Infringement of

UNIT 9 INFRINGEMENT OF COPYRIGHT Copyright and

Exemptions
AND EXEMPTIONS
Structure
9.1 Introduction
Objectives
9.2 Infringement – Meaning in the Context of the Act
Common Acts Involving Infringement
9.3 Governing Principles for Deciding Infringement
9.4 Exceptions to Infringement of Copyright
9.5 Remedies of Copyright Infringement
Before Civil Courts
Before Criminal Courts
Before the Registrar
9.6 Copyright Protection in a Digital Era
The Reproduction Right
The Adaptation Right
The Distribution Right
The Public Performance and Public Display Rights
9.7 Summary
9.8 Terminal Questions
9.9 Answers and Hints

9.1 INTRODUCTION
This is an important unit which deals with infringements of copyright and the valid
exceptions to such infringements. Usually, infringing copies are made and then sold
for profit to the exclusion of the owner/author and performer. In such situations of
infringement, it is also necessary to know where the remedies lie. Given the advanced
technologies, copying becomes difficult to trace as much as it becomes nearly
impossible from its spreading all over the world in a matter of minutes. In this
digitalized era, copyright protection becomes very difficult. In the absence of any
settled provisions, recourse to case law has become unavoidable. The discussion on
this subject ends with a status review of four such rights: reproduction right,
adaptation right, distribution right and public performance and public display rights.
Objectives
At the end of this unit, you should be able to know:

• technical meaning of ‘infringement’;

• governing principles deciding Infringement as well as exceptions;
• remedies available in civil/criminal courts as well as before the Registrar against
such infringement; and
• finally, copyright protection in the digital era especially in respect of the
reproduction right, adaptation right, distribution right and public performance and
public display rights.

9.2 INFRINGEMENT − MEANING IN THE CONTEXT OF

THE ACT
Under Section 14(1)(a) of the Copyright Act, 1957, copyright in the case of a literary,
dramatic or musical work means the exclusive right of the holder to reproduce the
work in any material form; to publish the work; to produce, reproduce, perform or
publish any translation of the work; to make any cinematographic film or a record in
respect of his work; to communicate the work by any means to the public as well as to
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The Copyright Act, 1957 make any adaptation of the work. In the case of an artistic work, the holder of
copyright may do whatever is recognized in Section 14(1)(b) of the Copyright Act,
1957. Section 14(1)(c) and Section 14(1)(d) of the Act deal with the rights of a
copyright-holder in a cinematograph film or record. Chapter IV of the Copyright Act,
1957 deals with the ownership of copyright and the rights of the owner. The author of
a work or a person who is deemed to be the first owner of the work under Section 17
is recognised as the first owner of the copyright. A copyright can be assigned for
value under Section 18 and, on such assignment, the assignee becomes the owner,
with the right to exploit the copyright to his advantage to the extent it is assigned in
his favour. The owner of a copyright can relinquish his right also, as provided by
Section 21 and, on such relinquishment, it ceases to exist. Section 22 of the Act
provides that except as otherwise provided therein, copyright shall subsist in any
literary, dramatic, musical or artistic work (other than a photograph) published within
the lifetime of the author until 50 years from the beginning of the calendar year next
following the year in which the author dies. The period of 50 years has been increased
to 60 years by an amendment of the Act in 1992.
Whenever any person makes breach of any right of a copyright holder he is said to
have infringed the copyright. Section 7(m) of the Act defines “infringing copy” a
reproduction of the work or importation thereof in contravention of the work.
Section 51 defines when infringement takes place. A work is deemed to be infringed
when any person without license or in contravention of license or assignment does any
act, which is copyright of another. Even if any person is permitting any other person
to allow producing infringing copies from his place for profit, then it will also be said
to be infringing the right of copyright holder. Sale, rental, hires, distribution,
exhibition and importation of infringing copies of copyrighted work shall also be
called as infringement.
Illegal use or violation by way of exploitation within authorization of the author of the
copyright amounts to infringement. According to Section 51, copyright in a work shall
be deemed to be infringed:
a) when any person, without a license from the owner or the Registrar of copyright
does anything, the exclusive right to do which by this Act is conferred on the
owner of the copyright, or permits for profit any place to be used for the
communication of the work to the public, unless he was not aware and had no
reasonable ground for believing that such communication would be an
infringement of copyright, or
b) when any person makes for sale/hire or by way or trade displays or offers for
sale/hire, or distributes either for trade purpose or to such an extent as to effect
prejudicially the owner of copyright, or by way of trade exhibitions in public, or
imports into India, any infringing copies of the work.
The explanation appended to the section makes it clear that reproduction of a literary,
dramatic, musical or artistic work in the form of a cinematograph film shall be deemed
to be an ‘infringing copy’.

9.2.1 Common Acts Involving Infringement

The following are some of the commonly known acts involving infringement of
copyright:
i) Making infringing copies for sale or hire or selling or letting them for hire;
ii) Permitting any place for the performance of works in public where such
performance constitutes infringement of copyright;
iii) Distributing infringing copies for the purpose of trade or to such an extent so as to
affect prejudicially the interest of the owner of copyright;
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iv) Public exhibition of infringing copies by way of trade; and Infringement of
Copyright and
v) Importation of infringing copies into India. Exemptions

9.3 GOVERNING PRINCIPLES FOR DECIDING THE

INFRINGEMENT
The governing principles for deciding the infringement of copyright are as under:
a) There can be no copyright in an idea, subject matter, themes, plots or historical or
legendary facts, and violation in such cases is confined to the form, manner and
arrangement and expression of the idea by the author of the copyrighted work.
b) Where the same idea is being developed in a different manner it manifests that the
source being common, similarities are bound to occur. In such cases, the Courts
should determine whether or not the similarities are on fundamental or substantial
aspects of the mode of expression adopted in the copyright work. In order to be
actionable, the copy must be a substantial and material one, which leads to the
conclusion that the defendant is guilty of an act of piracy.
c) One of the surest and safest tests to determine whether or not there has been a
violation of copyright is to see if the reader, spectator or the viewer after having
read or seen both the works is clearly of the opinion and gets an unmistakable
impression that the subsequent work appears to be a copy of the original.
d) Where the theme is the same but is presented and treated differently so that the
subsequent work becomes a completely new work, no question of violation of
copyright arises.
e) Where, however, apart from the similarities appearing in the two works, there are
also material and broad dissimilarities which negate the intention to copy the
original and the co-incidences appearing in the two works are clearly incidental,
no infringement of the copyright comes into existence.
f) Piracy must be proved by clear and cogent evidence after applying the various
tests laid down for the purpose.
g) Fair dealing with any work has been kept out of the mischief of the Copyright
Act.
h) Court may take the assistance of an expert in complicated and technical aspects of
the violation of copyright(s).
i) The test to detect piracy is to see whether mistakes and deviations occurring in the
original have also been reproduced.
j) Law restraining human enterprise should be liberally construed and therefore
Copyright Act should not be interpreted so as to shut out research and scholarship.
k) The burden lies on the plaintiff to satisfy the court that the defendant has infringed
his copyright.
l) Innocence is no defence to a charge of infringement.
m) An infringement is in the nature of an invasion of a right of property and therefore
intention of the infringer is immaterial provided there is infringement.
n) For determination of the question of infringement, the results and not the intention
are relevant.
o) The owner of the literary work could bring action for infringement of copyright
even though the literary work was not registered. Non-registration of work does
not prevent an action for infringement.
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The Copyright Act, 1957 Therefore, in determining the question of infringement, the ultimate test is to find out
whether there has been a reproduction of plaintiff’s work in the defendant’s work to a
substantial or material extent. The principle behind this is that the defendant is not at
liberty to avail himself of the labour which the plaintiff has put for producing his
work.
In order to constitute infringement, firstly, there must be sufficient objective similarity
between the infringing works and, secondly, the copyright work must be the source
from which the infringing work is derived, but it need not be direct source.
There must be substantial copying of the work. In order to decide this one needs to
ascertain, firstly, the volume of the material taken, bearing in mind that quality is
more important than quantity. Secondly, how much of such material is the subject
matter of copyright and how much is not. Thirdly, whether there has been animus
furandi, i.e. an intention to take for the purpose of saving him labour, on the
defendant’s part. Fourthly, to ascertain the extent to which the plaintiff’s and
defendant’s works are competing.
In most cases, there would not be any direct evidence of copying, thus, surrounding
circumstances have to be considered. There can be infringement by indirect copying
also. A work may be copied from the pre existing copy of the same work.
Conscious, unconscious and sub conscious copying
Conscious copying is when the infringer has self knowledge that he is copying the
work of another. In case of unconscious copying, the flow of idea and its expression
from the mind of the author is spontaneous. In such a case, he has no self knowledge
that the work created by him is similar to that of another. A definite causal connection
is needed to prove infringement. Sub conscious copying is when the author having
already been familiar with the work of the first original author creates a work which
bears marked similarity to the original work though the person himself does not
consciously aim to imitate the first author.

9.4 EXCEPTIONS TO INFRINGEMENT OF COPYRIGHT

The following acts, amongst others, do not constitute infringement:
i) Fair dealing with a literary, dramatic, musical or artistic work not being a
computer programme for the purposes of private use including research, criticism
or review, making copies of computer programs for certain purposes, reporting
current events in newspaper magazines or by broadcasting or in a cinematograph
film or by means of photographs.
ii) Reproduction of judicial proceedings and reports thereof, reproduction
exclusively for the use of Members of Legislature, reproduction (artistic work
excluded) in a certified copy supplied in accordance with law.
iii) Reading or recitation in public of extracts of literary or dramatic work.
iv) Publication in a collection for the use in educational institutions in certain
circumstances.
v) Reproduction by teacher or pupil in the course of instruction or in question papers
or answers.
vi) Performance in the course of the activities of educational institutions in certain
circumstances.
vii) The causing of a sound recording to be heard in the public, utilizing it in an
enclosed room or in clubs in certain circumstances.

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viii) Performance in an amateur club given to a non-paying audience or for religious Infringement of
Copyright and
institutions. Exemptions
ix) Reproduction in newspapers and magazine of an article or current, economic,
political, social or religious topics in certain circumstances.
x) The owner of the copyright in an existing work or the prospective owner of the
copyright in a future work may assign the copyright to any person either wholly
or partially, generally or subject to any limitation and for the whole term of the
copyright or any part thereof.
xi) The owner of the copyright in any existing work or the prospective owner in any
future work may grant any interest in the right by license in writing signed by
him or by his duly authorised agent.

SAQ 1 Spend "

5 min.
a) Discuss common acts of infringement found in routine affairs.
b) List five principles which govern determination of copyright infringement.
c) Enumerate probable acts which actually do not constitute infringement of
copyright.

9.5 REMEDIES OF COPYRIGHT INFRINGEMENT

The basic objective of copyright is to exclude others from exploiting work
commercially without consent or license from author. There are a number of
remedies available to a copyright holder in case of breach of his copyright. There are
basically three types of remedies.

9.5.1 Before Civil Courts

A copyright holder may move a Civil Court to grant injunction against such person,
claim damages and accounts. A copyright owner can take legal action against any
person who infringes the copyright in the work. Under the Copyright Act, 1957 also
the court in which an action for infringement would lie is a District Court. With regard
to the territorial jurisdiction, however, it is provided by Section 62(2) of the Copyright
Act that it is that District Court which will have the jurisdiction to try such an action
within the local limits of whose jurisdiction, at the time of the institution of the suit or
other proceedings, the person instituting the suit or other proceeding or, where there
are more than one such person, any of them actually and voluntarily resides or carries
on business or personally works for gain.

9.5.2 Before Criminal Courts

Under the Copyright Act, 1957, any person who knowingly infringes or abets the
infringement of the copyright in any work commits criminal offence under Section 63
of the Copyright Act. One can get the infringer imprisoned and the infringing copies
seized. Besides one can get Anton Piller order from the court, which means that court
grants an ex-parte order if it feels that the case is balanced in favour of copyright
holder or otherwise it could lead to irreparable loss. There should be clear evidence to
show the presence of infringing copies in the premises of infringer who has
knowledge of the fact; then he could be liable for imprisonment ranging from 6
months to 3 years and fine of Rs.50, 000 to Rs.2 lakhs. If the infringement has not
been made in the course of trade or business, a lesser sentence and a lesser
punishment can be imposed. There is an enhanced penalty for a second and
subsequent infringement.
Another special provision under the Copyright Act deals with knowingly making use
on a computer of an infringing copy of a computer program, where the punishment of
imprisonment may extend to 3 years and a fine of not less than fifty thousand rupees,
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The Copyright Act, 1957 but which may extend to two lakh rupees. The police have been given the power to
seize the infringing copies.
Any police officer, not below the rank of a sub inspector, may, if he is satisfied that an
offence in respect of the infringement of copyright in any work has been, is being, or
is likely to be committed, seize without warrant, all copies of the work and all plates
used for the purpose of making infringing copies of the work, wherever found, and all
copies and plates so seized shall, as soon as practicable be produced before a
magistrate. No court inferior to that of a Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any offence under the Copyright Act.
This seizure can be affected wherever the said infringing material is found. This
makes the criminal proceedings under the Copyright Act more effective, as the delay
in obtaining warrants from the Magistrate before conducting a raid is eliminated. The
effect of this provision is that a threatened infringement of the copyright can be
nipped in the bud, possibly even before the commission of an offence. In fact, even at
the preparation stage the police officer has the power to take custody of the infringing
material. The Court may order delivery to the owner of the copyright all such copies
or plates.
In case of a company, every person who at the time the offence was committed was in
charge of, and was responsible to the company for, the conduct of the business of the
company, as well as the company shall be deemed to be guilty of such offence and
shall be liable to be proceeded against.

9.5.3 Before the Registrar

The copyright holder may also request the Registrar of copyright to for stopping the
import of infringing copies and confiscation and also for delivery of confiscated
copies.

9.6 COPYRIGHT PROTECTION IN A DIGITAL ERA

The latest threat to copyright law is in the increasing proliferation of the Internet. The
Internet development has changed the dissemination of information even to the extent
of replacing printed works completely. Today a large number of houses/offices
throughout the globe are linked to a computer centre via viewer/printer consoles. The
result is that the supply of one copy of a new work to a central point would make it or
even selections from it, available to all offices and houses which are linked to the
central point. Bearing in mind that the whole concept of copyright in modern times
arose from the invention of the printing press, even its partial replacement by
computers amounts to a revolutionary change. One may legitimately ask: why
shouldn’t copyright owners be allowed to exercise their copyright at the input stage
and look to the computer disseminator for the royalties in the same way that they have
looked towards their publishers in the past? There is yet another challenge to
copyright law which is posed by cable diffusion and it also requires institutionalized
collective administration of the rights and payment of an equitable remuneration for
performances and producers of phonograms whose performances or phonograms are
used in cable transmission.
The Information Technology Act was passed by the Indian Parliament to provide legal
recognition for transactions carried out by means of ‘e-commerce’. Given the
technical nature of the subject-matter, a small explanation to the terms used here is in
order.
The Internet is a decentralized worldwide network connecting millions of computers.
World Wide Web (WWW) is a system of Internet server that supports specially
formatted documents (known as web pages) which contain text, image, video and
audio files written in Hypertext Markup Language (HTML). Every such webpage
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must have an identifying address containing the protocol (a set of conventions Infringement of
Copyright and
governing treatment and formatting of data in an electronic medium) used and the Exemptions
domain name of the website to which the webpage belongs. This identifying address
is known as URL or Uniform Resource Locator.
Webpages contain ‘links’ to other webpages. Anybody can link to a webpage that has
a URL. It is thus possible to link not only to sections within the same documents but
also across the documents through a process known as ‘deep linking’. In view of these
border-exploding impacts of the Internet-related new technologies, the need to
manage protection of the Internet Service Providers (ISP) against objectionable
contents on thousands of websites has been strongly felt to generate a healthy climate
in information society. The IT Act of 2000 provides that a network service provider is
not subject to criminal or civil liability for the third-party material to which the ISP
merely provides access. It would however remain liable for their own content, or the
third-party content which they adopt or approve of. Even indirect permission or
countenancing of infringement would be sufficient to constitute authorizing.
India’s legal position on the use of networks like Napster in the Internet, which
provides “software that may be used to locate songs for downloading over the Net” is
not quite clear. For instance, the Supreme Court held in the Garware Plastic and
Polyster Limited Vs. Telelink case that showing of video films over a cable network
“amounts to broadcasting or communicating it to a section of the public”, and as such,
this activity “affected the earnings of the owner and violated his intellectual property
rights”. This case also held that “assisting in infringement would amount to the
infringement of copyright”. Does it then mean, Napster which facilitates unauthorized
copying should be liable for contributory and vicarious infringement of copyright?
Indian copyright law is not finally certain on this; but one thing is clear that Napster
would not be able to claim immunity in the role of a ‘network service provider’. This
is because, under IT Act 2000, such immunity against a ‘third-party information’ is
possible only if it can be proved that such contravention was committed without its
knowledge and Due Diligence was exercised to prevent such contravention. Indian
copyright law is opening up to introduce new innovations cropping up in our digital
era to take care of these copyright infringement problems to which we now turn our
discussion.

9.6.1 The Reproduction Right

i) Direct Infringement
The first enumerated right is the right to reproduce the work. The reproduction
right is violated when a copy is made of the original work. According to section
2(m)(i) of the Copyright Act "infringing copy in relation to a literary, dramatic,
musical or artistic work, reproduction thereof otherwise than in the form of a
cinematograph film...if such reproduction, copy is made or imported in
contravention of the provisions of this Act.
The link from one document to another only contains the URL address of the
latter. In creating the link, the author of document has not reproduced any part of
the linked document except for its URL. A URL is a "fact," and as such, it is not
protected by copyright. One could argue that since the URL for the linked
document includes whatever name its author gives to the document, it contains
protected expression. However, short phrases such as titles and names are
generally not copyrightable. Thus, the linking has not directly infringed linked
documents reproduction right.
ii) Contributory Infringement
When a user selects a link from one document to another, the information
contained in the latter is downloaded into the random-access memory (RAM) of
the user's computer. When the computer is turned off, all the information in RAM
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The Copyright Act, 1957 is lost. Keep in mind that a copy must be fixed in a tangible medium. A series of
controversial cases in USA have suggested that loading a computer program into
RAM for viewing creates a fixed copy and therefore may constitute copyright
infringement.
The most important of these cases is MAI Systems, Corp. v. Peak Computer, Inc.,
in which the defendant was a service company that repaired computers that were
manufactured by MAI. When the service technicians turned on the MAI
computer, the operating software was automatically loaded from the computer's
hard drive to the same computer's RAM. The Court held that loading the software
into RAM created a copy. The court cited the report of the National Commission
on New Technological Uses of Copyrighted Works (CONTU), which stated that,
“the placement of a work into a computer is the preparation of a copy ...” As the
MAI court duly noted, neither the prior cases which it cited for support, nor the
CONTU report itself, distinguished between placement in RAM or read-only
memory (ROM).
The context of the CONTU statement was ensuring that the rightful possessor of a
copyrighted computer program would be able to use the program on her computer.
In this sense, the Report seemed to be contemplating the right of the user to load a
copy of the program into the computer from a floppy diskette. There is no
indication that the authors of the report believed that once a program was in the
computer, its transfer from ROM to RAM would also be considered a copy.
The MAI court stated that, “Since we find that the copy created in RAM can be
‘perceived, reproduced, or otherwise communicated’, we hold that the loading of
software into the RAM creates a copy under the Copyright Act.” The court argued
that since the computer may be left on indefinitely, the copy in RAM is “fixed in a
tangible medium” as required by the 1976 Act. This interpretation of the 1976 Act
has been endorsed by MAI’s progeny, and the Information Infrastructure Task
Force. By this reasoning, a slide projector which projects an image on a screen is
making a copy. After all, the image on the screen can be “perceived, reproduced
or otherwise communicated” for as long as the slide projector is left on. Loading a
document into RAM for the purpose of displaying on a monitor is directly
analogous to projecting a slide onto a screen.
Even if their interpretation of the law is wrong, one must accept that US courts
have held that a document in RAM is a copy. To know if linking has infringed the
linked document’s reproduction right one must determine who made the copy that
resides in the user's RAM. The author of the linked document placed the
document on a server. When a user who is viewing the linking document clicks on
(selects) the link to the former, the user's Web browser requests the document
from its server. It is this server that actually generates the “copy” which is sent to
the user. Thus it is the linked document, not the linking document that authorizes
the reproduction.
A leading Supreme Court case involving contributory infringement offers insights
as well. In Sony Corporation of America v. Universal City Studios, Inc., the issue
was whether Betamax videotape recorders (VTRs) sold to consumers by Sony
were being illegally used to record broadcast television programs. Universal
argued that Sony was knowingly supplying the means by which consumers were
committing copyright infringement, and therefore Sony should be liable for
contributory infringement. Universal relied heavily on Kalem Co. v. Harper Bros.,
in which the producer of an unauthorized film dramatization of a copyrighted
book was held liable for selling the film to distributors, thereby contributing to the
infringement of the author's public performance right.

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 In rejecting Universal’s argument, the Sony Court distinguished Kalem, stating, Infringement of
Copyright and
“The producer in Kalem did not merely provide the ‘means’ to accomplish an Exemptions
infringing activity; the producer supplied the work itself, albeit in a new medium
of expression. Sony in the instant case does not supply Betamax consumers with
respondents' works; respondents do.” As in Sony, it is the linked document’s
author who is supplying the user with the work. The linking document is simply
providing the user with an alternative method for viewing the former (just as time-
shifting in Sony provided the viewer with an alternative method for viewing
Universal’s programs).
In Sony, the case turned on whether or not there were “substantial, non-infringing
uses” for a Betamax videocassette recorder. Clearly, there are substantial, non
infringing uses of linking technology in general. The more important question is
whether a link from one document to another is capable of substantial, non
infringing uses. This brings us back to the question of whether reading the linked
document (which entails loading its into RAM) is a non infringing use of the link.
Recently, the MAI decision was applied to Internet documents for the first time in
Religious Technology Center v. Netcom On-Line Communication Services, Inc. In
Netcom, an Internet user posted Religious Technology Center (RTC) documents
on a USENET discussion group. Netcom operated one of the servers which stored
and distributed the discussion group. In a footnote, the court said that under MAI,
“Browsing technically causes an infringing copy of the digital information to be
made in the screen memory ....” However, later in the same footnote, the Court
said that, “[Browsing] is the functional equivalent of reading, which does not
implicate the copyright laws and may be done by anyone in a library without the
permission of the copyright owner. [Even if one rejects the reading analogy],
absent a commercial or profit-depriving use, digital browsing is probably a fair
use.” Since viewing a document does not infringe the reproduction right,
providing a link does not constitute contributory infringement.

9.6.2 The Adaptation Right

i) Direct Infringement
The copyright owner’s second exclusive right is the right to prepare derivative
works, the adaptation right. According to the 1976 Act, a derivative work is “a
work based upon one or more pre-existing works, such as a translation, musical
arrangement, dramatization, fictionalization, motion picture version, sound
recording, art reproduction, abridgment, condensation, or any other form in which
[the pre-existing] work may be recast, transformed, or adapted.” The purpose of
the adaptation right is to allow the copyright owner to control more than simply
verbatim forms of copying.
Generally, to violate the derivative right, the infringing work must copy part of the
underlying work. Thus, a link does not create a derivative work.
ii) Contributory Infringement
It has been suggested that linking documents may create a derivative work by
creating a “literary add-on”. An add-on modifies an existing work and is used in
conjunction with that work. If a document contains links to specific sections of
another document, one could argue that the linking document modifies the way a
user views the document so linked. In effect, the original document is creating an
abridged version of the linked document. With printed texts, the linking document
would need to copy the desired sections of the linked document to be an
abridgment and hence a derivative work. But with links on the World Wide Web,
the author of the linking document can create an abridged version of the linked
document without copying. Thus, the notion is that the linking document is an

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The Copyright Act, 1957 add-on (i.e., a supplementary work). The “add-on” concept has appeared in recent
court cases involving computer programs.
In Midway Manufacturing Co. v. Artic International, Inc., a US court ruled that a
computer chip manufactured by Artic to speed up a Galaxian video game
manufactured by Midway infringed on Midway's copyright. The court ruled that
the speeded up version of the video game constituted a derivative work. Artic
argued that speeding up the video game was like speeding up a phonograph record
and so should not be considered a derivative work. The court rejected this
argument based on the fact that there is a market for speeded up video games
while there is no market for speeded up phonograph records.
In Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., Galoob manufactured a
device, a “Game Genie”, to be inserted between a Nintendo home video game
cartridge and the Nintendo home video game control unit. The device could be
programmed to change certain characteristics of Nintendo video games. The court
ruled this was not a derivative work and distinguished it from Midway by pointing
out that the earlier case involved substantial copying of a ROM chip while
Galoob’s device involved no direct copying. The court also noted that the device
manufactured by Artic was used in the commercial setting of a video arcade,
while Galoob’s device was used in a noncommercial home setting.
The Galoob court stated in dicta that derivative works should not encompass
works whose sole purpose is to enhance the underlying work. Neither a
spellchecking program used in conjunction with a word processor, nor a
kaleidoscope that allows one to view a work in a new way should be considered a
derivative work. The court said, “The Game Genie is useless by itself, it can only
enhance, and cannot duplicate or recast, a Nintendo game's output .... Such
innovations rarely will constitute infringing derivative works under the Copyright
Act.” The Galoob court went on to state that even if the Game Genie were a
derivative work, its use should be considered a fair use.
The Galoob court ruled that a computer add-on that does not incorporate any part
of the underlying work is not a derivative work. Under the same reasoning, a
“literary add-on,” such as a series of links, should not be considered a derivative
work either. The links from one document to another cannot exist independently
of the document so linked. Unlike a printed abridgment or adaptation of a work,
the links do not duplicate the original work or act as a substitute for it.

9.6.3 The Distribution Right

i) Direct Infringement
The copyright owner has the exclusive right to “distribute copies or phonorecords
of the copyrighted work to the public by sale or other transfer of ownership, or by
rental, lease, or lending.” The distribution right allows the copyright owner to sue
a distributor of unauthorized copies even if that distributor did not make the
copies himself. This has been an important right especially with regard to the
Internet, since the person who distributes a document on the World Wide Web
does not necessarily make a copy.
In Netcom, where a user placed an RTC document on the Netcom computer, the
court rejected RTC's argument that Netcom should be liable for direct
infringement of RTC's distribution right. The court reasoned that only the person
who uploads the document to the server should be liable for direct infringement.
Similarly, in Sega Enterprises, Ltd. v. MAPHIA, a bulletin board operator was
found liable for contributory infringement rather than direct infringement for
allowing users to upload and download copyrighted Sega video games.
These cases suggest it is the person who places the document on the server who is
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liable for direct infringement of the distribution right. Since the linking document
 merely provides a link to the server where the linked document is located, the Infringement of
Copyright and
author of linking document should not be liable for direct infringement. A useful Exemptions
analogy is a telephone answering system. One can program a number into speed
dial and then call the number to reach a business's answering machine and listen
to their outgoing message.
The linked document’s server is like an answering machine. When its author
places on the server, it is akin to placing an outgoing message on the answering
machine. The URL that designates the linked document’s location is akin to a
"phone number" used to reach the answering machine. When the author of the
linking document creates a link to the linked document, he has essentially put the
latter’s phone number (the URL) into a speed dial memory. When the user selects
the link, the user's Web browser "calls" the linked document’s server. It’s
answering machine (the server) then transmits the outgoing message to the user's
Web browser for the user to view. The crucial point is that linking document does
not control the distribution of the linked document. If the latter’s author no longer
wants to distribute it, he can take the document off the server or restrict access
with encryption or passwords. So even if a copy of it has been distributed, the
distribution is being made by the author of the linked document, not the linking
document.
ii) Contributory Infringement
As long as the copyright owner of the linked document has placed it on the server,
its distribution is authorized and the linking document cannot be held liable for
contributory infringement. In MAPHIA and in Playboy Enterprises, Inc. v. Frena,
bulletin board operators were found liable for allowing users to upload and
download copyrighted materials on their systems. In both cases, the defendants
knew that the material was being uploaded without the copyright owners'
permission. Contributory infringement requires knowledge of the infringing
activity. In Netcom, the defendant argued that it cannot “know” of an
infringement when it cannot determine whether a subscriber is making fair use of
copyrighted material. The court agreed, noting: Where a BBS operator cannot
reasonably verify a claim of infringement, either because of a possible fair use
defense, the lack of copyright notices on the copies, or the copyright holder's
failure to provide the necessary documentation to show that there is a likely
infringement, the operator's lack of knowledge will be found reasonable and there
will be no liability for contributory infringement for allowing the continued
distribution of the works on its system.
This same standard should apply to individuals who create links as well as online
service providers. If a court followed the Netcom reasoning, the author of the
linked document would not be held liable unless the copyright owner had
contacted her with proof that the document so linked by him contained infringing
material.

9.6.4 The Public Performance and Public Display Rights

i) Direct Infringement
The copyright owner has the exclusive right to display or perform her work
publicly. A display or performance can occur without a copy of the work being
made. Like the distribution right, the performance and display rights are heavily
implicated by the transmission of documents on the World Wide Web. On the
Web, a work can be displayed or performed or both. For example, a Web site may
include text and pictures which are displayed on a monitor, and moving images
and audio which are performed. The differences between a display and a
performance are inconsequential for the purposes of this discussion. It is
important however to know the extent of control an owner or an operator of a
computer bulletin board service or Internet service provider has on the
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The Copyright Act, 1957 information placed on the Internet by the individual subscribers. Some important
cases lay down these boundary conditions.
ii) Contributory Infringement
Under the current Indian law, establishing links from one document to another
should not be considered copyright infringement. In fact, if the author of one
document wanted to charge users for using his links to another document, he
could. This would be true even if he did not share any of his profits with the
author of the linked document, and even if the user could access the linked
document directly for free.
There is no intent or knowledge requirement to find a copyright violation.
Copyright infringement is of strict liability --intent is only a factor in calculating
damages. When a work is copied, even if the person making the copy does not
know or have reason to know that the work is copyrighted, an infringement may
still be found. Even subconscious copying has been held to be an infringement.
However, at least one court has limited the strict liability concept in the on-line
distribution context.
In Religious Technology Center v. Netcom On-Line Communications Service
(Netcom), the court was squarely faced with the issue of a system operator
running a machine that was passively reproducing copies of the plaintiff's work.
At issue was the posting of copyrighted scriptures of the Church of Scientology to
a usenet news group over the Internet. A user posted the message to a bulletin
board system, which then automatically sent the message out over a usenet news
server, while archiving the message for three days. The BBS (Bulletin Board
Service) news server passed the message to the news server of Netcom, the BBS'
Internet provider, which then passed the message on to other news servers.
In this manner, passing the message up the chain and then on to other servers
worldwide, the copyrighted message rapidly reached perhaps as many as half a
million news servers (which then might have made further copies for users local
to each server) within a matter of a day or so. The court held that, even though
Netcom's servers were making copies of the Plaintiff's protected materials, the
computers were making the copies without human intervention on the part of
Netcom. As a result, the court held it would be unreasonable to assign liability for
direct copyright infringement to Netcom (or any of the other half million
worldwide news server operators) where the operator could not reasonably
prevent the copying, or even know that such copying was occurring, without some
prior warning of what material was at issue. In Playboy Enterprises, Inc. v. Russ
Hardenburgh, Inc., the court held that encouraging or facilitating infringement did
not amount to direct copyright infringement--some sort of volitional act on the
part of the system operator is required. In this case, the court found the volitional
act requirement met by the service provider taking uploaded files, reviewing them,
and making them available for users to download. The court rejected the argument
that it was too difficult to determine which uploaded files may contain
copyrighted materials that the system operator did not have the right to distribute.
In another more obvious case, the court in Playboy Enterprises, Inc. v. Sanfilippo
held that a service provider could be held liable for copyright infringement for
authorizing others to make infringing copies of a computer system even though
the service provider had not personally made the copies.
Although holding the service provider liable in such circumstances, as those
present in the Netcom case, would be unreasonable, and although some other
courts have agreed with the Netcom reasoning, immunity from liability for the
results of the passive functioning of equipment is not a necessary result under the
Copyright Act. Playboy Enterprises, Inc. v. Webbworld, Inc. involved a web site
operator which, like Netcom, made Usenet News available. Unlike Netcom,
however, the service provider made available a smaller subset of usenet news
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 available − specifically pictures distributed via certain newsgroups − and added an Infringement of
Copyright and
intermediate step in the news distribution process. Specifically, the service Exemptions
provider had software which automatically sweep the newsgroups for pictures that
were posted, extracts the pictures, and places them on a web site for user access.
Even though this process was automated, as were the reproductions in the Netcom
case, the judge in the Webbworld, Inc. case held the service provider liable for
infringing some of Playboy's works which were contained in some of the pictures.
Although the court attempted to distinguish the case in front of it from
Netcom by arguing that Netcom is providing a different service, the very fact
that Netcom is also providing initial Internet access, makes this distinction
unclear and problematic. In fact, the judge explicitly rejected the service
provider's defense that there should be no liability as a result of the automated
processes of its computers.
Thus the question how far a service provider may be held responsible for the activities
of its users is of considerable importance and significance to the industry and hence
no confusion should prevail regarding the legal issues and modalities involved in such
cases for they would only discourage many enterprising entrepreneurs.

SAQ 2 Spend "

3 min.
a) Describe remedies available against infringement of copyrights.
b) List all the cases you read in the previous section on the issue of copyright
protection in the digital area. Write their core judgments in two or three lines each.

9.7 SUMMARY
• Section 51 of the Copyright Act, 1957 defines when an Infringement takes place.
A work is deemed to be infringed when any person without license or in
contravention of license or assignment does any act, which is copyright of
another.

• Principles governing discovery of Infringement are aimed at finding out whether

there has been a reproduction of plaintiff’s work in the defendant’s work to a
substantial or material extent.

• There are several specific exceptions to what constitutes Infringement.

• There are Civil, Criminal and administrative remedies available against

Infringement of Copyright in India.

• The basis of Copyright protection in the Digital Era lies in the relation between
the Copyright Act, 1957 and the Indian Information Technology Act of 2000.
However, the issues related to the digital domain are much wider and evolving.

9.8 TERMINAL QUESTIONS Spend 15 min.

1. What acts constitute an infringement of copyright? What are the general

principles to decide infringement of copyright?
2. What remedies do you expect from the Registrar of the Copyrights?
3. With the help of case law decisions explain Copyright Protection in respect of
Public Performance and Public Display Right in the digital era.

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The Copyright Act, 1957
9.9 ANSWERS AND HINTS
Self Assessment Questions
1. Refer to text.
2. Refer to text.
Terminal Questions
1. Refer to text.
2. Refer to text.
3. Refer to text.

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