Introduction
The
copyright law protects the intellectual creations in original works. The
subject matter of copyright is literary and artistic work. The copyright
protection commences as soon as the work is created and it does not
require any registration formalities.
Traditionally the concern of
copyright law was limited to books, music, paintings or films. Copyright
protection has now taken new dimensions and today it extends to even
computer software and compilations of data.
Copyright has some closely
related rights that confer similar principles of protection. These are
known as “related rights” or “neighbouring rights”. These rights protect
persons, other than the creators, who are involved in the dissemination of
copyrighted work. These rights are confined to three specific categories
of persons: performers, producers of phonograms and broadcasting
organizations. In some countries such rights may be a part of the
copyright law,while
in others there is different legislation to protect these rights.
The
Berne Convention for the protection of Literary and Artistic works, as
revised up to 1971, provided the highest level of international legal
protection for copyright, prior to TRIPS. With the conclusion of TRIPS
under the Uruguay Round of multilateral trade negotiations, protection of
copyright and related rights became, for the first time, a subject covered
by the international trade law.
Articles 9 to 13 of TRIPS prescribe the
“minimum standards” for the protection of copyright. Article 9.1 of TRIPS
establishes that WTO members must comply with Articles 1 to 21 of the
Berne Convention, 1971, including the Appendix thereto. The Berne
Convention requires that the enjoyment and exercise of copyright cannot be
subjected to any formality such as registration. The only exception to
adherence to the Berne Convention is Article 6bis, which obliges the
members to protect the moral rights of the authors.
Article 9(2) of the Berne Convention
contains exceptions to the exclusive right of reproduction conferred by
the copyright law. The pre-requisites for the applicability of this
Article are:
(a) These limitations and
exceptions should be granted in certain special cases,
(b) These should not
conflict with the normal exploitation of the work, and
(c) These should not
unreasonably prejudice the legitimate interests of the author.
In the context of copyright,
TRIPS does not confine this Berne exception only to the right of
reproduction but extends it to all exclusive rights conferred by
copyright.
In India, the Copyright Act,
1957 provides strong copyright protection. It confers copyright protection
in the following two forms:
(A) Economic rights of the
author, and
(B) Moral Rights of the
author.
These rights are safeguarded
by imposing stringent punishments for the violation of copyright.
Further, the violation of
copyright pertaining to online matters is also adequately protected by the
Information Technology Act, 2000.
Judicial Response:
The response of Indian
judiciary regarding copyright protection can be grouped under the
following headings:
(1) Ownership of
copyright,
(2) Jurisdictional aspect,
(3) Cognizance taken by
the court,
(4) Infringement of
copyright,
(5) Availability of
alternative remedy, and
(6) Rectification of
copyright.
(1) Ownership of
copyright: The ownership in copyright may vest in different persons
under different circumstances.
In Eastern Book company
v Navin J.Desai
the question involved was whether there is any copyright in the
reporting of the judgment of a court. The Delhi High court observed:
“It is not denied that
under section 2(k) of the Copyright Act, a work which is made or published
under the direction or control of any Court, tribunal or other judicial
authority in India is a Government work. Under section 52(q), the
reproduction or publication of any judgment or order of a court, tribunal
or other judicial authority shall not constitute infringement of copyright
of the government in these works. It is thus clear that it is open to
everybody to reproduce and publish the government work including the
judgment/ order of a court. However, in case, a person by extensive
reading, careful study and comparison and with the exercise of taste and
judgment has made certain comments about judgment or has written a
commentary thereon, may be such a comment and commentary is entitled to
protection under the Copyright Act”.
The court further
observed:
“In terms of section
52(1)(q) of the Act, reproduction of a judgment of the court is an
exception to the infringement of the Copyright. The orders and judgments
of the court are in the public domain and anyone can publish them. Not
only that being a Government work, no copyright exists in these orders and
judgments. No one can claim copyright in these judgments and orders of the
court merely on the ground that he had first published them in his book.
Changes consisting of elimination, changes of spelling, elimination or
addition of quotations and corrections of typographical mistakes are
trivial and hence no copyright exists therein”.
In Godrej Soaps (P) Ltd
v Dora Cosmetics Co
the Delhi High Court held that where the carton was designed for valuable
consideration by a person in the course of his employment for and on
behalf of the plaintiff and the defendant had led no evidence in his
favour, the plaintiff is the assignee and the legal owner of copyright in
the carton including the logo.
(2) Jurisdictional
aspect: The question of territorial jurisdiction of the court to deal
with copyright infringement was considered by the courts on several
occasions.
In Caterpillar Inc v
Kailash Nichani
the plaintiff, a foreign company, was carrying on business in several
places in India including Delhi, through its Indian distributors and
collaborators. The plaintiff claimed the relief of ad-interim injunction
for preventing infringement of its copyright by the defendant, though the
defendant was dealing in different goods. The Delhi high Court held that
it was not necessary to show that the business being carried on by the
plaintiff in Delhi should necessarily be in respect of footwear and
articles of clothing as well. It is sufficient if the business was being
carried on by the plaintiff in Delhi and further that there was an
infringement of plaintiff’s copyright in respect of certain goods, which
were being sold by the defendant in Delhi. The court further held that
section 62 of the Copyright Act makes an obvious and significant departure
from the norm that the choice of jurisdiction should primarily be governed
by the convenience of the defendant. The legislature in its wisdom
introduced this provision laying down absolutely opposite norm than the
one set out in section 20 CPC. The purpose is to expose the transgressor
with inconvenience rather than compelling the sufferer to chase after the
former.
In Lachhman Das Behari
Lal v Padam Trading Co
the Delhi High Court observed that the plaintiff being a firm functioning
at Delhi, the suit filed by it in the Delhi courts is maintainable and is
not liable to be rejected under Order 7 Rule 11 of the CPC as prayed. The
Court further observed that the plea regarding want of territorial
jurisdiction is not covered by Order7 rule 11 of CPC. The court observed
that even if it is held that this court has not the territorial
jurisdiction, the plaint cannot be rejected. At the most it can be
returned for presentation to the proper court.
In Exphar Sa & Anr v
Eupharma Laboratories Ltd & Anr
the Supreme Court finally settled the position in this regard. The Court
observed:
“Section 62(2) cannot be
read as limiting the jurisdiction of the District Court only to cases
where the person instituting the suit or other proceeding or where there
is more than one such person, any of them actually and voluntarily resides
or carries on business or presently works for gain. It prescribes an
additional ground for attracting the jurisdiction of a court over and
above the “normal” grounds as laid down in Section 20 of the C.P.C. Even
if the jurisdiction of the Court were restricted in the manner construed
by the Division Bench, it is evident not only from the cause title but
also from the body of the plaint that the Appellant No 2 carries on
business within the jurisdiction of the Delhi High Court. The Appellant
No 2 certainly “a person instituting the suit”. The Division Bench went
beyond the express words of the statute and negatived the jurisdiction of
the Court because it found that the Appellant No 2 had not claimed
ownership of the copyright, infringement of which was claimed in the suit.
The appellant No 2 may not be entitled to the relief claimed in the suit
but that is no reason for holding that it was not a person who had
instituted the suit within the meaning of Section 62(2) of the Act”.
(3) Cognizance taken by
the court: To prevent copyright infringement, timely cognizance taking
by the appropriate court is absolutely essential. The taking of cognizance
by the court depends upon the limitation period as mentioned in the
Limitation Act, 1963 and Cr.P.C, 1973.
In David Pon Pandian v
State
the Madras High Court, while dealing with section 68A of the Copyright
Act, observed:
“The Court can take
cognizance of the offence if the charge sheet is filed within the period
of limitation prescribed under Section 468 of the Cr.P.C and in computing
the period of limitation, the date of commission of the offence is to be
reckoned as the starting point. If the charge sheet is not filled so, the
Court has no power to entertain the complaint”
The court referred the
decision of the Supreme Court in State of Punjab v Sarwan Singh
in which it was observed:
“The object of Cr.P.C in
putting a bar of limitation on the prosecution was clearly to prevent the
parties from filing cases after a long time, as a result of which material
evidence may disappear and also to prevent abuse of the process of Court
by filing vexatious and belated prosecutions long after the date of the
offence. The object, which the statute seeks to sub-serve, is clearly in
consonance with the concept of fairness of trial as enshrined in Article
21 of the Constitution. It is, therefore, of utmost importance that any
prosecution, whether by State or a private complainant, must abide by the
letter of the law or to take the risk of the prosecution failing on the
ground of limitation”
In Shree Devendra
Somabhai Naik v Accurate Transheet Pvt Ltd
the Gujarat High Court explained the inter-relationship between Article
137 of the Limitation Act, 1963 and section 50 of the Copyright Act, 1957.
The Court observed:
“The order passed by the
by the Copyright Board is an order whereby it is held that the provisions
of Article 137 of the Limitation Act are not applicable and the board has
also held that the Copyright Board is a Tribunal and quasi-judicial
authority for all other purposes except for the purposes which are
specifically provided in the Copyright Act. It is an order by which an
application under Section 50 of the Copyright act is entertained and the
Copyright Board will decide the same on merits. The Copyright Board does
not believe the delay alleged by the present appellant. Entertaining an
application is a matter of discretion. In the present case, the Copyright
Board in its wisdom, overruling the contention that the application was
barred by limitation, decided to entertain the application. It is a
discretionary order”.
(4) Infringement of
copyright: A copyright owner cannot enjoy his rights unless
infringement of the same is stringently dealt with by the Courts .The
approach of the Indian Judiciary in this regard is very satisfactory.
In Prakashak Puneet
Prashant Prakashan v Distt.judge, Bulandshahr &Ashok Prakashan (Regd)
the Allahabad High Court held that if the petitioner publishes a book
by adding any word before or after the book “Bal Bharati”, he infringes
the copyright of the respondent.
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.
The Board referred the
decision of Prem Singh v Cec Industries
wherein it was observed:
“In a case where the first
party himself is shown to have adopted or imitated a trademark and
copyright of a third party, then Courts can resolutely decline to step in
aid of this party because honesty of action is the crux of the matter and
Courts protection is extended only on the principle that damage to a party
who has acquired goodwill or reputation in certain trading style for
making his goods, should not be allowed to be affected by the dishonest
user of the same by another”.
The Board further referred
the decision of the apex court in R.G. Anand v M/S Delux Films
where the Court observed:
“Where the same idea is
being developed in a different manner, it is manifest that the source
being common, similarities are bound to occur. In such a case, the Courts
should determine whether or not the similarities are on fundamental or
substantial aspects of the mode of expression adopted in the copyrighted
work with some variations here and here. In other words, in order to be
actionable the copy must be a substantial and material one which at once
leads to the conclusion that the defendant is guilty of the act of
piracy”.
In Ushodaya Enterprises
Ltd v T.V. Venugopal
the division bench of the Andhara Pradesh High Court held that even
though the defendant has registered the carton under the Trademark Act,
that may not come to the aid of the defendant as the case of the plaintiff
is that it owns a copyright of the artistic work under the Copyright Act
and no registration is required for the same. Thus the court held that the
plaintiff was justified in alleging infringement of his artistic work.
In Khajanchi Film
Exchange v state of MP
the appellants apprehending the violation of their copyright in the
film, prayed for the writ of “Mandamus” without first exhausting the
alternative remedy available under the Copyright Act. The Division Bench
of the Madhya Pradesh High Court Observed:
“ There is no dispute in
the submission that it is the duty of police to be watchful in the area
and detect crime and punish the criminal in accordance with law. But the
petitioners did not complain that any stage nor did they seek action from
other functionaries of the State. They ask for mandamus without putting
the grievance before the respondent and seeking their reaction. The writ
petition was filed 16 days before the release of the film. Enough time
appellants had, to approach the authorities/ police and later to the
respondents giving their reaction to the grievance and how it was ready to
deal with the matter. Therefore, unless the demand was put across and
reaction awaited for some time, moving the court was premature and
unsustainable. Therefore, petition was filed on mere apprehension that
appellants would be deprived of their rights which did not exist when
claim for mandamus was made. Mandamus can be granted only when default,
commission, or omission takes place which had not happened in this case”.
In Jolen Inc v Shoban
Lal Jain
the Madras High Court held that latches and acquiescence is a good
defence to an action for copyright infringement. The court held that the
plaintiff having allowed the defendant to carry on the business under the
trade name of the plaintiff for 7 years is prima facie guilty of
acquiescence and it cannot claim for relief of injunction against the
defendant as the balance of convenience is in favour of him.
(5) Availability of
alternative remedy: The availability of an efficacious alternative
remedy prevents a person from invoking the writ jurisdiction of the High
court.
In Khajanchi
FilmExchange and Another v State of M.P and others
petitioners instead of approaching the concerned authorities filed a writ
petition in the High Court. The Madhya Pradesh High Court observed:
“The film was not yet
released. The petitioners did not approach the respondents. There was no
failure on the part of the respondents in performance of their legal
duties with respect of the right complained of. The entire machinery was
put to doubt by the petitioners on the basis of the averments made in the
writ petition that it is to the common knowledge that they do not take
action. Thus apprehending infringement of their rights, the writ petition
was filed. The petitioners should have approached the concerned
authorities first; and in the event of their failure to take preventive
measures/seizure of cassettes under the M.P.Police Regulations and the
copyright Act, the petitioners should have approached this Court. If a
writ is entertained and relief readily granted before release of the movie
without approaching the respondents who have to prevent threatened
violation of copyright, it would open a flood gate of litigation. The
copyright Act provides adequate safeguards and procedure. It cannot be
said that a mere apprehension that certain offence may take place, a writ
can be filed seeking a direction that no such offence be allowed to take
place. First authorities have to be asked to prevent it. The function of
the police is to prevent piracy and unauthorized exhibition. In the
instant case there was no inaction on the part of the police and other
concerned officials and they were unnecessarily dragged in writ petition
without even putting them to notice of proposed writ. No demand notice was
served, no specific complaint was lodged. Thus writ is not maintainable”.
(6) Rectification of
copyright: In the rectification proceedings, an entry in the Copyright
Register pertaining to a particular copyright can be expunged by the
Copyright Board.
In Lal Babu Priyadarshi
v Badshah Industries
the Division bench of the Patna high Court Observed:
“Rule 16(3) of the
Copyright Rules, 1958 which embodies the principle of natural justice
provides that when there is a rival claim with regard to subject matter of
the copyright then no order can be passed in favour of any party without
hearing the application of the other applicant. Non-observance of the said
provision will vitiate the order with regard to the entry in the Register
of the Copyright. The said requirement cannot be waived nor non-observance
of the said provision can be said to be a mere irregularity. If a person
making an application under section 45 is not aware of the rival claim
then the matter would be different. But in this case, as is evident from
the notice sent by the appellants through their counsel, they were aware
of the claim of the respondents and as such they should have given notice
to the respondents intimating them of their intention to file an
application for registration so that the respondents could have raised
objections and, thereafter, the matter would have been decided in terms of
provisions contained in Section 45, read with Rule 16. In this case Rule
16 has not been followed before making the entry in the Register of
Copyright under section 45 and, thus, the Board rightly came to the
conclusion that non-observance of the provisions of Rule16 (3), which is
mandatory in nature, has vitiated the certificate of registration in
favour the appellants”.
On-Line Copyright
Issues:
The Internet is a paradox.
It is everywhere, yet, at the same time, it is nowhere. It is “a worldwide
entity whose nature cannot be easily or simply defined.
The ease with which computers can transfer and exchange digital
information on the Internet has caused concern among intellectual property
owners, especially copyright owners. The information technology allows the
computer users to easily and secretly transform the copyrighted materials
into digital form and store them in their computer memory. Once a user
digitized information, he can easily upload it to the Internet. Once the
information is available on the Internet anyone in the world with Internet
access can download, modify, and distribute it. Thus, in an instant, a
copyrighted work can potentially lose its value and significantly suppress
an author’s incentive to create new material.
Thus, with the advancement
of information technology, copying, modifying, and distributing of
copyrighted materials has become very simple and difficult to trace. The
copyright owners are now at the mercy of a technology that has raced ahead
of the law. Because the Internet “is a cooperative venture not owned by a
single entity or government, there are no centralized rules or laws
governing its use.
Traditional Copyright
infringement Theories: Traditionally there was only one copyright
infringement theory known as “primary infringement”, which made the person
infringing the copyright personally liable for his acts. Thus, the concept
of third party liability or secondary liability was not recognized by the
legal systems of various countries all over the world, including the
United States. As the society progressed, need was felt to develop new
theories to meet the challenges thrown by it. While there were no express
provisions, which talked about infringing acts of another, third party
liability theories were evolved in the courts over the years. The courts
derived these theories from the traditional tort law and patent law
theories of contributory and vicarious liability.
The U.S Supreme Court
articulated the rationale for incorporating “third party liability” into
the copyright law in Sony Corporation of America v Universal
Studios, Inc.The
court specifically noted patent law’s explicit statutory prohibition
against inducing infringement and against contributory infringement, and
held that he absence of express language in the Copyright Act did not
preclude third party liability. Moreover, the court reasoned that
“vicarious liability is imposed in virtually all areas of law, and the
concept of contributory infringement is merely a species of the broader
problem of identifying the circumstances in which it is just to hold one
individual accountable for the actions of another.”
Direct Infringement:
Direct infringement is a strict liability offence and guilty intention is
not essential to fix criminal liability. The requirements to establish a
case of copyright infringement under this theory are:
(1) Ownership of a valid
copyright; and
(2) Copying or
infringement of the copyrighted work by the defendant.
Thus, a person who
innocently or even accidentally infringes a copyright may be held liable
under the Copyright Act of the U.S. and under the laws of various other
countries. The guilty intention of the offender can be taken into account
for determining the quantum of damages to be awarded for the alleged
infringement.
Contributory
infringement: The contributory infringement pre-supposes the existence
of knowledge and participation by the alleged contributory infringer. To
claim damages for infringement of the copyright, the plaintiff has to
prove:
(1) That the defendant
knew or should have known of the infringing activity; and
(2) That the defendant
induced, caused, or materially contributed to another
person’ infringing activity.
Vicarious Infringement:
Vicarious copyright infringement liability evolved from the principle
of respondent superior. To succeed on a claim of vicarious liability for a
direct infringer’s action, a plaintiff must show that the defendant:
(1) Had the right and
ability to control the direct infringer’s actions; and
(2) Derived a direct
financial benefit from the infringing activity.
Thus, vicarious liability
focuses not on the knowledge and participation but on the relationship
between the direct infringer and the defendant.
Legal precedent for
vicarious copyright infringement liability has developed along two general
relational lines. The first relational line involves the employer/employee
relationship, whereas the second involves the lessor/lessee relationship.
Internet and copyright
infringement theories: The advent of information technology has made
it difficult to apply the traditional theories to various cyberspace
entities and organizations. These cyberspace players can be grouped under
the following headings:
(1) Internet Service
Providers (ISPs),
(2) Bulletin Board
Services Operators (BBSO),
(3) Commercial Web Page
owner/operators, and
(4) Private users.
(1) Internet Service
Providers (ISPs): An ISP most often provides Internet access and he
may be held liable for copyright infringement. In Religious Technology
Center v Netcom On-Line Communication Services, Inc
a former minister uploaded some of the copyrighted work of the Church of
Scientology to the Internet. He first transferred the information to a BBS
computer, where it was temporarily stored before being copied onto
Netcom’s computer and other Usenet computers. Once the information was on
Netcom’s computer, it was available to Netcom’s subscribers and Usenet
neighbors for downloading for up to eleven days. The plaintiffs informed
Netcom about the infringing activity; nonetheless, Netcom refused to deny
the subscriber’s access because it was not possible to prescreen the
subscriber’s uploads, and kicking the subscriber off the Internet meant
kicking off the rest of the BBS operator’s subscribers. Thus, plaintiffs
sought a remedy against Netcom for infringement under all three theories
–direct, contributory, and vicarious.
The court first analyzed
whether Netcom directly infringed plaintiff’s copyright. Since Netcom did
not violate plaintiff’s exclusive copying, distribution, or display
rights, Netcom was held not liable for direct infringement.
The court held that Netcom
would be liable for contributory infringement if plaintiffs proved that
Netcom had knowledge of the infringing activity.
The court then analyzed
whether Netcom was vicariously liable. Here, once again the court found
that a genuine issue of material fact supporting Netcom’s right and
ability to control the uploader’s acts existed. The court found that
Netcom did not receive direct financial benefit from the infringement.
Thus, the court found that
the Netcom was not liable for direct infringement, could be liable for
contributory infringement if plaintiffs proved the knowledge element, and
was not liable for vicarious infringement.
(2) Bulletin Board
Services: The BBSs are more vulnerable to copyright infringement
litigations than the ISPs because they can operate independent of the
World Wide Web.
The first case in this
category was Playboy Enterprises, Inc v Frena.
In this case, the defendant operated a subscription BBS that allowed
the subscribers to view, upload, and download material. The court held
that Frena had violated Playboy’s exclusive distribution right and their
exclusive display right. Because Frena supplied a product containing
unauthorized copies of copyrighted work, he has violated the distribution
right. Moreover, because Frena publicly displayed Playboy’s copyrighted
photographs to subscribers, he violated the display right. The court
concluded that Frena was liable for direct infringement, though Frena
himself never placed infringing material on the BBS and despite his
arguments that he was unaware of the infringement. The court relied upon
the strict liability theory and held that neither intent nor knowledge is
an essential element of infringement.
In Sega v Maphia
the BBS was providing services to numerous subscribers who upload and
downloaded files to and from the BBS. The evidence clearly showed that the
BBS operator knew that subscribers were uploading unauthorized copies of
Sega’s video games to and downloaded from his BBS. The court held that
since the BBS operators only knew and encouraged uploading and
downloading, but did not himself upload or download any files, he was not
liable for direct infringement. The court, however, found the BBS operator
contributory liable. Regarding the knowledge element, the BBS operator
admitted that he had knowledge of the uploading and downloading activity.
The court rejected the BBS operator’s asserted fair use defense since
their activities were clearly commercial in nature. Further, the nature of
the copyrighted games was creative rather than informative and the entire
copyrighted works were copied, uploaded, and downloaded. This copying had
adversely affected the Sega’s sale.
(3) Commercial Web
sites: The Web Page owners must be cautious of the things they post on
their Web Pages so that they do not violate the stringent provisions of
the copyright laws. A Web Page owner cannot successfully plead and prove
that they were unaware about the copyrighted material because copyright
notices are prominently given in authorized software. They also have the
controlling power over the content of their pages. The owner are usually
the parties that actually perform the uploads to their pages.
(4) Private Users:
A computer user who uploads copyrighted material to the Internet is liable
for direct infringement. This liability could be avoided only if he can
prove the fair use doctrine. Thus, an Internet user should not post
copyrighted material on the Internet in a casual manner.
On-line copyright
issues in India:
The reference to on-line
copyright issues can be found in the following two major enactments:
(1) The Copyright Act,
1957, and
(2) The Information
Technology Act, 2000.
(1) Copyright Act, 1957
and on-line copyright issues: The following provisions of the
Copyright Act, 1957 can safely be relied upon for meeting the challenges
of information technology:
(a) The inclusive
definition of computer is very wide which includes any electronic or
similar device having information processing capabilities.
Thus, a device storing or containing a copyrighted material cannot be
manipulated in such a manner as to violate the rights of a copyright
holder.
(b) The term computer
programme has been defined to mean a set of instructions expressed in
words, codes, schemes or in any other form, including a machine readable
medium, capable of causing a computer to perform a particular task or
achieve a particular result.
It must be noted that Section13 (a) read with Section 2(o) confers a
copyright in computer progamme and its infringement will attract the
stringent penal and civil sanctions.
(c) The inclusive
definition of literary work includes computer programmes, tables and
compilations including computer databases.
Thus, the legislature has taken adequate care and provided sufficient
protection for computer related copyrights.
(d) The copyrighted
material can be transferred or communicated to the public easily and
secretly through electronic means. To take care of such a situation, the
Copyright Act has provided the circumstances which amount to communication
to the public. Thus, making any work available for being seen or heard or
otherwise enjoyed by the public directly or by any means of display or
diffusion other than by issuing copies of such work regardless of whether
any member of the public actually sees, hears or otherwise enjoys the work
so made available, may violate the copyright.
The communication through satellite or cable or any other means of
simultaneous communication to more than one household or place of
residence including residential rooms of any hotel or hostel shall be
deemed to be communication to the public.
(e) The copyright in a
work is infringed if it is copied or published without its owner’s
consent. The Copyright Act provides that a work is published if a person
makes available a work to the public by issue of copies or by
communicating the work to the public.
Thus, the ISPs, BBS providers, etc may be held liable for copyright
violation if the facts make out a case for the same.
(f) The copyright in a
work shall be deemed to be infringed when a person, without a licence
granted by the owner of the copyright or the Registrar of Copyrights under
this Act or in contravention of the conditions of a licence so granted or
of any condition imposed by a competent authority under this Act-
(i) Does anything, the
exclusive right to do which is by this Act conferred upon the owner of the
copyright, or
(ii) Permits for profit
any place 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.
(g) The Copyright Act
specifically exempts certain acts from the purview of copyright
infringement. Thus, the making of copies or adaptation of a computer
programme by the lawful possessor of a copy of such computer programme
from such copy in order to utilize the computer programme for the purpose
for which it was supplied or to make back-up copies purely as a temporary
protection against loss, destruction, or damage in order only to utilize
the computer programme for the purpose for which it was supplied, would
not be copyright infringement.
Similarly, the doing of any act necessary to obtain information essential
for operating inter-operability of an independently created computer
programme with other programmes by a lawful possessor of a computer
programme is not a copyright violation if such information is not
otherwise readily available.
Further, there will not be any copyright violation in the observation,
study or test of functioning of the computer programme in order to
determine the ideas and principles, which underline any elements of the
programme while performing such acts necessary for the functions for which
the computer programme was supplied.
The Act also makes it clear that the making of copies or adaptation of the
computer programme from a personally legally obtained copy for
non-commercial personal use will not amount to copyright violation.
(h) If a person knowingly
makes use on a computer of an infringing copy of a computer programme, he
shall be held liable for punishment of imprisonment for a term which shall
not be less than seven days but which may extend to three years and with
fine which shall not be less than fifty thousand rupees but which may
extend to two lakh rupees. However, if the computer programme has not been
used for gain or in the course of trade or business, the court may, for
adequate and special reasons to be mentioned in the judgment, not impose
any sentence of imprisonment and may impose a fine which may extend to
fifty thousand rupees.
It must be noted that
copyright can be obtained in a computer programme under the provisions of
the Copyright Act, 1957.
Hence, a computer programme cannot be copied, circulated, published or
used without the permission of the copyright owner. If it is illegally or
improperly used, the traditional copyright infringement theories can be
safely and legally invoked. Further, if the medium of Internet is used to
advance that purpose, invoking the provisions of the Copyright Act, 1957
and supplementing them with the stringent provisions of the Information
Technology Act, 2000 can prevent the same.
(2) Information
Technology Act, 2000 and on-line copyright issues: The following
provisions of the Information Technology Act, 2000 are relevant to
understand the relationship between copyright protection and information
technology:
(a) Section 1(2) read with
Section 75 of the Act provides for extra-territorial application of the
provisions of the Act. Thus, if a person (including a foreign national)
violates the copyright of a person by means of computer, computer system
or computer network located in India, he would be liable under the
provisions of the Act.
(b) If any person without
permission of the owner or any other person who is in charge of a
computer, computer system or computer network accesses or secures access
to such computer, computer system or computer network
or downloads, copies or extracts any data, computer data base or
information from such computer, computer system or computer network
including information or data held or stored in any removable storage
medium,
he shall be liable to pay damages by way of compensation not exceeding one
crore rupees to the person so affected. Thus, a person violating the
copyright of another by downloading or copying the same will have to pay
exemplary damages up to the tune of rupees one crore which is deterrent
enough to prevent copyright violation.
(c) While adjudging the
quantum of compensation, the adjudicating officer shall have to consider
the following factors:
(i) The amount of gain or
unfair advantage, wherever quantifiable, made as the result of the
default;
(ii) The amount of loss
caused to any person as a result of the default;
(iii) The repetitive
nature of the default.
Thus, if the copyright is
violated intentionally and for earning profit, the quantum of damages will
be more as compared to innocent infringement.
(d) A network service
provider (ISP) will not be liable under this Act, rules or regulations
made there under for any third party information or data made available by
him if he proves that the offence or contravention was committed without
his knowledge or that he had exercised all due diligence to prevent the
commission of such offence or contravention.
The network service provider under section 79 means an intermediary and
third party information means any information dealt with by a network
service provider in his capacity as an intermediary.
(e) The provisions of this
Act shall have overriding effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force.
Conclusion:
The provisions of the abovementioned two enactments show that the
Copyright protection in India is strong and effective enough to take care
of the Copyright of the concerned person. The protection extends not only
to the Copyright as understood in the traditional sense but also in its
modern aspect. Thus, on-line copyright issues are also adequately
protected, though not in clear and express term. To meet the ever-
increasing challenges, as posed by the changed circumstances and latest
technology, the existing law can be so interpreted that all facets of
copyright are adequately covered. This can be achieved by applying the
“purposive interpretation” technique, which requires the existing law to
be interpreted in such a manner as justice is done in the fact and
circumstances of the case. Alternatively, existing laws should be amended
as per the requirements of the situation. The existing law can also be
supplemented with newer ones, specifically touching and dealing with the
contemporary issues and problems. The Information Technology Act, 2000
requires a new outlook and orientation, which can be effectively used to
meet the challenges posed by the “Intellectual Property Rights” regime in
this age of information technology. Till the country has such a sound and
strong legal base for the protection of Intellectual Property Rights, the
judiciary should play an active role in the protection of these rights,
including the copyright. 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.
