Dr.

SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY

Lucknow

Faculty of Law

ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS

(Infringement of copyright)

Submitted by

Harsh Savita

(5th Semester)
Academic Session: 2020-21

Under the Supervision of

Mr. Sandeep Mishra

Faculty of law

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INDEX TABLE OF CONTENT PAGE NO.

1.Introduction. 4

2.Definition of copyright. 4

3.Importance of copyright. 5

4.Purpose of copyright. 5

5.Scope of copyright. 5

6. Copyright protection. 6

7.Registration of copyright. 6

8. Infringement basic definition. 6

9.Copyright Infringement elements. 8

10.Copyright issues. 8

11.Types of infringement. 8

12.Remedies for infringement. 12

13..Conclusion. 13

14.Bibliography. 14

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ACKNOWLEDGEMENTS:-

First and foremost, I am thankful to Mr. Sandeep Mishra for allotting

me the topic “ Infringement of copyright”. He has been very kind in
providing inputs for this work, by way of suggestions materials.
I would also like to thank my dear colleagues and friends in the
University, who have helped me with ideas about this work. Last, but
not the least I thank the University Administration for equipping the
University with such good library and internet facilities, without
which, no doubt this work would not have taken the shape in correct
time.

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INTRODUCTION:-

Copyright is a form of protection provided to the creators of “original works of authorship,”

including literary, dramatic, musical and artistic works. The importance of copyright was
recognized only after the invention of the printing press, which enabled the reproduction of
books in large quantities. England’s “Statute of Anne” is regarded as the first copyright law.
This law for the first time accorded exclusive rights to authors and limited the duration of
such exclusive rights to a certain number of years, after which all works would pass into the
public domain. Copyright is a creation of a statute. Under the present law there is no such
thing as a common law copyright.
The Act make it clear that no person shall be entitled to or unpublished copyright or any
similar rights in any work, whether published unpublished, otherwise than in accordance with
the provisions of the Act. Copyright is a form of IPR. The concept of IPR in the work as
distinguished from the physical Kaproperty in the material containing the words was
developed by leading philosophers like Kant Hegel and Schopenhauer. Copyright is a
multiple right, consisting of a bundle of different right in the same work. These right can be
assigned or license either as a whole or separately.
Copyright infringement is the use or production of copyright-protected material without the
permission of the copyright holder. Copyright infringement means that the rights afforded to
the copyright holder, such as the exclusive use of a work for a set period of time, are being
breached by a third party. Music and movies are two of the most well-known forms of
entertainment that suffer from significant amounts of copyright infringement. Infringement
cases may lead to contingent liabilities, which are amounts set aside in case of a possible
lawsuit.

DEFINITION OF COPYRIGHT:-

Copyright refers to the collection of rights that are automatically vested on the creator of the
original work of authorship such as a literary work, music, movies or software. The copyright
holder i.e. the creator of the original work has the right over his work, he can transfer his
rights to others or keep full control over his work by not giving the right to anyone to copy or
produce his work.

Copyright has been defined in Section 14 of the Copyright Act, 1957 as an exclusive right to
do or authorise the doing of any of the following acts in respect of a work or any substantial
part thereof, namely:
1.Reproduce the work in any form including storing the work in any form
2.Issue copies of the work to the public

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3.Perform the work in Public
4.Make any cinematographic film in respect of the work
5.Translate the work
6.Make an adaptation of the work

Examples:-

1.Someone publishes the novel, then he gets the copyright for the novel.
2.The makers of the film have a copyright over the film.

IMPORTANCE OF COPYRIGHT:-

Copyright is important for various reasons, namely,

1.Copyright legally protects the creator’s work

2.Copyright helps the author to exercise control over his work

3.It provides ownership to the creator of the work.

PURPOSE OF COPYRIGHT:-

1.To promote the progress of useful arts and science by protecting the exclusive rights of the
creators.

2.To provide incentive and reward to the creators for producing original content. The creators
can be economically benefited by their copyrighted work and receive proper recognition.

3.To encourage the creators to come up with creative ideas.

SCOPE OF COPYRIGHT:-

1.Copyright is provided for a wide range of expressions like literary works, Artistic work,
music and Cinematography.

2.Literary works include novels, books, newspaper articles, journals, research papers,
magazines, instruction manuals.

3.Artistic work includes painting, sculpture, diagrammatic representation, drawing.

4.Music includes original music work and a specific combination of melody and harmony.

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5.Cinematography includes movies, tv shows, documentaries, television recording of events.

6.It is provided for work and not for ideas.

COPYRIGHT PROTECTION:-

Copyright protection is given to all original literary, artistic, musical or dramatic, sound
recording and cinematography. The originality of the work is the prerequisite to claim for
copyright. Original work means that the work has not been copied. A work is protected
irrespective of its content or quality.

REGISTRATION OF COPYRIGHT:-

It is not mandatory to register the work to claim copyright and it commences the moment the
work is created. However, it is advised to register the work for better protection, it will serve
as proof in a matter of dispute.

Section 13 of the Copyright Act, 1957 states that the copyright can be given only for the
original work. Copyright is usually provided for 60 years

INFRINGEMENT BASIC DEFINITION:-

Copyright is infringed by a person who without a license of the copyright owner, does, or
authorizes another to do, any of the acts restricted by the copyright. Not only is copyright
therefore infringed by anyone who does not of the restricted acts without a license, but also
by anyone who without license authorizes the doing of any such acts.
An infringing act of authorization is a separate tort from the infringing act so authorized. In
addition copyright is infringed.

(A).By the doing of any act of these acts not only in relation to the whole of a work but also
in relation to any substantial part of it,

(B).By the doing of any of these acts indirectly as well as directly, it being immaterial
whether any act intervening themselves infringes copyright.

The doing of any of these acts by any person other than the copyright owner or one who is
permissible is therefore an infringement unless the act falls within the statutory permitted acts
or Os otherwise excusable. Each wrongful exercise of exclusive rights constitutes a separate
tort. Apart from these acts, however, other dealings with a work do not constitute a primary
infringement. It is thus a infringement of copyright to read a hard copy of a book or to resell a

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copy which was purchased in a bookshop. Exclusive right granted under the Act extend also
to a translation or adaptation of the work or to a substantial part thereof.

Thus copyright will be infringed if a substantial part of the work is reproduced. What amount
to a substantial part of the work is depend upon the case.

STATUTORY DEFINITION OF INFRINGEMENT(SECTION 51): –

When copyright infringed. -Copyright in a work shall be deemed to be infringed

(a).When any person without a license from the owner of the copyright, or the Registrar of
Copyright, or in contravention of the conditions of a licence granted or any conditions
imposed by a competent authority under the Act:

(i).Does anything, the exclusive right to do which is conferred upon the owner of the
copyright,
Or
(ii).Permits for profit any piece to be used for the communication of the work to the public
where such communication constitutes an infringement of the copyright in the work, unless
he was not aware and had. No reasonable ground for believing that such communication to
the public would be an infringement of copyright, or

(b) when any Person-

(i) makes for sale or hire, or sells or lets for hire or by way of trade displays or offers for sale
or hire any infringing copies of the work, or

(ii)Distributes, either for the purpose of trade or to such an extent as to affect prejudicially the
owner of the copyright, any infringing copies of the work, or

(iii)exhibits in public by way of trade any infringing copies of the work, or

(iv)Imports into India any infringing copies of the work except one copy of any work, for the
private and domestic use of the importer.

Explanation.- For the purposes of this section, the reproduction of a literary, dramatic,
musical or artistic work in the form of a cinematograph film shall be deemed to be an
“infringing copy”.

Example

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1.If a person uses someone’s song as background music in his/her music video then he could
be made liable for copyright infringement.

2.If a person downloads movies or songs from an unauthorized source then it will amount to
copyright infringement.

3.A person is free to record a TV program to view it later, but if he transfers or distributes it
to others then it becomes a copyright infringement.

COPYRIGHT INFRINGEMENT ELEMENTS:-

1.The work was the original creation of the author

2.The defendant actually copied the work of the author. It is important to note that not all
factually copying is legally actionable. The substantial similarity between the works of the
author and the defendant has to be established to prove that the defendant has infringed the
author’s copyright.

COPYRIGHT ISSUES:-

There are a number of issues that can arise in Copyright. These are discussed below:

Plagiarism

Someone may copy the copyrighted material and pretend it to be his original work. People
are allowed to quote the work or refer the work but the person who is using the copyrighted
work has to give the credit to the copyright holder.

Ownership

The issue of ownership may arise when an employer works for an organisation. In such case
who has the copyright over the work? If a person is an employer then it is the organisation
which has the copyright over the material but if a person is a freelance writer then it is the
person himself who is the sole owner of the copyrighted material.

Derivative Works

Derivative works use the already existing work of someone. It is a new version of already
existing material. For example, translating a book into another language. A person requires a

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license for it but if he has not obtained the license for it then he can be made liable for
copyright infringement.

TYPES OF COPYRIGHT INFRINGEMENT:-

1.PRIMARY INFRINGEMENT

2.SECONDARY INFRINGEMENT

1.PRIMARY INFRINGEMENT:-

The exclusive right to prevent copying or reproduction of a work is the most fundamental
word historically the oldest, right of a copyright owner. Now-a-days copyrighted work is
exist in all te categories. But there are certain degree or test to be established whether a right
is infringed or not. Some points are common in considering that whether an act is deemed to
be infringement or not.

1.The right is the exclusive right of copying for thought to be infringed two elements must be
established there must be a sufficient degree of similarity between the two work and the work
is the result of the copyrighted work and there is a sufficient degree of similarity between the
two work and the work is the result of the copyrighted work and there is a casual connection
between the two.

2.When there is a copying of a substantial part of it.

3.There is a exclusive right to copy the work directly or indirectly.

4.Exclusive right is also extent to the making of copies which are transient or incidental to
some other use of the work.sufficient
Similarity-

There must be sufficient objective similarity between the two copyrighted work and alleged
copy.

(a).First the allegedly infringing work must be in real sense represent the claimant’s. Thus a
literary work consisting of instructor will not be in real sense represent the claimant’s. Thus a
literary work consisting of instructor will not be infringed by the making of an article with
respect to that instruction and an artistic work such as circuit diagram will not be infringed by
describing in content or words.

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(b) Second- when there is a no sufficient objective similarity between the two work then there
will be no infringement. Even if a copyrighted work has been used as a reference or is a
inspiration to what the defendant has been used done, this is by itself its not enough if there is
no such similarity. IDEA VS EXPRESSION- Copyright is only granted on the expression on
idea not on the idea itself. When a person derives his work from the claimant but may have
done too much in such a way either deliberately or through completely which does not
amount to infringement.

Casual Connection-

There must be casual connection between the two work because there will be no infringement
unless there is a direct connection between the copyrighted work. There must be casual
connection between the copyrighted work or the infringing work .

Substantial Part-

law never allows a defendant to escape a liability on the grounds infringement not copied the
plaintiff work exactly less than complete copying has always been an infringement. In this it
is laid down that copyright should not be allowed to become an instrument of oppression and
extortion. Infringement is not always when there is a exact copies of the claimant work
exactly less than complete copying is always an infringement.
Substantial part of the claimant work can usually be characterized

(a)The exact use of part of the work only( or where the extracts from literary work have been
taken verbatim)

(b)Some reworking of the whole of it( where the whole of literary work has been
paraphrased, dramatic or translated into another language, an entire artistic work imitated in
some other ways)

© Combination of these.

In determining whether there is a substantial part, applying the test and to determine whether
the whole work has been imitated, modified or otherwise altered without exact copying of
any part.

In the case of
R.G Anand Vs Deluxe Films
In this case court held that film produced by defendant cannot be said a substantial copy and
defendant cannot be held liable for copyright because both are different in story climax and
characteristics. Moreover copyright cannot be acquired in idea and copyright offers
protection only to the expression of ideas and not the idea itself. So, there is no infringement
and allegation made by plaintiff is not valid.

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In the case of
Macmillan And Company Limited Vs K. and J. Cooper

In these case action brought by the appellant to restrain the defendant a firm carrying on in
bombay trade and publishing of educating books in which the relief was claimed was that the
copyright exist in such books. In these case it is laid down that copyright is exist in original
work and appellant work is not the original work so there is no infringement of copyright and
also there is no absolute verbal identity of some of notes in both the books.

In case of
In Hindustan Pencils Ltd v Alpna Cottage Industries

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.

SECONDARY INFRINGEMENT:-

It is basically based on the principle that it is necessary ingredient of the tort that the
defendant must have a degree of guilty knowledge before he can be liable. It is termed as
primarily act of an infringer. Dealing with infringer copies-The main act of secondary
infringement concern dealing with infringing copies. Person is also liable who knowingly
possess or provide the means for making infringing copies.
Thus the copyright of a work is infringed by a person who, without the license of a work is
infringed by a person who, without the license of a copyright

(a).Makes
(b).Imports
©.Possess in the course of a business
(d).Sells or lets for hire, or offers or expenses for sale or hire.

Copyright in a work is also be infringed by a person, who, without the license of the
copyrighted Owner transmit the work by means of a telecommunication.Where the copyright
in a literary, dramatic or musical work is infringed by a performance at a place of public
entertainment, any person who gave permission for that place to be used for performing is
also liable for infringement unless he gave permission be believed on reasonable ground that
performance would not infringed copyright.

In the case of
Microsoft Files Copyright Infringement Case against KK Software

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Microsoft has filed a copyright case against Kamlesh Kumar Jha, the owner of New Delhi-
based KK Software Solutions, and other defendants for allegedly indulging in software piracy
and counterfeiting Microsoft products, in the Delhi High Court for permanent injunction and
damages. CBI concluded its investigations and filed charge sheet against KK Jha and others
before the court of Chief Metropolitan Magistrate (CBI Cases), New Delhi in December
2011citing violations of the Copyright Act 1957, the Information Technology Act 2000 and
the Indian Penal Code 1860. This criminal case is currently awaiting framing of charges by
the court, according to Microsoft Microsoft informed that at the hearing of the civil case on
January
7, 2013, the Delhi High Court after examining the case has issued an ex-parte ad interim
injunction restraining the defendants from undertaking any further reproduction, storage,
installation and/or usage of infringing/unlicensed software of Microsoft.
In the case
John Richard Brady & Others. V. Chemical Process Equipment Pvt. Ltd,
Delhi High Court

This is a case concerning the legal principle of copyright infringement involving trade secrets
and engineering. Brady was the owner of copyright in the drawings of the FPU and was
entitled to the exclusive right of publishing and reproducing the drawings whether two
dimensionally or three dimensionally as he considered apt. Defendant was falsely using the
plaintiff pictures and developed their own design.
Thus, the court restrained the Chemical Process Equipment Pvt. Ltd from manufacturing and
selling machines that were substantial imitation and reproduction of the drawings of Brady’s
FPU or from using in any other manner whatsoever the know-how, specifications, drawings
and other technical information about the FPU disclosed to them by Brady.

REMEDIES FOR INFRINGEMENT OF COPYRIGHT:-

Under the Copyright Act, 1957 the copyright holder has two types of remedies:-

Civil Remedies:-

Section 55(1) of the copyright act, provides that the copyright holder is entitled to remedy by
way of injunction. The injunction is the most effective remedy in case of copyright
infringement. Injunction refers to the judicial process by which one who is threatening the
legal rights of someone is restrained to continue his acts or is ordered to restore the matter to
the position in which they stood before the action.

Section 55(1) of the copyright act, further provides that the copyright holder is entitled to
damages for copyright infringement. The purpose of providing the damages to the copyright
holder is to restore him to the earlier position. There are various factors that determine the
amount of damages to be paid to the copyright holder. Generally, the damages are awarded

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for the amount that the copyright holder would have got if the person had obtained the license
from him. However, there are various other factors as well, that determines the amount of
damages like the loss of profit to the copyright holder, loss of reputation, decrease in the sale
of the copyright holder’s work etc.

Criminal Remedies:-

The copyright holder can take criminal proceedings against the infringer. The criminal
remedy is not an alternative to the civil remedy but is complementary to it. Thus, the
copyright holder can bring both civil and criminal proceedings simultaneously.
Section 63 of the Copyright Act, states that copyright infringement is a criminal offence.

CONCLUSION:-

The provision for the protection of copyright infringement in India is strong and effective.
But it is not enough making provision we cannot conclude that copyright protection is strong
and it is not going to infringed. It is easy to get a pirated music videos, movies, pirated
Shopkeepers not afraid to dealing with these pirated things and taking the law in his hands by
dealing with these copyrighted material. Police also sometimes also not take the appropriate
action which is required to protect the copyright infringement. There should be effective
enforcement of law that no infringement should be taken places. Now a day cyberspace
infringement is very common so there should be strict rules and regualation should be made
to protect the cyberspace copyright infringement. Judiciary also played a very important and
effective role in protective of copyright infringement. The situation is, however, not as
alarming as it is perceived and the existing legal system can effectively take care of any
problems associated with copyright infringement.

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BIBLIOGRAPHY:-

• Intellectual property by P Narayan

•https://www.mondaq.com/india/copyright/953334/copyright-infringement
•https://info.legalzoom.com/forms-copyright-infringement-23122.html

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