ALIGARH MUSLIM UNIVERSITY

MURSHIDABAD CENTRE
SESSION: 2020-21

MID TERM ASSIGNMENT

SUBJECT - INTELLECTUAL PROPERTY LAW

TOPIC = COPYRIGHT INFRINGEMENT AND REMEDIES

SUBMITTED TO SUBMITTED BY

MS. SHAILA MEHMOOD M DANIYAL SIRAJ

(Asst. Professor) 18BALLB55
GL0749
4TH YEAR
7th SEMESTER
INTRODUCTION:

THE COPYRIGHT ACT, 1957: The Copyright Act 1957 was the first post-independence
copyright legislation in India and the law has been amended 6 times since 1957. The most recent
amendment was in the year 2012, through the Copyright (Amendment) Act 2012. Copyright laws
provide certain exclusive rights to the copyright holder, such as the right to reproduce, distribute,
display or perform the protected work, or to make derivative works. Use of such copyright
protected work without the permission of the copyright owner is copyright infringement. In this
project, we look at copyright infringement in India1.

a)-Duration of Copyright Protection

Under Copyright Act there are protections under various categories such as

i. For Literary, Dramatic, Musical and Artistic works the protection is for “Lifetime of the
author + sixty years from the beginning of the calendar year next following the year in
which the author dies” and
ii. For Anonymous and pseudonymous works, Posthumous work, Cinematograph films,
Sound records, Government work, Public undertakings, International Agencies,
photographs are for “Until sixty years from the beginning of the calendar years next
following the year in which the work is first published”

b)- Rights of Copyrights Owners

It is important to first understand the rights held by a copyright owner before tackling the
remedies for infringement. Authorized copyright owners have the right to:

a) Publish the work

b) Perform the work in public
c) Produce the work in a material form
d) Produce, reproduce, perform or publish any translation of the work

1 Bhandari MK, “ Law Relating to Intellectual Property Rights”, Page no 115, Central Law Publication,5th edition,
2019
e) Make any adaptation of the work
f) Communicate the work through broadcast, radio or cable

COMMON TYPES OF COPYRIGHT INFRINGEMENT:

The following are some of the most common types of copyright infringement:

• Making copies of copyrighted works for sale or hire or letting them for hire.
• Permitting performance of copyright infringed works at any place for performance of
works.
• Distributing copyright infringing works.
• Public exhibition of copyright infringing works.
• Importing copyright infringing works into India.

If any of the activity is performed by a person or business, then they are liable for prosecution
under copyright laws in India.

For claiming the ownership of a copyright in the case of a literary, dramatic, musical or artistic
work, the name of the author or the publisher which appears on copies of the work is presumed
to be the author of the work, unless the contrary is proved.

SPECIFIC AREA OF INFRINGEMENT.

a. LITERARY WORK & DRAMA.

In a leading case of R. G Anand v. Delux film2, Supreme Court rejected the claim of plaintiff
claiming copying in the theme of his drama, “Hum Hindustani”. In this case the defendant
produced a film “New Delhi” which according to plaintiff was based on his drama Hum
Hindustani. Rejecting the allegation of infringement Supreme Court held the film was not a
substantial or material copy of the play.

2 AIR 1978 SC 1613.

B. ARTISTIC WORK

Artistic work includes painting, sculpture, drawing, engraving, photographic work of architecture
and any other work of artistic craftsmanship. A person requires copying in his painting by putting
elements of originality and application af skills and labours. Any person through a photographic
process reproduce Painting and Poster for commercial sale. The same would amount to
Infringement. We find the kind of infringement very rampant through Printing of posters and
calendar Depicting famous paintings3.

C. MUSICAL WORK

Performing of a musical work in public for monetary gain without obtaining licence from owner
constitutes infringement. Similarly, re-recording of musical work or adaption of records into
audio cassettes also amounts to infringement. In Gramaphone company of India v. Super
cassettes industries4, the court found that audio cassette released by defendant as titled Ganpati
Aarti Astvinayak is an infringement of plaintiff cassette in content and sequence of songs as
well as lay out of the title and cover.

Acts Not Constituting Infringement

The Copyright Act provides certain exceptions to infringement. The object of these provisions is
to enable the encouragement of private study and research and promotion of education. They
provide defenses in an action for infringement.

The exceptions come under the following categories:

1. Reproduction for use in judicial proceedings and for use of members of the legislature,

2. Publication of short passages, restricted reproduction or performance for educational

purposes,

3. Making of records under license from Copyright Board on payment of royalty,

3 Ahuja VK, “ Law Relating to Intellectual Property Rights”, Page 213, Lexis Nexis, 3rd Edition, 2017.
4
AIR 1984, SC 667.
4. Playing of records or performance by a club or society for the benefit of the members of
religious institutions,

5. Reproduction of an article on current economic, political, social or religious matters in

newspapers, magazines etc,

6. Reproduction of a few copies for use in libraries or for research or private study,

7. Matters published in official gazettes including Act of Parliament (subject to certain

conditions ) or its translation,

8. Making of a drawing, engraving or photograph of an architectural work of art, or a

sculpture kept in a public place,

9. Use of artistic work in a cinematography film,

10. Use of an artistic work (author not the owner of copyright) by the author of any mould,
cast, sketch, plan, model, etc., made by him for the work,

11. Making of an object in three dimension of an artistic work in two dimensions subject to
certain condition, and

12. Reconstruction of a building in accordance with architectural drawings.

13. Fair dealing without commercial benefits4.

FAIR DEALING “FAIR USE” DOCTRINE :

Copyright law does not prevent a person from taking what is useful from an original work and
create a new work with additions and improvements. Under the guise of a copyright the owner of
a copyright cannot ask the court to close all the venues of research and scholarship and all
frontiers of human knowledge5.

Fair use supports "socially laudable purposes,"12 typically, if not exclusively, involving the
use of the copyrighted work by a second author.13 The U.S. Copyright Act specifies that the

4 Section 52 of Copyright Act.

5 Wadehra BL, “ Law Relating to Intellectual Property Rights”, page Number 326, Universal Law Publication, Fifth
Edition, 2018
"fair use of a copyrighted work, including such use by reproduction in copies...for purposes such
as criticism, comment, news reporting, teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of copyright. While fair use explicitly applies to
such uses of copyrighted work, the defense is not limited to these areas6.

The effect on the current and potential market of the work be of 'de minmis' nature or in
pursuance of meeting socially valuable ends or both. They also have to conform to the
cumulative three-step test enshrined in the Berne Convention and reinforced by the TRIPS
Agreement, where use should not conflict with the normal exploitation of the work and must
not unreasonably prejudice the legitimate interests of the copyright holder. Fair use has to be
viewed not as permission to copy but as an exception to the exclusive right of the owner7.

Fair use is not a straight-jacket formula or existing in a watertight compartment. Its

parameters are not defined as such. No bright line test exists for determining whether any
particular use is "fair use'' or an act of infringement, so each use requires a case-by-case
determination. It is like an open-ended legal doctrine. Fair use is a defence to a suit for
infringement8.

Fair use is not a 'license' but in the nature of a privilege by virtue of which, the person
pleading defence against a suit for infringement can escape the clutches of copyright law. As
Crews18 points out, fair use doctrine helps to prevent the copyright owners' exclusive rights
from interfering with the Framers' stated purpose of the promotion of learning. The larger
goal of copyright is the advancement of human knowledge. The doctrine of fair use has
developed over the years as courts tried to balance the rights of copyright owners with
society's interest in allowing copying in limited circumstances. This doctrine has at its core, a
fundamental belief that not all copying should be banned, particularly in socially important
endeavors such as criticism, news reporting, teaching and research. The term 'fair use' is
peculiar to the United States; a similar principle, fair dealing, exists in some other common
law jurisdictions such as U.K. and India. Until codification of the fair use doctrine in the
1976 Act, fair use was a judge-made right developed to preserve the constitutionality of
6 Supra Note 1, page 126.
7 IBID
8 ID at Page 127
 copyright legislation by protecting First Amendment values. Thus, the doctrine of fair use is
an evolving principle of the U.S. Judiciary over the years. This doctrine has now been
codified in Section 107 of Copyright law and has been described as "the most troublesome in
the whole law of copyright". It is a judge made law codified in Section 107 of the U.S.
Code9.

What is Fair Dealing?

Fair dealing is permitted for private use including for the purpose of research25 or
criticism26 or review27. Such a 'fair dealing' provision also extends to reproduce literary,
dramatic, musical or artistic work for the purpose of reporting current events in a newspaper,
magazine or similar periodical28 or by broadcast29 or in a cinematograph film or by means
of photographs30 or using excerpts of a performance or of a broadcast in the reporting of
current events or for bonafide review, teaching or research.31 Further, it has been inserted
through an amendment in 1994, that the act of making copies or adaptation of a computer
program by the lawful possessor for which it was supplied or as a means to offer temporary
against loss, destruction or damage of the program10.

In the case of Civic Chandran v. Ammini Amma11, the learned judge observed:

"The term 'fair dealing' has not been defined as such in the Act. But section 52(1)(a) and (b)
of specifically refers to 'fair dealing' of the work and not to reproduction of the work.
Accordingly, it may be reasonable to hold that the re-production of the whole or a substantial
portion of it as such will not normally be permitted and only extracts or quotations from the
work will alone be permitted even as fair dealing." Further the court held that "In such cases,
court has to take into consideration (1) the quantum and value of the matter taken in relation
to the comments or criticism; (2) the purpose for which it is taken; and (3) the likelihood of
competition between the two works"; it is similar to the four factor test of the U.S. fair use
doctrine12.

9 IBID.
10 Supra Note 3, Page 217.
11 AIR 1974 Cal 183.
12 RK Diwan, Copyright Infringement in India available at https://www.lexology.com/library/detail.aspx?
g=acb27daa-2dbd-4226-aec0-4f196cd73b0f (last Visited on 11th November, 2020).
 Fair dealing is not a license to violate the exclusive right of the copyright owner. One cannot
copy from another and claim refuge under the garb of fair dealing. Simply giving the credit
to the original author would not help either. Even where the user has copied a substantial part
of the work, it would not be considered as 'fair' and 'legitimate' since copyright protection
requires reasonable skill and labour to reach the threshold of originality and quality for
protection. In one case before the High Court of Andhra Pradesh, involving an appeal where
the trial court had held that the film was an adaptation of the novel and since copyright
permission had not been obtained, the act constituted piracy, the court read the four factor
test as an important criteria in adjudging whether the cinematographic film infringes the
copyrighted literary work and arrived at the conclusion that if the person infringing the
copyrighted work obtains a direct pecuniary benefit from the use of the copy in its stream of
commerce, then it would be considered to be an unfair user for profit13.

Difference Between Fair Dealing and Fair Use

"Fair dealing" and "fair use" are related concepts pertaining to user's rights under copyright
law. It is nevertheless important to understand that fair dealing and fair use are not
synonymous terms since their meaning and scope are defined by different legal systems. It is
challenging to adequately summarize the shared and divergent underpinnings of fair dealing
and fair use succinctly. The following brief comparison aims to merely sketch a broad picture
of some of the basic similarities and differences between fair dealing and fair use15.

Fair dealing is an exception to copyright infringement laid out in the copyright statutes of
common law jurisdictions such as Great Britain, Canada, Australia and New Zealand. The
copyright acts of these jurisdictions provide that fair dealing of a copyrighted work will not
amount to infringement if such dealing is stated in the act. This means, if a work is copied for
a purpose other than the statutory fair dealing purposes, the copying cannot be a fair dealing
regardless of the copier's intention.

13 Parul Srivastava, “India: Copyright Infringement”, Available at

https://www.mondaq.com/india/copyright/953334/copyright-infringement (last Visited on 11th November, 2020). 15
D R Seghal, Copyright Infringement, Available at https://blog.ipleaders.in/copyright-infringement/ (Last Visited
on 11th November 2020.
 Fair use is a limitation on exclusive rights in works of authorship granted under U.S.
copyright law.

Title 17 of the United States Code states that fair use of a copyrighted work is not an
infringement of copyright. Title 17 provides an open-ended list of purposes that may be fair
use - "purposes such as criticism, comment, news reporting and teaching (including multiple
copies for classroom use) " - instead of listing a finite list of purposes defining the bounds of
acts that may be fair dealing14.

Another point of divergence is the availability of statutory guidance on how the fairness of a
dealing or use should be evaluated. Since fair dealing provisions generally lack statutory
definitions or regulations specifying how fairness is to be determined, the appropriate
approach to assess the fairness of actual dealings with protected works is a matter for the
courts to decide. In Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of
Canada set out a two-step analytical framework to assess fair dealing in which the second
step identifies six fairness factors. The court said the extent to which the factors are relevant
may vary from case to case and noted some cases may require consideration of factors
beyond the six identified in the framework15.

In contrast, the fair use provision in U.S. copyright law prescribes four factors that must be
included in a fairness determination: 1) purpose and character of the use, 2) nature of the
copyrighted work, 3) amount and substantiality of the portion of the work used and 4) effect
of the use on the potential market or value of the work. These fair use factors are similar to
the six CCH fair dealing factors (purpose, character, amount, and effect of the dealing, nature
of the work, and alternatives to the dealing) but U.S. and Canadian case law have applied the
fairness factors in different ways18.

14 "U.S. Copyright Office – Copyright Law: Chapter 5". Copyright.gov. Retrieved 11th November 2020.
15 United States Government Accountability Office (April 2010). "INTELLECTUAL PROPERTY Observations
on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods" (PDF). Report to Congressional
Committees. United States Government Accountability Office. Retrieved 11th November 2020. 18 Supra Note 6,
Page 330.
 4. -CONCLUSION: -

An ideal regime for copyright protection would balance the rights of all stakeholders. On one
hand, India faces major economic losses due to rampant piracy, especially online; on the other
hand, the peculiar socio-economic conditions of the country make it imperative to overlook IPRs
to an extent for the greater common good. In these circumstances, perhaps the stress should be on
effective implementation of the existing remedies rather than introducing new remedies over and
above the existing provisions, so that the genuine exceptions to IPRs are not whittled down. With
the paradigm shift in the legal regime governing the subject in India, it remains to be seen how
such a balance continues to exist16.

16 Legal Service India, “Copyright Infringement” available at

http://www.legalserviceindia.com/copyright/infringement.htm Last visited on 11th November 2020.
 BIBLIOGRAPHY

 Bhandari MK, “ Law Relating to Intellectual Property Rights”, Central Law

Publication,5th Edition, 2019.
 Ahuja VK, “ Law Relating to Intellectual Property Rights”, Lexis Nexis, 3 rd Edition,
2017.
 Wadehra BL, “ Law Relating to Intellectual Property Rights”, Universal Law Publication,
Fifth Edition, 2018.

Website

 RK Diwan, Copyright Infringement in India available at

https://www.lexology.com/library/detail.aspx?g=acb27daa-2dbd-4226-aec04f196cd73b0f
(last Visited on 11th November, 2020).
 Parul Srivastava, “India: Copyright Infringement”, Available at
https://www.mondaq.com/india/copyright/953334/copyright-infringement.html (last
Visited on 11th November, 2020).
 D R Seghal, Copyright Infringement, Available at
https://blog.ipleaders.in/copyrightinfringement/ (Last Visited on 11th November 2020.
 "U.S. Copyright Office – Copyright Law: Chapter 5". Copyright.gov. Retrieved 11th
November 2020.
 United States Government Accountability Office (April 2010). "INTELLECTUAL
PROPERTY Observations on Efforts to Quantify the Economic Effects of Counterfeit
and Pirated Goods" (PDF). Report to Congressional Committees. United States
Government Accountability Office. Retrieved 11th November 2020.
 Legal Service India, “Copyright Infringement” available at
http://www.legalserviceindia.com/copyright/infringement.html Last visited on 11th
November 2020.