Dictionary is an exclusive right given by law for a certain term of years to an author, composer
etc., (or his assignee) to print, publish and sell copies of his original work’. The object of
copyright is to encourage author’s composer’s artists and designers to create original works by
rewarding them with the exclusive right of a limited period to exploit the work for money gain.
The economic exploitation is done by licensing such exclusive right to entrepreneurs, like
publisher’s film producers and record manufacturers for a monetary consideration. People who
economically exploit the copyright are greater beneficiaries of copyright law than the creators of
works of copyrights. The object of copyright is to law is to protect the author of the copyright
work from an unlawful reproduction or exploitation of his works by others. The importance of
copyright protection was recognized only after the invention of printing press in 15 th century
which enabled the reproduction of books in large numbers practicable.

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 COPYRIGHT LAW AND INFRINGMENT OF COPYRIGHT

MEANING OF COPYRIGHT:

Copyright is a kind of intellectual property the importance of which is increased enormously in

Copyright means the exclusive right to do or authorise others to do certain acts in relation to,

(1)-Literary, dramatic, musical and artistic works,

(2)-Cinematograph film, and sound recordings.

“Literary work” includes computer programmes, tables and compilations including computer
databases1. “Musical work” means a work consisting of music and includes any graphical
notation of such work but does not include any words or any action intended to be sung, spoken
or performed with the music2. “Artistic work3” means,—

(i) A painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a
photograph, whether or not any such work possesses artistic quality.

(ii) A work of architecture and work of architecture and

(iii) Any other work of artistic craftsmanship.

“Cinematograph film” means any work of visual recording on any medium produced through a
process from which a moving image may be produced by any means and includes a sound
recording accompanying such visual recording and “cinematograph” shall be construed as
including any work produced by any process analogous to cinematography including video
films. “Sound recording” means a recording of sounds from which such sounds may be produced
regardless of the medium on which such recording is the method by which the sounds are
produced4.

1
Sec. 2(o) of Copyright Act 1957
2
Sec. 2 (p) of copyright Act 1957
3
Sec. 2(c) of copyright Act 1957
4
Sec. 2(xx) of copyright Act 1957

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QUALIFICATIONS FOR COPYRIGHTS SUBSISTENCE- Section 13(2):

In order to qualify for copyright the works, apart from being original should also satisfy the
following conditions-

(1)-The work is first published in India.

(2)- Where the work is first published outside India, the author is at the date of such publication,
or in a case where the author was dead at that time, was at the time of his death, a citizen of
India.

(3) Copyright shall not subsist (a) in any cinematographic film if a substantial part of the film is
an infringement of the copyright in any other work; (b) in any sound recording made in respect
of a literary, dramatic or musical work, if in making the sound recording, copyright in such work
has been infringed.

(4) The copyright in a cinematographic film or a sound recording shall not affect the separate
copyright in any work in respect of which or a substantial part of which, the film, or as the case
may be, the sound recording is made.

(5) In the case of work of architecture, copyright shall subsist only in the artistic character and
design and shall not extend to processes or methods of construction.

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 COPYRIGHT LAW AND INFRINGMENT OF COPYRIGHT

NATURE OF COPYRIGHT-

Copyright is an incorporeal property in nature. Since the owner creates the subject matter of the
copyright, it becomes his property and he is justified in disposing it of by outright sale
(assignment of his right) or by licensing. The property is termed as the incorporeal property as it
originates in the mind of persons before it is expressed in material form. Ideas and thoughts are
not protected under the copyright law as they are not considered works under the copyright law.
But once it is reduced in writing or other material form, it becomes worthy of copyright
protection. Copyright, being the aggregate of several rights, endowed on its owner, following
features of copyright can be enumerated:

(a) Creation of a Statute: Copyright is creation of a specific statute under the present law.
There is no such thing as common law copyright.

(b) Form of Intellectual Property: A copyright is a form of intellectual property since the
product over which the right is granted is the result of utilization and investment of intellect.

(c) Monopoly Right : Copyright is a monopoly right restraining the others from exercising that
right which has been conferred on the owner of copyright under the provisions of the Act.

(d) Negative Right :Copyright is a negative right meaning thereby that it is prohibitory in nature.
It is a right to prevent others from copying or reproducing the work.

(e) Multiple Rights : Copyright is not a single right. It consists of a bundle of different rights in
the same work. For instance, in case of a literary work copyright comprises the right of
reproduction in hard back and paperback editions, the right of dramatic and cinematographic
versions etc.The law does not permit one to appropriate to himself what has been produced by
the labour, skill and capital of another. This is the very foundation of copyright law. The object
of the copyright law is to protect the author of the copyright work from an unlawful reproduction
or exploitation of his work by others. The exploitation is done by entrepreneurs like publishers,
film producers etc., to whom the owner of copyright assigns or licenses the particular rights. If
the entrepreneur is to recover the capital invested and earn profits he has to be protected from
unauthorized reproduction. Otherwise a pirate would reproduce the work at a fraction of the

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 COPYRIGHT LAW AND INFRINGMENT OF COPYRIGHT

original cost of production and undersell the producer. In ancient times copying was a laborious
and expensive process. The importance of copyright protection was recognized only after the
invention of the printing. Press in the 15th century which enabled reproduction of books in larger
numbers practicable. Copyright is a creation of the statute. No person is entitled to copyright or
any similar right in any work except those provided under the copyright act. It is a negative right
where the author of the original work is protected from the unauthorized reproduction or
exploitation of his work. This right also extends to prevent others, from exercising without
authority any other form of right attached to copyright. Example: In the case of literary work the
scope of copyright extends to the making of a dramatic or cinematographic version of the literary
work.

OBJECT OF COPYRIGHT:

The object of copyright law is to encourage, authors, composers, artists and designers to create
original works by rewarding them with the exclusive right for a specified period to reproduce the
works for publishing and selling them to public. It is thus the exclusive right for a limited period
to exploit the work for monetary gain. The economic exploitation is done by licensing such
exclusive right to entrepreneurs like publishers, film producers etc., for a monetary
consideration. Thus, protecting, recognizing and encouraging the labour, skill and capital of
another is the object of a copyright

INFRINGEMENT OF COPYRIGHT-

The owner of copyright work has the exclusive right to do certain acts in respect of the work. If
any person does any act without authority he will be committing an infringement of copyright in
the work. The Copyright Act, 1957 lays down following provision in respect of the infringement
of copyright:

SEC. 51 of Copyright Act 1957 defines Infringement of Copyright.

Copyright in any work is deemed to be infringed-

(a) when any person, without a license granted by the owner of the copyright or the Registrar of
Copyrights under this Act or in contravention of the conditions of a licence so granted or of any
condition imposed by a competent authority under this Act-

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 COPYRIGHT LAW AND INFRINGMENT OF COPYRIGHT

(i) Does anything, the exclusive right to do which is by this Act conferred upon the owner of the
copyright, or

(ii) permits for profit any place to be used for the communication of the work to the public where
such communication constitutes an infringement of the copyright in the work, unless he was not
aware and had no reasonable ground for believing that such communication to the public would
be an infringement of copyright; or

(b) When any person-

(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or
hire, or

(ii) Distributes either for the purpose of trade or to such an extent as to affect prejudicially the
owner of the copyright, or

(iii) By way of trade exhibits in public, or

(iv) Imports into India, any infringing copies of the work.

ESSENTIAL INGREDIENTS OF INFRINGEMENT-

(a) Reproduction of work in material form,

(b) Publication of work,

(c) Communication of work to the public,

(d) Performance of the work in public,

Making of adaptions and translations of works and doing any of the above act in relation to a
substantial part of the work.

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 COPYRIGHT LAW AND INFRINGMENT OF COPYRIGHT

Supreme Court in Anand v Delux Films5 laid down following propositions-

(1)-There can be no copyright in an idea, subject matter themes plot or historical or legendary
facts, and violation of the copyright in such cases is confined to the form, manner and
arrangement and expression of the idea by the author of the copyright work.

(2)-Where the same idea is being developed in a different manner it is manifest that the source
being common, similarities are bound to occur.

(3)-One of the surest and safest test is to determine whether or not the similarities are on
fundamental or substantial aspects or mode of expression adopted in copyright work.

(4)-As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent
evidence after applying the various tests.

In order to succeed in an action for infringement the plaintiff has to establish,

(a)That there is a close similarity between two works,

(b)That the defendant has directly or indirectly made an unlawful use of the plaintiff’s works

(c)That there is a chain of causation linking the plaintiff’s copyright work with the defendant’s
alleged infringing copy.

5
AIR 1978 SC 1613

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 COPYRIGHT LAW AND INFRINGMENT OF COPYRIGHT

REMEDIES AGAINST INFRINGEMENT OF COPYRIGHT:

There are three types of remedies against infringement of copyright namely civil criminal and
administrative. Civil remedies include injunction damage or account of profits, delivery- up of
infringing copies and damages for conversion. In the case of innocent infringement some of the
remedies are not available. Criminal remedies provide imprisonment of the accused or
imposition of fine or both, seizure of infringing copies and delivery-up of infringing copies to the
owner of the copyright.

(A)-Civil Remedies- Sections 54 to 62 lay down the provision of remedy in the form of civil
nature. These remedies include injunction, damages and accounts, delivery of infringing copies
and damages for conversion.

(B)-Criminal Remedies-Sections 63 to 66 provide for the criminal remedies, which include

(C)-Administrative Remedies- Section 53 says that in case of infringement of the copyright, the
plaintiff can move to the Registrar of Copyright to ban the import of infringing copies into India
and the delivery of the infringing copies to the owner of the copyright.

Authors Special Rights-

The author of a work shall have the right, given in section 57 of copyright Act,
(a) To claim authorship of the work,
(b) To restrain or claim damages in respect of any distortion, mutilation, modification or
other act in relation to the said work which is done before the expiration of the term of
copyright if such distortion, mutilation, modification or other act would be prejudicial to his
honour or reputation.

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CONCLUSION

The Principle of copyright protection in India is “What is worth copying is prima facie worth
protecting”. In the rapidly changing technological environment, copyright protection is being
extended to many areas of creative work particularly in the computer industry. This has found
recognition in the 1994 Amendment Act. Computer software piracy and video piracy is a
worldwide phenomenon. To act as a deterrent against such piracy, the provisions relating to
protection of computers software have been tightened by substantially enhancing the punishment
for infringement of software and increasing the scope of such infringement. Further certain
special rights have been introduced for the first time for the benefit of performers like musicians,
actors, acrobats, jugglers, snake charmers and so on. Copyright protection is given only to works
published in India irrespective of the nationality of the author except where the author is a
foreign national whose country does not give copyright protection to the works of Indian authors
to the extent available in the home country on a reciprocal basis. The owner of copyright has
exclusive right to do certain acts in respect of certain works. If any person does any of these acts
without authority he will be committing an infringement of the copyright in the work. The nature
of the rights depends on the nature of work. If any person without any authority commercially
exploits works for profit he will be infringing the copyright. An author may create a work on his
behalf or at the instance of another person for valuable consideration or in the course of
employment by another person. The object of copyright law is to encourage authors, composers,
artists and designers to create originals works by rewarding them with the exclusive right for a
limited to exploit the work for monetary gain.

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 COPYRIGHT LAW AND INFRINGMENT OF COPYRIGHT

Bibliography

Books:
Narayan P. Intellectual Property Law Eastern Law House (12th ed.2018)

S.R.A Rosedar Intellectual Property Rights LexisNexis; (1st ed. 2014).

Bhandari M.K. Law Relating to Intellectual Property Rights, Central Law Publication's
(4thed.2018).

Ahuja V.K Law Relating to Intellectual Property Rights, Lexis Nexis Publication’s (3rd ed.
2014).

Acts:
Copyright Act 1957

Statues:
https://www.legalserviceindia.com.

https://www.shodhganga.inflibnet.in.

https://www.yourarticlelibrary.com.

https://www.taxguru.in.

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