INFRINGEMENT OF

COPYRIGHT
SRUTI RAVINDRANATHAN
LLM IPL
INTRODUCTION

• The Copyright Act, 1957 extends copyright protection to the work by conferring certain
exclusive rights on its author.
• Even, the public has also been given certain rights in his work under Section 52
(permitted uses).
• Thus, if a person uses any of the exclusive rights available to the owner of copyright
without his prior permission or without any license, granted by the Registrar of
Copyright, he shall be deemed to have infringed copyright.
• Acts laid down in section 51(a)(i) are termed as primary acts of infringement and acts
laid down in section 51(a)(ii) are known as secondary acts of infringement.
INFRINGEMENT IN COPYRIGHT- HOW?

Section 51:
A copyright work is deemed to be infringed when:
a) Any person, without a license from the owner of the copyright, or the Registrar of Copyrights or in contravention
of the conditions of a license so granted or any of conditions imposed by a competent authority;
I. Does anything, where the exclusive right is only upon the owner of copyright
II. Permits for profit any place to be used for communication of work to public- where it constitutes infringement.
b) Any person,
I. Makes for sale or hire, or
II. by way of trade displays or offers for sale any infringing copies of work
III. Distributes any infringing copies of work- to the extent to affect prejudicially the owner
IV. Exhibits in public, any infringing copies of work by way of trade.
ESSENTIAL INGREDIENTS OF
INFRINGEMENT
 Reproduction of the work in a material form
 Publication of the work
 Communication of the work to the public
 Performance of the work in public
 Making of adaptations and translations of the work
INFRINGING COPY

 The Copyright Act defines ‘infringing copy’ to mean:

 In relation to literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a
cinematographic film

 In relation to a cinematographic film, a copy of the film made on any medium by any means

 In relation to a sound recording, any other recording embodying the same sound recording, made by any means

 In relation to a program or performance in which such a broadcast reproduction Rights or performer’s right
subsists the sound recording or a cinematographic film of such program or performance.

 Apart from the aforesaid acts, the reproduction of a literary, dramatic, musical or artistic work in the form of a
cinematograph film is also deemed to be an infringing copy.
INFRINGEMENT BY COPYING

 Copyright in a work maybe infringed by copying that work. Copying can be done in 3
ways;
1. Direct copying
 Cunniah v balaraj (AIR 1961 Mad 111)

2. Indirect copying
Eg – copying of a three dimensional version of a two dimensional drawing
3. Subconscious copying
 Francis day v Bron [1963] Ch 587
SUBSTANTIAL TAKING

 For an infringement to take place, there need not be an exact reproduction of the
plaintiff’s work.
 Copyright in a work is infringed by taking a substantial part of it.
 What is substantial- is a question of fact and degree.
 The complainant must prima facie establish originality and the copying complained of
must be substantial and should not be a mere chance occurrence.
 The degree of resemblance between 2 works must be such that it suggests an
impression, in the mind of the observer, that the work of the defendant is, in fact, the
work of plaintiff.
CAUSAL CONNECTION

 In order to prove infringement, the plaintiff must prove that defendant has copied from
his work.
 At times the works of plaintiff and defendant may also occur due to other reasons, such
as both of them might have used a common source, or they have arrived at their results
independently by investing their time and labor.
 In such case, there shall be no infringement of plaintiff’s copyright.
 If there is any similarities between the 2 works, then presumption shall be that the
defendant had copied from plaintiff’s work.
In order to succeed in an action for infringement,
the Plaintiff has to establish the following things:

 That there is a close similarity between the two works

 That the defendant has directly or indirectly made an unlawful use of the plaintiff’s
work
 That there is a chain of causation linking the plaintiffs copyright work with the
defendants alleged infringing copy
 The defendant had access to the plaintiffs work or an infringing copy of the work.
R G ANAND V DELUX FILMS
(AIR 1978 SC 1613)
 In this case, the Supreme Court laid down the following tests to determine whether
infringement of copyright has occurred or not:
a. There can be no copyright in an idea, subject matter, themes, plots or historical or
legendary facts.
b. Where the same idea is being developed in a different manner, it is manifest that the
source being common, similarities are bound to occur
c. the reader, spectator or 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
d. Where the theme is the same, but is presented and treated differently so that the
subsequent work becomes a completely new work
 There are material and broad dissimilarities appearing in the two works
 As a violation of copyright amounts to an act of piracy it must be proved by clear and
cogent evidence after applying the various tests laid down by the case law.

o The test laid down by R G Anand was applied by the Kerala High Court in
R Madhavan v S K Nayar (AIR 1988 Ker 39)
ILLUSTRATIONS

 FACTS- A poem was written by a poet in 1820. The poet expired in 1888. Thereafter,
the poem was copied by another author in his book in the year 1970.
 Issue – whether there is infringement?
ILLUSTRATIONS

 FACTS – A book is published in America by a publisher there. An Indian visitor to that

country gets a copy of that book and he makes further copies and floods the Indian
market with such copies of the said book.
 Issue – whether producing further copies and selling the book in India which is already
published in America amounts to infringement?
ILLUSTRATION

 FACTS- Defendants had borrowed a part of the speech which was only two and a half
minute duration in a three hour film
 Issue – whether there is any infringement?

 ( D Narayan Rao v V Prasad ) (1979) 2 APLJ 231

Wadia Movie Tone Pvt Ltd v Vishal Bharadwaj
(Bombay High Court 27 Feb,2017)

 Facts – the movie “hunterwali” released in the year 1930s had copyright in a unique
character called “Fearless Nadia” as a stuntwomen. The defendant produced another
movie “Rangoon” in the year 2016 starring Kangana Ranuat as the lead role with the
character’s name ‘Janbaaz Julie’, but they ended into a legal battle with the Wadias
when they accused of copyrighting the character ‘janbaaz Julie’ from ‘fearless nadia’.
The costume, character sketch, style of walking , wearing a mask, a whip, being a stunt
women and using the phrase ‘bloody hell’. Everything was copied from ‘fearless nadia’
character.
 Issue- whether there is infringement of the character?
INFRINGEMENT IN OTHER CASES

 Four circumstances in which copyright can be infringed other than copying of the work
are:
I. Providing place for copyright infringement
II. Selling infringing copies
III. Distributing infringing copies
IV. import
INFRINGEMENT BY PERMISSION TO USE
PLACE FOR COMMUNICATION OF WORK

 Copyright in a work is also infringed where any person without the prior permission of
copyright owner permits for profit any place to be used for the communication of work
to public where such communication constitutes infringement of copyright in the work.
 Such a person, however, shall not be deemed to be an infringer if he was not aware and
had no reasonable ground for believing that such communication to public would be an
infringement.
 To attract this provision, it is essential that the defendant must have permitted a place to
be used for communication of work to the public for ‘profit’.
 The word ‘any place’ would include common public place or library or any other kind
of place.
 The defense is available to the owner of place only when he takes due diligence, while
allowing his place to be used for communication of work to the public.
IMPORTS INTO INDIA

 In Penguin Books Ltd. v. India Book Distributors, (AIR 1985 Delhi 29, 26
(1984) DLT 316 )the court stated that it is also infringement of copyright
knowingly to import into India for sale or hire infringing copies of a work
without the consent of the owner of the copyright, though they may have
been made by or with the consent of the owner of the copyright in the place
where they were made.

 In America the subject books were lawfully published, it is true. But they
cannot cross the borders of India without infringing the copyright of the
exclusive licensee.
ACTS NOT CONSTITUTING INFRINGEMENT

 STATUTORY EXCEPTIONS

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

 Section 52 of the Act gives a long list of acts which do not constitute infringement of
copyright. i.e ‘Fair dealing’ which is legal doctrine, which allows a person to make
limited use of copyrighted work without the permission of the owner.
THANK YOU