Updated: Jul 1, 2020
Author: Karman Kaur
Amity Law School, Delhi
The evolution of copyright and its laws was due to the widespread usage of intellectual goods and works. As the digital usage increased, there was a dire need to protect original works as duplication of intellectual goods increased. Plagiarism and discredited works became common. Hence, the Copyright Act, 1957 came in force to protect original works and give due credits to the owner of the work.
Copyright is not defined in the Act but it refers to the collection of rights that are automatically vested in the creator of the original work of authorship such as a literary work, music, movies, software etc. The copyright holder i.e. the creator of the original work has multiple rights including the right over his work, the right to transfer his rights to others or keep full control over his work by not giving the right to anyone to copy or reproduce his work. The creator has the sole legal ownership and therefore, only he can make multiple copies of his work.
Under Section 13 of the Copyright Act, 1957, copyright exists in the following literary work, dramatic work, musical work, artistic work, cinematograph films and sound recordings. The purpose of the Act is to promote the progression of such original works vis-à-vis safeguarding the creator’s rights. It plays a vital role when due credits and rewards are not given to the creator. Such violation is referred to as infringement of the creator’s work.
Copyright law confers upon the creator some economic as well as moral rights. If any of these acts are carried out by someone unauthorised, it constitutes infringement of copyright in the work. Infringing the copyright holder's rights can be said to be done if he uses the holder’s right intentionally/unintentionally to distribute, reproduce, display or perform the copyrighted work. The duration of the copyright plays a critical role. If the duration for the copyright, for which the work was protected has expired, then no action or claim can be brought against it. Infringement is committed when:
1. Copies of copyrighted work are made for sale/hire without permission or authority, like in the case of online piracy
2. A copyrighted work is performed in a public place
3. Infringing copies are distributed for the purpose of trade and personal gains
4. Public exhibition of infringing copies by way of trade prejudicial to the owner
5. Infringed copies are imported from another country into India.
PARAMETERS FOR INFRINGEMENT
The purpose of copyright is to protect the skill and labour employed by the author in the production of his work. The works created by one author does not take away the right of others to create similar work in the market. Inception of work from common sources with a colourable variation is acceptable. Generation of another work, in the same form, by some other person is not considered as infringement as long as the origin of his work is by his own resources, labour and industry. The Act provides a few exceptions to infringement which protect the interest of the users. To determine whether a plaintiff's work will be protected by the Act, following factors have to be kept in mind:
1. The nature of the work determines whether it will constitute infringement or not. There are exceptions wherein the creator is not the sole owner of the work. Usage of a work for research, study or criticism, review, news or use in schools, libraries or legislations will not account for infringement.
2. The quantum of the work used is also important for determining infringement. Inconsiderable use of such work does not represent infringement. However, if a substantial part of the work, if not whole, is reproduced, translated or adapted, then copyright will be infringed. The substantial part is not defined and varies from case to case.
3. One of the defences to copyright infringement is fair use. If the use of any copyrighted material is for “transformative” purposes, then it will not account for copyright infringement.
4. It is essential to assess whether the infringed work is likely to compete with the author’s work. Nonetheless, copyright is a proprietary right and accordingly its infringement is actionable without proof of damage or likelihood of damage.
5. If any work is used for a judicial proceeding, then it will not fall under the purview of infringement.
6. Performance by an amateur club or society, if the performance is in front of a non-paying audience, will not amount to infringement.
7. Sound recordings of literary, dramatic, or musical works under certain conditions is exempted from the offence of copyright infringement.
The aim of copyright is that the defendant does not misuse the labour used by its predecessor for producing his work. The labour and resources used by the plaintiff should be given credits and the theft of the results of the plaintiff’s labour should be prevented by the defendant. The Act provides remedies for such instances of infringement:
● Section 55(1) of the Act states that the plaintiff can avail remedy by way of an injunction. Injunction refers to the judicial process by which one who is threatening the legal rights of someone is restrained to continue his acts or is ordered to restore the matter to the position in which they stood before the action. It is an effective remedy which prevents the defendant from using or publishing his work.
● Section 55(1) of the Act, further provides that the author of the infringed work can claim for damages. The amount of damages is determined by the circumstances of the case. The claim is usually for the amount of incentives the author would have got for using his work. The purpose of providing the damages to the copyright holder is to restore him to the earlier position. There are various factors that determine the damages to be paid to the copyright holder like loss of reputation, loss of profit etc. Generally, the damages are awarded for the amount that the copyright holder would have got if the person had obtained the license from him.
● Under the Copyright Act, the copyright holder can also claim for delivery and destruction of infringing copies, rendition of accounts and damages for conversion.
● The copyright holder can bring civil as well as criminal proceedings against the infringer. These remedies are complementary in nature. The copyright holder can initiate criminal proceedings against any author/creator who infringes his work. According to Section 63 of the Act, it is a criminal offence to infringe or abet infringement of the copyright of a work and is punishable with imprisonment of a maximum term of 3 years and a fine up to 2 lakhs.
The limitation period for bringing a claim against the infringer is three years from the date of act of infringement.
The 2012 amendments to the Act introduced certain provisions to prevent infringement of copyright in the digital space. The Copyright (Amendment) Act, 2012 makes it clear that all the provisions in the Act are to be applicable to digital and electronic mediums as well. Remedies under the Act also cover infringements that eventuate from the internet. The performer’s rights have been redefined which now makes them entitled for royalties in case of making performances for commercial use. Digital Rights Management (DRM) has been introduced under which circumvention of Rights Management Information (RMI) is a criminal offence. The meaning of copyright has been given a whole new dimension thus, including the right to store works in any medium or electronic form.
Under the fair use provisions of the Act, section 52(1) lays down acts that will be not considered as infringement of copyright. Section 52 (1) (b) states that transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public does not constitute infringement of copyright. As per the international norms, this provision has been adopted and it provides protection to internet service providers (ISP) that may have incidentally stored infringing copies of a work for the purpose of transmission of data. This also includes electronic links, access or integration that is not explicitly prohibited by the rights holder.
Fair use rights have also been given to disabled under the 2012 amendment wherein clause (zb) was added to Section 52 for the benefit of persons with disability and/or any organization working for the persons with disabilities to access works for any public or private use, educational or research purposes; including the right to share work with any person with disability. The organization should be careful in providing accessible copies only to people with disabilities and ensure that it does not enter the ordinary channels of business.
Section 52(1)(c) was inserted by the Copyright (Amendment) Act, 2012 which states that if the owner of a copyright work, in a written complaint to the person responsible for digitally storing an infringing copy of the work, complains that such transient or incidental storage is an infringement, then the person responsible would have to refrain from facilitating access to the infringing copy of the work for a period of 21 days. Access may be resumed if within the period of 21 days, the person responsible does not receive an order from a competent court which directs that person to restrain from providing access.
Section 2(xa) defines Rights Management Information (RMI) to mean the title or other information identifying a work or performance, the name of the author or performer, the name and address of the owner of rights, terms and conditions regarding the use of the rights, and any number or code that represents this information (although it does not include any device or procedure intended to identify the user). Technological Protection Measures (TPM) used by copyright owners to protect his copyrighted work makes its circumvention a punishable offence under Section 65A inserted by the new amendment. Section 65B criminalises certain acts related to RMI like distribution which is known to be unauthorised, importation, broadcasting/communication to the public, making copies of RMI. The scope of exceptions to copyright infringement has also been expanded. Reproduction of work for educational, judicial use etc. now includes ‘any work’ instead of just literary, dramatic musical and artistic works. The whys and wherefores of the new amendment were to prevent the high probability of data breaches and digital piracy.
The aim of the Copyright Act is to prevent copyrighted work against circumvention. The scope of the Act has been widened to digital space, where everything is easily accessible and hence, chances of infringement have multiplied. It increases the probability of pirating and duplication of work. Traditionally, it is assumed that once the author incurs the fixed costs necessary to produce the first copy of his/her work, the work can be reproduced an infinite number of times without suffering any costs. Obtaining consent of the author is not only essential to give recognition and economic benefits to the author, but also to prevent the infringer from civil and criminal liabilities. Although technological firewalls have been set up to prevent misuse of such works, the breach is easily attainable. Hence, there is a continuous need for copyright laws to evolve with the technological developments. Court has played a major role in interpreting the existing laws with the current scenario. Thus, legislature and judiciary need to be equilibrated with the constant developments in cyberspace.