Copyright Litigation in India
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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The intermediary may restore the storage of the work in case the complainant failed to produce the orders of the competent court having jurisdiction, restraining him from facilitating access. Further, in case the complainant fails to produce the orders of the competent court having jurisdiction within the stipulated period, the person responsible for storage shall not be obliged to respond to any further notice sent by the same complainant on the same work in the same location.
A very challenging aspect of issuing a remedy post infringement stems from the problem of identification of an infringer. As technology has progressed, many a time copyright infringement have been caused through the façade of virtual identities which are most of the times forged, unidentifiable and untraceable.
The Indian courts have used “John Doe” orders or “Ashok Kumar” orders against unidentified persons by passing restraining orders time after time against unknown defendants distributing, displaying, duplicating, uploading, downloading or exhibiting copyrighted work in any manner.
The Copyright Rules, 2013 further lay down that upon receipt of the written complaint, the person responsible for the storage of the pirated / infringing copy of the original work is required to remove the infringing material within thirty-six hours and take measures to refrain from facilitating such access for a period of twenty-one days from the date of receipt of the complaint or till he receives an order from the competent court restraining him from facilitating access, whichever is earlier.
Rule 75 of the Copyright Rules, 2013 sets out essentials of takedown and the process of delivering such notice. The notice must contain the following:
- the description of the work with adequate information to identify 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 work owned by the complainant and that the allegedly infringing act is not covered under Section 52 or any other act that is permitted under 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; and
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 a period of twenty-one days from the date of receipt of the notice
As per Section 79(1)(c) of the Information Technology Act, 2000 and Rule 3 clause d of the Intermediary Guidelines Rules, 2011 the Intermediary shall observe due diligence while discharging his duties that there is no infringement of patent, trademark, copyright or other proprietary rights.
Section 52(1)(c) of the Copyright Act, 1957 highlights that transient or incidental storage of a work or a 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 under the purview of fair use of copyright. However, the proviso to the section expounds 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.
Therefore, the safe harbor provided to intermediaries is pierced on receipt of information that certain infringing/pirated material is available on its website.
When we talk of internet service providers, most of them come under the purview of Section 2(1)(w) of the Information Technology Act, 2008 (“IT Act”) as intermediaries with respect to any particular electronic records, meaning any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes, in short mostly every web based service provider under the sun.
In an era wherein, Copyright protected material can easily be duplicated and disseminated around the globe. It is imperative that there is a desperate need to protect the already protected material against any infringement. One of the remedies available to copyright holders is to issue Take Down Notices to an Internet Service Provider stating that the concerned website hosts any content which infringes the right of the copyright holder.
Notice and take down is a process operated by online hosts in response to court orders or allegations that content is illegal.