1.

Infringement remedies under Copyright Law

Remedies for Copyright Infringement in India

This paper looks at the different remedies a person has for copyright
infringement in India. There are three types of remedies a person can get for
copyright infringement in India – civil remedies, criminal remedies and
administrative remedies. This paper will be analysing each of them in detail.

 Types of Copyright Infringements

Copyright infringement has become a serious issue in the modern world.

Infringement occurs when a person intentionally or unintentionally copies the
work of another creator. Infringement is usually classified into two categories
– primary infringement and secondary infringement.

Rights of Copyright Owners

It is important to first understand the rights held by a copyright owner before

tackling the remedies for infringement. Authorized copyright owners have the
right to:

 Publish the work

 Perform the work in public
 Produce the work in a material form
 Produce, reproduce, perform or publish any translation of the work
 Make any adaptation of the work
 Communicate the work through broadcast, radio or cable

The original creator of the work enjoys a few exclusive rights to:

 Make copies of the work

 Make a derivative based on the original
 Distribute the work
 Perform the work publicly
  Display the work in a commercial setting
 Seek remedies for unauthorized use of the copyright work

Civil Remedies for Copyright Infringement

The civil remedies for copyright infringement are covered under Section 55 of
the Copyright Act of 1957. The different civil remedies available are:

1)    Interlocutory Injunctions

The most important remedy is the grant of an interlocutory injunction.  In

most case the application filled is for interlocutory relief and the matter
rarely goes beyond the interlocutory stage. There are three requirements for
there to be a grant of interlocutory injunction – Firstly, a prima facie  case.
Secondly, there needs to be a balance of convenience. Finally, there needs to
be an irreparable injury.

2)    Pecuniary Remedies

Copyright owners can also seek three pecuniary remedies under Section 55
and 58 of the Copyright Act of 1957. First, an account of profits which lets
the owner seek the sum of money made equal to the profit made through
unlawful conduct. Second, compensatory damages which let the copyright
owner seek the damages he suffered due to the infringement. Third,
conversion damages which are assessed according to the value of the article.

3)    Anton Pillar Orders

The Anton pillar order gets its name from the holding in Anton Pillar AG V.
Manufacturing Processes. The following elements are present in an Anton
Pillar Order – First, an injunction restraining the defendant from destroying
or infringing goods. Second, an order permitting the plaintiff’s lawyer to
search the defendant’s premises and take goods in their safe custody. Third,
an order that the defendant be directed to disclose the names and addresses
of suppliers and consumers.
4)    Mareva Injunction

The Mareva injunction comes into play when the court believes that the
defendant is trying to delay or obstruct the execution of any decree being
passed against him. The court has the power to direct him to place whole or
any part of his property under the court’s disposal as may be sufficient to
satisfy the decree. This is provided in Order XXXVIII, Rule 5 of The Civil
Procedure Code, 1908.

5)    Norwich Pharmacal Order

The Norwich Pharmacal Order is usually passed when information needs to

be discovered from a third party.

Criminal Remedies

Under the Copyright Act, 1957 the following remedies are provided for
infringement:

 Imprisonment up to 3 years but, not less than 6 months

 Fine which may not be less than 50,000 but, may extend up to 2,00,000
 Search and seizure of infringing goods
 Delivery of infringing goods to the copyright owner

Fair Dealing under Copyright Law in India

The defence of fair dealing is an integral part of copyright law. The fair
dealing defence allowed certain usage of literary works which, would have
otherwise been an infringement of copyrights. The fair dealing defence states
that copyrights must not stifle the very creativity that law is meant to
foster[1]. It is  “a key part of the social bargain at the heart of the copyright
law, in which as a society we concede certain limited individual property
rights to ensure the benefits of creativity to a living culture.”

The Indian Copyright Act under Section 52 makes fair dealing a valid defence
for copyright infringement. This defence places the burden of proof on the
copyright owner to establish infringement. However, the Copyright Act has
not defined fair dealing which led the Indian court to rely on the definition of
English authorities. The court usually relies on the case of Hubbard vs
Vosper which held that “It is impossible to define what is “fair dealing.” It
must be a question of degree. You must consider first the number and extent
of the quotations and extracts. Are they altogether too many and too long to
be fair? Then you must consider the use made of them. If they are used as a
basis for comment, criticism or review, that may be fair dealing. If they are
used to convey the same information as the author, for a rival purpose, that
may be unfair. Next, you must consider the proportions. To take long
extracts and attach short comments may be unfair. But, short extracts and
long comments may be fair. Other considerations may also come to mind.
But, after all, whatever  said and done, it must be a matter of impression. As
with fair comment in the law of libel, so with fair dealing in the law of
copyright. The tribunal decides on facts of the case. In the present case,
there is material on which the tribunal of fact could find this to be fair
dealing.

Non-obviousness/Inventive step under Patents Law

The inventive step and non-obviousness reflect a general patentability requirement present
in most patent laws, according to which an invention should be sufficiently inventive—i.e.,
non-obvious—in order to be patented.[1] In other words, "[the] nonobviousness principle
asks whether the invention is an adequate distance beyond or above the state of the art".[2]
The expression "inventive step" is predominantly used in Europe, while the expression "non-
obviousness" is predominantly used in United States patent law.[1] The expression
"inventiveness" is sometimes used as well.[3] Although the basic principle is roughly the
same, the assessment of the inventive step and non-obviousness varies from one country to
another. For instance, the practice of the European Patent Office (EPO) differs from the
practice in the United Kingdom.
Rationale
The purpose of the inventive step, or non-obviousness, requirement is to avoid granting
patents for inventions which only follow from "normal product design and development", to
achieve a proper balance between the incentive provided by the patent system, namely
encouraging innovation, and its social cost, namely conferring temporary monopolies.[4]
The non-obviousness bar is thus a measure of what society accepts as a valuable discovery.
[5] Additional reasons for the non-obviousness requirement are providing incentives for
fundamental research rather than for "incremental improvements", and minimizing the
"proliferation of economically insignificant patents that are expensive to search and to
license".[6]
According to the inducement theory, "if an idea is so obvious that people in the field would
develop it without much effort, then the incentives provided by the patent system may be
unnecessary to generate the idea".[7] Thus, there is a need "to develop some means of
weeding out those inventions which would not be disclosed or devised but for the
inducement of a patent." [8] Merges and Duffy[9] regret that "the inducement standard was
not influential in the legal doctrine, and its absence from subsequent case law raises one of
the great unanswered questions of patent law: How can courts continue to ignore a
seemingly reasonable and theoretically solid approach to determining patentability?

2. Life form Patents

3. Design Act
4. Domain names as Trademarks
5. Defences under copyright infringement
6. Patent term extension
7. Orphan Drugs
8. Divisional application
9. Invalidation of Patent
10. PCT
11. Most Favored Nation (MFN)
12. Madrid agreement
13. Berne convention
14. Doha declaration
15. Priority Filing
16. Patent Extension
17. Divisional Patent
18. Invalidity of Patents
19. Patent Extension
20. Divisional Patent
21. Invalidity of Patents
22. Passing off under Trademarks
23. Neighboring or Allied rights under copyright
24. Orphan Drugs
25. Bolar provision
26. Convention Application
27. National Treatment
28. Budapest Treaty
29. WIPO
30. Patent of Addition
31. Non Obviousness/utility/inventive step criteria for patent application.
32. Significance of Madrid Protocol.
33. Significance of Budapest Treaty.
34. Procedure involved in restoring the patent.
35. Limitation and Exception of Patent.
36. Independent Claim and dependent claims of patent