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Intellectual Property RightsCopyright infringement in India

September 9, 2021by GLC & Partners0

 

COPYRIGHT INFRINGEMENT IN INDIA

Copyright

Copyright is a type of intellectual property right that is provided to the author or creator of the original work, and it gives the author or creator the right to protect and preserve their work. Section 14 of the Copyright Act, 1957 (hereinafter referred as “Act”) defines the meaning of copyright as the exclusive right to do or authorise to reproduce, duplicate, transcribe and translate either the original work or any substantial part of it. Copyright subsists in original works i.e., literary, dramatic, musical, artistic, cinematographic, sound recording, broadcaster & performer’s rights.

Copyright Infringement

When someone uses the copyrighted work without the authorization of the creator/owner it amounts to infringement of the copyright. The owner or creator of the work has exclusive right to either sell his work or license the work to third parties to use the work. However, if someone reproduces, duplicates or uses such work without the permission or license of the copyright holder it shall lead to copyright infringement. The copyright holder has the right to take legal action against such persons for infringing the copyright. Section 51 of the Act enumerates when and what amounts to copyright infringement.

“Infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright, and, therefore, protected by law, and infringement of copy right, or piracy, which is a synonymous term in this connection consists in the doing by any person, without the con sent of the owner of the copyright, of anything the sole right to do, which is conferred by the statute on the owner of the copyright.”

Exceptions to Copyright Infringement

There are certain acts which does not amount to copyright infringement and section 52 of the Act lists down the acts which shall not constitute an infringement. The act of fair dealing with any work for the purpose of private or personal use, including research, criticism or review of the work and reporting of current affairs/events, including reporting of a lecture delivered in public shall not constitute an infringement of copyright.

Test for Copyright Infringement

The three factors that Courts look into while deciding the infringement of a copyright is the quantum of the original work copied, what is purpose of copying such work and the likelihood of the competition between the alleged copied work and the original work. The Indian Courts use the following tests to find if there is an infringement of the copyright or not:

  • Total concept and feel test – this is used to determine whether an ordinary observer or the audience is able to recognize the similarity of that work with the original copyrighted work.
  •  Extrinsic-intrinsic test – the extrinsic test is used to determine whether there was substantial similarity in general ideas of the original and infringed work whereas the intrinsic test is used to measure the substantial similarity in the protectable expression of both the works.

Remedies for Copyright Infringement

The copyright holder has both civil and criminal remedies under the Copyright Act, 1957 to protect and preserve his/her original work. Section 55 of the Act provides civil remedies for infringement of copyright and the copyright holder can file a suit before the District Court or High Courts claiming for the relief of injunction and damages. Section 63 of the Act enumerates that the copyright infringement is a criminal offence and the prescribes punishment thereunder.

Conclusion

The main purpose of the copyright act is to protect the original work and preserve the rights of the copyright holders. If anyone infringes the original or copyrighted work of the owner/creator, then he/she shall face both civil and criminal liability. 

 

 

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