Analyzing Copyright Infringement And Various Redressal Mechanisms Under The Copyright Act, 1957
INTRODUCTION
Essence of the cultural development of a country depends upon its creativity in the form of literature, drama, music, computer programmes, etc. These creative works are protected in the form of exclusive right of an individual i.e.,copyright. It is the fruit of hard intellectual labor of an individual. It involves creativity, hard work and a lot of patience, thus,not rewarding or protecting these works would crush author's creativity and aspirations. Various copyright laws are framed for rewarding these intellectual creativities and for providing effective redressal mechanism in case of its breach. Before, proceeding towards analysis of various redressal mechanisms given under The Copyright Act, 1957, let's first have a brief discussion about infringement of copyright under copyright law.
WHAT IS COPYRIGHT INFRINGEMENT?
Chapter XI (section 51-53A) of the Copyright Act, 1957 states provision regarding copyright infringement. Section 51 of the Act provides for conditions when copyright is said to be infringed.
Clause (a) of the section identifies two conditions in which a copyright is said to be infringed. It says: when any person- without license (either from owner or registrar) or in contravention of the condition of a licence so granted –(i) does any act (exclusively to be done by owner); or (ii) for profit permits any place to be used for communication of copyrighted work, then it would constitute infringement of copyright. Generally, innocence or ignorance is not an excuse for copyright infringement but in case of person permitting the use of place for communicating copyrighted work, it would constitute infringement only when he was unaware and without any reasonable ground for believing that such communication would constitute copyright infringement.1
Clause (b) of the said section further provides grounds to be called as copyright infringement. It states: when any person – either (i) makes available for sale or hire, (ii) distributes to affect owners' interest, (iii) exhibits in public by way of trade, or (iv) imports into India, any infringing copies of the work then it would also be considered as infringement of copyright.1
Exceptions to copyright infringement
As even the most crucial Fundamental Rights2 are not absolute, similarly, copyright is also not an absolute right. There are certain exceptions to this right for protecting public interest in the society. These exceptions to copyright are termed as fair-use dealings.3 The object of fair dealings is to maintain a balance between individual interest and public interest. Section 52 provides for certain acts not to be termed as infringement of copyright. Some of the examples of fair use are- use of copyrighted work (except computer programmes) for research, criticism or review, reporting of current events; use of copyrighted work for judicial proceedings; reading or recitation of reasonable extract of published work in public; use of copyrighted work for educational purposes, etc.
REDRESSAL MECHANISM
The Copyright Act, 1957 provides provisions for redressing the grievances of owner in case of infringement of copyright. Chapter XII and XIII of the Act deals with redressal mechanism for copyright violations. Whenever there is an infringement of copyright, there are two kinds of remedies available to the owner i.e., civil remedy and criminal remedy.
Civil remedies
Section 55 of the Act talks about civil remedies for infringement of copyright. It states that when a copyright is infringened, owner is entitled to all civil remedies like injunction, damages, etc. but these remedies are not absolute. Defendant can take the defence that he was unaware and without any reasonable ground for believing that it was a copyrighted work then in that case owner can only be remedified by an order of injunction and decree for recovering the profits obtained by sale of that work.
On analyzing the section, it can wisely be said that Copyright Act, 1957 lacks in providing an effective civil redressal mechanism. It is tilted in defendant's favor because suppose for example: a person violates the copyright of an individual then he can escape the liability by showing (by hook or crook) that he was unaware that it was a copyrighted work. And then the owner is left with only two forms (namesake) of civil remedies- injunction and decree for recovery of profits.
Section 58 of the Act provides remedy to authors by authorizing them to be the owner of all the infringing copies and plates and to bring reasonable proceedings for recovering possession of such infringing copies. But the section lacks further by making an exception that the owner shall be not entitled to any remedy if defendant proves that he was unaware that copyright existed in that work or had reasonable ground for believing that such infringing copies or plates do not involve any copyright.
Section 59 of the Act is somewhat against the interest of the copyright owner by restricting owner to obtain an order of injunction or demolition where construction of a building (containing copyrighted work of architecture) has been commenced. This limitation is applied to sub serve public interest over individual interest.
Criminal remedies
Section 63 of the Copyright Act, 1957 makes copyright infringement an offence and provides for its penal provision by stating that whenever any person knowingly infringes a copyright or any other right under this Act then he shall be liable to imprisonment of minimum 6 months and maximum up to 3 years along with fine of minimum amount 50,000 extending up to 2 Lakhs. But this minimum threshold of imprisonment and fine can be reduced by the court if the infringement is not made for profit.
Similarly, Section 65 punishes person, knowingly making or found in possession of plates for making infringing copies, with imprisonment extending up to 2 years along with fine.
Section 63A provides for enhanced penalties in case of second and subsequent conviction for infringing copyright.
Section 64 states the power of police officer (not below the rank of sub-inspector) to seize without warrant all infringing copies of the work and to be produced it before magistrate as soon as practicable.
To fulfill the needs of this digital era, section 65 is further amended to include Section 65A which provides for more stringent protection to copyright by penalizing circumvention of effective technological measures used for protecting the copyrighted work. Section 65B gives protection to Right Management Information by punishing those who knowingly removes or alters these information's without any authority.
Section 67 of the Act protects copyrighted work at authoritative level by punishing persons for making false entries in the register of copyright, producing such entries as evidence knowing it to be false, etc.
As we know, any criminal liability can only arise when there is actus reus and mens reai.e. guilty intention, similarly, for constituting any offence under this Act, the person must knowingly infringe the copyrighted work. If court finds innocence or ignorance on part of defendant then it can absolve him from the criminal liability.
CONCLUSION
After analyzing the provisions of the Copyright Act, 1957, it can be concluded that the Act tries its level best to provide effective redressal to the grievances of copyright owners by providing both civil and criminal remedies. At one hand, the Act lacks to provide proper civil remedy to the owner but on the other hand it endeavors to make copyright infringement a serious offence by providing both- imprisonment along with fine as a punishment for infringement of copyright. Seriousness of the offence under this Act can be understood by Section 70 which clearly states that cognizance of the offence can only be taken by court not inferior than metropolitan magistrate or a judicial magistrate first class. From time-to-time various amendments are being done to bring this Act in line with present needs and to provide for speedy redressal of grievances of copyright owners.
Footnotes
1. The Copyright Act, 1957, § 57.
2. Part III of the Indian Constitution, 1950.
3. The term 'fair use dealing' is nowhere defined in the Copyright Act, 1957.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
