Remedies For Copyright Infringement In India
Copyright law confers upon the owner of the work a bundle of rights in respect of reproduction of the work and the other acts which enables the owner to get financial benefits by exercising such rights. If any of these rights relating to the work is carried out by a person other than the owner without the license of the owner or a competent authority under the act, it constitutes infringement of copyright in the work.
Since copyright is granted for a limited period, there will be no infringement if the reproductions of the work or other acts concerned are carried out after the term of the copyright has expired. The exclusive rights conferred on the owner depends on the nature of the work in which copyright subsists. Accordingly the type of acts which will constitute infringement will also depend on the nature of work. Section 51 defines infringement of copyright generally. Section 52 defines a long list of acts which do not constitute infringement of copyright. These are in nature of exceptions to the exclusive rights conferred up on the copyright owner. They also serve as defenses in an action for infringement of copyright.The exclusive right granted under the Act extends also a translation or adaptation of the work or to a substantial part thereof. Thus copyright will be infringed if the substantial part of the work was reproduced. What amounts to substantial part of work will depends on the circumstances of the case.
The remedies for copyright infringement are:
- Criminal, and
The most importance civil remedy is the grant of interlocutory injunction since most actions start with an application for some interlocutory relief and in most cases the matter never goes beyond the interlocutory stage. The other civil remedies include damages – actual and conversion; rendition of accounts of profits and delivery up.1)INTERLOCUTORY INJUCTIONS:
The principles on which interlocutory injunctions should be granted were discussed in detail in the English case of American Cyanamid v Ethicon Ltd. (1975). After this case, it was believed that the classic requirements for the grant of interim injunction, namely,
- Prima facie case
- Balance of Convenience; and
- Irreparable injury
Under Indian law, however, there is a departure made and the plaintiff, under sections 55 and 58, can seek recovery of all three remedies, namely
(a) account of profits
(b) compensatory damages and
(c) conversion damages which are assessed on the basis of value of the article converted.
3) ANTON PILLER ORDERS:
The Anton Pillar Order derives its name from a Court of Appeal decision in Anton Pillar AG V. Manufacturing Processes . An Anton Piller Order has the following elements:
- An injunction restraining the defendant from dealing in the infringing goods or destroying, them;
- An order that the plaintiffs solicitors be permitted to enter the premises of the defendants, search the same and take goods in their safe custody; and
- An order that defendant be directed to disclose the names and addresses of suppliers and customers and also to file an affidavit will a specified time giving this information.
4) MAREVA INJUNCTION:
Mareva Injunction is an order which temporarily freezes assets of a defendant thus preventing the defendant from frustrating the judgement by disposal of such assets.
5) NORWICH PHARMACAL ORDERS:
These are orders by which information can be discovered from third parties.
Criminal remedies for copyright violation include:
- Punishment through imprisonment which, under Indian law, may not be less than six months but which may extend to three years;
- Fines which, under Indian law, shall not be less than Rs.50.000. and which may extend to Rs.200, 000.
- Search and seizure of the infringing goods including plates which are defined as including blocks, moulds, transfers, negatives, duplicating equipment or any other device used or intended to be used for printing or reproducing copies of the work.
- Delivery up of infringing copies or plates to the owner of the copyright.
If you have questions about the information presented here or if you would like to receive personalized legal advice, contact BDS Legal Services and get a free consultation.
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