Copyright litigation in India the overview

Introduction

The article gives a detailed insight overview of sources of law; court systems; substantive
law; parties to litigation; enforcement options; procedure in courts; preliminary relief; final
remedies; appeal remedies; litigation costs; reform.

Sources of law

The following are the principal sources of law and regulation:

• Statute The primary source governing copyright law in India is the Copyright Act
1957. Along with the Copyright Rules, they form an exhaustive regime that defines important
terms, regulates categories of works that are covered by copyright and provides remedies in
cases where the copyright in a work is infringed.

• Judicial precedent: Courts have contributed extensively to the development of

copyright law. Since decisions of high courts (with original, appellate and writ jurisdiction)
are binding on lower courts in their respective jurisdictions, they form a very strong source of
Indian jurisprudence.

• International law: International treaties and conventions help build jurisprudence.

Where a treaty is adopted into domestic (municipal) law, it is binding. India has signed
several treaties and conventions relating to copyright that integrate the provisions of these
documents into its statutory domestic law. Where the treaties are not part of municipal law,
they still have persuasive value and help courts to interpret grey areas of domestic law. These
treaties include:

• Berne Convention 1886.

• Universal Copyright Convention 1951.

• Rome Convention 1961; and

• WTO Agreement on Trade-Related Aspects of Intellectual Property Rights 1994

(TRIPS) (to which India is a signatory).
Court system

Infringement of copyright proceedings can be instituted before a district court, within whose
jurisdiction, the claimant either

• Resides.

• Carries on business.

• Personally, works for gain.

Foreign judgments, though not binding, are persuasive. The persuasive value of a foreign
decision is heightened when the facts and circumstances are like the case in India.

When considering foreign decisions, courts must apply them in the context of domestic laws,
legal procedure, and the practical realities of litigation in India (Forasol v Oil and Natural
Gas Commission, AIR 1984 SC 241).

Substantive law

Section 13 of the Copyright Act protects the following types of original works:

Literary works (including software, the source code of which falls under this definition,
books, articles, and poems).

• Dramatic works (such as scripts and choreographed routines).

• Musical works (songs and compositions).

• Artistic works (drawings, photographs, paintings, and sculptures).

• Sound recordings.

• Cinematograph films.

It is not necessary for the author of a particular work to be a citizen of India. The relevant
criterion for copyrightability of a work is originality.
Primary and secondary infringement of copyright

Copyright Act provides an exhaustive list of activities that constitute infringement of

copyright. The statute Section 51 of the does not specify a distinction between primary and
secondary infringement per se. However, the provisions suggest that the following acts can
be categorised as primary infringement:

• Any act that is the sole and exclusive prerogative of the copyright holder (or its
licensee), under the provisions of section 14 of the Copyright Act.

• Making infringing copies (reproducing copyrighted work) with the intention to sell,
make available for sale, publicly display or offer to sell the infringing copies.

• Distributing infringing copies of a work for trading purposes. Also, distributing

infringing copies in a way that prejudices the copyright holder.

• Exhibiting infringing copies of work protected by copyright to the public.

• Importing infringing copies into India, excluding copies used for private and domestic
use.

The statutory basis for secondary infringement can be found in section 51(1)(a)(ii) of the
Copyright Act. It stipulates that the act of permitting one’s “place” (either place of business
or of residence or any other venue, either digital or in the physical world) to be used for
communicating infringing work to the public with a view to profiting from it constitutes
infringement of copyright.

This provision has also been used to initiate infringement actions against entities that provide
platforms on the internet that host infringing content.

Moral Rights of Authors on Copyright Infringement

Authors have certain “special” rights (otherwise known as moral rights), that are inalienable
(unaffected by assignment of copyright to a third party) and perpetual (section 57, Copyright
Act). Consequently, every author of a work has the following rights:
• Right to paternity A claim over authorship of the work in question.

• Right to integrity A claim against the distortion, mutilation or modification or a work

that prejudices the honour and reputation of the author.

In addition to the statute, moral rights have also been recognised and enforced by
Indian courts (Amarnath Sehgal v Union of India, 2005 (30) PTC 253 (DEL)).

Immunity from infringement of copyright

An exhaustive list of defences to copyright infringement is provided (section 52, Copyright

Act). This provision is referred to as “fair dealing” and is similar to the fair use
principles of copyright. However, one major point of distinction between the two is that
while fair dealing comprises an exhaustive set of activities, fair use is purely subjective.
The following activities are immune from an infringement action:

• Private use, including research.

• Criticism or review.

• Reporting current events in print media or by broadcast or in a cinematographic film

or using photographs.

• Reproduction for the purpose of a judicial proceeding or of a report of a judicial

proceeding.

• Reproduction for the purpose of preparation of work prepared by the secretariat or the
legislature.

• Reproduction of a work in a legally authorised, certified copy of it.

• Reading or recitation of reasonable extracts from a published literary or dramatic

work.

• Publication of a work as part of a collection of works that mainly consist of non-

copyright works, provided it is intended for educational use.

• Reproduction of a work in furtherance of educational activities, that is, by a teacher

during the course of instructions, or as part of questions or their answers in examinations.
Section 52 also contains a host of other exceptions that amount to infringement. Over a
period of time, the Indian courts have developed several tests to determine fair dealing
including:

• Amount and substantiality of dealing or reproduction (RG Anand v Delux Films &
Ors, AIR 1978 SC 1613).

• Purpose and character of the dealing or reproduction (The Chancellor Masters &
Scholars of the University of Oxford v Rameshwari Photocopy Services, Judgment dated
September 16, 2016 in CS (OS) 2439 of 2012, The High Court of Delhi).

• Intention to derive profits from unfair competition (Kartar Singh Giani v Ladha
Singh, AIR 1934 Lah 777).

Non requirement of copyright registration

This requirement does not exist in India. The author of an original work has the discretion to
seek registration of copyright (section 45(2), Copyright Act).

Copyright is vested in an original work from the moment of its creation. However, there
are certain advantages to registering copyright in an original work. Therefore, the
ability to enforce copyright and initiate a suit for infringement and damages has no
bearing on copyright registration (Glaxo Orthopaedic UK Ltd v Samrat Pharma, AIR
1984 Delhi 265).

One advantage of registration is that that the register of copyright serves as prima facie proof
of information such as authorship of a copyright work (section 48, Copyright Act).

Copyright notice
The Berne Convention does not mandate the use of a copyright notice. Consequently, this is
not a mandatory requirement under the Copyright Act.
There are no bad consequences to not registering copyright or not displaying a copyright
notice. However, there are advantages to registering copyright, and these include:

 Constructive notice to third parties. Third parties and potential infringers are put on
notice that the work in question is the exclusive proprietary right of the
author/copyright holder.

• Ease of proving ownership. Since the Register of Copyright is admissible evidence in

judicial proceedings and provides prima facie proof of the authenticity of its contents, it is
easy to prove authorship or proprietorship of the work in question.

• Ease of enforcement. It is easier to defeat claims of innocent infringement, authorship,

and so on by placing registration documents into evidence. Increased damages will also be
payable.

Time period of copyright protection for the principal types of copyright

work

For original literary, dramatic, musical and artistic works, copyright subsists for the duration
of the lifetime of the author plus 60 years from the year following their death.

However, if the work has not been published, performed, or offered for sale or broadcast
during the lifetime of the author, copyright protection continues for 60 years from the end of
the year in which any of these acts occur.

For sound recordings, posthumous publications, anonymous publications, or those under a

pseudonym, government works or works of international organisations are protected by
copyright for 60 years from the date of first publication of the work.

For cinematograph films, photographs and computer programs, copyright lasts for 60 years
from when they are first made available to the pubic with consent from the author.
Alternatively, protection is available for 60 years from the end of the year in which the works
are made.

Assessment of Copyright Infringement

Infringement revolves around the extent and purpose for reproduction of a particular
copyright work.

Courts apply the three following tests to determine whether a work has been reproduced:

• Was there access by the alleged infringer to the copied work?

• Is there objective similarity between the infringing copy and the claimant’s work? The
court applies the test of “substantial similarity” to assess the extent of reproduction by the
infringing entity. Where the extent of the reproduction is negligible (de minimis), no question
of infringement arises.

• Where there is a defence of “independent creation”, is there an explanation for it or

for how the alleged infringer produced the work in record time.

Grounds for copyright to be declared unenforceable

The Copyright Act does not make any explicit mention of invalidation proceedings. It does
however, refer to rectification of the copyright register.

Section 50 of the Copyright Act, read with rule 71 of the Copyright Rules 2013 states clearly
that a challenge can be made about the entry of a particular work on the copyright register.

Some of the grounds under which the copyright in a work can be challenged include:

• The work in question is not original.

• The work in question does not seek to cover an expression, but an idea instead
(Indian Express Newspapers (Bombay) Pvt Ltd v Dr Jagmohan Mundhara, AIR 1985 Bom
229). Similarly, it can be claimed that the expression of the work in question is so intricately
linked to the idea that the author wishes to express that it is impossible to separate the two.
This is also referred to as the “merger doctrine”.
• The term of copyright has expired, or the copyright owner had formally renounced its
rights (by notifying renunciation of them to the copyright registrar).

limitation periods applying to copyright infringement actions

The Limitation Act 1963 sets out the statute of limitations for filing infringement actions. The
usual time limit for bringing an action is three years from the date the cause of action arises.

However, in Timken Company v Timken Services Private Ltd (CS (OS) 3/2010 and IA
21/2010), the Delhi High Court held that every time a deceitful act is committed, a fresh
cause of action arises. Section 22 of the Limitation Act also states that where there is
continuing tort, a new limitation period starts every time there is a breach of tort.

Who can sue for copyright infringement?

Copyright holder

Either the copyright holder or an exclusive licensee can sue for copyright infringement.

Exclusive licensee

An exclusive licensee can sue for violation of any rights that it holds by virtue of a licence
from the original owner of the copyright.

While a licensee does not need to be compulsorily registered to be able to sue, the licence
itself must be in writing.

Non-exclusive licensee

Only an exclusive licensee or the copyright owner can institute a lawsuit for infringement.

Who can be sued for copyright infringement?

Primary infringement
Any person or entity that commits the following acts can be sued for primary infringement
(section 51, Copyright Act):

• Making for sale or hire or selling or letting out unauthorised copies.

• Distributing or displaying unauthorised copies for the purposes of trade.

• Importing unauthorised copies.

Secondary infringement

Any person who allows use of a place to disseminate infringing or unauthorised copies to the
public with knowledge of the infringement is liable for secondary infringement.

Directors of a company can be joined as parties (Order 1 Rule 10, Civil Procedure Code).
The directors can be classified as necessary/proper parties for a lawsuit.

The claimant has the onus to prove that the directors are necessary parties for effective
adjudication of the infringement suit as they are responsible for the day-to-day activities of
the company and are equally liable.

Enforcement options
Civil proceedings
Civil remedies can be enforced by filing a suit for either infringement and/or passing off in
the relevant district court (section 62, Copyright Act).

Civil proceedings include the following remedies:

• Injunctions. Injunctions can either be interlocutory, temporary or permanent. They

are a prohibitory court order restraining a party from acting adversely until disposal of the
lawsuit. A permanent injunction is the final order of the court that confirms and causes
temporary injunctions to become permanent (section 39, Specific Relief Act 1963).

• Anton Piller orders. This grants an ex parte search and seizure option to the claimant
permitting access to the defendant’s premises to inspect relevant documents and articles, take
copies of them and/or remove them to safe custody where there is danger that they will be
destroyed.
• John Doe orders. These are issued by a court against unknown/anonymous
defendants to restrain them from continuing any infringing actions.

• Quia Timet actions. A quia timet action can be filed by a claimant who anticipates
infringing activities by the defendant. The claimant requests the court to grant an injunction
on the basis of reasonable anticipation.

• Damages/account of profit. In an infringement action, a claimant can only seek one

kind of relief. It must elect either a remedy for damages or an account of profit. Damages are
compensatory in nature and make good the loss caused to the claimant. An account of profit
is an equitable remedy requiring the defendant to hand over to the claimant actual amounts of
profit made from the infringing activities.

• Destruction and delivery up. The infringer is directed to deliver the infringing
material to the claimant or destroy it in the presence of a local commissioner (appointed by
the court) or the claimant himself.

Criminal proceedings

Section 63 of the Copyright Act deals with offences of infringement of copyright or other
rights under the Act. It provides for a term of imprisonment of not less than six months,
extendable to three years. It also provides for payment of a fine between INR50,000 and
INR200,000.

The term of imprisonment and the fine can be increased under the provisions of section 63A
of the Copyright Act.

Border measures

The Indian Government can prohibit the import and export of specified goods if it deems it
necessary to do so. Under section 11 of the Indian Customs Act 1962, the government can
prohibit the import or export of goods for the protection of patents, trademarks, and
copyright.

India has also ratified the Intellectual Property Rights (Imported Goods) Enforcement Rules
2007. The rules comply with the border measures set out in TRIPS, empowering customs
officers to enforce intellectual property rights over imported goods.
Preliminary or temporary relief is available and is routinely claimed in lawsuits involving
violation of copyright.
The Code of Civil Procedure allows an application seeking an injunction to restrain a
defendant from making use of copyright that violates the rights of a claimant. To secure a
preliminary/temporary injunction, a claimant must satisfy three conditions:

• Prima facie case. The claimant must establish that its grievance against a particular
defendant is legitimate and valid on the face of it (ownership of copyright in a particular work
is a necessary to establish a prima facie case).

• Irreparable harm and injury. The court must be convinced that the absence of an
injunction will cause tremendous harm to the claimant. The injury must be such that
monetary compensation from the defendant will not be sufficient to make good the loss
caused to claimant.

• Balance of convenience. It is necessary to establish that granting an injunction

restraining the defendant from violating copyright is more equitable than not granting it.

Ex parte injunctions are secured by claimants in special circumstances and not as matter of
right. The court must be satisfied that a refusal to grant an injunction will cause severe
prejudice to the claimant’s interests.

However, the conduct of the claimant itself is a relevant factor in determining whether an
injunction can be awarded. For example, a delay by a claimant in approaching the court and
alleging violation of its rights is a recognised factor that can lead to refusal of a temporary
injunction.

It is advisable to send a letter before action (cease and desist letter) to an

alleged infringer before commencing copyright infringement proceedings

Sending a demand letter/cease and desist notice to an alleged infringer is highly beneficial
and can help address the infringement without having to resort to litigation.

There is no straightforward way to obtain the maximum benefit from a cease-and-desist

letter. The decision to send the letter (or to withhold it) will depend on the circumstances
under which the infringement is occurring.
In most cases, a cease-and-desist letter is advisable for the following reasons:

• It puts the infringer on notice that the right holder is aware of its activities.

• The notice prompts the majority of entities to give up their infringing activities and
abide by the right holder’s demands. Contesting a lawsuit against a rights holder is similar to
fighting a losing battle, especially when the infringement is blatant and in bad faith.

• Refusal to acknowledge a cease and desist letter presents stronger grounds for an
injunction.

• Cease and desist letters also evidence the honesty of the rights holder and showcase
its willingness to resolve the dispute in a non-contentious way.

However, there can also be drawbacks to a cease and desist letter, including:

• Depriving the right holder of the element of surprise. Since the infringer is already
aware of the right holder’s desire to assert its rights, it can file a caveat petition with the
court, forcing the claimant to give prior notice of an infringement lawsuit, if and when it is
filed.

• Giving an infringer ample time to destroy infringing evidence, make adjustments in

account books and depriving the claimant of the opportunity to assess the true extent of the
infringement and consequent damages owed by the infringer.

In cases of video piracy, it is common for an infringer to destroy all incriminating copies and
equipment on receipt of a letter. Therefore, the element of surprise is often important in cases
of infringement.

Resolving of Copyright Infringement through ADR Methods

Arbitration
The Civil Procedure Code and the Arbitration and Conciliation Act 1996 provide for
disputes to be arbitrated and apply to copyright infringement cases. Arbitration is a favoured
option for resolving intellectual property disputes because it balances the interests of both
parties equitably and ensures confidentiality and consensual settlement.

In India, domain name disputes can be resolved through arbitration under the .IN Dispute
Resolution Policy (INDRP). This policy is administered by the National Internet Exchange of
India and primarily addresses trademark disputes. However, if a third party reproduces
content that infringes copyright, the copyright holder can highlight this and claim that the
domain name registration was undertaken in bad faith

Cases concerning intellectual property, including infringement of copyright, are mostly

resolved through litigation. However, there has been a definite trend towards ADR
procedures. Mediation has become an attractive option because the interests of both parties
are considered, along with confidentiality and speedy settlement with no damage to the
reputation of either party.

The Delhi High Court Mediation Centre has been proactive in resolving disputes through
mediation. For example, a form of dispute resolution called “early neutral evaluation”
was used in Bawa Masala v Baba Masala Co Pvt Ltd. The disputes were resolved after a
mediation process and under the umbrella provision in section 89 of the Civil Procedure
Code.

Procedure in civil courts

All disputed issues are decided by judges from issue of a temporary injunction until final
resolution. There is no jury system.

The format for copyright infringement proceedings are the same as for all civil, commercial
litigation including:

• Filing the lawsuit along with an application for a temporary injunction under
Order 39, Rules 1 and 2 of the Civil Procedure Code. The power to institute a lawsuit
for copyright infringement is set out under section 62 of the Copyright Act.

• Completion of pleadings (written statement, replication, replies to applications)

by both parties.

• Arguments on interim applications (including injunctions).

• Admission and denial of documents.

• Framing of issues to be proved by parties during trial.

• Trial.

• Final arguments.

All the above stages are overseen by a single judge in the court of first instance. To reduce
the burden and clear the backlog of pending cases, trials can be administered by court-
appointed commissioners. These commissioners are usually former judges who can help to
facilitate a smooth trial.

The rules and practice concerning evidence in copyright infringement

proceedings in your jurisdiction

Documents

Copyright litigation follows rules that govern commercial disputes under the
Commercial Courts Act 2015.

All relevant documents must be filed with the complaint at the time the lawsuit is instituted
(Order XI, Rule 1, Code of Civil Procedure (CPC)). Additional documents can be filed 30
days after institution of the lawsuit. However, any documents that are not filed with the court,
despite being available to the relevant party concerned, cannot be relied on at a later stage,
unless the court grants specific permission (Order XI, Rule 4, CPC).

Witness evidence

Once the issues are outlined, the parties must present their evidence. The following rules
apply to witness evidence:

• Examination-in-chief is conducted by written affidavit (Order XVIII, Rule 4(1),

CPC).

• Witness statements for one particular party must be filed simultaneously (Order
XVIII, Rule 4(1A), CPC).

• Any witnesses’ affidavit can be validly withdrawn before cross-examination begins

(Order XVIII, Rule 4(1C), CPC).
• Evidence is recorded either by the court directly or by a commissioner appointed by
the court (Order XVIII, Rule 2, CPC).

Expert evidence

Expert evidence can be given on aspects of foreign law, science, art, identity, handwriting
and fingerprints (section 45, Evidence Act 1872). In addition to the subject matter, it must be
proved that the witness in question is truly an expert in their field. If not, their entire
testimony becomes irrelevant to adjudication of the dispute.

There is no fixed rule used to determine whether a person is truly and expert or not. The
determination of expertise is an exercise performed by the court. However, the court will
reply on criteria such as:

• Relevant experience.

• Assessment of credibility.

• Consistency of opinions.

Level of proof is required for establishing infringement.

In civil proceedings, the standard of proof is based on the balance of probabilities. The
standard is lower at the preliminary stage when the claimant must establish a prima facie
case.

In criminal proceedings, the standard is beyond reasonable doubt.

The time period for which copyright infringement proceedings typically

last

Expediting proceedings
Copyright lawsuits are categorised as commercial disputes. Special legislation in the
form of the Commercial Courts, Commercial Divisions and Commercial Appellate
Divisions of High Courts Act 2015 was enacted to govern these disputes.

Courts must now create a fixed schedule for the completion of each stage in proceedings.
These stages range from initial arguments on preliminary injunctions to final arguments.
More importantly, the court can order parties to conduct the trial daily. This provision has
had a great impact in reducing the time taken to conclude proceedings.

Typically, where a lawsuit is contested by the defendant, it can easily take two to three years
to be concluded. Where the lawsuit is settled, it can take between six months to a year.

Delaying proceedings

Sometimes defendants adopt the following tactics to slow proceedings down:

• Delay completion of the pleadings (including filing a written statement, reply,

rejoinder).

• Seek adjournments due to non-availability of counsel, non-receipt of essential

papers, need for counsel to obtain further instruction.

• Interrupt the trial citing unavailability of witnesses without giving sufficient

notice to the opposing party.

The effectiveness of these tactics depends on how strict the court is, but generally the courts
view them unfavourably.

Staying proceedings

If the matter in issue is also directly and substantially the subject of another lawsuit
between the same parties, proceedings will be stayed pending the outcome of the first
trial (section 10, Code of Civil Procedure).

Counteracting delay to proceedings

The judiciary frowns upon any delaying tactics by any party. Judges have the discretion to
pass strict orders against parties engaging in dilatory tactics, such as imposing costs on a
defaulting party and refusing the defaulting party extensions of time.

The recently enacted Commercial Courts Act 2015 provides strict time limits for certain
activities during the course of proceedings. These timelines are not flexible. For example,
failure to file an official written statement within 120 days from receipt of the summons will
conclusively prevent the defendant from filing a written defence. No discretion has been
provided to the court to allow a written defence after this period, regardless of the
justification provided by the defendant.

Preliminary relief

Preliminary or temporary relief is available and routinely sought in lawsuits involving

copyright infringement.

To seek a temporary injunction, the claimant must establish (Order 39, Rules 1 and 2, Civil
Procedure Code together with section 55, Copyright Act):

• A prima facie case.

• Irreparable harm and injury.

• The balance of convenience.

Ex parte injunction orders are sought by claimants in special circumstances where legitimate
damage to the copyright holder is anticipated or where the defendant may destroy evidence
before arguments on the injunction can be heard.

A court must be satisfied that refusal to grant an injunction will cause severe prejudice to the
claimant’s interests.

The claimant’s conduct is relevant when determining whether an injunction will be awarded.
For example, a delay in approaching the court and alleging violation of its rights will often
lead to refusal of temporary injunctions.
The format for preliminary injunction proceeding

General

In general, preliminary injunction proceedings are instituted by filing a formal application,

normally at the time the lawsuit is filed. The respondent to the application (usually the
defendant) must file a formal reply to it. The applicant (usually the claimant) can file a
response to the reply.

Once pleadings are complete, the court sets a date to hear arguments from both parties. Once
arguments have been advanced, the court delivers its order on the injunction application.

Level of proof

At the interim (preliminary) stage of a lawsuit, the claimant must prove a prima facie case.

The level of proof increases as the proceedings progress and reaches the balance of
probabilities in a civil case.

Evidence

Documents and affidavits are relied on in preliminary injunction proceedings. The contents of
the documents, affidavits and witness statements must be proved during trial.

Affidavits and statements from experts are usually relied on once the trial concludes. If the
parties proved the contents of the documents or satisfied the conditions for expert witnesses,
the testimony and documents can be relied on. If not, they will not be included in evidence.

Copyright validity

The defendant can challenge the validity of the claimant’s claim to copyright at the
preliminary injunction stage.

The question will be determined on a prima facie basis to decide whether or not to grant a
temporary injunction.
Length of proceedings

Preliminary proceedings are typically concluded within 12 months.

Where a preliminary injunction is granted, is it necessary to start main

proceedings to confirm the preliminary injunction, and if so, what is the
deadline?

A temporary injunction granted at the preliminary stage must be confirmed in the main
proceedings. A permanent or a perpetual injunction is only granted after trial.

An exception can be made in the case of summary judgments, where the court rules that the
defendants have such a weak case that there is no possibility of them winning at trial. In this
situation, the preliminary injunction can be made absolute, and the proceedings can be
decided in the claimant’s favour without the case proceeding to trial.

Remedies available in a copyright infringement action

Permanent injunction

A claimant can seek a permanent injunction (section 55(1), Copyright Act).

Monetary remedies

Section 55(1) also enables the claimant to seek monetary relief for copyright infringement.

The court can either award damages or direct the defendant to submit an account of profits so
damages can be assessed at a later date (but not both).

Delivery up or destruction of infringing goods

The court can pass an order directing the seizure, forfeiture, or destruction of the infringing
goods and of materials used to create them.
Publication of the decision

Publishing/reporting a decision is permitted. Decisions are either reported in private law

reports or directed to be published by litigants in response to a specific request before the
court.

Recall order

There are no specific provisions addressing the issue of recalling an order previously passed
by a court. However, courts recognise that orders that are inherently invalid can be recalled.
The court has inherent powers to do all that is necessary to further justice or prevent abuse of
process (section 151, Civil Procedure Code).

Declaration of infringement and validity

An order for injunction is passed only when a court conclusively finds that the defendant has
infringed the claimant’s copyright (section 55, Civil Procedure Code).

There is no explicit provision on validity of a copyright. However, a certificate of registration

of copyright and the entries made in the register are prima facie proof of validity in court.

Monetary remedies assessed against a copyright infringer

Monetary remedies are assessed and awarded to a claimant using various criteria. Broadly
speaking, there are three forms of damages, including:

• Actual/compensatory damages. These relate to the loss caused to the claimant as a

result of the defendant’s infringement. The claimant must provide evidence to prove the loss
it claims to have suffered.
• Punitive damages. This compensation is granted where the defendant’s conduct has
been so bad faith that the court believes that compensatory damages are not proportionate to
the extent of the misconduct. The court can award damages over and above the finalised
compensatory damages.

• Token/nominal damages. These are awarded for early resolution of a particular

dispute. Alternatively, where the defendant has been proceeded against ex parte and the
claimant is not in a position to prove the exact quantum of loss, the court can award a fixed
amount that it believes reasonable to compensate the claimant for infringement.

Routes of appeal are available to the unsuccessful party and conditions

that are applied

Any litigant can file an appeal against an order from the court. An appeal can be filed against
a final decision, as well as against interim orders issued while the suit is still pending.

Appeals from final judgments

Every party can file an appeal against final judgment before the appellate court. This is called
the first appeal (section 96, Civil Procedure Code).

Where the first appellate court does not make changes to the underlying final decision, a
party can file a regular second appeal before a higher appellate court (section 100, Civil
Procedure Code).

A second appeal cannot be filed as a matter of right, but only in response to a substantial
question of law.

There is no defined timeline for the resolution of a final appeal and they can take
between two to five years.

Appeals from interim orders

Parties can file an appeal against interim orders provided that they fall under the category of
orders from which appeals are allowed by the Code of Civil Procedure. Order XLIII, Rule
1 provides an exhaustive list of orders against which it is possible to appeal. Interim
orders not included in the list can be appealed later (when the final judgment is appealed).

Appeals from interim orders are resolved much more quickly than appeals from final
decisions and typically take between one and six months.

Stay of proceedings

This relief is available to litigants in cases where an appeal has been filed against an interim
order.

The underlying suit (or order that has been appealed) is not stayed merely because an appeal
has been filed against it. The aggrieved party must file an application seeking stay of the
proceedings and must satisfy the court of the necessity for a stay on the underlying
proceedings.

Litigation costs

The cost of litigation (including attorneys’ fees) is recoverable after a first instance decision.
However, there is no certainty that costs must be borne by a particular party unless
specifically directed by the court. Similarly, costs can be awarded entirely subject to the
discretion of the court.

Costs are difficult to estimate and vary depending on factors such as:

• Court fees (which change depending on the pecuniary jurisdiction of the courts).

• Length of arguments.

• Length of trial.

• Engagement of senior counsel.

Since costs play a significant role in determining the parties’ approach to litigation, courts
can also require parties to submit an estimate of costs that they expect to incur during trial
and other stages in the proceedings. This also makes it easier for the court to determine an
award of costs.