Infringement of

Copyrights &
Remedies
MAHINDRA PRABU M
ASST. PROFESSOR OF LAW
TNNLS
What is Infringement of Copyright?

Infringement of copyright means the unauthorized use of

material covered under copyright law, in a manner that
violates one of the copyright owners exclusive rights
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 an act of piracy.
There are two main factors that help in determining the
infringement. They are
Copying

Substantial taking
Copying

Casual connection: It means that there should be a

substantial objective similarity
Sub-conscious copying: If a person does a work
without knowing what he is doing then it is called
sub-conscious copying.
Indirect copying: It means copying from
intermediate copy i.e. a work may be copied by
copying a copy of it.
Substantial taking:

Unaltered copying.
Character of Plaintiffs and defendants work
Extent of defendants alteration
Nature of plaintiffs effort
Extent of plaintiffs effort
Manner in which defendant has taken advantage of plaintiffs work
Extent of interference with plaintiffs exploitation by defendants
acts
What acts constitute infringement?

what is required is the reproduction of substantial part of what is original in the

copyrighted work - Warwick film production Ltd v. Eisinger, 1 Ch 508
Non-Registration of work doesnt bar action for infringement. See Nav Sahitya
Prakash v. Anand Kumar, AIR 1981 All 200
In Blackwood & Sons v. Parasuram, AIR 1959 Mad 410 the court held that Intention is
immaterial for infringement and it further held that if the essential portion is copied
then it amounts to infringement.
Exact reproduction is not necessary to constitute infringement. See C.Cunnaih & Co.,
v. Balraj & Co., AIR 1961 Mad 111
For example, in D. Narayana Rao v. Prasad, (1979) 2 APLJ 231, the defendant had
borrowed a part of speech which was only of 2 minutes duration in a film of 3
hrs. It was held that the substantial part of speech has been copied.
Tests to determine infringement

In R.G. Anand v. M/S Delux films, AIR 1978 SC 1613 the

Supreme Court held that, One of the safest tests to
determine whether or not there has been a violation of
copyright is to see whether the subsequent works appears to
be a copy of the original. It is also called as lay observer test.
whether or not there has been a violation of the copyright is
to see if the reader or spectator or the viewer, after having
read or seen both the works would be clearly of the opinion
that the subsequent work appears to be the copy of the
first. Therefore if the impression formed by the lay observer is
so then the subsequent work is an infringed work.
 Contd.,

In S.K. Dutt v. Law Book Company, AIR 1954 All 570 the court held
that whether a book is a copy of another the external and
internal features of the book should be looked into. The external
features of the book are get-up and overall scope and the
internal features are general layout, manner of treatment of
subject matter and amount of material contained in the book.
The term piracy is nothing but exact copy of the original. In
Lallubhai v. Laxmi Shankar, AIR 1945 Bom 51 the high court held
that the test to detect piracy is to see mistakes and deviations
occurring in the original also have been reproduced.
In order to succeed in an action
for infringement the plaintiff has
to establish:
That there is a close similarity between two works
That the defendant has directly or indirectly made an unlawful
use of the plaintiffs work
That there is chain of causation linking the plaintiffs copyright
work with the defendants alleged infringing copy, and
The defendant had access to the plaintiffs work or an
infringing copy of the work.
What cannot be the Defences?

In Performing Rights Society Limited v. Urban District Council

of Bray, AIR 1930 PC 314
The court held that, innocence is no defence to copyright
infringement.
In Power Control Appliances v. Sumeet Machines Pvt Ltd,
(1994)2 SCC 448
The Supreme Court held that the plea of honest or
concurrent user (for securing concurrent registration) is not a
defence to infringement of copyright.
Remedies
Civil Remedies
Interlocutory Injunctions
Anton Pillar Order (Search & Seizure)
Ashok Kumar Order (Unknown Persons)
Mareva Injunction (Freeze the assets)
Norwich Pharmacal Order (Discovery of information)
Criminal Remedies
Search & Seizure
Imprisonment 6 months to 3 years
Fine 50000 to 200000