Infringement of copyright
- The Indian copyrights
law, laid down in the Indian Copyright Act,
1957, fully reflects the Berne Convention on
Copyrights, to which India is a party. India
is also an active member of the World Intellectual
Property Organisation, Geneva.
- The Act protects literary,
artistic works and performance rights by making
it unlawful to reproduce such works without
the owner's permission.
- The author of the work
is the first owner of the copyright in the work.
- Registration of the copyright
is not compulsory either for acquiring copyright
or for enforcing by way of suit against the
infringement of the copyright.
- The Copyrights Act protects
the following classes of work:
- Original literary, dramatic,
musical and artistic works
- Cinematography films
- Sound recording
use or Violation by way of exploitation within
authorisation of the author of the copyright amounts
to infringement. The governing principles for
deciding the infringement of copyright are as
Exceptions to infringement
- There can be no copyright
in an idea, subject matter, themes, plots or
historical or legendary facts and violation
in such cases is confined to the form, manner
and arrangement and expression of the idea by
the author of the copyrighted work.
- Where the same idea is
being developed in a different manner it manifests
that the source being common, similarities are
bound to occur. In such cases, the Courts should
determine whether or not the similarities are
on fundamental or substantial aspects of the
mode of expression adopted in the copyright
work. If the defendant's work is nothing but
a literal limitation of the copyright variations
of the copyrights. In other words, in order
to be actionable, the copy must be a substantial
and material one, which at once leads to the
conclusion that the defendant is guilty of an
act of piracy.
- One of the surest and
safest tests to determine whether or not there
has been a violation of copyright is to see
if the reader, spectator or the viewer after
having read or seen both the works is clearly
of the opinion and gets an unmistakable impression
that the subsequent work appears to be a copy
of the original.
- Where the theme is the
same but is presented and treated differently
so that the subsequent work becomes a completely
new work, no question of violation of copyright
- Where, however, apart
from the similarities appearing in the two works,
there are also material and broad dissimilarities
which negate the intention to copy the original
and the co-incidences appearing in the two works
are clearly incidental, no infringement of the
copyright comes into existence.
- Piracy must be proved
by clear and cogent evidence after applying
the various tests laid down.
- Fair dealing with any
work has been kept out of the mischief of the
- Court may take the assistance
of an expert in complicated and technical aspects
of the violation of copyright(s).
- The test to detect piracy
is to see whether mistakes and deviations occurring
in the original have also been reproduced.
- Law restraining human
enterprise should be liberally construed and
therefore Copyright Act should not be interpreted
so as to shut out research and scholarship.
- The burden lies on the
plaintiff to satisfy the court that the defendant
has infringed his copyright.
- Innocence is no defence
to a charge of infringement.
- An infringement is in the
nature of an invasion of a right of property
and therefore intention of the infringer is
immaterial provided there is infringement.
- For determination of the
question of infringement, the result and not
the intention is relevant.
- The owner of the literary
work could bring action for infringement of
copyright even though the literary work was
not registered. Non-registration of work does
not prevent an action for infringement.
acts, amongst others, do not constitute infringement:
- Fair dealing with a literary,
dramatic, musical or artistic work not being
computer programmes for the purposes of private
use including research, criticism or review,
making copies of computer programmes for certain
purposes, reporting current events in newspaper
magazines or by broadcasting or in a cinematography
film or by means of photographs.
- Reproduction of judicial
proceedings and reports thereof, reproduction
exclusively for the use of Members of Legislature,
reproduction (artistic work excluded) in a certified
copy supplied in accordance with law.
- Reading or recitation
in public of extracts of literary or dramatic
- Publication in a collection
for the use in educational institutions in certain
- Reproduction by teacher
or pupil in the course of instruction or in
question papers or answers.
- Performance in the course
of the activities of educational institutions
in certain circumstances.
- The causing of a sound
recording to be heard in public utilising it
in an enclosed room or in clubs in certain circumstances.
- Performance in an amateur
club given to a non-paying audience or for religious
- Reproduction in newspapers
and magazine of an article or current, economic,
political, social or religious topics in certain
- The owner of the copyright
in an existing work or the prospective owner
of the copyright in a future work may assign
the copyright to any person either wholly
or partially, generally or subject to any
limitation and for the whole term of the copyright
or any part thereof.
- The owner of the copyright
in any existing work or the prospective owner
in any future work may grant any interest
in the right by license in writing signed
by him or by his duly authorised agent.