What is Copyright Infringement?

In India, many people are still unaware of copyright and its infringement to a large extent. It is vast from downloading pirated movies/songs and licensed software from unauthorized websites. It is governed by the Copyright Act of 1957 ("Act") in India and aims to endorse exclusive forms of artistic works while safeguarding the rights of its inventor or artist. The infringement of a copyrighted work occurs whenever any other person apart from the creator copies or replicates the same work. 

Permitted use of copyrighted material 

According to section 14 of the Act, different rights are recognized concerning the nature of the work, and it is the exclusive right of the creator to authorize the distribution of such artwork. Copyright means the exclusive right to do or allow the doing of any of the following acts in respect of an artwork -

In the case of a literary, dramatic, or musical work:

• To reproduce the work in any material form, including the storing of it in any medium by electronic means; 
• To issue copies of the work to the public not being copies already in circulation; 
• To perform the work in public or communicate it to the public; 
• To make any cinematograph film or sound recording in respect of the work; 
• To make any translation or adaption of the work.

In the case of a computer program:

To sell or give on commercial rental or offer for sale or commercial rental any copy of the computer program.

In the case of artistic work:

To reproduce the work in any material form, including storage (electronic or other means), communicating the work to the public, issuing unauthorized copies to the public, including the work in any cinematograph film, and making any adaptation of the work, etc.

In the case of a cinematograph film:

Making a copy of the film, like a photograph or recording it in any medium by electronic or other means for sale or commercial rental or offer for sale or such rental, any copy of the film. 

In the case of a sound recording:

• To make any other sound recording embodying it;
• Sell or give on commercial rental or offer for sale any copy of the sound recording;
• To communicate the sound recording to the public.

Registration for Copyright

Though, it is not mandatory to register the work to claim the copyright as it commences the moment the artwork is created. However, it is always advisable to register the work for its protection from infringement.

For acquiring a copyright in work, procuring the registration is not mandatory. The author or publisher of, the owner of, or another person interested in the copyright in any work may make an application.

Copyright Infringement

Copyright in work shall be deemed to be infringed:

• When any person without a license for the same –
  • Does anything for which the exclusive right is conferred upon the owner of the copyright, or 
  • Permitting a place to be used for infringing purposes on a profit basis unless there is no reasonable ground for believing that such communication to the public would be an infringement of copyright.
• When any person infringes copies of work by selling or by way of trade displays or offers for sale or hire or distributing it, or trade exhibits in public, or import. The reproduction of a literary, dramatic, musical, or artistic work in the form of a cinematograph film shall also be deemed to be an infringing copy.

Exceptions 

A fair dealing with any work, not being a computer program, for private or personal use, criticism, review, and the reporting of current affairs (including the reporting of a lecture delivered in public). Storing any work in any electronic medium for the above purposes shall not constitute an infringement of copyright. Some of the exceptions are stated below:

• Reproduction of any work for a judicial proceeding or supplied following any law.
• Reading or recitation in public of reasonable extracts from a published literary or dramatic work.
• Publication in a collection intended for instructional use of short passages from published literary or dramatic works. 
• Reproduction of any work by a teacher or a pupil during instruction or as part of the question or answer in an examination.
• Performance, concerning an educational institution, of a literary, dramatic, or musical work by the staff and students, a cinematograph film, or a sound recording. 
• Performance of a literary, dramatic, or musical work by a club or society if the performance is given to a non-paying audience or for the benefit of a religious institution.
• Making or publishing a painting, drawing, engraving, photograph of a sculpture, or other artistic work, if such work is permanently situated in a public place. 

Remedies for Infringement of Copyright

Civil remedy: For any copyright that has been infringed upon, the copyright owner shall be entitled to all such remedies by injunction, damages, & accounts. However, if the defendant proves that at the date of the infringement, he did not know about the same and had no reasonable ground for believing that the copyright of that particular work, the complainant shall not be entitled to any remedy other than injunction and some portion in the profits made by the infringer, all the costs and expenses of all parties in any proceedings relating to copyright infringement shall depend upon the court's discretion.

Criminal remedy: The copyright holder can initiate criminal proceedings against the infringer, in which there is a provision of at least six-month imprisonment, which may be extended to 3 years, and with a fine of Rs. 50,000, which may extend to 2 lakhs. All infringing copies of any work in which copyright subsists shall be deemed the property of the copyright owner. Provided that he was unaware and had no reasonable ground to believe that copyright subsisted in work, or he had reasonable grounds for believing that such copies do not involve copyright infringement.

Power of police to seize infringing copies: Any police officer not below the rank of a sub-inspector may seize copies for copyright infringement without a warrant to produce before the Magistrate. Anyone interested in any copies of a work seized can, within fifteen days of such seizure, make an application to the Magistrate to restore such copies.

Possession of plates to make infringing copies: Any person who knowingly has any plate for making infringing copies of any work in which copyright subsists shall be punishable with imprisonment, which may extend to 2 years. 

Disposal of infringing copies or plates to make infringing copies: The Court trying any offense under this Act can order all copies of the work. 

Offenses by companies: If a company has committed any offense under this Act, every person who at the time of the offense was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of such offense. Further, if it is proved that the offense is attributable to any negligence on the part of any director, manager, secretary, or another officer of the company, such director, manager, secretary, or other officers shall also be deemed guilty of that offense.

Information Technology Act, 2000: As regards online copyright infringement involving intermediaries, section 79(3)(b) of the IT Act fastens liability on an intermediary if it had actual knowledge of the infringement. 'Actual knowledge was interpreted by the Supreme Court in the case of Shreya Singhal v Union of India, meaning knowledge through a court order.