Introduction to Infringement of copyright and remedies
The infringement of copyright happens when someone use other persons copyright without the permission of that person pr the copyright has been not fairly used. Then the remedies can seek by the copyright owner. There are mainly three types of remedies civil, criminal and administrative.
There is serious concern regarding the infringement of the copyright. the infringement of the copyright has the ability to affect the owner in a lot aspect. These infringements are of two types: primary and secondary. The direct infringement which violates the exclusive rights of owner is known as primary infringement while secondary infringement is indirect infringement like when a person facilitates, contribute or benefits from the unauthorized use of copyrighted work.
what does not constitute as an infringement to copyright
Section 52 of the copyrights Act of 1957 states that what does not constitute as an infringement to copyright. This section is a kind of defense which the parties take against the case of infringement of copyright.
1. Fair dealing of any work, except a computer program for the purpose of:
a. Private use
b. Public use
c. Research
d. Criticism of that work or any other
e. Review of that work or any other
f. Reporting of current event and current affairs
Rights of the owner of copyright
- Right to reproduce.
- Right to sell.
- Right to distribute.
- Right to republish.
- Right to make financial income from the work.
- Right to adaptation
- Right to paternity.
- Right to retraction.
- Remedies for unfair use
- Perform the work publicly.
Remedies for Copyright Infringement
There are three kinds of remedies for copyright infringement – Civil Remedy, Criminal Remedy and administrative remedy
Civil remedies for copyright infringement
The remedies for the copyright infringement are given under section 55 of the copyrights Act,1957.
- Interlocutory Injunctions – The interlocutory injunctions are the temporary injunctions that are given by the court to stop a party from doing something or requires a party to do something. These are granted to maintain the status quo of the case. Status quo refers to the last state of the contested controversy as it is. Preserved by granting this kind of injunction. There are three requirements for there to be a grant of interlocutory injunctions
- a prima facie case – There should be an case it means in IPR there should be an infringement that must have happened and the person is seeking remedies on that infringement for the violation of his right.
- Secondly, there needs to be a balance of convenience – It means an act has been done which is wrong and which have infringed the rights of the copyright holder.
- Finally, there needs to be an irreparable injury – The damaged that have been caused and is not repaired by the defendant before the filing of the case.
- Pecuniary Remedies – There are three kinds of pecuniary remedies that a copyright holder can seek:
- Anton Pillar Orders – The name has been derived from the case of Anton Pillar AG V. Manufacturing Processes. This contains the following elements:
- Injunction which stops the defendants from continuing the use of the copyrighted work.
- Order to the lawyer of the plaintiff to search for the copyrighted work and put it into their custody.
- Order to the defendants to give the names of the suppliers or the consumers of the infringed copyrighted products.
- Mareva Injunction: this is granted when the court ahs the reasons that the defendants are obstructions or delaying the grant of execution of a decree that has been granted by the court. The court may direct him to place any part of his property in the courts disposal as it may be satisfied for the execution of decree. his is provided in Order XXXVIII, Rule 5 of The Civil Procedure Code, 1908.
- Norwich Pharmacal Order: This order Is generally passed for Obtaining the information from the third party.
Criminal remedies for Copyright Infringement
Following criminal remedies are being provided under the copyright Act of 1957:
- Maximum imprisonment for three years and minimum for six months according to section 63 of the copyrights Act, 1957.
- Fine which may not be less than 50,000 but, may extend up to 2,00,000 according to section 66A of the copyrights Act,1957.
- Search and seizure of the infringed copyrighted work.
Cheria P Joseph vs. Prabhakaran in this case it was held that the clear proof of knowledge is necessary to establish the commission of the offence of infringement of copyright
Administrative remedies for infringement of copyright
- The registrar of the copyright can ban the moving or importing of the copies of the infringed copyrighted material into the whole India.
- The register can deliver the copies of the infringed copyrighted work and confiscate that work and give it back to the owner of the copyright or the copyright holder.