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Introduction
Every creation of the human mind is unique. It can generate income for the creator. So, it must be protected to prevent any other person from exploiting that piece of work for his own undue advantage. With all its amendments, the Copyright Act 1957 is a consolidated act that encompasses a wide range of work. This article will introduce readers to the registration of copyright, infringement of the same, and remedies for the infringement. It will also discuss about the authorities like the copyright office and copyright board.
Meaning of copyright
Copyright is an exclusive right provided to the author to exploit his/her work for enjoyment as per the provision of the Copyright Act 1957. The author has the freedom to sell or reproduce or make copies or rent or make adaption in respect of the work. Copyright is available in respect of work like literary or dramatic or musical work, computer programmes, cinematographic film, and sound recording. Section 14 of the Act providesthat for the meaning of the term ‘Copyright’. The violation of copyright is known as infringement.
Registration of copyright
Chapter X of the copyright act provides for registration of copyright. Any person who wants to obtain a copyright for his/her work can make an application to the registrar of the copyright for the same. The steps involved in the registration of copyright are as following:
Step 1: As per section 45 of the Copyright Act 1957, an author or owner or publisher or any person interested in the copyright of a work, can file an application for registration of copyright to the Registrar of Copyrights so that he can write the particulars of Work in the Register of Copyrights. There are several methods of applying such as physically applying in the copyright office or through speed/registered post or online application on the website of the copyright department. One application is filed for one work.
Step 2: The applicant is issued a diary number after the application is filed. There is a mandatory waiting period of 30 days to ensure there is no objection against the work of the author. Where some objection is raised against the copyright claim of the author then the registrar will give both the parties an opportunity to be heard before moving forward with the application. After the hearing before the registrar, if he rejects the objection then the application goes for scrutiny.
Step 3: During the scrutiny, if no discrepancies are found then the application is moved forward for approval of registration. After the registrar is completely satisfied by the submission,he approves the registration, and then he shall issue the certificate of registrationto the applicant. But if any discrepancies are found, a discrepancy letter is issued to the applicant and he/she is asked to remove it within a period of 30 days. Then after re-submission, the registration is accepted, and the certificate is issued to the applicant.
Step 4: Certificate of registration is issued as mentioned above and an extract from the register is sent to the applicant. Then the copyright is registered.
Rule 70 sub-rule 4provides an application for registration of an unpublished work shall be accompanied by two copies of the work.
Sub-rule 5 provides an application for registration of a computer programme shall be filed along with the source and object code.
Sub-rule 6 where provides an application for registration of an artistic work which is used or is capable of being used in relation to any goods or services, such application shall include a statement to that effect and shall be accompanied by a certificate from the Registrar of Trade Marks to the effect that no trademark identical with or deceptively similar to such artistic work has been registered under that act in the name of the applicant, or that no application has been made under that act for such registration by any person other than the applicant.
Sub-rule 7 provides where an application for registration in respect of an artistic work which is capable of being registered as a design under the Designs Act, 2000, such application shall accompany by a statement in the form of an affidavit containing the following:
(a) it has not been registered under the Designs Act, 2000
(b) it has not been applied to an article through the industrial process and reproduced more than fifty times.
Infringement of copyright
Now let us focus on the infringement of this right. When an exclusive right of an author is violates, it is said to be an infringement of his copyright. It may be done by any unauthorized use or reproduction or distribution orsell,of a literary or musical or dramatic or cinematographic or sound recording or other artistic works without the permission of the author or without grant of license from the author.Section 51 of this act provides for acts which constitute the infringement of the copyright. On the other hand, section 52 provides for acts that do not cause an infringement of this right.
As per Section 51 of the act infringement of copyright is constituted:
1. When a person, without a license granted by the owner or registrar of copyright or in contravention of the license granted:
- does anything, the exclusive right to do which is by this act conferred upon the owner of the copyright.
- permits for profit any place to be used for the communication of the work to the public. Such communication constitutes an infringement of the copyright in the work unless he was not aware or believe that such communication to the public would be an infringement of copyright.
- 2. When any person:
- Makes for sale or hire, or sells or lets for hire, ordisplays or offers for sale or, any infringing copy of work.
- Distributes either for the purpose of trade or to such an extent as to affect the owner of the copyrightprejudicially.
- By way of trade exhibits in public an infringing copy of work.
- Importsin India any infringing copy of work. But the importation of one copy for private or domestic use of importer is not infringement.
Remedy for infringement of copyright
We know where itis right, there is also a remedy. Copyright Act 1957 provides several remedies when a person’s copyright is infringed. This act provides the copyright owner with civil remedy and criminal remedy as well.
Civil remedy for infringement of copyright is specified under section 55 of the act. The provision provides the following kinds of civil remedy:
1. Interlocutory Injunction- This is a preventive civil remedy. The injunction is a process by which a person who has infringed the right of the author is restricted from causing further damage to the author and is instructed to restore the damages already caused to the author.There are three necessary conditions for an interlocutory injunction i.e., a prima facie case must be established by the aggrieved party, the balance of convenience is in favour of restraining the defendant, some irreparable injury is caused to the author.
2. Mareva Injunction- This injunction is granted by the court against the defendant during the trial when the court is satisfied that the defendant may dispose off or transfer the assets out of the jurisdiction of the court. The purpose of this injunction is to protect the interest of the author because these assets may be required to establish the claim of the author.
3. Anton Pillar Order- It is an order which authorizes the plaintiff or plaintiff’s lawyer to enter and search the premise of the defendant and take the goods which can help to establish their case. This order is delivered after the permission of the defendant or otherwise, it will be trespass. The conditions necessary for the Anton Pillar Order are:
- The plaintiff has to show the court that he is having a strong prima facie case.
- He has to establish that he has suffered irreparable damage or is likely to suffer irreparable damage.
- There is evidence that the defendant is having an infringing copy of work and there is a possibility of it being destroyed by the defendant after the case has been filed for infringement.
4. Permanent injunction-When ,the plaintiff, is successful in proving that his/her copyright is infringed before the court and he/she has won the case. Then permanent injunction is automatically granted to the plaintiff by the court to protect him/her from future infringement. For permanent injunction, the plaintiff does not need to prove that there is actual damage only proving of infringement of copyright is enough to become entitledtoa permanent injunction. Though the plaintiff has to show the court that there is a possibility of damage if infringement caused.
In Hawkins Cookers Ltd. v. Magicook Appliances Co[1]the Delhi High Court granted a permanent injunction to the plaintiff by restraining defendants from dealing in any manner, whatsoever with their cook books having passages reproduced from the cook books of the plaintiff.[2]
5. Damages: It is a compensatory civil remedy. The defendant has to compensate the plaintiff for the losses suffered. This remedy is awarded by the court after the infringement is established. Nominal damages are awarded where there is no actual damage but legal right is infringed.
6. Damage for conversion: As per section 58 of the Copyright Act 1957, all infringing copies of any work in which copyright subsists and all plates used or intended to be used for the production of such copies shall be deemed to be the property of the owner of the copyright. It then entitles him to take proceedings for the recovery of possession of the infringing copies and plates or in respect of the conversion thereof.[3] Conversion means the defendant has the intention to deal with the goods in a manner that will deny the author’s right or to declare a right contradictory to the author’s right.
7. Accounts of Profit- In some cases where the defendant has gained undue profit by using the infringing copies of the author’s work. The court can direct the defendant to transfer all the profit earned by him from such infringement. In Mohan Lal Gupta v. The Board of School Education, Haryana[4], the defendant was ordered to pay 20% of the profits to the plaintiff as the matter copied was less than one-tenth of the book.[5]
The criminal remedy is also available for the owner of the copyright. A civil proceeding and a criminal proceeding both can be initiated against the infringer of the copyright. Criminal remedies can be availed to punish the infringer. Section 63 to section 70 of this act deals with offenses relating to copyright.Section 63 of the act provides if any person knowingly infringes or abets the infringement of a copyright in a work or any other right conferred upon the owner by this act shall be punishable with an imprisonment of six months which can extend up to three years and shall be liable to fine of fifty thousand which can extend up to two lakh rupees.Section 66 of the act provides that the court trying any offence under this act may, whether the alleged offender is convicted or not, order that all copies of the work or all plates in the possession of the alleged offender, which appear to it to be infringing copies or plates for the purpose of making infringing copies, be delivered up to the owner of the copyright.[6]
Copyright office and Copyright Board
This act provides for the establishment of authorities like copyright office and copyright board. As per section 9 of the act requires for the establishment of copyright office the office shall be under the immediate control of the registrar of the copyright. The registrar of the copyright shall act under the superintendence and guidance of the central government. The copyright office must have its own seal. The copyright office maintains the register of copyright. It has the duty of correction of entries in the register of copyright.The copyright office is required to publish the entries made in the register of the copyright in the official gazette, the registrar of copyright does these jobs.
Another authority under this act is the Copyright board. The copyright board is established by the central government under this act. The board is set up to adjudicate the cases filed under this act, the grant of a license, assignment of copyrights, etc. It is a quasi-judicial body. The copyright board shall have a maximum of 15 members, a chairman, and fourteen other members. The Chairman and the members shall hold their office for five years. They may be re-appointed on the expiry of their tenure. The Chairman of the copyright board must be aperson who is or has been a judge of a High Court or is qualified for appointment as a judge of a High Court.[7] The act does not mention any qualifications for the members of the board.
Powers of copyright board
As per section 70 of the act, the copyright board possesses some powers of a civil court.The copyright board has the following powers when it is trying a suit under the Code of Civil procedure, 1908:[8]
- Summoning and enforcing the attendance of any person and examining him on oath.
- Requiring the discovery and production of any document.
- Receiving evidence on affidavits.
- Issuing commissions for the examination of witnesses or documents.
- Requisitioning any public record or copy thereof from any court or office.
- Any other matter which may be prescribed.
Functions of copyright board
The main function of the copyright board is to ensure the complete compliance of the provisions of the Copyright Act 1957. It also adjudicatessome cases filed under the Copyright act. Few functions of the copyright board are as following:[9]
- Decide the issue of the publication and its date in order to determine the term of copyright.
- Determine the term of copyright which shorter in any other country than that provided in respect of that work under the Act (The decision of the Copyright board on the above question will be final)
- Settling disputes related to the assignment of copyright.
- Grant of compulsory licenses for Indian work.
- Grant of compulsory licenses to publish the unpublished work.
- Grant of compulsory licenses to produce and publish a translation of literary and dramatic works.
- Grant of compulsory licenses to reproduce and publish certain categories of literary, scientific or artistic works for certain purposes.
- Rectification of the Register of copyrights on the application of registrar of copyrights or any aggrieved persons.
Conclusion
We saw that every endeavour of the human mind is an intellectual property and it is protected by law. This isbecause the creation by the human mind can generate income and profit for the creator. Therefore, it is important to protect these intellectual properties to encouragesuch creations.
Copyright is one method to protect certain types of intellectual property.It includes literary or artistic or musical or dramatic work, cinematographic films, and sound recordings. The Copyright Act 1957 protects these kinds of work by providing copyright protection. Copyright is a kind of exclusive right provided to the author of a work. He is entitled to sell or reproduce or rent and other such things mentioned in the act in respect of his original work. This legislation specifies certain acts which constitute the infringement of copyright. It also provides the remedy for such infringement and punishments for the infringer. Both civil and criminal remedies are provided under this act so that justice is done to the aggrieved party. The act also requires the establishment of authorities such as the Copyright Office and Copyright Board. These authorities ensure the proper compliance of the act. They are responsible for maintaining the register of copyright, the grant of a licence, assignment of copyright, etc. Copyright board also hears certain cases filed under this act. Thus, the Copyright Act 1957 is a consolidating act that covers every aspect of copyright law.
References:
[1]100 (2002) DLT 698
[2] REMEDIES FOR INFRINGEMENT OF COPYRIGHT IN INDIA: THE ADEQUACY OR INADEQUACY THEREOF, By Sumedh Kumar Sethi, https://thelawbrigade.com/wp-content/uploads/2019/05/Sumedh-Kumar-Sethi.pdf
[3] Section 58 of Copyright Act 1957.
[4]1978 I.P.L.R 83
[5] Pg. No. 11, REMEDIES FOR INFRINGEMENT OF COPYRIGHT IN INDIA: THE ADEQUACY OR INADEQUACY THEREOF, By Sumedh Kumar Sethi, https://thelawbrigade.com/wp-content/uploads/2019/05/Sumedh-Kumar-Sethi.pdf
[6] Section 66 of Copyright Act 1957.
[7] Working of Copyright Board in India and Procedure for Litigation with Regards to Copyright, Lawctopus, https://www.lawctopus.com/academike/working-copyright-board-india-procedure-litigation-regards-copyright/
[8] Section 70 of Copyright Act 1957
[9] Ibid. 5
