Faculty of Law

JAMIA MILLIA ISLAMIA

COPYRIGHT INFRINGEMENT OF DEFENSE

PRANAV SHRIVASTAVA
B.A.LL.B
IX SEM (S.F)
2017-22 BATCH

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 Table of Contents

 Introduction……………………………………………………………..….4

 What amount copyright

infringmen…………………………………………………………………5

 Defenses…………………………………..….8

 Conclusion:.....11

 Bibliography………………………………………………………..…12

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 ABSTRACT
In my project I explain the meaning of Copyright infringement of defense.Further I explained the
purpose behind Dying Declaration and its value in front of the court.
KEYWORDS:

 Infringement
 Fair use

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 INTRODUCTION

An allegation of copyright infringement is an allegation that someone owned a valid copyright

in a creative work and someone else copied some or all of the copyrighted creative work. If a

person has a copyright in a creative work, the person has the exclusive right to copy, sell, or

otherwise reproduce that work.Independent creation is a defense to copyright infringement.

This is another way of saying that the copyrighted work was not copied.

Having a license in the copyrighted work is a defense to copyright infringement actions. This

means that the defendant had permission, or a license, to use the copyrighted work in the

manner in which he or she used it.

If the use qualifies as “fair use” there is no copyright infringement. The fair use doctrine allows

limited copying of copyrighted material under certain circumstances where authors would

reasonably expect it and when it does not unfairly undermine the copyright protection.

 Examples of fair use may be: parodies, satires, news reports, critiques, teaching,

research, or reverse engineering.

 Factors that are considered in determining whether copying is fair use include: (a) the

purpose and character of the use (ex: teaching vs. commercial purposes), (b) the nature

of the copyrighted work (the more creative the work, the more protection the work

receives), (c) the amount or portion of the copyrighted work used, (d) the effect on the

market or effect on the value of the copyrighted work cause by the copying (ex:

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 diminished demand for the copyrighted work vs. no change in demand for the

copyrighted work), and (e) other relevant factors.

Abandonment is a defense to copyright infringement. A person abandons a copyright if the

person demonstrates an intent to surrender his or her rights in the copyrighted work. Merely

not using the copyright does not demonstrate abandonment. Failing to enforce a copyright

against known infringement over a period of time may show an intent to surrender rights in the

copyrighted work.

What amount copyright infringement:

The unauthorized exercise by a third party of any of the exclusive rights of copyright holders, such as

copying, is copyright infringement. There is no bright line test for how much is too much copying. But

actionable copying is commonly presumed when the defendant had access to the original work and —

after setting aside ideas or other elements of a work that are not protected —what is left is

“substantially similar” to the original work. For works that enjoy only “thin” copyright protection (such

as, for example, representational sculptures of real creatures), infringement will not be presumed unless

the works are “virtually identical” or the defendant has “bodily appropriated” the original . (a) Anyone

who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122

or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United

States in violation of section 602, is an infringer of the copyright or right of the author, as the case may

be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to

include the rights conferred by section 106A(a). As used in this subsection, the term “anyone” includes

any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a

State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee,

shall be subject to the provisions of this title in the same manner and to the same extent as any

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nongovernmental entity. (b) The legal or beneficial owner of an exclusive right under a copyright is

entitled, subject to the requirements of section 411, to institute an action for any infringement of that

particular right committed while he or she is the owner of it. The court may require such owner to serve

written notice of the action with a copy of the complaint upon any person shown, by the records of the

Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such

notice be served upon any person whose interest is likely to be affected by a decision in the case. The

court may require the joinder, and shall permit the intervention, of any person having or claiming an

interest in the copyright. (c) For any secondary transmission by a cable system that embodies a

performance or a display of a work which is actionable as an act of infringement under subsection (c) of

section 111, a television broadcast station holding a copyright or other license to transmit or perform

the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal

or beneficial owner if such secondary transmission occurs within the local service area of that television

station. (d) For any secondary transmission by a cable system that is actionable as an act of infringement

pursuant to section 111(c)(3), the following shall also have standing to sue: (i) the primary transmitter

whose transmission has been altered by the cable system; and (ii) any broadcast station within whose

local service area the secondary transmission occurs. (e) With respect to any secondary transmission

that is made by a satellite carrier of a performance or display of a work embodied in a primary

transmission and is actionable as an act of infringement under section 119(a)(5), a network station

holding a copyright or other license to transmit or perform the same version of that work shall, for

purposes of subsection (b) of this section, be treated as a legal or beneficial owner if f such secondary

transmission occurs within the local service area of that station.

In the case of Super Cassette Industries Vs Nodules Co. Ltd ., the defendant played cassette in

Hotel amounts to copyright infringement. This was clearly held to be act of infringement of

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author’s right over copyright. Copying can, therefore, be proved by inference. It can be inferred

that the defendant has in fact copied the plaintiff’s work from the fact that the defendant had

access to the plaintiff’s work and from the similarities between his work and that of the

plaintiff’s. The rationale behind this is that given the sufficient opportunity that the defendant

had to copy the plaintiff’s work in addition to the striking similarity between the two works, the

evidence in hand is indicative of copyright infringement. In the case of Roma Mitra Vs State of

Bihar14, the Plaintiff, a student gave the work to the guide. The guide published the work as

her own. The published article was substantially similar and therefore, amounted to copyright

infringement. In the case of Ty Ink Vs GMA Accessories15, it was held that Similarity between

works is highly unlikely to have been in accident of independent creation. This is an evidence of

access. Therefore, there is a reciprocal relationship between proof of access and similarity and

this relationship is subject to two important limitations

In the case of S.K. Dutt vs Law Book Co. And Ors. 17, the court determined the amount of

substantiality should be more than half of the total work. It has also held that where the half of

the work is copied and the remaining being original work, it does not constitute infringement.

a. “If there are no similarities, no amount of evidence of access will suffice to prove copying”. b.

“If evidence of access is absent, the similarities must be so striking as to preclude the possibility

that plaintiff and the defendant arrived at the same result.” Therefore, to summarise the

Condition to prove infringement can be summarized as follows: a. Closely Similarity b. Unlawful

c. Some connection d. Access to original work.

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Defense

Some examples of acts which do not constitute Infringement under the Copyright Act are as

follows:  Fair dealing such as criticisms, personal use, newspaper report, review etc.

 Adaptation of Computer Program

 Judicial Proceedings

 Exclusive work of member of House of Legislature

 Non-Corporate matter for institution purpose

 Question Papers

 With Consent

 Non-paying Audience

 Issue being Current Topic such as economic, social, political Etc.

 Made less than 3 copies

 Research or Private study

 Available in Official Gazette.

 Report of committee or Commission

 After the expiry of Copyright.

Fair Use For the purpose of deciding fair use of the work, the following factors has to be taken

into consideration before determining it to be an copyright Infringement. a. the purpose and

character of the use, including whether such use is of a commercial nature or is for nonprofit

educational purposes; b. the nature of the copyrighted work; c. the amount and substantiality

of the portion used in relation to the copyrighted work as a whole; and d. the effect of the use

upon the potential market for or value of the copyrighted work .

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At the outset, it should be mentioned that the “Fair Use” of the work depends upon facts and

circumstances of each case. In a copyright infringement case dealing with fair use, the duty of the court

is to first determine whether the defendant has use the copyrighted information in a natural or

justifiable manner or has taken advantage of already existing work of the plaintiff. In deciding that, the

court has to deal with the above mentioned factors before coming to any conclusion. The purpose and

character of the use plays a major role in determining the copyright infringement. If the defendant has

used it for a purpose which is justifiable or excusable under the Copyright Act, it may not constitute

infringement. It is important that the each fact is weighted properly in deciding fair use. For example, if

a person writes a book on topic “Mother’s care” and gets his book copyrighted and subsequently,

another person with title “Mother’s care” writes a article on mother’s care on child. Under ordinary

circumstances, it may be an infringement, but here it is just an article on care of mother towards the

child to an non-paying audience with no commercial element involved in it. Therefore, it would be come

under fair use not amounting to infringement. In the case of Harper & Row v. Nation Enterprises23 ,

Former President Gerald Ford had written a memoir including an account of his decision to pardon

Richard Nixon. Ford had licensed his publication rights to Harper & Row, which had contracted for

excerpts of the memoir to be printed in Time. Instead, The Nation magazine published 300 to 400 words

of verbatim quotes from the 500-page book without the permission of Ford, Harper & Row, or Time

magazine. The Nation asserted as a defense that Ford was a public figure, and his reasons for pardoning

Nixon were of vital interest, and that appropriation in such circumstances should qualify as a fair use.

The court ruled that fair use is not a defense to the appropriation of work by a famous political figure

simply because of the public interest in learning of that political figure's account of an historic event. As

stated before, the concept of fair use come into play once the act of the defendant is justifiable or is

excusable under the law. In the case of Eastern Book Company Vs D.B.Modak24 , the plaintiff reported

the judgments of the courts along with a head notes giving synopsis of the judgment. Question arose as

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to whether judgment can be given copyright to an individual who reported the judgment. The court held

negatively and held that head notes alone were eligible for copyright and not the judgment.

Other defense:

There are certain other exemptions which will be upheld against a claim of infringement,

including:

Educational

The work has been copied for the purposes of instruction and examination. This is a defence

even when the whole body of the work is played, performed, recorded or photocopied. A

qualification on this, however, is that it must not be for commercial purposes and the author

must be given sufficient acknowledgement.

Caricature, Parody or Pastiche

A performance or recording for the purposes of caricature, parody or pastiche (eg, a comedian

using a few lines from a film or song for a parody sketch) is not an infringement.

Disability

A disabled person, or someone acting on their behalf, can make a copy of a lawfully obtained

copyright work if they make it in a format that helps them access the material. Educational

establishments and charity organisations are also permitted to

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Conclusion:

An infringement will occur if you use a substantial part of copyright material without the
permission of the copyright owner.

A 'substantial part' is not defined by the Copyright Act. However, the courts consider that the
quality of what is copied, not the quantity, is the deciding factor. A substantial part includes an
essential feature or a 'vital or material part even though only a small part'. For example,
reproduction of the chorus of a song or the most recognised part of a song (e.g. the first few
bars) may be substantial enough to be an infringement even though there are multiple verses
or movements.

A person may also use a 'substantial part' even if they have edited the material or followed a
similar structure or layout.

There are no guidelines about the quantity or percentage of copyright material that may be
used without permission (apart from the provisions of the Copyright Act, which allow for some
uses of copyright material that would otherwise be infringements). Each case depends on its
facts.

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Bibliography:

1. http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=394e
7bf3-9764-4ae9-a530-
2713b4120a89&txtsearch=Subject:%20Intellectual%20Property%20Ri
ghts
2. http://www.rmlnlu.ac.in/webj/alok_kumar_ya dav.pdf
3. https://www.indialaw.in/blog/blog/law/analysis-of-doctrines-sweat-of-
brow-modicum-of-creativity-originality-in-copyright/
4. https://info.legalzoom.com/forms-copyright-infringement-23122.html
5. https://www.copyrightuser.org/understand/exceptions/quotation/
Books

Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright

Infringement" (PDF). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright,

Geneva. World Intellectual Property Organisation (WIPO). p. 10. Retrieved 1 September 2010.

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