Copyright Litigation - India

Copyright Litigation

The Copyright Act, 1957 provides for both Civil and Criminal remedies in case of a copyright infringement.

Civil Remedies

In case, owner of a copyright is of the view that its copyright is infringed as per the provisions of Section 51 of the Act, the owner can initiate civil proceedings against the infringer.

It is always advisable to send a “Cease and Desist Notice” to the infringer before approaching the Court. The Hon’ble Supreme Court in, Midas Hygiene Industries P. Ltd. and Anr. vs. Sudhir Bhatia and Ors., 2004 (3) SCC 90 held that a cease and desist notice acts as a very important and useful tool for adjudicating cases relating to copyright infringement in favour of the copyright holder. Rule 75 of the Copyright Rules, 2013 further provides for contents of a “Take Down Notice” that can be sent by the Copyright Owner to the infringer. It is always favourable to exhaust these remedies before approaching the Court.

As per Section 55 (1) of the Act, a copyright owner is entitled to file a suit for injunction, damages, accounts, etc. against the infringer before Court having jurisdiction. However, in case the infringer proves in court that on the date of infringement, the infringer wasn’t aware about existence of copyright in favour of the owner, the copyright owner in such a case can only claim injunction and no other remedy like damages or accounts. The types of injunctions a copyright owner can claim are Anton Piller order, Mareva junction, permanent & interim/interlocutory injunctions. The awarding of cost in favour of any party to the suit shall be within the discretion of the Court.

Section 60 of the Act provides protection to a person whose being threatened by an owner of a copyright with respect to initiating legal proceedings in respect of an alleged infringement of the copyright. In case a person is being threatened, the person can institute a declaratory suit and claim injunction against such threats and recover damages, in case the same have been sustained by the person due to the threats. Delhi High Court, in Super Cassette Industries Ltd. Vs. Bathla Cassettes India (P) Ltd, AIR 1994 Del 237, held that once a suit for infringement for copyright is filed by the person whose given the threat, the suit under Section 60 becomes infructuous as the section ceases to apply in such a situation.

Section 62 of the Act, plays an important role in determining the jurisdiction of the court where a party can institute a suit.  Section 62 (1) clearly states that a civil suit shall be instituted in District Court having jurisdiction. Section 62 (2) of the Act, acts an exception to Section 20 of the Code of Civil Procedure, 1908 and states that a suit can also be instituted where the person filing the suit voluntarily resides or carries on business or personally works for gain.

The Hon’ble Supreme Court of India, Indian Performing Rights Society Ltd. v. Sanjay Dalia, 2015 (10) SCC 161, held that the provisions of Section 62 of the Copyright Act have to be interpreted in the purposive manner. It was held a suit can be filed by the plaintiff at a place where he is residing or carrying on business or personally works for gain. 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. However, 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.

Criminal Remedies

Besides Civil Liability, Criminal Liability can also arise against the infringer of the Copyright. Section 63 of the Act provides that a person who knowingly infringes or abets infringement of a copyright shall be punished for a term between six months to three years and also a fine shall be imposed upon the infringer for an amount between Rs. 50,000 – Rs. 2,00,000/-. However, in case the infringer is able to prove before the Court that the infringement is not made for gain in the course of trade or business, sentence and fine imposed upon the infringer can be reduced.

In case, an infringer whose been punished under Section 63 of the Act once, commits the same offence again, the infringer shall be punished for a term between one to three years along with fine between one to two lakhs rupees.

As per Section 64 of the Act, provides for power of police officer for seizure in case of offence under Section 63 of the Act. The Police Officer has the power to seize without warrant, all copies of the work, and all plates used for the purpose of making infringing copies of the work, wherever found and produce the same before a Magistrate.

Punishment provided under Section 65 of the act for possession of any plate for purpose of making infringement copies of any work in which copyright subsists may extend to two years along with fine. The Court further under Section 66 of the Act can order for disposal of all the infringing copies or plates that are in possession of the alleged offender.

Further, no court below the Court of Metropolitan Magistrate of Judicial Magistrate of the First Class have the power to try any offence under the Copyrights Act, 1957.

If a copyright owner wants to initiate criminal proceedings, they can either file FIR under Section 154 of the Cr.P.C. or file an application under Section 156(3) of the Cr.P.C. The offences under this act are bailable as per the decision of Delhi High Court in State Govt. of NCT of Delhi vs. Naresh Kumar Garg, CRL.M.C. No. 3488/2012.

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