Copyright misuse and Infringement - India

Copyright Misuse and Infringement India

Any form of literary or artistic work is an extension of one’s personality. Hence it is natural that the author of such work must have some set of rights regarding its usage. This claim has been recognized as the copyright of the creator.

According to the WIPO (World Intellectual Property Organization), a Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. These include works from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.[1]

Under the Indian Copyright law any original work that would fall within the scope of an artistic work including a painting, a sculpture, a drawing (including a diagram, a map, a chart or plan), an engraving, a photograph, a work of architecture or artistic craftsmanship, dramatic work, literary work (including computer programmes, tables, compilations and computer databases), musical work, sound recording and cinematographic film can be protected.

Scope of protection under the Copyright act

The Copyright Act recognizes the claims of the owner and confers upon him certain exclusive rights. Sec 14 lays down that the copyright owner has the right to reproduce the work in any material form, issue copies, perform the work in public, make any adaption or translation of the work. These rights are given to the owner irrespective of copyright registration as the Act gives a range of rights and privileges to the first owner of copyright without requiring prior registration.[2]

Copyright misuse and infringement:

When considering artistic and literary works, originality and creativity are invaluable. It is imperative to protect such work from exploitation, hence the Copyright Act recognizes copyright infringement and provides remedies against them. Copyright infringement refers to the unauthorized use of someone’s copyrighted work.

Scope of Section 51 of Copyright Act

According to Section 51 of Copyright Act,1957 , copyright in a work is infringed when any person without license from the owner or registrar of copyright :

  • Does anything for which only the owner has an exclusive right
  • 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
  • sells or lets for hire or display or distribute or exhibits in public or imports to India any infringing copies.

However, not all acts that fall within the scope of Sec 51 can be considered an act of copyright infringement.

  • Fair dealing (Sec 52)

Certain acts that would not be considered as infringement of copyright are given under sec 52 of the Act. These include fair dealing, transient or incidental storage, reproduction for the purpose of a judicial proceeding etc. One such exception i.e fair dealing permits the use of any work for the purpose of research, criticism, or review.

In the case of Civic Chandran v Ammini Amma[3] it was held that the court would consider different aspects while looking into ‘fair dealing’ , (i) volume of material taken with emphasis on quality rather than quantity; (ii) how much of the materials is the subject matter of copyright and how much is not;  (iii) existence of animus furandi (intention to save labour) and (iv) the extent of which plaintiffs and defendants are competing works.

Hence whether an act is an infringement of copyright is to be determined according to objective and subjective standards.

In The University of Oxford v Rameshwari Photocopy Services[4], a suit instituted by major publishing houses such as Oxford University ,Cambridge University, Taylor & Francis Group against a photocopy service that provided study packages to students of Delhi University, alleged that these study packages were created making photocopies of pages of books that were published by the aforementioned publishers and compiling them according to the student’s syllabus. The plaintiffs alleged that the study packs are in violation of Sec 51 of the Copyright Act as these books had no additional material apart from photocopies of the copyrighted publications and that the photocopy services were operating commercially. However the Delhi HC held that act of photocopying parts of different books to make study materials as given by the professors would not amount to infringement. And laid down the right of educational institutions to use copyrighted material.

Moreover, in RG Anand v Delux Films & Ors[5], the appellant claimed that the respondent had copied his play ‘Hum Hindustani’ to produce the movie ‘New Delhi’. He alleged that the movie and play were based on same the central idea i.e ‘provincialism’. While deciding the case, the Hon’ble Supreme Court held that copyright would only be applicable to the expression of an idea and not the idea itself. Furthermore, if any ordinary man who sees both works of art finds a stark resemblance then the impugned work is an infringement. However in the immediate case, the Court held that that were no such similarity between the play and the movie.

Furthermore, in Kartar Singh Giani v Ladha Singh[6] , it was held that if the copying is done with an unfair motive to compete and to derive profit from such competition then it would be considered as an infringement.

Moreover in MRF Limited v Metro Tyres Limited[7], the plaintiff alleged that the defendant’s advertisement was a substantial and material copy of the plaintiff’s advertisement. The Delhi High Court held that when considering similarities between two films, the Court must compare “the substance, the foundation, the kernel” of both the films. Accordingly, a blatant copying of fundamental /essential/distinctive features of the plaintiff‟s advertisement on purpose would amount to copyright infringement.

With regard to intermediary liability incase of copyright infringement, the Delhi HC in Myspace Inc v Super Cassettes Industries Limited[8] held that the intermediary could only be held liable for secondary infringement if it had knowledge of the infringing activities. This is would be applicable only in the case of third party content, any acts of infringement done by the intermediary itself would be punishable.

The detrimental impact of widespread piracy has far-reaching consequences on the country and on IP owners and stakeholders who are dependent on IP benefits as their source of revenue either directly or indirectly. The impact is economic and social, and results in huge financial losses. It is therefore important to provide adequate redressal mechanisms.

In case of infringement that falls within the scope of sec 51 of the Copyright Act, the statute provides both civil and criminal remedies.

As per sec 55, the owner of the copyright is entitled to remedies by way of injunction, damages, accounts as conferred by the law for infringement of a right.

Injunctions: These are restraining orders that prevent the defendant from continuing or acting in furtherance to the course of infringement. These may include orders to stop publishing, screening or distributing artistic works.

Damages: The Court may grant damages as compensation for the losses incurred by the plaintiff due to the infringement.

Accounts: The defendant may be asked to submit an account of profits made from the sale of copied materials and surrender such amount to the plaintiff

The owner has the right to file for interim injunctions as well. In Shree Venkatesh Films Pvt. Ltd vs Vipul Amrutlal Shah[9], the Calcutta HC held that as it was prima facie satisfied that the defendant’s film is substantially similar to the plaintiff’s film, an interim injunction order that restrains the defendants from screening the film would be necessary and adequate.

Criminal Remedies :

Sec 63 of the Act states that any person who knowingly infringes or abets the infringement of the copyright in a work would be punishable by imprisonment for a term which shall not be less than 6months and with fine which shall not be less than fifty thousand rupees.

Considering the rampant infringement of copyright, Sec63A states that if a person is being convicted for the second time under Sec 63 then he shall face an enhanced penalty of imprisonment for a term not less than one year with fine which shall not be less than one lakh rupees.  Under Sec 63B a person who knowingly makes use on a computer of an infringing copy of a computer program shall be punishable with imprisonment for a minimum of seven days and fine which shall not be less than fifty thousand rupees.


A set of strong infringement laws are a necessity as it ensures that the rightful owners can exclusively enjoy the benefits of their literary and artistic works. With the rapid advancement of technology, copyright infringement including online piracy and distribution are carried out by organisations that function as a part of complicated criminal networks with global links. It is important that both copyright holders evaluate and identify the different forms of infringement and protect their intellectual property through methods provided by the statute.

Related Posts

Copyright Law in India

[1] wipo

[2] Sanjay Soya (P) Ltd. v. Narayani Trading Company,  2021 SCC OnLine Bom 407, decided on 09-03-2021

[3] 16 PTC 329 (Kerala)

[4] (2016) 160 DRJ (SN) 678.

[5] AIR 1978 SC 1613

[6] AIR 1934 Lah. 777

[7] 2019 (79) PTC 368 (Del)

[8] MANU/DE/3411/2016 (Delhi High Court)

[9]  2009 SCC OnLine Cal 2113

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