INTRODUCTION

Violation of a copyright law by any person without a license or permission by the

owner of the creation is called as infringement of copyright. Copyright law provides
exclusive legal rights to an author to get all kind of benefits on his creation.
As per the section 51 of chapter XI of Indian copyright act, using any copyrighted work
without the permission of a copyright owner is an infringement of copyright law and the
following instances could be considered as infringement of copyright. Any person who does
the infringement of a copyright is solely held responsible for his misconduct

i. Performing publicly without any consent of the owner

ii. Using copyrighted work for any kind of business which brings financial benefit
iii. Distributing for the purpose of trade or import
iv. Reproduction of substantial part of copyrighted work in any material form
v. Circulating among the unauthorized persons
vi. Adoption or translation of copyright work without any permission
vii. Resale or renting of copyrighted material to others

Copyright protection gives exclusive rights to the owners of the work to reproduce the work
enabling them to derive financial benefits by exercising such rights. If any person without
authorisation from the owner exercises these rights in respect of the work which has
copyright protection it constitutes an infringement of the copyright. If the reproduction of the
work is carried out after the expiry of the copyright term it will not amount to an
infringement.

Section 51 of the Act contemplates situations where copyright in a work shall be deemed to
be infringed. As per this section copyright in a work is infringed when any person without a
licence granted by the owner of the copyright or the Registrar of Copyright or in
contravention of the conditions of a licence so granted or of any condition imposed by a
competent authority does —

(1) anything for which the exclusive right is conferred upon the owner of the copyright, or
(2) permits for profit any place to be used for the communication of the work to public
where such a 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 would
be an infringement of copyright.
(3) when any person (i) makes for sale or hire or lets for hire or by way of trade display 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.
However, import of one copy of any work is allowed for private and domestic use of the
importer. Explanation to Section 51 clarifies that the reproduction of literary, dramatic,
musical or artistic work in the form of cinematograph film shall be deemed to be an
infringing copy.

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Enforcement authorities
Who enforces it?
Copyright can be enforced in civil courts and criminal courts. Civil remedies for the
copyright owner include injunction, damages and a rendition of accounts. Infringement of
copyright is also an offence under the Act and may incur imprisonment of up to three years
and a fine of up to 200,000 rupees. The Copyright Act provides an enhanced penalty on
second and subsequent conviction.
The Copyright Board constituted under the Act provides an alternative forum for resolving
certain limited disputes, such as those pertaining to assignments and payment of royalties.
The Act also provides for border enforcement of copyright and other rights and provides for
the confiscation of infringing copies of copyright works as prohibited goods, which is carried
out by the customs department under the supervision of the Commissioner of Customs
provided there is an order within 14 days from the date of detention from the court that has
jurisdiction.

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Principles for determining infringement
One must remember that the basic principle for determining infringement is to first ascertain -
whether the defendant has put sufficient skill and labour in making his work? And - what
extent have the original authors work being reproduced?

If it is clear from the work of the defendant that sufficient skill and labour has been put by
him, and mere extracts come the authors work are taken for the purpose of explanation or
reference, the same would not amount to infringement. However, if major proportions of
authors work have been reproduced without application of mind for use of any skill or labour,
the same would amount to infringement of the original work.

The above is briefly explain by Lord Reid in Ledbroke (Football) Ltd v/s William Hill 1964 1
All ER 465 that “ the more concrete approach is to 1st determine whether the plaintiff's work
as a whole is ‘original’ and protected by copyright, and then to inquire whether the part taken
by the defendant has substantial”.

Infringement can be determined by the following:-

1. Direct copying
2. Indirect copying
3. Substantial copying

1. Direct Copying: as the name suggest, direct copying means reproducing a part of
proportion of the authors work in the in fingers infringers work. When a person
produces a portion of work from an author in verbatim, the same constitute direct
infringement. Even if the work is copied which trivial additions or omissions, the
same would amount to infringement. However, where there are resemblances in two
works due to the nature of the work I.e., dictionaries, law books etc, the question of
infringement becomes completely immaterial.

2) Indirect Copying: indirect copying is very common form of infringement. For eg. when
novel is converted into a play without the consent of the author, the same would amount to
indirect infringement.

3) Substantial copying: as the name suggest, substantial copying means copying a major
part of the work of another. However, there are catena of cases which show that even "part “
which is regarded as an important feature of a work, through discreet, can be regarded as
substantial copying.

Thus, what constitutes substantial copying would depend on the facts of each case, as already
stated, there is no copyright an idea. Thus, if You works are based upon the same idea, one
must necessarily consider whether or not the similarities are trivial or substantial. The manner
and form of expression and the arrangement of idea of the work by the author and the alleged
infringer are to be considered has to extent to which they are similar.

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The a essence of such infringement is whether a substantial part of the authors work is copied
by another, whether the works are similar or not, Thus, the defendants work maybe different
from Plaintiff’s work, but if it contains substantial part of plaintiffs work, the same would
constitute infringement. For eg. If a film contains a scene of about 2 to 3 minutes which is
completely taken from an author's book, the same would amount to infringement.

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REPOGRAPHY
Section 2(x) of the Copyright Act defines reprography as ‘ the making of copies of work by
photocopying or similar means’. It simply means that making copies or reproducing or
similar means of xeroxing machines , copying of cd’s etc. infringement by the way of
reprography is very common throughout the world. However , such an infringement is
majority at domestic and personal levels and hence it is very difficult to prevent the same.
The Lok Sabha had introduced a bill known as copyright cess bill which imposed cess on the
sale of xerox machines , tape recorders etc. However , the bill has not come into force and
therefore there is no legal provision to deal with such infringement.

INFRINGEMENT FOR CERTAIN WORKS

LITERARY WORK:
In case of infringement of literary work , it is necessary to read section 51 with section 14 of
copyright act. Whilst section 51 categorically states what constitutes infringement , section 14
defines the meaning of copyright and states the acts which can be done by the author of work.
Thus if a person does any of the acts as mentioned in 14 (a) without the consent or permission
of the author is guilty of having committed infringement of the work.
One has to ascertain two very important aspects in order to test the element of infringement
of work viz (i) bthe degree of similarity between two works and (ii) if the source of second
work being derived from the first work. Some of the examples of infringement in literary
work are already mentioned above , in addition a few are mentioned as follows:-
Commentaries on legal acts : Various commentaries are written by doffrent authors so far
as the different legal acts are concerned . if the paragraphs are similar and similar instance
and copied , the same may constitute infringement.

DICTIONARIES , DIRECTORIES , BARE ACTS ETC.

In case of dictionaries , directories and bare acts the same are usually used by public at large
and a work of such nature which is similar to another would not constitute infringement if
sufficient skill and labour has been put by the author.

HISTORICAL WORK
Since it is based on the events that transpired in the history and are based on facts , no author
can claim copyright over historical work.

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ARTISTIC WORK
The following acts would constitute infringement of artistic work if the same are done
without consent or permission of the author of such artistic work :
i) To reproduce the work in any material form:-
a) The storing of it any medium by electronic or other means
b) Depiction in three-dimensions of a two-dimensional work
c) Depiction in two dimension of a three-dimensional work
ii) To communicate the work to the public
iii) To issue copies of the work to the public not being copies already in circulation
iv) to include the work in any cinematograph film
v) To make any adaption of the work
vi) To do in relation to an adaptation of work any of the acts specified in relation to the
work in points (i) to(v) above.

MUSICAL WORK
In case of musical work the acts which amount to infringement are similar tothose of literary
work
i) To reproduce the work in any material from including the storing of it any
medium by electronic means
ii) To perform the work in public , or communicate it to the public
iii) To issue copies of the work to the public not being copies already in circulation
iv) To make any cinematography film or sound recording in respect of work
v) To make any adaptation of the work
vi) To do , in relation to a translation or an adaptation of the wprk , any of the acts
specified in relation to the work in points (i) to (v) above
However the remix version of songs are not considered infringement , but any public
performance of song / musical work without the consent of the composer would amount
to infringement. Thus , music is played at a public restaurants and or on loud speaker
which is audible to public at large tantamount to infringement.

CINEMATOGRAPH FILM
Over the years the infringement relating to cinematograph film has increased tremendously.
The following acts , if done without acts, if done without the consent of the producer would
amount to infringement of cinematograph film:
(i) To make a copy of the film –
a) A photograph or any image forming part thereof
b) Storing of it in any medium by electronic or other means.
(ii) To sell or give on commercial rental , or offer for sele or for such rental any copy
to the film

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 (iii) To communicate the film to the public
One must also note that there is no copyright in the plot or theme of a film. Most of the films
are romantic love stories having a villain – this is a plot which has no copyright protection
and thus there is no question of infringement of such film.

INFRIGMENET OF BROADCASTING RIGHTS

As per Section 2 (dd) of the Copyright Act, 1957, the term broadcast means
communication to the public through wired or by any means of wireless diffusion. It also
includes a re-broadcast.

Section 37 in the Copyright Act, 1957

Broadcast reproduction right.—
(1) Every broadcasting organisation shall have a special right to be known as ‘‘broadcast
reproduction right’’ in respect of its broadcasts.2[37. Broadcast reproduction right.—(1)
Every broadcasting organisation shall have a special right to be known as ‘‘broadcast
reproduction right’’ in respect of its broadcasts."
(2) The broadcast reproduction right shall subsist until twenty-five years from the
beginning of the calendar year next following the year in which the broadcast is made.
(3) During the continuance of a broadcast reproduction right in relation to any broadcast,
any person who, without the licence of the owner of the right does any of the following
acts of the broadcast or any substantial part thereof,—
(a) re-broadcasts the broadcast; or
(b) causes the broadcast to be heard or seen by the public on payment of any charges; or
(c) makes any sound recording or visual recording of the broadcast; or
(d) makes any reproduction of such sound recording or visual recording where such initial
recording was done without licence or, where it was licensed, for any purpose not
envisaged by such licence; or
(e) sells or hires to the public, or offers for such sale or hire, any such sound recording or
visual recording referred to in clause (c) or clause (d), shall, subject to the provisions of
section 39, be deemed to have infringed the broadcast reproduction right.

Section 39 in the Copyright Act, 1957

Acts not infringing broadcast reproduction right or performer’s right.—No broadcast
reproduction right or performer’s right shall be deemed to be infringed by—
Acts not infringing broadcast reproduction right or performer’s right.—No broadcast
reproduction right or performer’s right shall be deemed to be infringed by—"
(a) the making of any sound recording or visual recording for the private use of the person
making such recording, or solely for purposes of bona fide teaching or research; or
(b) the use, consistent with fair dealing, of excerpts of a performance or of a broadcast in
the reporting of current events or for bona fide review, teaching or research; or
(c) such other acts, with any necessary adaptations and modifications, which do not
constitute infringement of copyright under section 52.

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PERFORMERS RIGHTS

Performer’s right.
(1) Where any performer appears or engages in any performance, he shall have a special
right to be known as the “performer’s right” in relation to such performance.1[38.
Performer’s right. (1) Where any performer appears or engages in any performance, he
shall have a special right to be known as the “performer’s right” in relation to such
performance."
(2) The performer’s right shall subsist until [fifty years] from the beginning of the
calendar year next following the year in which the performance is made.
(3) During the continuance of a performer’s right in relation to any performance, any
person who, without the consent of the performer, does any of the following acts in
respect of the performance or any substantial part thereof, namely:
(a) makes a sound recording or visual recording of the performance; or
(b) reproduces a sound recording or visual recording of the performance, which sound
recording or visual recording was—
(i) made without the performer’s consent; or
(ii) made for purposes different from those for which the performer gave his consent; or
(iii) made for purposes different from those referred to in section 39 from a sound
recording or visual recording which was made in accordance with section 39; or
(c) broadcasts the performance except where the broadcast is made from a sound
recording or visual recording other than one made in accordance with section 39, or is a
re-broadcast by the same broadcasting organisation of an earlier broadcast which did not
infringe the performer’s right; or
(d) communicates the performance to the public otherwise than by broadcast, except
where such communication to the public is made from a sound recording or a visual
recording or a broadcast, shall, subject to the provisions of section 39, be deemed to have
infringed the performer’s right.
(4) Once a performer has consented to the incorporation of his performance in a
cinematograph film, the provisions of sub-sections (1), (2) and (3) shall have no further
application to such performance.

Section 38A provides for performer’s right as an exclusive right to do or authorize the doing
of any of the acts in respect of the performance without prejudice to the rights conferred on
authors. The proviso to the section enables performers to be entitled for royalties in case their
performances are subjected to commercial use.

This is a welcome development as earlier the performers were not entitled to royalties
because they only had a negative right to prohibit ‘fixation’ of their live performances. The
negative right has now been converted to the positive rights.

Along with the above, the Amendment Act 2012 has also sought to amend the definition of
‘Communication to Public’ (Section 2 (ff)) extending the right to performances. The rights
under this head hitherto limited to authors have been extended to performers by the present
amendment.

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This is consequential to the grant of new rights to performers. The right of ‘communication to
public’ is essential to protect the work on the internet and such protection hitherto available
for ‘works’ now extends to ‘performances’.

A new section 38B grants moral rights to performers in line with Article 5 of WPPT. Moral
rights have been extended to performers, considering the possibility of digital alteration of
performances in a digital environment. The ‘explanation’ to the section clarifies that editors
are free to perform their tasks without the fear of legal consequences.

Performance rights are protected under the Copyright Act, 1957 as special rights that are
separate from copyright. These exclusive rights of a performer are independent of and
without prejudice to the rights conferred on authors of works that are performed.
The exclusive rights of a performer consist of the following:

 the right to make sound recordings or visual recordings of the performance including
reproduction of it in material form including storing of it any medium by electronic or
other means and issuance of copies to the public; communication of it to the public
and selling or giving it on commercial rental or offer for sale or for commercial rental;
and
 the right to broadcast or communicate the performance to the public, except where the
performance is already broadcast.
Once a performer has, by way of a written agreement, given his or her consent for
incorporation of his or her performance in a cinematograph film, he or she cannot object to
the producer enjoying the exclusive performer’s rights, provided that there is no contract to
the contrary.
Performers are entitled to the unalienable right to royalties from commercial exploitation of a
performance that is, the right to receive royalties (R3 right). This right is unaffected by a
performer’s written consent to allow his or her performance to be incorporated in a film.
Hence, the right to royalties of performers would have to be dealt with separately from other
performers’ rights when parties negotiate upon how the performance will be incorporated in a
film and the mutual considerations between them.
With the passing of the Copyright (Amendment) Act, 2012, the concept of performers’ rights
has been cemented and exclusive rights have been granted to a performer akin to copyright in
original works. This is in accordance with provisions of the WIPO Performances and
Phonograms Treaty and the 2012 amendments to the Copyright Act have also granted moral
rights to performers giving them extra protection. The rules accompanying the Copyright Act
further provide the setting up of a separate ‘performers’ society’ for each class of
‘performers’.
The Indian Singers’ Rights Association (ISRA) has been registered with the government of
India as a copyright society for singers as a class of performers. The purpose of the copyright
society is to administer the rights of the singers who are its members and collect royalty on
their behalf for their exclusive rights as per the Copyright Act. The Delhi High Court has
passed an injunction order dated 19 December 2014 restraining a club in Delhi from
infringing the performers’ rights of singers in a lawsuit prevented on behalf of the ISRA
[CS(OS) No. 3958 of 2014]. The suit was decreed in favour of the ISRA on 30 September
2016.

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IMPORTATION AND INFRINGEMENT

The Registrar of Copyrights, on application by the owner of the copyright in any work or
by his duly authorised agent and on payment of the prescribed fee, may, after making
such inquiry as he deems fit, order that copies made out of India of the work which if
made in India would infringe copyright shall not be imported.

(2) Subject to any rules made under this Act, the Registrar of Copyrights or any person
authorised by him in this behalf may enter any ship, dock or premises where any such
copies as are referred to in sub-section (1) may be found and may examine such copies.

(3) All copies to which any order made under sub-section (1) applies shall be deemed to
be goods of which the import had been prohibited or restricted 1[under section 11 of the
Customs Act, 1962 (51 of 1962),] and all the provisions of the Act shall have effect
accordingly: Provided that all such copies confiscated under the provisions of the said Act
shall not vest in the Government but shall be delivered to the owner of the copyright in
the work.

Certain acts not to be infringement of copyright

Certain exceptions to infringement have been stipulated by the Copyright Act. The object of
these exceptions is to enable the reproduction of the work for certain public purposes, and for
encouragement of private study, research and promotion of education. The list of acts which
do not constitute infringement of copyright has been provided under Section 52 of the Act.
These include
(i) A fair dealing with literary, dramatic, musical or artistic work, not being a computer
programme, for the purposes of-—
• private or personal use, including research;
• criticism or review, whether of that work or of any other work;
• reporting of current events and current affairs, including the reporting of a lecture delivered
in public.
• It may be noted that storing of any work in any electronic medium including the incidental
storage of any computer programme which is not itself an infringing copy for the said
purposes, shall not constitute infringement of copyright.
(ii) The making of copies or adaptation of a computer programme by the lawful possessor of
a copy of such computer programme, from such copy in order to utilise the computer
programme for the purposes for which it was supplied; or to make back-up copies purely as a

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temporary protection against loss, destruction or damage in order only to utilise the computer
programme for the purpose for which it was supplied.
(iii) the doing of any act necessary to obtain information essential for operating inter-
operability of an independently created computer programme with other programmes by a
lawful possessor of a computer programme provided that such information is not otherwise
readily available.
(iv) the observation, study or test of functioning of the computer programme in order to
determine the ideas and principles which underline any elements of the programme while
performing such acts necessary for the functions for which the computer programme was
supplied.
(v) the making of copies or adaptation of the computer programme from a personally legally
obtained copy for non-commercial personal use.
(vi) the transient or incidental storage of a work or performance purely in the technical
process of electronic transmission or communication to the public.
(vii) transient or incidental storage of a work or performance for the purpose of providing
electronic links, access or integration, where such links, access or integration has not been
expressly prohibited by the right holder, unless the person responsible is aware or has
reasonable grounds for believing that such storage is of an infringing copy.
It may be noted that if the person responsible for the storage of the copy has received a
written complaint from the owner of copyright in the work, complaining that such transient or
incidental storage is an infringement, such person responsible for the storage shall refrain
from facilitating such access for a period of twenty-one days or till he receives an order from
the competent court refraining from facilitating access and in case no such order is received
before the expiry of such period of twenty-one days, he may continue to provide the facility
of such access.
(viii) the reproduction of any work for the purpose of a judicial proceeding or for the purpose
of a report of a judicial proceeding.
(ix) the reproduction or publication of any work prepared by the Secretariat of a Legislature
or, where the Legislature consists of two Houses, by the Secretariat of either House of the
Legislature, exclusively for the use of the members of that Legislature.
(x) the reproduction of any work in a certified copy made or supplied in accordance with any
law for the time being in force;
(xi) the reading or recitation in public of reasonable extracts from a published literacy or
dramatic work.
(xii) the publication in a collection, mainly composed of non-copyright matter, bona fide
intended for instructional use, and so described in the title and in any advertisement issued by
or on behalf of the publisher, of short passages from published literary or dramatic works, not
themselves published for such use in which copyright subsists. However, not more than two
such passages from works by the same author are published by the same publisher during any
period of five years.

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In the case of a work of joint authorship, references in this clause to passages from works
shall include references to passages from works by any one or more of the authors of those
passages or by any one or more of those authors in collaboration with any other person.
(xiii) the reproduction of a literary, dramatic, musical or artistic work—
• by a teacher or a pupil in the course of instruction; or
• as part of the questions to be answered in an examination; or
• in answers to such questions.
(xiv) the performance, in the course of the activities of an educational institution, of a literary,
dramatic or musical work by the staff and students of the institution, or of a cinematograph
film or a sound recording if the audience is limited to such staff and students, the parents and
guardians of the students and persons connected with the activities of the institution or the
communication to such an audience of a cinematograph film or sound recording.
(xv) the causing of a recording to be heard in public by utilising it,-
• in an enclosed room or hall meant for the common use of residents in any residential
premises (not being a hotel or similar commercial establishment) as part of the amenities
provided exclusively or mainly for residents therein; or
• as part of the activities of a club or similar organisation which is not established or
conducted for profit;
• as part of the activities of a club, society or other organisation which is not established or
conducted for profit.
(xvi) the performance of a literary, dramatic or musical work by an amateur club or society, if
the performance is given to a non-paying audience, or for the benefit of a religious institution.
(xvii) the reproduction in a newspaper, magazine or other periodical of an article on current
economic, political, social or religious topics, unless the author of such article has expressly
reserved to himself the right of such reproduction.
(xviii) the storing of a work in any medium by electronic means by a noncommercial public
library, for preservation if the library already possesses a non-digital copy of the work.
(xix) the making of not more than three copies of a book (including a pamphlet, sheet of
music, map, chart or plan) by or under the direction of the person in charge of a non-
commercial public library for the use of the library if such book is not available for sale in
India;
(xx) the reproduction, for the purpose of research or private study or with a view to
publication, of an unpublished literary, dramatic or musical work kept in a library, museum
or other institution to which the public has access.
However, where the identity of the author of any such work or, in the case of a work of joint
authorship, of any of the authors is known to the library, museum or other institution, as the
case may be, the provisions of this clause shall apply only if such reproduction is made at a
time more than sixty years from the date of the death of the author or, in the case of a work of

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joint authorship, from the death of the author whose identity is known or, if the identity of
more authors than one is known from the death of such of those authors who dies last;
(xxi) the reproduction or publication of-
• any matter which has been published in any Official Gazette except an Act of a Legislature;
• 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;
• the report of any committee, commission, council, board or other like body appointed by the
Government if such report has been laid on the Table of the Legislature, unless the
reproduction or publication of such report is prohibited by the Government;
• any judgement or order of a court, tribunal or other judicial authority, unless the
reproduction or
publication of such judgment or order is prohibited by the court, the tribunal or other judicial
authority, as the case may be.
(xxii) the production or publication of a translation in any Indian language of an Act of a
Legislature and of any rules or orders made thereunder-
• if no translation of such Act or rules or orders in that language has previously been
produced or published by the Government; or
• where a translation of such Act or rules or orders in that language has been produced or
published by the Government, if the translation is not available for sale to the public:
• however, such translation contains a statement at a prominent place to the effect that the
translation has not been authorised or accepted as authentic by the Government.
(xxiii) the making or publishing of a painting, drawing, engraving or photograph of a work of
architecture or the display of a work of architecture.
(xxiv) the making or publishing of a painting, drawing, engraving or photograph of a
sculpture, or other artistic work failing under sub-clause (iii) of clause (c) of Section 2, if
such work is permanently situate in a public place or any premises to which the public has
access.
(xxv) the inclusion in a cinematograph film of-
• any artistic work permanently situate in a public place or any premises to which the public
has access; or
• any other artistic work, if such inclusion is only by way of background or is otherwise
incidental to the principal matters represented in the film.
(xxvi) the use by the author of an artistic work, where the author of such work is not the
owner of the copyright therein, of any mould, cast, sketch, plan, model or study made by him
for the purpose of the work. However, he does not thereby repeat or imitate the main design
of the work.

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“(xxvii) the making of a three-dimensional object from a two-dimensional artistic work, such
as a technical drawing, for the purposes of industrial application of any purely functional part
of a useful device;
(xxviii) the reconstruction of a building or structure in accordance with the architectural
drawings or plans by reference to which the building or structure was originally constructed .
However, the original construction was made with the consent or licence of the owner of the
copyright in such drawings and plans.
(xxix) in relation to a literary, “dramatic, artistic or” musical work recorded or reproduced in
any cinematograph film the exhibition of such film after the expiration of the term of
copyright therein .However, the provisions of sub-clause (ii) of clause (a), sub-clause (a) of
clause (b) and clauses (d), (f), (g), (m) and (p) shall not apply as respects any act unless that
act is accompanied by an acknowledgment-
• identifying the work by its title or other description; and
• unless the work is anonymous or the author of the work has previously agreed or required
that no acknowledgement of his name should be made, also identifying the author.
(xxx) the making of an ephemeral recording, by a broadcasting organisation using its own
facilities for its own broadcast by a broadcasting organisation of a work which it has the right
to broadcast; and the retention of such recording for archival purposes on the ground of its
exceptional documentary character.
(xxxi) the performance of a literary, dramatic or musical work or the communication to the
public of such work
or of a sound recording in the course of any bona fide religious ceremony or an official
ceremony held by the Central Government or the State Government or any local authority.
However, religious ceremony including a marriage procession and other social festivities
associated with a marriage.
“(xxxii) the adaptation, reproduction, issue of copies or communication to the public of any
work in any accessible format by any person to facilitate persons with disability to access to
works including sharing with any person with disability of such accessible format for private
or personal use, educational purpose or research; or any organisation working for the benefit
of the persons with disabilities in case the normal format prevents the enjoyment of such
works by such persons. However, the copies of the works in such accessible format are made
available to the persons with disabilities on a non-profit basis but to recover only the cost of
production and the organization shall ensure that the copies of works in such accessible
format are used only by persons with disabilities and takes reasonable steps to prevent its
entry into ordinary channels of business.
It may be noted that “any organization” includes and organization registered under Section
12A of the Income-tax Act, 1961 and working for the benefit of persons with disability or
recognized under Chapter X of the Persons with Disabilities (Equal Opportunities, Protection
or Rights and full Participation) Act, 1995 or receiving grants from the government for
facilitating access to persons with disabilities or an educational institution or library or
archives recognized by the Government.”.

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(xxxiii) the importation of copies of any literary or artistic work, such as labels, company
logos or promotional or explanatory material, that is purely incidental to other goods or
products being imported lawfully.

THE DOCTRINE OF FAIR DEALING

The principle of conditional grants to proprietary rights in any intellectual property is to
promote public interest. This is universally recognized and incorporated in intellectual
property system. Protection and enforcement of intellectual property rights must:

1. be conducive to social and economic welfare;

2. safeguard an individual’s fundamental rights; and
3. Promote commerce, competition and innovation.
In Copyright Laws exceptions and limitations are provisions which in public interest permit
the use of copyrighted works without prior authorization or a license from its owner.
Generally, exceptions and limitations to copyright are subject to a three-step test set out in the
Berne Convention for the Protection of Literary and Artistic Works. Briefly stated, the Berne
Convention provides that an exception or limitation to copyright is permissible only if:

1. it covers special cases

2. it does not conflict with the normal exploitation of the work; and
3. it does not unreasonably prejudice the legitimate interests of the author.
Standard exceptions and limitations vary from country to country in their number and scope.
In India the provisions of Section 52 of the Copyright Act, 1957 provide for certain acts,
which would not constitute an infringement of copyright namely fair dealing with a literary,
dramatic, musical or artistic work not being a computer program for the purposes of-

 private use, including research;

 criticism or review ,
 reporting current events in any print media or
 by broadcast or in a cinematographic film or by means of photographs,
 reproduction for the purpose of a judicial proceeding or of a report of a judicial
proceeding;
 reproduction or publication of a literary, dramatic, musical or artistic work in any
work prepared by the Secretariat of a Legislature or, where the Legislature consists of
two Houses, by the Secretariat of either House of the Legislature, exclusively for the
use of the members of that Legislature;
 the reproduction of any literary, dramatic or musical work in a certified copy made or
supplied in accordance with any law for the time being in force;
 the reading or recitation in public of any reasonable extract from a published literary
or dramatic work;

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  the publication in a collection, mainly composed of non-copyright matter, bona fide
intended for the use of educational institutions,
 the making of sound if made by or with the license or consent of the owner of the
right in the work
The term “fair dealing” has not been defined in the Act. It is a legal doctrine, which allows a
person to make limited use of copyrighted work without the permission of the owner.
Whether a person’s use of copyright material is “fair” would depend entirely upon the facts
and circumstances of a given case. The line between “fair dealing” and infringement is a thin
one. In India, there are no set guidelines that define the number of words or passages that can
be used without permission from the author. Only the Court applying basic common sense
can determine this. It may however be said that the extracted portion should be such that it
does not affect the substantial interest of the Author. Fair dealing is a significant limitation on
the exclusive right of the copyright owner. It has been interpreted by the courts on a number
of occasions by judging the economic impact it has on the copyright owner. Where the
economic impact is not significant, the use may constitute fair dealing.
The fair nature of the dealing depends on the following four factors:

1. the purpose of use

2. the nature of the work
3. the amount of the work used, and
4. the effect of use of the work on the original
In the case of Kartar Singh Giani v. Ladha Singh, the High court held that:
“two points have been urged in connection with the meaning of the expression fair, in fair
dealing (1) that in order to constitute unfairness there must be an intention to compete and to
derive profit from such competition and (2) that unless the motive of the infringer were unfair
in the sense of being improper the dealing would be fair.”

PIRACY OF INTERNET
Copyright is one tool to prevent the intellectual property of a person from being pirated. It is
the legal right granted to a creator of any intellectual property to be able to reproduce and
redistribute his work, at his discretion. Although back then, and even today, copyright doesn’t
exactly prevent piracy, it does protect the legal interests of the party negatively affected and
prescribe legal consequences for the perpetrator, in the event that copyright
infringement(piracy) does occur.

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Copyright holders routinely invoke legal and technological measures to prevent and penalize
copyright infringement.

o handle copyright and copyright infringement related disputes, the Indian Constitution has the
Copyright Act, 1957, which acts as the main statute for all copyright-related laws in India. Under
section 13 of the Act, copyright protection is conferred on literary works, dramatic works, musical
works, artistic works, cinematograph films, and sound recordings.

The Copyright Act, 1957 handles protection of copyrighted material via classification of the
same into two categories of rights, those being –

 Economic Rights: The scope of this Act falls under originally conceptualized work
including literary works, dramatic works, musical works, artistic works,
cinematograph films, and sound recordings. The owners of these intellectual
properties and works are given exclusive rights which they can exercise when it
comes to the reproduction and distribution of these works, and to have a share in the
profit of any sales of the product made by a licensed third-party.
 Moral Rights: Section 57 of the Act splits moral rights into two basic rights, right
of paternity and right of integrity. The former enables the original creator of the
intellectual property to be able to claim ownership of it and prevent any others from
claiming ownership. The latter enables the creator to restrict any and all ‘distortion,
mutilation or other alterations of his work, or any other action in relation to said
work’ which may damage his reputation.

Remedies are available against a copyright infringer

Protection of rights under the copyright law, which is basically a negative right is as much a
problem of complying with the mandatory provisions of the procedural law as the effective
exercise of investigative and adjudicatory functions by the enforcing authorities and the courts.

Section 54 to Section 62 of the Copyright Act provide for civil remedies under the Act. Section
55 provides that where copyright in any work has been infringed, the owner of the copyright
can, except as otherwise provided in the Act, be entitled to all remedies like injunctions,
damages and accounts as are conferred by law for the infringement of a right. However, if the
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defendant proves that at the date of the infringement he was not aware and had no reasonable
ground to believe that copyright subsisted in the work, the plaintiff will not be entitled to any
remedy other than an injunction in respect of the infringement and a decree for the whole or
part of the profits made by the defendant by the sale of the infringing copies as the court may,
in the circumstances, deem reasonable.

The remedies provided by the Copyright Act, 1957 against infringement of copyright are:

 civil remedies - these provide for injunctions, damages, rendition of accounts,

delivery and destruction of infringing copies and damages for conversion;
 criminal remedies - these provide for imprisonment, fines, seizure of infringing copies
and delivery of infringing copies to the owner; and
 border enforcement - the Act also provides for prohibition of import and destruction
of imported goods that infringe the copyright of a person with the assistance of the
customs authorities of India.

Civil Remedies for Copyright Infringement

The civil remedies for copyright infringement are covered under Section 55 of the Copyright
Act of 1957. The different civil remedies available are:

1) Interlocutory Injunctions

The most important remedy is the grant of an interlocutory injunction. In most case the
application filled is for interlocutory relief and the matter rarely goes beyond the
interlocutory stage. There are three requirements for there to be a grant of interlocutory
injunction – Firstly, a prima facie case. Secondly, there needs to be a balance of convenience.
Finally, there needs to be an irreparable injury.

2) Pecuniary Remedies

Copyright owners can also seek three pecuniary remedies under Section 55 and 58 of the
Copyright Act of 1957. First, an account of profits which lets the owner seek the sum of
money made equal to the profit made through unlawful conduct. Second, compensatory
damages which let the copyright owner seek the damages he suffered due to the infringement.
Third, conversion damages which are assessed according to the value of the article.

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3) Anton Pillar Orders

The Anton pillar order gets its name from the holding in Anton Pillar AG V. Manufacturing
Processes. The following elements are present in an Anton Pillar Order – First, an injunction
restraining the defendant from destroying or infringing goods. Second, an order permitting
the plaintiff’s lawyer to search the defendant’s premises and take goods in their safe custody.
Third, an order that the defendant be directed to disclose the names and addresses of suppliers
and consumers.

4) Mareva Injunction

The Mareva injunction comes into play when the court believes that the defendant is trying to
delay or obstruct the execution of any decree being passed against him. The court has the
power to direct him to place whole or any part of his property under the court’s disposal as
may be sufficient to satisfy the decree. This is provided in Order XXXVIII, Rule 5 of The
Civil Procedure Code, 1908.

5) Norwich Pharmacal Order

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

Criminal Remedies

Under the Copyright Act, 1957 the following remedies are provided for infringement:

 Imprisonment up to 3 years but, not less than 6 months

 Fine which may not be less than 50,000 but, may extend up to 2,00,000
 Search and seizure of infringing goods
 Delivery of infringing goods to the copyright owner

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CASE LAW

Hindustan pencil Ltd vs Alpana cottage Industries :

In this case the copyright board of Goa held that where the similarities lie between the artistic
work of the parties are fundamental and substantial in material aspect , it would amount to
copyright violation and the defendant’s copyright is liable to be expunged from the register of
copyright.

Godrej Soaps (P) Ltd. v. Dora Cosmetics Co.2001 PTC (21) 407 Del.

It was held that the Delhi High Court held that where the carton was designed for valuable
consideration by a person in the course of his employment for and on behalf of the plaintiff and
the defendant had led no evidence in his favour, the plaintiff is the assignee and the legal owner
of copyright in the carton including the logo

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Conclusion

To sum up, the purpose of copyright is to protect the rights of the creator and provide the
incentives and economic benefits to the creator. The scope of copyright extends to the literary
or artistic works which demands creativity including Database and computer software. The
registration of work is not necessary to be eligible for copyright however, it is often advised to
register the work because it serves as an evidence in the court.

If a person infringers the copyrighted work of someone then he will be liable for both the
criminal liabilities and civil liabilities. However, there are certain exceptions to the copyright
infringement i.e. in certain cases a person is not required to obtain the permission of the
copyright holder to use his work. However, it is always advised to produce the original work
and not to use someone’s copyrighted work without permission.

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References
Bibliography

1. Law of Intellectual Property Central law publication by VL Taraporevala

2. Intellectual property law Hydrabad publication L.k Shrama

Webliography

1. www.sodhganga.com

2. www.legalegal.com

3. www.lawlayer.com

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