New Ipr - Himanshu

Copyright and It’s Infringement
Project Report
On
COPYRIGHT
AND
IT’S INFRINGEMENT
Project on Intellectual Property Rights 1

CONTENTS
INTRODUCTION.............................................................................................................4
HISTORY OF COPYRIGHTS........................................................................................5
WHAT IS COPYRIGHT?................................................................................................8
INDIAN PERSPECTIVE ON COPYRIGHT.................................................................9
COPYRIGHT PROTECTION.......................................................................................12
OWNERSHIP OF COPYRIGHT..................................................................................14
TRANSFER OF COPYRIGHT......................................................................................14
ASSIGNMENT AND LICENSE OF COPYRIGHT....................................................15
DIFFERENCE BETWEEN ASSIGNMENT AND LICENSE...................................15
MODE OF ASSIGNMENT............................................................................................16
RIGHT OF AUTHOR TO RELINQUISH COPYRIGHT..........................................17
COPYRIGHT INFRINGEMENT..................................................................................18
CASE LAWS RELATING TO COPYRIGHT.............................................................19
CONCLUSION................................................................................................................28

INTRODUCTION
Copyright is a set of exclusive rights granted to the author or creator of an

original work, including the right to copy, distribute and adapt the work.
The exclusive rights are however balanced for public interest purposes
with limitations and exceptions to the exclusive right - such as fair
dealing and fair use. Copyright theory says that it is the balance between the
exclusive rights and the limitations and exceptions that engenders creativity.
Copyright does not protect ideas, only their expression or fixation. In most
jurisdictions copyright arises upon fixation and does not need to be
registered. Copyright owners have the exclusive statutory right to exercise
control over copying and other exploitation of the works for a specific
period of time, after which the work is said to enter the public domain. Uses
which are covered under limitations and exceptions to copyright, such as fair
use, do not require permission from the copyright owner. All other uses
require permission and copyright owners can license or permanently transfer
or assign their exclusive rights to others.
A huge media campaign has been launched which equates the unauthorized
copying of music, movies and software to shop-lifting or stealing a car. A
permission culture has been created through the inventive interpretation of
laws. Ad-campaigns such as this try to socially demonise any activities, such
as copying or the transformative use of art, since they occur outside the
sphere of the permission culture. You cannot imbue intellectual property
with the inalienable rights of physical property as it requires an intrinsic

alteration in the intangible nature of the intellectual property and is

irreconcilable with the utilitarian foundations of copyright. Transformative
uses of copyright like mashing, sampling and appropriation art are
incompatible with such a propertarian approach, which compels users to pay
arbitrary licencing fees which may be beyond their budgets. Internet
exception lists claim that copyright is policy, not property; it is different
from tangible property and does not deserve the same moral or legal status
typically afforded to our more traditional property entitlements. When
property talk enters copyright discourse, it risks making transformative
works an elitist form of creativity, with only people who can afford to pay
the licencing fees having the privilege to use the works.
HISTORY OF COPYRIGHTS
The word copyright derives from the expression copy of words, first used in
this context in 1586. The word copy alone probably dates from 1485 and
was used to connote manuscript or other matters prepared for printing.
Copyright was invented after the advent of the printing press and with wider
public literacy. As a legal concept, its origins in Britain were from a reaction
to printers' monopolies at the beginning of the eighteenth century. Charles II
of England was concerned by the unfair copying of books and passed the
Licensing Act of 1662, which established a register of licensed books and
required a copy to be deposited with the Stationers Company. The Statute of

Anne was the first real copyright act, and gave the author rights for a fixed
period, after which the copyright expired. Copyright had traditionally been a
publisher’s not an author’s right. Under the Stationers’ Company regulations
only members of the guild could hold copyright. Authors had no explicitly
recognized place in the scheme. The authors did not own their works, but the
stationers acknowledged an obligation to obtain the author’s permission
before publishing and to pay him for his work.
Sir William Blackstone, in his commentaries on the Laws of England,

defined property in absolutist terms as:
“that sole and despotic dominion which one man claims and exercises over
the external things of the world, in total exclusion of the right of any other
individual in the whole universe”
On the topic of reprints he staunchly argued an author:
“has clearly a right to dispose of that identical work as he pleases, and any
attempt to take it from him, or vary the disposition he has made of it, is an
invasion of his right of property”
Blackstone interpreted the Lockean theory of property and applied it to the

realm of intangibles. He argued for a copyright that extended beyond the
author’s expression and encompassed the very “style” and “sentiments” held
therein.
According to Locke,
“….every Man has a Property in his own Person . . . The Labour of his
Body and the Work of his hands, we may say, are properly his. Whatsoever
then he removes out of the State that Nature hath provided and left it in, he

hath mixed his Labour with, and joined to it something that is his own, and
thereby makes it his Property.”
The theory of Blackstonian copyright was diluted by the House of Lords in

Donaldson v. Becket1 and sixty years later by the US Supreme Court
in Wheaton v. Peters2. Donaldson v. Becket overturned the previously held
idea of the common-law right of literary property and the principle of
perpetual copyright. However, Blackstone’s propertarian approach to
copyright has never entirely vacated copyright discourse.The media plays a
very big role in promoting the notion that intellectual property is a species of
physical property in the hope to tighten its stranglehold on copyrighted
materials. But recently courts and jurists have also started prescribing to the
idea of commoditizing intellectual property, thereby negating the non-
rivalrous nature of its consumption and blurring the idea-expression
dichotomy.
In 2003, the constitutionality of the Sonny Bono Copyright term Extension

Act was upheld in Eldred v Ashcroft3. This act provides for provided for
the extension of existing copyright terms by an additional 20 years from the
terms set by the US Copyright Act of 1976. Because of this act, works which
were published in 1928 have still not entered the public domain. The lead
petitioner, Eric Eldred, is a noncommercial Internet publisher of public
domain texts and derivative works. The decisions was a huge blow to the
proponents of a free internet culture, who wish to frame the debate of
1
2 Brown's Parl. Cases 129, 1 Eng. Rep. 837; 4 Burr. 2408, 98 Eng. Rep. 257 (1774); 17
Cobbett's Parl. Hist. 953 (1813)
2 33 U.S. (Pet. 8) 591 (1834)
3 537 u.s 186

intellectual property in terms of terms of freedom, liberty, creativity, our

“common culture,” and the public domain. It is surmised that Eldred was
lost because proponents of digital copyright have successfully defined their
legal entitlements as property, which makes those who believe in the public
domain and in “commons” sound like communists. In Grand Upright v.
Warner Bros.4 Judge Kevin Duffy commenced his judgment with the
admonishment “Thou shalt not steal”. Similarly, in Jarvis v. A&M
Records5 the court stated “there can be no more brazen stealing of music
than digital sampling”
WHAT IS COPYRIGHT?
Copyright refers to laws that regulate the use of the work of a creator, such
as an artist or author. This includes copying, distributing, altering and
displaying creative, literary and other types of work. Unless otherwise stated
in a contract, the author or creator of a work retains the copyright.For a
copyright to apply to a work, it must be an original idea that is put to use.
The idea alone cannot be protected by copyright. It is the physical use of that
idea, such as an illustration or a written novel, that is covered under
copyright law.
Copyright subsists in original literary works, films and sound recordings.

The owner of the copyright subsisting in a work has the exclusive right to do
certain acts in relation to the work such as making a copy, broadcasting or
4
780 F.Supp. 182 (S.D.N.Y. 1991)
5 827 F. Supp. 282 (D.N.J. 1993)

selling copies to the public. The owner of the copyright can control the
exploitation of the work, for example, by making or selling copies to the
public or by granting permission to another to do this in return for a
payment. An example to this would be where the owner of the copyright in a
work of literature permits a publishing company to print and sell copies of
the work in book form in return for royalty payments, usually an agreed
percentage of the price the publisher obtains for the books.
It is an exclusive right, to dispose of, sell and commercially exploit an

intellectual work, by means of printing lithography, graphic production,
copying, moulds, casts, photography, a cinematograph film, gramophone
record, or rolls for mechanical instruments, concerts, oral delivery or
recitation theatrical representation, translation, adaptation, performance,
broadcast transmission or any other form of reproduction and multiplication
of copies or dissemination.
INDIAN PERSPECTIVE ON COPYRIGHT
The Copyright Act, 1957 provides copyright protection in India. Copyright

law protects expressions of ideas rather than the ideas themselves. Under
section 13 of the Copyright Act 1957, copyright protection is conferred on
literary works, dramatic works, musical works, artistic works,
cinematograph films and sound recording. For example, books, computer
programs are protected under the Act as literary works.
Copyright refers to a bundle of exclusive rights vested in the owner of

copyright by virtue of Section 14 of the Act. These rights can be exercised

only by the owner of copyright or by any other person who is duly licensed
in this regard by the owner of copyright. These rights include the right of
adaptation, right of reproduction, right of publication, right to make
translations, communication to public etc.
Copyright protection is conferred on all Original literary, artistic, musical or

dramatic, cinematograph and sound recording works. Original means, that
the work has not been copied from any other source. Copyright protection
commences the moment a work is created, and its registration is optional.
However it is always advisable to obtain a registration for a better
protection. Copyright registration does not confer any rights and is merely a
prima facie proof of an entry in respect of the work in the Copyright
Register maintained by the Registrar of Copyrights.
As per Section 17 of the Act, the author or creator of the work is the first
owner of copyright. An exception to this rule is that, the employer becomes
the owner of copyright in circumstances where the employee creates a work
in the course of and scope of employment.
It confers copyright protection in the following two forms:
(A) Economic rights of the author, and

(B) Moral Rights of the author.
(A) Economic Rights: The copyright subsists in original literary, dramatic,

musical and artistic works; cinematographs films and sound recordings. The
authors of copyright in the aforesaid works enjoy economic rights u/s 14 of

the Act. The rights are mainly, in respect of literary, dramatic and musical,
other than computer program, to reproduce the work in any material form
including the storing of it in any medium by electronic means, to issue
copies of the work to the public, to perform the work in public or
communicating it to the public, to make any cinematograph film or sound
recording in respect of the work, and to make any translation or adaptation
of the work. In the case of computer program, the author enjoys in addition
to the aforesaid rights, the right to sell or give on hire, or offer for sale or
hire any copy of the computer program regardless whether such copy has
been sold or given on hire on earlier occasions. In the case of an artistic
work, the rights available to an author include the right to reproduce the
work in any material form, including depiction in three dimensions of a two
dimensional work or in two dimensions of a three dimensional work, to
communicate or issues copies of the work to the public, to include the work
in any cinematograph work, and to make any adaptation of the work. In the
case of cinematograph film, the author enjoys the right to make a copy of the
film including a photograph of any image forming part thereof, to sell or
give on hire or offer for sale or hire, any copy of the film, and to
communicate the film to the public. These rights are similarly available to
the author of sound recording. In addition to the aforesaid rights, the author
of a painting, sculpture, drawing or of a manuscript of a literary, dramatic or
musical work, if he was the first owner of the copyright, shall be entitled to
have a right to share in the resale price of such original copy provided that
the resale price exceeds rupees ten thousand.
(B) Moral Rights: Section 57 of the Act defines the two basic “moral

rights” of an author. These are:

(i) Right of paternity, and

(ii) Right of integrity.
The right of paternity refers to a right of an author to claim authorship of

work and a right to prevent all others from claiming authorship of his work.
Right of integrity empowers the author to prevent distortion, mutilation or
other alterations of his work, or any other action in relation to said work,
which would be prejudicial to his honour or reputation. The proviso to
section 57(1) provides that the author shall not have any right to restrain or
claim damages in respect of any adaptation of a computer program to which
section 52 (1)(aa) applies (i.e. reverse engineering of the same). It must be
noted that failure to display a work or to display it to the satisfaction of the
author shall not be deemed to be an infringement of the rights conferred by
this section. The legal representatives of the author may exercise the rights
conferred upon an author of a work by section 57(1), other than the right to
claim authorship of the work
COPYRIGHT PROTECTION
Copyright protection is given for a work having originality,ie it should be

from the author and must have minimum degree of creativity. So it is the
author who is the real creator of the work thereby first owner of the
copyright and Indian law recognizes author as the first owner of the
copyright .But by the term ‘ownership’ it means it includes not only the
author ,but also assignee and can even a legal entity even though not defined
in the Act. In Bern convention the term Author is not defined, instead it

says the person under whose name the work is disclosed ,which implies

that it is not necessary that always the author should be the owner. However
Indian copyright Act defines the tern ‘Author’with respect to various works,
but still leaves some problems. It becomes more complex in the context of
changing technologies,ie cinematographic works, sound recording
,broadcasting etc which is a combination of different works, also when
author does the work in the course of employment. When new technologies
emerge, different mode of communication simultaneously arise and the
exploitation of the copyright by way of assignment &licensing will add
economic benefits to the copyright owner and the provisions of assignment
and licensing becomes crucial. By amendments Indian Copyright Act has
taken care of such provisions, but still leaving lacunae & the role of
judiciary becomes crucial in interpreting such provisions for effectively
protecting the rights of the authors.
The attempt through this paper is to analyze the provisions relating to the
ownership and assignment of copyright and in the context of changing mode
of communication technologies how it tackled the problems emerged in
ownership, assignment and license of copyright, the adequacy of these
provisions in effectively protecting the rights of the author & tries to
balance the rights of the owner of copyright vis-à-vis public interest.
Also the role of judiciary in effectively protecting their rights.
OWNERSHIP OF COPYRIGHT

The owner of the copyright means person who possess and enjoys the legal
right.The definition given to the author in the context of copyright protection
depends on the nature of the work & s.2(d )[3]defines ‘author’.The creator
of the work can also be joint authors,but dilemma lies in determining the
criteria for joint authorship.
TRANSFER OF COPYRIGHT
One of the rights of the copyright owner is the right to transfer his rights
u/s,14 of the copyright Act either wholly or partially by assignment or
license, even exclusive license. In the case of tangible property by
assignment of his property he loses his rights over it but in the case of IP
even after its assignment the owner can still enjoy the property depending
upon the right assigned. This major difference is due to the nature of
intellectual property from other property. In the case of copyright the
transfer of right depends upon diverse nature of IP. Even though there is
exclusiveness in the copyright but copyright owner cannot exclude
independent creators of work. It is only expression that is protected not the
idea is based on its implication in public interest.
ASSIGNMENT AND LICENSE OF

COPYRIGHT

Change of concept of indivisibility to licensing of copyright is due to

changing technologies and tremendous advancement in the field of
communication technology. One of the characteristics of the copyright is
that it has the potential to be used by a range of different users at the same
time. For example, a sound recording can be played in numerous public
places simultaneously. As works are increasingly exploited in this manner,
the role of licensing in exploitation becomes ever more important. It enables
copyright to be transferred to those who can exploit it most profitably. And
the terms of the transfer agreement will determine how the profits are to be
distributed. The Indian copyright recognizes two types of transfer of IP i.e.,
license and assignments, it always depends upon nature of property
transferred.
DIFFERENCE BETWEEN ASSIGNMENT AND

LICENSE
Assignment of copy right and copyright license are two forms of contract
involved in the exploitation of copyright work by a third party. Each has its
own distinct characteristics. A license is an authorization of an act without
which authorization would be an infringement. Licensing usually involves
licensing of some of the rights and not the whole. Licenses can be exclusive
or non exclusive. An assignment involves the disposal of the copyright: the
author (assigner) assigns the copyright to another person (assignee) or
transfer of ownership of the copyright.In the case of license only specified

interest in IP is transferred not the ownership is transferred to the licensee. A

license normally does not confer any right to licensee against licensor or
third party but exclusive licensee has substantial rights against the licensor ,
even to sue the licensor. And by s.30 if the licensee in the case of future
work dies before the work comes in to existence his legal representatives
shall be entitled to such works, in the absence of any provision to the
contrary.
MODE OF ASSIGNMENT
No assignment of the copyright in any work shall be valid unless it is in

writing signed by the assignor or by his duly authorized agent. It shall
identify such work, specify the rights assigned, duration, territorial
extent of such assignment, amount of royalty payable to the author. If the
period is not stated it shall be deemed to be five years and territorial
extend shall be presumed to extend within India. If the assignee does not
exercise such rights within one year from the date of such assignment it shall
be deemed to have lapsed unless otherwise specified in the assignment.
[27] The assignor can file a complaint to the copyright board if the assignee
fails to make sufficient exercise of the rights assigned, failure not
attributable to the act or omission, then copyright. board after such
enquiry as it deem necessary may revoke the assignment, this provision may
be used for u/s 31 as a ground for compulsory licensing. Also regarding any
dispute to assignment it follows the same procedure including an order for
recovery of any royalty payable. Provided that if the terms of the
assignment is harsh to the assignor(author) it shall revoke the assignment,

but after five years from the date of assignment. This proviso seems to be
irrational, it may not help the author to revoke within five years which
means he has to suffer. s.19 & 19A are applicable in the of licensing too. .
In the case of unpublished work the author must be a citizen of India or
domiciled in India at the time of the creation of the work. Copyright in an
architectural work will subsist only if the work is located in India
irrespective of the nationality of the author.
RIGHT OF AUTHOR TO RELINQUISH

COPYRIGHT
The author of a work may relinquish all or any of the rights comprised in the
copyright in the work by giving notice in the prescribed from to the
Registrar of Copyrights and thereupon such rights shall, subject to the
following conditions, cease to exist from the date of the notice. On receipt of
a notice, the Registrar of Copyrights shall cause it to be published in the
Official Gazette and in such other manner as he may deem fit. The
relinquishment of all or any of the rights comprised in the copyright in a
work shall not affect any rights subsisting in favour of any person on the
date of the notice.
COPYRIGHT INFRINGEMENT

Direct Infringement: Direct infringement is a strict liability offence and

guilty intention is not essential to fix criminal liability. The requirements to
establish a case of copyright infringement under this theory are:
(1) Ownership of a valid copyright; and
(2) Copying or infringement of the copyrighted work by the defendant.
Thus, a person who innocently or even accidentally infringes a copyright

may be held liable under the Copyright Act of the U.S. and under the laws of
various other countries. The guilty intention of the offender can be taken into
account for determining the quantum of damages to be awarded for the
alleged infringement.
Contributory infringement: The contributory infringement pre-supposes the

existence of knowledge and participation by the alleged contributory
infringer. To claim damages for infringement of the copyright, the plaintiff
has to prove:
(1) That the defendant knew or should have known of the infringing activity;
and
(2) That the defendant induced, caused, or materially contributed to another
person’s infringing activity.
Vicarious Infringement: Vicarious copyright infringement liability evolved

from the principle of respondent superior. To succeed on a claim of
vicarious liability for a direct infringer’s action, a plaintiff must show that
the defendant:
(1) Had the right and ability to control the direct infringer’s actions; and
(2) Derived a direct financial benefit from the infringing activity.

Thus, vicarious liability focuses not on the knowledge and participation but
on the relationship between the direct infringer and the defendant.
Legal precedent for vicarious copyright infringement liability has developed

along two general relational lines. The first relational line involves the
employer/employee relationship, whereas the second involves the
lessor/lessee relationship.
CASE LAWS RELATING TO COPYRIGHT
In Eastern Book company v Navin J.Desai6, the question involved was

whether there is any copyright in the reporting of the judgment of a court.
The Delhi High court observed: “It is not denied that under section 2(k) of
the Copyright Act, a work which is made or published under the direction or
control of any Court, tribunal or other judicial authority in India is a
Government work. Under section 52(q), the reproduction or publication of
any judgment or order of a court, tribunal or other judicial authority shall not
constitute infringement of copyright of the government in these works. It is
thus clear that it is open to everybody to reproduce and publish the
government work including the judgment/ order of a court. However, in
case, a person by extensive reading, careful study and comparison and with
the exercise of taste and judgment has made certain comments about
judgment or has written a commentary thereon, may be such a comment and
commentary is entitled to protection under the Copyright Act”.
6 2001 IVAD Delhi 612, 92 (2001) DLT 403, 2001 (58) DRJ 103

In Lachhman Das Behari Lal v Padam Trading Co 7, the Delhi High

Court observed that the plaintiff being a firm functioning at Delhi, the suit
filed by it in the Delhi courts is maintainable and is not liable to be rejected
under Order 7 Rule 11 of the CPC as prayed. The Court further observed
that the plea regarding want of territorial jurisdiction is not covered by
Order7 rule 11 of CPC. The court observed that even if it is held that this
court has not the territorial jurisdiction, the plaint cannot be rejected. At the
most it can be returned for presentation to the proper court.
In Exphar SA & Anr v Eupharma Laboratories Ltd & Anr8, the

Supreme Court finally settled the position in this regard. The Court
observed: “Section 62(2) cannot be read as limiting the jurisdiction of the
District Court only to cases where the person instituting the suit or other
proceeding or where there are more than one such persons, any of them
actually and voluntarily resides or carries on business or presently works for
gain. It prescribes an additional ground for attracting the jurisdiction of a
court over and above the “normal” grounds as laid down in Section 20 of the
C.P.C. Even if the jurisdiction of the Court were restricted in the manner
construed by the Division Bench, it is evident not only from the cause title
but also from the body of the plaint that the Appellant No 2 carries on
business within the jurisdiction of the Delhi High Court. The Appellant No 2
certainly “a person instituting the suit”. The Division Bench went beyond
the express words of the statute and negatived the jurisdiction of the Court
because it found that the Appellant No 2 had not claimed ownership of the
copyright, infringement of which was claimed in the suit. The appellant No
7 2002 (25) PTC 508(Del)
8 2004 (2) Scale 589

2 may not be entitled to the relief claimed in the suit but that is no reason for
holding that it was not a person who had instituted the suit within the
meaning of Section 62(2) of the Act”.
In David Pon Pandian v State9 the Madras High Court, while dealing with
section 68A of the Copyright Act, observed:
“The Court can take cognizance of the offence if the charge sheet is filed
within the period of limitation prescribed under Section 468 of the Cr.P.C
and in computing the period of limitation, the date of commission of the
offence is to be reckoned as the starting point. If the charge sheet is not filled
so, the Court has no power to entertain the complaint”
The court referred the decision of the Supreme Court in State of Punjab v
Sarwan Singh10 in which it was observed:
“The object of Cr.P.C in putting a bar of limitation on the prosecution was

clearly to prevent the parties from filing cases after a long time, as a result of
which material evidence may disappear and also to prevent abuse of the
process of Court by filing vexatious and belated prosecutions long after the
date of the offence. The object, which the statute seeks to sub-serve, is
clearly in consonance with the concept of fairness of trial as enshrined in
Article 21 of the Constitution. It is, therefore, of utmost importance that any
prosecution, whether by State or a private complainant, must abide by the
letter of the law or to take the risk of the prosecution failing on the ground of
limitation”
92002 (24) PTC 377(Mad)
10 AIR 1981 SC 1054

In Shree Devendra Somabhai Naik v Accurate Transheet Pvt Ltd 11 the

Gujarat High Court explained the inter-relationship between Article 137 of
the Limitation Act, 1963 and section 50 of the Copyright Act, 1957. The
Court observed:
“The order passed by the by the Copyright Board is an order whereby it is

held that the provisions of Article 137 of the Limitation Act are not
applicable and the board has also held that the Copyright Board is a Tribunal
and quasi-judicial authority for all other purposes except for the purposes
which are specifically provided in the Copyright Act. It is an order by which
an application under Section 50 of the Copyright act is entertained and the
Copyright Board will decide the same on merits. The Copyright Board does
not believe the delay alleged by the present appellant. Entertaining an
application is a matter of discretion. In the present case, the Copyright Board
in its wisdom, overruling the contention that the application was barred by
limitation, decided to entertain the application. It is a discretionary order”.
(4) Infringement of copyright: A copyright owner cannot enjoy his rights

unless infringement of the same is stringently dealt with by the Courts .The
approach of the Indian Judiciary in this regard is very satisfactory.
In Prakashak Puneet Prashant Prakashan v Distt.judge, Bulandshahr

&Ashok Prakashan (Regd)12 the Allahabad High Court held that if the
petitioner publishes a book by adding any word before or after the book “Bal
Bharati”, he infringes the copyright of the respondent.
11 2002 (25) PTC 434(Guj)
12 2001 PTC 213 (All)

In Hindustan Pencils Ltd v Alpna Cottage Industries 13 the Copyright

Board of Goa held that where the similarities between the artistic works of
the parties are fundamental and substantial in material aspects, it would
amount to copyright violation and the defendant’s copyright is liable to be
expunged from the register of copyright.
The Board referred the decision of Prem Singh v Cec Industries14 wherein

it was observed:
“In a case where the first party himself is shown to have adopted or imitated
a trademark and copyright of a third party, then Courts can resolutely decline
to step in aid of this party because honesty of action is the crux of the matter
and Courts protection is extended only on the principle that damage to a
party who has acquired goodwill or reputation in certain trading style for
making his goods, should not be allowed to be affected by the dishonest user
of the same by another”.
The Board further referred the decision of the apex court in R.G. Anand v
M/S Delux Films15 where the Court observed:
“Where the same idea is being developed in a different manner, it is

manifest that the source being common, similarities are bound to occur. In
such a case, the Courts should determine whether or not the similarities are
on fundamental or substantial aspects of the mode of expression adopted in
the copyrighted work with some variations here and here. In other words, in
order to be actionable the copy must be a substantial and material one which
13 2001 PTC 504 (CB) (Goa)

14 AIR 1993 Del 223
15 AIR 1978 SC 1613

at once leads to the conclusion that the defendant is guilty of the act of
piracy”.
In Ushodaya Enterprises Ltd v T.V. Venugopal 16 the division bench of the

Andhara Pradesh High Court held that even though the defendant has
registered the carton under the Trademark Act, that may not come to the aid
of the defendant as the case of the plaintiff is that it owns a copyright of the
artistic work under the Copyright Act and no registration is required for the
same. Thus the court held that the plaintiff was justified in alleging
infringement of his artistic work.
In Khajanchi Film Exchange v state of MP 17 the appellants apprehending

the violation of their copyright in the film, prayed for the writ of
“Mandamus” without first exhausting the alternative remedy available under
the Copyright Act. The Division Bench of the Madhya Pradesh High Court
Observed:
“ There is no dispute in the submission that it is the duty of police to be

watchful in the area and detect crime and punish the criminal in accordance
with law. But the petitioners did not complain that any stage nor did they
seek action from other functionaries of the State. They ask for mandamus
without putting the grievance before the respondent and seeking their
reaction. The writ petition was filed 16 days before the release of the film.
Enough time appellants had, to approach the authorities/ police and later to
the respondents giving their reaction to the grievance and how it was ready
to deal with the matter. Therefore, unless the demand was put across and
reaction awaited for some time, moving the court was premature and
16 2001 PTC 727 (AP) (DB)
17 2003 (26) PTC 183(MP) (DB)

unsustainable. Therefore, petition was filed on mere apprehension that

appellants would be deprived of their rights which did not exist when claim
for mandamus was made. Mandamus can be granted only when default,
commission, or omission takes place which had not happened in this case”.
In Jolen Inc v Shoban Lal Jain18 the Madras High Court held that latches
and acquiescence is a good defence to an action for copyright infringement.
The court held that the plaintiff having allowed the defendant to carry on the
business under the trade name of the plaintiff for 7 years is prima facie
guilty of acquiescence and it cannot claim for relief of injunction against the
defendant as the balance of convenience is in favour of him.
(5) Availability of alternative remedy: The availability of an efficacious

alternative remedy prevents a person from invoking the writ jurisdiction of
the High court.
In Khajanchi FilmExchange and Another v State of M.P and

others19 petitioners instead of approaching the concerned authorities filed a
writ petition in the High Court. The Madhya Pradesh High Court observed:
“The film was not yet released. The petitioners did not approach the
respondents. There was no failure on the part of the respondents in
performance of their legal duties with respect of the right complained of.
The entire machinery was put to doubt by the petitioners on the basis of the
averments made in the writ petition that it is to the common knowledge that
they do not take action. Thus apprehending infringement of their rights, the
writ petition was filed. The petitioners should have approached the
concerned authorities first; and in the event of their failure to take preventive
18 2001 PTC 216 (Mad)
19 2002 (25) PTC 812(MP)

measures/seizure of cassettes under the M.P.Police Regulations and the

copyright Act, the petitioners should have approached this Court. If a writ is
entertained and relief readily granted before release of the movie without
approaching the respondents who have to prevent threatened violation of
copyright, it would open a flood gate of litigation. The copyright Act
provides adequate safeguards and procedure. It cannot be said that a mere
apprehension that certain offence may take place, a writ can be filed seeking
a direction that no such offence be allowed to take place. First authorities
have to be asked to prevent it. The function of the police is to prevent piracy
and unauthorized exhibition. In the instant case there was no inaction on the
part of the police and other concerned officials and they were unnecessarily
dragged in writ petition without even putting them to notice of proposed
writ. No demand notice was served, no specific complaint was lodged. Thus
writ is not maintainable”.
(6) Rectification of copyright: In the rectification proceedings, an entry in

the Copyright Register pertaining to a particular copyright can be expunged
by the Copyright Board.
In Lal Babu Priyadarshi v Badshah Industries 20 the Division bench of the

Patna high Court Observed:
“Rule 16(3) of the Copyright Rules, 1958 which embodies the principle of
natural justice provides that when there is a rival claim with regard to subject
matter of the copyright then no order can be passed in favour of any party
without hearing the application of the other applicant. Non-observance of the
said provision will vitiate the order with regard to the entry in the Register of
the Copyright. The said requirement cannot be waived nor non-observance
20 2002 (25) PTC 173 (Patna) (DB)

of the said provision can be said to be a mere irregularity. If a person making

an application under section 45 is not aware of the rival claim then the
matter would be different. But in this case, as is evident from the notice sent
by the appellants through their counsel, they were aware of the claim of the
respondents and as such they should have given notice to the respondents
intimating them of their intention to file an application for registration so
that the respondents could have raised objections and, thereafter, the matter
would have been decided in terms of provisions contained in Section 45,
read with Rule 16. In this case Rule 16 has not been followed before making
the entry in the Register of Copyright under section 45 and, thus, the Board
rightly came to the conclusion that non-observance of the provisions of
Rule16 (3), which is mandatory in nature, has vitiated the certificate of
registration in favour the appellants”.
Raj video vision v. K. Mohanakrishnan 21,here the defendant (producer)

assigned all negative rights to Azam and Co. and they transferred to
defendant (D2) in 1961. But in 1988 D1 entered into agreement with
plaintiff and assigned video right of film ‘Pasamalar’ and it exploitation,
distribution and exhibition in India and Srilanka. In 1989 D2 restrained
plaintiff claiming that they have entire copy right in film ‘Pasamalar’ and
they have not assigned the video rights to anyone. So the plaintiff filed a suit
to declare his rights as in agreements and restrained defendant from
interfering with his video rights. After going through the agreement the court
held that as per section 14(1)(ii) and Sec.2(d)(v)of copyright at the producer
as the original owner had the said right on the date of assignment in favour
of plaintiff and when the producers themselves were not aware of their
future rights accrued due to scientific advancement, it cannot be said that
21 AIR 1998 Mad 294

they have already transferred the rights not in existence by way of

assignment. the D2 can not claim a right which was not contemplated at the
time of original assignment in the year 1961
CONCLUSION
As the Indian copyright law tries to accommodate new changes and

challenges set by electronic information network and to be in tune with the
international agreements ie controls to assure equitable or proportional
remuneration to authors. ,it is ultimately in the hands of the judiciary how
effectively it protects the rights of the authors especially in the case of
cinematographic works & tries to balance the rights of the owner of
copyright vis-à-vis public interest, also in interpreting the provisions of
ownership, assignment and license of copyright and in laying down the
criteria for effectively protecting the author’s rights in the course of
employment. When new technologies emerge, different mode of
communication simultaneously arise and the exploitation of the
copyright by way of licensing will add economic benefits to the copyright
owner and the judiciary must be cautious while making interpretion,since it
may have drastic economic impact on the actual owner of the work. If the
law increases the range of individuals who can claim copyright and the
territories in which they can claim, the task of securing all the necessary
licenses become intolerably burdensome.

BIBLIOGRAPHY
1. P. NARAYANAN- Intellectual Property Law
2. B.L. WADHERA- Intellectual Property

WEBLIOGRAPHY
1. www.wikipedia.com
2. www.webopedia.com

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Copyright and It’s Infringement

Project on Intellectual Property Rights 1

INDIAN PERSPECTIVE ON COPYRIGHT.................................................................9

ASSIGNMENT AND LICENSE OF COPYRIGHT....................................................15

DIFFERENCE BETWEEN ASSIGNMENT AND LICENSE...................................15

RIGHT OF AUTHOR TO RELINQUISH COPYRIGHT..........................................17

CASE LAWS RELATING TO COPYRIGHT.............................................................19

Project on Intellectual Property Rights 2

Copyright is a set of exclusive rights granted to the author or creator of an

Project on Intellectual Property Rights 3

alteration in the intangible nature of the intellectual property and is

Project on Intellectual Property Rights 4

Sir William Blackstone, in his commentaries on the Laws of England,

On the topic of reprints he staunchly argued an author:

Blackstone interpreted the Lockean theory of property and applied it to the

Project on Intellectual Property Rights 5

The theory of Blackstonian copyright was diluted by the House of Lords in

In 2003, the constitutionality of the Sonny Bono Copyright term Extension

3 537 u.s 186

Project on Intellectual Property Rights 6

intellectual property in terms of terms of freedom, liberty, creativity, our

Copyright subsists in original literary works, films and sound recordings.

Project on Intellectual Property Rights 7

It is an exclusive right, to dispose of, sell and commercially exploit an

INDIAN PERSPECTIVE ON COPYRIGHT

The Copyright Act, 1957 provides copyright protection in India. Copyright

Copyright refers to a bundle of exclusive rights vested in the owner of

Project on Intellectual Property Rights 8

Copyright protection is conferred on all Original literary, artistic, musical or

It confers copyright protection in the following two forms:

(A) Economic rights of the author, and

(A) Economic Rights: The copyright subsists in original literary, dramatic,

Project on Intellectual Property Rights 9

(B) Moral Rights: Section 57 of the Act defines the two basic “moral

Project on Intellectual Property Rights 10

(i) Right of paternity, and

The right of paternity refers to a right of an author to claim authorship of

Copyright protection is given for a work having originality,ie it should be

Project on Intellectual Property Rights 11

says the person under whose name the work is disclosed ,which implies

Project on Intellectual Property Rights 12

ASSIGNMENT AND LICENSE OF

Project on Intellectual Property Rights 13

Change of concept of indivisibility to licensing of copyright is due to

DIFFERENCE BETWEEN ASSIGNMENT AND

Project on Intellectual Property Rights 14

interest in IP is transferred not the ownership is transferred to the licensee. A

No assignment of the copyright in any work shall be valid unless it is in

Project on Intellectual Property Rights 15

RIGHT OF AUTHOR TO RELINQUISH

Project on Intellectual Property Rights 16

Direct Infringement: Direct infringement is a strict liability offence and

Thus, a person who innocently or even accidentally infringes a copyright

Contributory infringement: The contributory infringement pre-supposes the

Vicarious Infringement: Vicarious copyright infringement liability evolved

Project on Intellectual Property Rights 17

Legal precedent for vicarious copyright infringement liability has developed

CASE LAWS RELATING TO COPYRIGHT

In Eastern Book company v Navin J.Desai6, the question involved was

Project on Intellectual Property Rights 18

In Lachhman Das Behari Lal v Padam Trading Co 7, the Delhi High

In Exphar SA & Anr v Eupharma Laboratories Ltd & Anr8, the

8 2004 (2) Scale 589