An infringement of copyright is a Trespass on a private domain owned and maintained by the owner of the copyright and hence preserved by law and infringement of copyright would appear only when there is substantial production of the plaintiff’s work.
Notwithstanding what has been said above, in honor of the infringement of copyright of the plaintiff’s work, it was held in the case of Chatrapathy Shanmugham VS Rangarajan, 2004 (29) PTC 702 (Mad), that the following does not form the substance matter of infringement:-
- Reproduction of ideas.
- Reproduction of System.
- Reproduction of information.
- Reproduction of Matter in the public domain.
In order that the infringement must be actionable, the infringement must be a colorable imitation of the original with the purpose of deriving the profits.
The test of infringement is whether the infringer has made substantial and unfair use of the complainant’s work. The relations which cannot be a minor coincidence is evidence of infringement.
Infringing Copy as per Copyright Act 1957
Section 2(m) of the Copyright Act 1957 gives out the meaning of infringing copy. Infringing copy means:-
- In relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film. Unexpectedly, a computer program is included in the definition of literary work under section 2 (o) of the Act.
- In relation to cinematographic film, a copy of the film made on any medium by any means.
- In relation to a sound recording, any other recording including the same sound recording, made by any means.
- In relation to a program or performance in which a broadcast reproduction right or a performer ’s right subsists under the provisions of this act, the sound recording or a cinematographic film of such program or performance, if such reproduction, sound recording is made or imported in contravention of the provisions of this act.
Infringement of copyright as per Copyright Act 1957
Section 51 of the Copyright Act 1957 describes the various acts which infringe copyright and other rights of the owner devised by the Act. This provision says that the copyright in a work shall be deemed to be infringed under the following circumstances:-
- When any person, without a license granted by the owner of the copyright or registrar of copyrights or in contravention of the conditions of a license so granted or of any condition imposed by a competent authority under the act-
- Does anything, the exclusive right to do which is conferred upon the owner of the copyright.
- 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 the copyright.
- Where any person-
- makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire or
- distributes either for the purpose of trade or to such extent as to affect the prejudicially the owner of the copyright or
- by way of trade exhibits in public or
- imports into India, any infringing copies of the work except the import of one copy of any work, for the private and domestic use of the importer.
3. A reproduction of the work in any material form including the storing of it in any medium by electronic means or making a translation of any work or making an adaptation of the work would also fall under the ambit of infringement of the copyright in the work within the meaning of section 51 of the act.
4. The explanation to section 51 provides that the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematographic film shall be deemed to be an infringing copy.
Additional circumstances when Copyright is presumed to be Infringed
In addition to what has been covered under the copyright act 1957, the following circumstances also give rise to the case of infringement of copyright:-
- Piracy: An action wherein the unauthorized copies/pirated copies are produced, distributed and sold. The production of pirated copy is done either from the legitimate copy or from the pirated copy of the work itself.
- Bootlegging: When a live performance is recorded in an unauthorized manner, it amounts to Bootlegging. Any such recording done without the permission of authors and performers and thereafter indulging in distribution and selling of the same amounts to infringement.
- Counterfeiting: When the copies are executed through copying or recording including labeling and packaging so as to resemble with original, the same is said to be counterfeiting.
- Infringement in Digital Media: Today, it is the world of digital media and it is very essential to know as to where all the infringement in the digital media can take place. The infringement may occur at following places in the digital media:-
- Repeating of the material stored in the hard disk or RAM or both of the computer of the content provider.
- During the transmission process involved between the computer of the content provider and the server site.
- During the transportation process involved between the server site and the access point.
- In the hard disk or RAM or on receiving a screen or on all of these of the computer where it is accessed.
Can an unregistered copyrighted work be infringed?
An owner of copyright must know that the moment an original work is created, copyright in that work subsists. It is not mandatory to have copyright registration by virtue of the language of Section 45(1) of the Copyright Act 1957, which uses the word “may” in the process of registration discussed under Section 45(1) of the Copyright Act 1957. As a matter of fact, since the copyright subsists, the moment an original work is created, any of the conditions being met as mentioned under Section 51 of the Copyright Act 1957, even in respect of unregistered copyrighted work would contribute to its infringement. However, it is advisable to register the copyrighted work on account of the following:-
- Registration establishes a public record of the work for claiming its copyright.
- The entries in the register of copyrights is a prima facie evidence in the court of law about the ownership of copyright when the disputed matter is contested in the court of the law.
- Judicial precedents show an inclination to rely upon the need of registration of the copyright to enforce civil and criminal nature of remedies in the case of infringement of copyright since unregistered copyright work though infringed but the civil and criminal improvements for infringement are not likely to be entertained in the absence of registration of such work. A case in point is the decision of Bombay High Court in the case of Dhiraj Dharamdas Dewani(Appellant) Vs M/s Sonal Info Systems Pvt Ltd. The court in the said case held that:-
- A perusal of section 51 clearly shows that it shall be judged that there shall be infringement of the copyright when any person does anything, the private right to do is bestowed upon the owner of the copyright by the copyright act or any person makes sale of copies of such work by infringement of the copyright in the said work.
- It is therefore clear from the reading of section 51 that the infringement shall be deemed when exclusive right to do of the proprietor of the copyright is utilized by some other person i.e infringer.
- Now unless such person (the infringer) knows that there is any particular owner of the copyright in India or that such owner of the copyright has registered his work under section 44 of the act before he did, attributing infringement by him or on his part intentionally or unintentionally would be preposterous.
- Such a person who is infringing the copyright in a work must be deemed to have knowledge about the owner of the copyright and such knowledge cannot be attributed unless the provisions regarding registration of copyright, publication thereof etc are complied with. Otherwise, a person who is innocent can in that event be easily brought in the net of the infringement under civil law or criminally, which can never be the intention of the legislature.
- Section 63, 63B and 64 of the Copyright Act 1957 clearly show that a person knowingly making use of a computer by an infringing copy of a computer program shall be criminally liable.
- If there is no registration of copyright by its owner and such owner of the copyright is not known to the infringer due to non-registration of the copyright, he still would be held criminally liable under the provisions.
- To make a person liable criminally, it will have to be confirmed that such a person was fully aware of the owner of the copyright and that he indulged in infringing the said copyright despite knowing the ownership thereof.
- If registration is not made and published in the official gazette, such infringer cannot be expected to be aware nor can he be attributed knowledge about the ownership of the copyright of a particular copyright owner and in that even the criminal code would not be liable to convict such a person.
- Likewise, reading of section 64 regarding power of police to seize shows that the police officer will have to get himself satisfied that a particular person is the owner of the copyright and he will be so satisfied when such copyright is registered.
- When both the complainant and the alleged infringer claim that their product was launched first and that their copyright work was made first, then in the absence of registration under section 44 of the act, how will the police officer be satisfied to proceed to take cognizance.
- Hence, the word ‘ May’ used in section 45 of the act will have to be read as ‘shall’ having regard to the scheme of the Act.
Types of Infringement
The types of Infringements that can be classified are as under:
The determining factors in ascertaining the infringement of copyright
As a previous to seeking a civil/criminal remedy in the case of infringement of copyright, it is always good to study the trend of judicial precedents which give out the general determining/governing factors to ascertain whether the infringement of copyright has even occurred in the first place or not before seeking any legal remedy. Such judicial precedents pronouncing the general trend of governing factors to be considered are discussed as under:-
- To constitute piracy of a copyright or infringement a substantial copy of the original work must be copied [ The Judicial Committee of the Privy Council in the case of Macmillan and Co. V. kand J. Cooper].
- Wherever there is a case of reproduction of a substantial part of a picture, there cannot be any test to decide what is a visible part of a picture. However, it depends on the effect produced upon the mind by a study of the picture and of that which is alleged to be a copy of it, or at least of its design. [The Madras High Court in the Daily Calendar Supplying Bureau Sivakasi the United concern and Hanfstaengl V Bains and Company].
- Governing factors in the case of Vicarious infringement of copyright: In the case of Fonovisa Inc. v Cherry Auction, the governing factors in the case of vicarious infringement of copyright was clubbed down as under:-
- The right and ability to supervise the infringing conduct existed with the defendant.
- Direct financial interest in the infringing activity existed with the defendant.
4. Governing factors in the case of contributory infringement of copyright. In the case of Perfect 10 Inc. v Visa International Service Association et al, the governing factors in the lawsuit of contributory infringement of copyright were laid down as under:-
- Any person having knowledge of another person’s infringement.
- Any person materially contributing or inducing the infringement.
5. In Francis Day v Bron, it was held that infringement of original work depends on a no. of composite elements and it requires proof in the following manner:-
- The degree of familiarity with the plaintiff’s work.
- The character of the work.
- The quality of the work impressing the mind and memory.
- The objective similarity of the defendant’s work.
- The inherent probability that such similarity as is found could be due to coincidence.
6. In Feist Publications Inc v Rural Telephone Service Co, the US Supreme Court held that following two elements must be there to prove a case of infringement:-
- The presence of the ownership of valid copyright.
- That, they constitute elements of the work that are original have been imitated.
7. Factors to be taken into consideration while ascertaining the infringement in the case of computer programs: The traditional test of substantial similarity cannot be implied in the case of computer programs for ascertaining the infringement as technology is involved as there are not many varied forms of expressions available to differentiate between the various computer programs. As such to define the similarity between the two computer programs becomes very difficult. This complexity gets enhanced on account of issues like the computer on which the program is likely to run, the software with which the program is required to interact, the nature of problems to be solved. In India, the issue of computer programs for determining the case of infringement is still in the nascent stage. The Judicial precedents and the trends of the foreign courts in the matter of computer program infringement are discussed as under:-
(i) The US courts in such a scenario have adopted a doctrine of “look and feel” of a computer program which involves:-
- A look of the program i.e demonstrative audiovisual elements comprising of:-
- Screen Displays.
- Visible Portions of the User Interface.
- Visual and aural elements of the output produced by the program.
- A Feel of the program to include:-
- The dynamic, operational flow of the program.
- keystrokes and other means of invoking the functions.
(ii) In Computer Associates International Inc. v Altai Inc, the doctrine of“Abstraction-Filtration-Comparison” Test” was adopted by the US Court. It involved three stages as under:-
- Stage I (Abstraction): In this stage, the various items and components of the program codes are identified.
- Stage II (Filtration): In this stage, each of the abstracted items or components are analyzed to determine whether the five disqualifications apply i.e if the item component is to be excluded from the consideration because:-
- It represents an idea.
- It represents a combination of ideas and expression.
- It is not part of the creative material of the program.
- It is governed by certain external factors.
- Stage III (comparison): In this stage, it is seen whether there is substantial similarity of the duplicated portion with the protected expression. In addition, the related importance of the copied program is weighed as against the original content of the program.
Filing of Litigation against Infringer including the Procedural aspects
The courses of litigation against the infringer are available to the owner of the copyright in the form of civil as well as less criminal litigation.
The issues related to filing a civil suit including jurisdictional aspects involved are as follows:-
- Section 62 (1) of the Copyright Act 1957 entails that the suit for infringement cannot be instituted in any court which is inferior to the District court having jurisdiction.
- Notwithstanding, what has been expressed above, there is no bar for the filing of such suit in any court which is superior to the District Court.
- The Expression, “District Court having Jurisdiction”, in section 62 (2) of the act includes:-
- A District court within the local limits of whose jurisdiction, at the time of accomplishment of the suit or other proceedings, the person executing the suit or other proceeding resides or carries on business or possibly work for gain.
- Where there are more than one such persons, any of them actually and voluntarily resides or carries on business or possibly work for gain.
4. Section 62 (2) of the Copyright Act 1957, is an exception to Section 20 of the Civil Procedure Code, 1908, because clause (c) to Section 20 of the Civil Procedure Code, 1908, pertains to the place where the cause of action wholly or partly arises whereas Section 62 (2) of the Copyright Act 1957 is silent about the similar provision. Therefore in the matter of jurisdiction, following case laws merit consideration:-
- In the case of Mohan Meakin Ltd V Kashmir Dreamland Distilleries Would, AIR 1990, J & K 42, it was held that it is not necessary that the residents must be permanent or that the office must be registered office. Even if the local office is within the jurisdiction of the court, it can entertain the suit.
- In Indian Performing Rights Society Ltd. v. Sanjay Dalia, the Decision of Delhi High Court was upheld by Honourable Supreme Court of India in not entertaining the suit of infringement at Delhi. In this case, the plaintiff was carrying on business through a branch office in Delhi, though, their head office was in Mumbai. The alleged ‘infringement’ had taken place in Mumbai. The Apex Court had the following observations in the said case:-
- The suit can be filed by the plaintiff at a place where he is living or carrying on business or personally works for gain.
- Nevertheless, he need not travel to file a suit to a place where the defendant is residing or cause of action wholly or in part arises.
- On the other hand, if the plaintiff is residing or carrying on business etc. at a place where the cause of action, wholly or in part, has also arisen, he has to file a suit at that place.
5. Cease & Desist Notice: Before the filing of the infringement suit, it is always desirable to file a Cease and Desist notice to the infringer, the importance of which has been stressed upon by the Honourable Supreme Court of India in Midas Hygiene Industries P. Ltd. and Anr. v. Sudhir Bhatia and Ors., 2004 (3) SCC 90, especially in the matter of obtaining injunctions from the court. While filing the Cease and Desist Notice, it is important to incorporate the following in the said Cease and Desist Notice issued to the infringer:-
- Name of the Parties.
- The fact that the work in question is protected by the copyright.
- The date of the creation of the work i.e when it came into existence.
- The date of the first publication of the work.
- The date when copyright registration was done with respect to the work in question.
- The description of the manner in which the copyright was violated/infringed upon.
- A demand of compensation for the loss suffered due to infringement.
- A demand upon the infringing party to Cease and Desist from any infringing action so as to stop the infringer from violating the rights of the copyright holder.
6. Take down notice under Copyright Rules 2013: With the advent of technology and an era of digitization, there is a lot of content accessible on the World Wide Web which is vulnerable to infringement. Vide section 78 of the Copyright Act, 1957, the Parliament set up Copyright Rules,2013. Rule 75 of the Copyright Rules, 2013, mandates upon a person whose copyright has been infringed on the internet to serve a notice to the intermediary for taking down of the infringing content. According to rule 75 (2), a take-down notice must contain the following particulars:-
- Description of the Work.
- Details establishing that the complainant is the owner or exclusive licensee of copyright in the work.
- Details establishing that:-
- the copy of the work which is the subject matter of transient or incidental storage is an infringing copy of the matter of transient or
- Incidental storage is an infringing copy of the work owned by the complainant and that the allegedly infringing act is not covered under section 52 or any other act that is permitted by the Act.
- Details of the location where transient or incidental storage of the work is taking place.
- Details of the person, if known, who is responsible for uploading the work infringing the copyright of the complainant.
- Undertaking that the complainant shall file an infringement suit in the competent court against the person responsible for uploading the infringing copy and produce the orders of the competent court having jurisdiction, within 21 days from the receipt of the notice.
Apart from the civil litigation, criminal prosecution lies upon the infringer infringing the right of the Copyright owner. The provisions and legalities of the criminal litigation are as under:-
- Section 63 of the Copyright Act, 1957 provides that a person will be punishable with detaining for a term which shall not be less than 6 months but which may extend to 3 years and with fine which should not be less than Rs. 50,000 but which may extend to 2 lakh rupees if:-
- The said person knowingly infringes or
- abets the infringement of the copyright in a work or
- Any other work.
2. Section 63-A of the Copyright Act,1957 enhances penalty on second and subsequent convictions. The amendment Act of 1994 inserted Section 63-A which makes use of an infringing copy of a computer program an offense. In this, any person who knowingly makes use on a computer of an infringing copy of a computer program shall be punishable with imprisonment for a term which shall not be less than 7 days but which may extend to 3 years and with fine which shall not be less than Rs. 50,000 but which may extend to 2 lakh rupees.
3. Section 64 of the act empowers any police officer, not below the rank of sub-inspector, if he is satisfied, that an offense under section 63 in respect of the infringement of the copyright in any work has been, is being or is likely to be committed to:-
- Seize without a warrant, all copies of the work and all plates used for the purpose of making infringing copies of the work wherever found.
- Produce before a magistrate all copies in place so seized as soon as practicable.
4. Section 69 of the Copyright Act, 1957 deals with the offenses by companies. Under this provision, where any offense under this act has been committed by a company, every person who at the time, the offense was perpetrated was in charge of and was subject to the company for the conduct of the business of the company, as well as the company, shall be guilty of such offense and shall be liable to be proceeded against an alleged accordingly.
5. Section 70 of the Copyright Act, 1957 expressly mentions that no court inferior to that of a metropolitan magistrate or a judicial magistrate of the first class has jurisdiction to try an offense under the Act. The procedure raised by the court in a criminal proceeding is governed by the criminal procedure code i.e lodging a criminal complaint under sec 190 Crpc, 1973 read with sec 200 Crpc, for offenses under sec 63 of Copy Right Act, 1957.
6. In the course of criminal prosecution, the first step is to lodge an FIR, which puts the criminal law into motion. In the following cases, it was judged that copyright infringement is a cognizable offense:-
- Jitendra Prasad Singh v. State of Assam 2003.
- Abdul Sathar v Nodal Officer, Anti Piracy Cell, Crime Branch office 4 (2007 (35) PTC 780 (Ker).
- State Govt. of NCT of Delhi vs Naresh Kumar Garg 5, 2011(46), PTC 114(Del) on March 20, 2013 [ In this case offense under Section 63 of the Act was held to be cognizable and non-bailable.]
7. Since the copyright infringement has been held to be a cognizable offense by various judicial precedents, the FIR is can be lodged under sec 154, Crpc,1973, for the information being related to a cognizable offense.
Interim reliefs to be claimed (i.e Remedies)
The Diagrammatic layout of legal support are available to the aggrieved party is as under:-
Description of Various Types of Injunctions
The various types of Injunctions as under:-
- Anton Piller order. The characteristics of this kind of injunction are as follows:-
- An Anton Piller Order is a Court order which provides for the right to search premises and search evidence without prior warning.
- Such an order is used to prevent the damage of incriminating evidence particularly in cases of alleged trademark, copyright or patent infringements.
- The salient aspects of this kind of Injunction were laid down in case of Anton Piller K.G Vs Manufacturing Process Limited, that:-
- This kind of order is applicable in most exceptional circumstances.
- A case where the applicant has a very strong prima facie case.
- Where the actual or potential damage to the applicant is pretty serious.
- Where there is visible evidence that vital material is in the hold of the defendant which they might destroy or dispose of.
- The court in such a scenario has inherent jurisdiction to order the defendants to permit the plaintiff’s representatives to enter the premises of the defendant for the purpose of inspecting and removing such material.
2. Mareva Junction: Mareva Junction was adopted by the English courts in the late 1970s after the leading case of Mareva companies Naviera SA V International Bulk Carriers SA. This is a special form of an injunction stopping a party from disposing of assets or removing them from the jurisdiction. This kind of injunction is given when:-
- The Assets of the defendant are within the jurisdiction.
- There is a real risk that the defendant will remove assets from the jurisdiction or dispose of them so that any Judgment or award will remain unsatisfied.
3. Interlocutory/Interim Injunction. An interim or interlocutory injunction is a kind of temporary relief. The characteristics of this kind of injunction are as follows:-
- Whether an interlocutory injunction is to be granted or not is a matter of discretion.
- A suit to obtain a grant of the interlocutory injunction must be brought as soon as the plaintiff knows of the alleged infringement of his rights.
- The injunction restrains the defendant from infringing the plaintiff ’s right.
- In granting an injunction for infringement of copyright, three factors contemplated under Order 39, Rule one of the code of civil procedure must be kept in view. These three factors are:-
- The establishment of a prima facie case.
- The Balance of Convenience between the Parties.
- Whether, if the interim injunction is not issued, it will cause irreparable injury to the applicant.
- The notable feature of damages are as follows:-
- Damages are meant to compensate the plaintiff for the harm caused to him by the legal injury.
- The major of damage is likely to be what the plaintiff would have charged for a license.
- The award of compensation for infringement may be based on rank for each infringement.
- The court will look into the losses of the plaintiff through the defendant’s competition.
- In cases of infringement where some particular benefit has accrued to the defendant, punitive damages may be awarded to a copyright owner.
- The issue is the loss to the plaintiff and this may include not only the loss of profits on hardback sales but also the damage to his future prospects i.e:-
- Loss of ancillary supplies or services.
- The fact that infringement has enabled the defendant to build a strong position in other competitive lines.
- If the damages represent lost sales to the plaintiff, he is entitled to the whole lost profit.
- If the case is not of the lost sales, then a royalty may be an appropriate basis of calculation at a rate which takes into account, the proportional contribution of the right infringed.
An Account of Profits
The account of profits is optional to damages. The court may order payment to the proprietor of the copyright of the profit made by the infringer as a result of the infringement.
Damages for conversion.
- The damages for conversion is given usually where the infringement is willful. The characteristics of the damage for conversion are:-
- In case, the infringement is deliberate, the copyright act provides for the owner of the copyright in a work to be in substantially the same position as if he owns the infringing copies of the material.
- Subject to the decision of the court, there is a provision for the copyright owner to have any infringing copies of the work in the hands of the infringer including any device used in making the copies.
- Section 58 provides that all infringing copies of any work in which copyright subsists, and all plates used or intended to be used for the production of such infringing copies will be deemed to be the property of the owner of the copyright, who accordingly may take proceedings for the recovery of possession thereof or in respect of the conversion thereof.
- Notwithstanding whatever has been said above, this remedy of conversion is not available, if the opponent successfully portraits that he was not aware of the subsistence of the copyright or proves reasonable grounds for believing that the copies did not involve infringement of copyright.
Documents to be Prepared For Effective Filing
Following documents are desirable to be prepared for the effective filing of the suit of infringement:-
- Filing of plaint for filing the suit: The plaint is primarily filing of a written complaint or allegation, wherein, the person /party filing the plaint is the plaintiff and the person/party against whom the plaint is filed is the defendant. If while the hearing, there is merit in the case, notice is issued to the opposite party and in such a case the plaintiff has to relinquish 2 copies of the plaint for each defendant in the court. Out of the two copies meant for each defendant, one copy is sent by registered post to the opposite party and one by ordinary post. A plaint consist of:-
- Name of the Court.
- Nature of complaint.
- Names and addresses of the parties to the suit.
- Verification from the plaintiff that the content of the plaint is true and correct.
- Vakalatnama: It is a written document by the party filing the suit whereby it authorizes its lawyer/advocate to represents his/her case on the behalf of the party. However the requirement to sign a Vakalatnama may be dispensed with, in case the party is filing the case himself/herself and personally representing its case in the court. A Vakalatnama generally contains the following:-
- That the advocates will not be held responsible for any decision by the party.
- All the expenses incurred during the proceedings will be borne by the party.
- That the advocate will have full rights to take a decision in the court of law, during the hearing in the best interest of the party.
- The party shall have the freedom to disengage the advocate at any stage of the proceedings.
- Replication Document: Once the notice is issued to the respondent, the respondent is required to appear in the court on the designated date and file a written statement within 30 days of receiving the notice or in such time as given by the court. The written statement is a document where the defendant denies the allegations of the plaintiff. Now in order to deny the allegations/contest the allegations raised by the defendant in his written statement, the plaintiff is required to file a replication. Once the replication is filed the pleadings are deemed to be complete. Hence, preparing a replication document is also a requirement of effective filing of a suit of infringement.
- Certificate of registration of copyright. Registration of copyright is not mandatory. An author acquires the copyright in his work when it comes into existence in the form of the material object regardless of registration. Non-registration of copyright does not deprive an author to bring any action to be it criminal or civil for infringement. Notwithstanding, the same, registration of copyright is always beneficial, for it is a piece of evidence as to when the certain author started claiming copyright in his work and it puts the whole world on notice about the subsistence of copyright. This registration of copyright, if already done, by the author puts the author in an advantageous position, whereby there can be a presumption for rebuttal that the work is owned by plaintiff and the copyright in the work is valid. The documents purporting to be the copies of entries and extracts from the Registrar of copyright certified by the registrar of copyright can be submitted as evidence in the court as the register of copyrights is the prima facie evidence of particulars entered therein. Therefore the extract of the same can be kept ready as a necessary document.
- Cease and Desist letter: In case of any Cease & Desist letter/notice issued to the infringer in case of copyright infringement, the same should be kept ready as a document while filing the suit for infringement of copyright.
- Any sample/proof of copyright infringement.
- List of witnesses.
- Loss of Income Document. If the infringing work has caused loss of money, the same needs to be documented in terms of saving bank statements and invoices. Even if the infringing product has resulted in the loss of a job, the same needs to be documented.
- Copyright license agreement: Section 30 of the copyright act, 1957 provides that the owner of the copyright in any existing work or prospective owner of the copyright in any future work may grant any interest in the right by license in writing by him or by his duly authorized agent. As such, a copyright license is an arrangement between the copyright holder and the user, allowing the user a limited use of the copyright material. Copyright infringement refers to use of the copyrighted content without the consent of the owner of the copyright. Now if the user does not utilize the copyrighted work in the manner authorized by the licensing agreement, for example, translation of the work into another language, so, in such a scenario it is not merely a breach of the copyright licensing agreement but it becomes a case of copyright infringement. Therefore the moot point is how does the plaintiff prove his point of copyright infringement? In such a case, the plaintiff being the licensor has to keep the copyright licensing agreement as the required document ready before filing the suit to clarify the scope, terms, and conditions of the licensing agreement to the court in order to prove his claim of infringement. Thus, the necessity of copyright licensing agreement as an essential document to be ready while filing the suit of the infringement of copyright.
Importation of infringing copies
Section 53 of the Copyright Act 1957 concerns to the importation of infringing copies. It is basically an admin remedy to prevent the importation into India of copies of an operated work made outside India which is made in India would infringe the copyright in the work. Section 53 provides an additional remedy and the nature of remedy provided by Section 53 is of Quasi-Judicial nature. It involves following:-
- The owner of any right in respect of any work or any performance in such work or his duly authorised agent, may give notice in writing to the Commissioner of Excise and Customs that he is the owner of the said right with proof there off, and that he was the Commissioner for a period specified in the notice, which shall not exceed 1 year in the matter of treatment of infringing copies of the work which are supposed to arrive in India at the time and place designated in the notice.
- The commissioner after scrutiny of the evidence furnished by the owner of the right and on being provided may treat infringed copies of the work as prohibited goods that have been imported into India exploding goods in transit.
- The owner of the work deposit such amount with the Commissioner as may be required towards the security having regard to the likely expenses on:-
- Cost of storage.
- Compensation to the importer.
- Where any goods treated as prohibited have been detained, the customs officer detaining them will inform the importer as well as the person who gave notice of the detention of such goods within 48 hours of the detention.
- If the person who gave comments doesn’t produce any order from a court having jurisdiction as to the temporary or permanent disposal of such goods within 14 days from the date of the detention, the customs officer will publish the goods and they will no longer be interpreted as prohibited goods.