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Copyright infringement is the use of works protected by copyright law without permission,

infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce,
distribute, display or perform the protected work, or to make derivative works. The copyright
holder is typically the work's creator, or a publisher or other business to whom copyright has
been assigned. Copyright holders routinely invoke legal and technological measures to prevent
and penalize copyright infringement.

Copyright infringement disputes are usually resolved through direct negotiation, a notice and
take down process, or litigation in civil court. Egregious or large-scale commercial infringement,
especially when it involves counterfeiting, is sometimes prosecuted via the criminal
justice system. Shifting public expectations, advances in digital technology, and the increasing
reach of the Internet have led to such widespread, anonymous infringement that copyright-
dependent industries now focus less on pursuing individuals who seek and share copyright-
protected content online, and more on expanding copyright law to recognize and penalize – as
"indirect" infringers – the service providers and software distributors which are said to facilitate
and encourage individual acts of infringement by others.

Estimates of the actual economic impact of copyright infringement vary widely and depend on
many factors. Nevertheless, copyright holders, industry representatives, and legislators have long
characterized copyright infringement as piracy or theft – language which some U.S. courts now
regard as pejorative or otherwise contentious.

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Meaning and types of copyright infringement :

infringement occurs when an individual other than the copyright holder violates one or more of
the copyright holder’s exclusive rights to a work. Those rights are the right to reproduce the
copyrighted work, to make derivative works of the copyrighted work, to distribute the
copyrighted work, to perform the copyrighted work, and to display the copyrighted work. Again,
if one or more of those exclusive rights is violated, the violator will have infringed upon the
copyright of the copyright holder.

There are two types of copyright infringement: primary and secondary. For primary infringement
to occur, there must have been a direct infringement by a person/organization of an exclusive
right. To determine whether there was in fact a direct infringement, you must determine whether
the defendant himself, and without permission, reproduced/performed/displayed, etc., the
copyright holder’s work. If the answer is yes, then it is a direct or primary infringement. The
copyright holder will most likely use circumstantial evidence to prove that an exclusive right was
violated unless the defendant admits to violating a right. The copyright holder will need to show
that the defendant had some access to plaintiff’s work, and then must prove that the similarity
between the works is such as to sustain a conclusion that the defendant actually infringed. Both
of these requirements are factual determinations and the fact finder will use all available
evidence to reach a conclusion. Then, the final requirement for infringement is that the defendant
took enough of the copyright holder’s material as to warrant a finding of infringement. This is
generally accomplished by comparing the similarities between the works.

Secondary infringement occurs when a person/organization facilitates another person or group of


people to infringe upon a copyright. In Copyright Law, secondary liability has grown from
common law, meaning that it is not provided for by the statute but rather was developed from
case law. Relating to copyrights, the courts look to whether there was vicarious liability (derived
from tort law when the superior, such as an employer, is responsible for the actions of the
employee) or contributory liability (where a party intentionally induces or encourages primary
infringement and fails to exercise his/her ability to stop the primary infringement). Generally, in
copyright infringement cases, when determining whether a person/organization is vicariously
liable, they look to see that the superior party (the one potentially vicariously liable) must profit

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directly from the infringement of the direct infringer, and the superior must have the right/ability
to supervise the direct infringer. To be found liable for contributory infringement, the
person/organization accused of contributory infringement must have directly induced
infringement by others, or provide the means to infringe with the knowledge of infringement.

Copyright: Primary and secondary infringement

Under the Copyright Patent and Design Act 1998 the owners of copyright have the right not to
have their copyright infringed. There are two potential types of infringement under the CPDA
98:

1. Primary infringement
2. Secondary infringement

This post will briefly examine both types of infringement and future posts will examine both in
more detail.

Under s.16 CPDA 98 the owner if the copyright has the exclusive rights to do acts restricted by
copyright. These include the right to:

1. Copy the work


2. Issue copies of the work
3. Rent or lend the work to the public
4. Perform, show or play the work in public
5. Communicate the work to the public
6. Make an adaptation of the work

These are known as the “restricted rights”.

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Primary infringement
Acts of primary infringement do not require knowledge or intention of infringement on the
‘infringer’s’ part – they are strict liability “offences”.

An act of primary infringement is committed if a person does any of the following acts which
impinge on the restricted rights of the owner:

1. Copying the work


2. Issue copies of the work
3. Rent or lend the work to the public
4. Perform, show or play the work in public
5. Communicate the work to the public
6. Make an adaptation of the work

Infringement occurs when either the whole or a substantial part of the author’s restricted rights
are utilised by another person. This use can be direct or indirect on the part of the infringer. A
direct infringement would be, for example, copying the architectural drawings of an owner. An
indirect infringement would occur if the infringer went to the house that was built using the
architectural drawings of the owner and made a copy of the floor plan and dimensions of the
house.

It is also a breach of copyright to authorise or commission any other person to do any of the
above acts.

Secondary infringement
Secondary infringement does have to involve some knowledge or intention on the part of the
infringer. It is usually retailers or publishers who are ‘secondary infringers’. Examples include:

 Importing infringing copy


 Possessing or dealing with infringing copy
 Providing the means for making infringing copies

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Knowledge can be established on both an objective and a subjective basis. Objectively, the
Defendant is held to have had knowledge of infringement if a reasonable man would arrive at the
relevant belief of the infringement on the facts.

Viacom International, Inc. v. YouTube, Inc., No. 07 Civ. 2103, is a U.S. District Court for the
Southern District of New York case in which Viacomsued YouTube, a video-sharing site owned
by Google, alleging that YouTube had engaged in "brazen" and "massive" copyright
infringement by allowing users to upload and view hundreds of thousands of videos owned by
Viacom without permission.1 A motion for summary judgmentseeking dismissal was filed by
Google and was granted in 2010 on the grounds that the Digital Millennium Copyright Act's
"safe harbor" provisions shielded Google from Viacom’s copyright infringement claims.2 In
2012, on appeal to the United States Court of Appeals for the Second Circuit, it was overturned
in part. On April 18, 2013, District Judge Stanton again granted summary judgment in favor of
defendant YouTube.3 An appeal was begun, but the parties settled in March 2014.4

INFRINGEMENT OF COPYRIGHT 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

1
"Complaint for Declaratory and Injunctive Relief and Damages by Viacom against Google". Docket Alarm, Inc. Retrieved May 9, 2013.
2
"Opinion and Order Granting Summary Judgment that Defendant YouTube Qualifies for Protection of 17 U. S. C. § 512 (c) Against all of
Plaintiffs' Claims for Direct and Secondary Copyright Infringement". Docket Alarm, Inc. Retrieved May 9, 2013.
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"Granting Defendant YouTube's Renewed Motion for Summary Judgment; Entering Judgement that Defendants are Protected by the Safe-
Harbor Provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 512(c) from all of Plaintiffs Copyright Infringement Claims.". Docket
Alarm, Inc. April 18, 2013. Retrieved May 9, 2013.
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"Docket Information for Viacom v. YouTube". Retrieved May 9, 2013.

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of copyright. These are in nature of exceptions to the exclusive rights conferred up on the
copyright owner. They also serve as defences 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.5

Meaning and types of infringement

Copyright infringement issue has raised an alarm in today’s world. When a person intentionally
or unintentionally copies or uses the work of another creator, without his prior consent or
permission, or any contract or license or assignment with the author as covered by the copyright
law, it amounts to infringement.6 Infringement can be broadly classified into two:-

1. Primary infringement;

2. Secondary infringement.

Primary infringement deals with the real act of copying, while secondary infringement deals
with other kinds of dealing like selling the pirated books, importing etc.

Causal Connection

When two works are similar and when the defendant has access and opportunity to copy the
plaintiffs work the court may infer causal connection. One factor which may be very helpful in
providing this causal link is the fact that infringing works contain the same mistakes that occur in
the first work.

What is copying? It can be accumulation of insubstantial taking, subconscious copying. Music


composers sometimes subconsciously copy songs that they had heard a decade ago.

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Justice P.S.Narayana,”Intellectual Property Rights”, 3rd Ed., 2004.
6
www.pressreleasepoint.com/copyright-infringement-and-its-remedies

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Copyright protection

Copyright protection is automatic. The work is protected the moment it is created and copyright
notice is placed on work for its protection. Registration of copyright is not compulsory either for
acquiring copyright or for by enforcing by way of suit against the infringement of the copyright 7

A copyright notice should contain: I the word “copyright” II A “©” in a circle III the name of
either the author or the owner of all the copyright rights in the published work. For example
Copyright ©2002 NID, means the work was published in the year of 2002 and the copyright
belongs to NI8. As per Berne Convention (to which India is a signatory) for protection of literary
and artistic works, use of copyright notice is optional. However, it is advisable to incorporate a
copyright notice.

Term of Copyright

In case of literary, dramatic, musical or artistic works, the term is lifetime of the author plus sixty
years. In case of cinematograph films, records, photographs, posthumous publication, works of
Government and international agencies, the term is sixty years from the date of publication. In
case of broadcasting the term is of twenty-five years from the year in which the broadcast was
made9

Assignment

Assignment of copyright has to be in writing and signed by the assignor or by his duly authorised
agent10. Copyright is a multiple right, consisting of a bundle of different rights in the same work,
which can be assigned or licensed either as a whole to one party or separately to different parties.
For example, take any book say ““ONE WITH THE WINDE””- separate right exist in the same
work – viz. reproduction in hard back and paperback edition, right of serial publication in a
magazine, right of dramatic version or cinematograph version, translation, adaptation etc.

The deed of assignment must specify the `rights assigned’, the duration and territorial extent of
assignment. When duration of assignment is not specified, it is presumed to be for five years and

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http:/www.indiainbusiness.nic.in/investment/copyrights.htm
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ttp:/www.nid.edu/national institute of design
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http:/www.kipro.org/copyright.htm
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Section 19

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when territorial extent is not specified, it is presumed to extend within India (this presumption is
applicable to assignments made after 1994).

An assignment of a Copyright is exempted from Stamp Duty11. In the Deed of Assignment,


assigning copyright along with some other property say trademarks, it is advisable to state as to
what part of consideration is towards the assignment of copyright.

Extent of copyright protection

In case of a published work the copyright will subsists in India if, the work is published in India
OR if the work is published outside India – the author at the time of publication (if alive at that
date) or at the time of his death is citizen of India.

In case of an unpublished work, the copyright subsists in India if: The author at the time of
making of work was a citizen or domicile of India. In case of architectural work, if work is
located in India.

11
Article 25 of Schedule I of the Bombay Stamp Act, 1958

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Infringement of copyright can be hard to prove – potential Defendant’s rarely leave traces of
how they have violated copyright. However, the law relating to copyright does aid the owners of
copyright in certain ways – for example, there is a presumption that the Defendant has copied the
work of the Claimant if the two works are similar and the Defendant had access to that work.
The burden is then placed on the Defendant to provide evidence that his work is original and not
copied.

A copyright infringement case should be approached as if it were a jigsaw puzzle. Your case’s
factual, statutory, court-created and practically necessary puzzle pieces should be identified,
addressed, and related to each other sooner rather than later. Plaintiff’s case can be

successful if the pieces fit, but a shambles if one does not. Fair dealing is an important concept in
Indian Copyright law. However, despite its importance in the copyright regime and the
importance in the copyright regime to advancement of technology, the concept remains
unexplored in India.