CIVIL AND CRIMINAL

REMEDIES AND APPEALS

Charu Srivastava
Assistant Professor
CoLS, UPES
CIVIL REMEDIES ( S 54-62)
 Sec 55
Owner is entitled to injunction, damages, accounts. Provided if
defendant proves his ignorance, plaintiff can only get injunction
and decree of whole or part profit if deem fir by court.
Damages and accounts can in no case be joined together.
( P.Lakshminathan v. Ramkrishna pictures, AIR 1981 AP 224.
1) Injunctions
 This is the main remedy in most of the cases.
 This is the only remedy against the innocent infringer. Plaintiff
cannot recover damages in such cases.
 In junction is given under Specific relief Act, 1963.
 Interlocutory/Temporary/ Ad interim injunction during pendente
lite
 Grant of injunction:

Prima facie case, probabilities of the case and the balance of convenience in
granting or denying an interim injunction.
Interlocutory injunction  CPC, 1908, Order 39, Rules 1 and 2.
Refer section 59(1): excludes work of architecture from injunction.
Gramophone Company of India Ltd v. Mars recording pvt ltd. (AIR 1997 Cal
63)
Grant of injunction depends upon the
 Possibility that the party who have approached the case has a good
chance of succeeding the case at the trial.
 If above test is satisfied then it is the duty of the court to see whether the
damages the plaintiff is likely to suffer for the action of the defendants
complained of can be compensated in money and if so whether there is a
standard of ascertaining such compensation. If such compensation can be
ascertained then the interlocutory order should be refused.
 But if on the other hand, the court is of the view that such
compensation cannot be compensated or ascertained in money
then it is the duty of the court to see the balance of
convenience of the parties.
 If the balance of convenience is in favor of the plaintiff then
the court shall normally issue an interlocutory order of
injunction upon the undertaking of the plaintiff to compensate
the defendant against whom the order of injunction is passed
if at the trial, it is held that the plaintiff is not entitled to such
permanent injunction.
 On the other hand, if it is found that the balance of
convenience is against passing such order, the court will
normally refuse to pass interlocutory injunction. It is also duty
of the court to preserve status-quo as far as practicable
dealing with such a matter.
1. Mareva Injunction  to prevent the defendant from
disposing the assets.
2. Anton pillar orders
To permit plaintiff to enter defendant’s premises and take
inspection of relevant documents and articles and take copies
thereof or remove for safe custody.
Anton Pillar KG v. Manufacturing processes Ltd. ( (1976)
Lord denning made such order:
England High court had jurisdiction to make a order
requiring defendant to permit the plaintiff and his
representatives to enter the defendant’s premises, to
inspect articles and documents relevant to the
proceedings.
 This order is not a search warrant, the order only authorizes
inspection by permission of the defendants. Entry without
permission would be a trespass. The defendant however is
ordered by the court in personam to give his permission with
the result that if he does not do so, he is in contempt of court,
but the plaintiff is still not entitled to enter in the absence of
permission.
 TRIPS contain similar provision under para 2 of article 50: it
provides that the judicial authorities must be empowered,
where appropriate, to adopt provisional measures without the
defendant being in audita altera perte, in particular where
delay is likely to cause irreparable damage to the right holder
or where there is a demonstrable risk of evidence being
destroyed. (this is similar to anton pillars orders)
 Anton pillars order are to be given very
carefully because it impinges upon the
principles of personal freedom,
presumption of innocence, the right not to
be condemned unheard, protection against
arbitrary searches and seizure and privacy.
 It is usually accompanied by mareva
injunction.
 These two are ultimate weapons to combat
copyright privacy.
 The following three conditions must be satisfied before
the court will make an order:
a) The plaintiff must show that he has an extremely
strong prima facie case;
b) the plaintiff must show that he has suffered, or is
likely to suffer very serious and irreparable damage, if
an order is not made; and
c) There must be clear evidence that the defendant has
in his possession incriminating documents or things
and that there is a real possibility that he may destroy
such material before any inter partes application can
be made on notice.
 In India also such orders have been asked for particularly in
cinematograph films and sound recording.
 In Buegrus Europe v. Vwean Industries Eng.Co. (2005) 30 PTC
279.
The calcutta HC examined the scope and validity of the anton pillar
exparte orders.
In this case plaintiff filed copyright infringement suit against
defendant in their artistic work. Court granted anton pillor order
however defendant contended in appeal that the plaintiff obtained
the order by misrepresentation since the design was registered and
does not have copyright protection hence the order needs to be
cancelled.
Court held there was a lack of boan fide from the part of plaintiff.
The fact that design was registered and was pending for cancellation
is a relevant fact hence order stands cancelled.
3. John Doe orders
 John Doe (or Ashok Kumar, in the Indian context) refers to an
unidentified entity, and orders allow content owners to shut down
entire websites in order to prevent them from allowing piracy,
without needing to go to court, for each time. To quote:
“Should the Plaintiffs find any actual instance of piracy
or infringement, the Plaintiffs will be at liberty to immediately
take action without having to move this Court once again. For
this purpose, the Plaintiffs will be entitled to take assistance of
the Police Authorities in the area(s) concerned. These authorities shall
act on production of an authenticated copy of this order.”
A John Doe order is given — under Order 30 Rule 1 of the Civil
Procedure Code read with Section 161 of the CPC — if there is prima
facie evidence that the unknown person or persons are likely to
commit an infringement.
 Order 7 Rule 1 of the Code of Civil Procedure
provides, the plaint shall contain the name, description
and place of residence of the defendant so far as can be
ascertained. When such identification is unknown, a
“John Doe” suit is maintainable. 
 The identity of the defendants may not be specific as in
individual persons or firms, but identified as a group or
as in generalized entities. For e.g., Cable Networks,
Websites, ISPs, Book Sellers, Newspaper etc.
 In US the Supreme Court case of Doe v. Wade 410 U.S.
113 (1973)
First time the anonymous entity to a criminal suit was
referred to as Doe. Hence, subsequently various US court
cases referred to unknown parties as ‘John Doe’ for male, and
‘Jane Doe’ for females.
ESPN Software India Private Ltd. vs. Tudu Enterprise and
others (2011), it was held that Indian Courts have jurisdiction
to pass an order against unknown persons arrayed as “Ashok
Kumar”.
 In a US Appellate Court Case, Dendrite International,
Inc., a New Jersey Corporation vs. John Doe, No.3 775
A.2d 756 (2001) 342 N.J the Court held for entertaining
the John Doe suit, the plaintiff should identify the
missing party with sufficient specificity such that the
court can determine that the defendant is a real person or
entity who could be sued in federal court.
 Kuldip Singh v. Subhash Chander (2000) 4 S.C.C. 50. Court
 has held that the scope of this action is that it is to apprehend
wrong or anticipate mischief. It is specie of precautionary
justice, and is to initiate before the mischief or work has been done.
 The Delhi High Court passed its very first John Doe order in
the year 2002, in Tej Television Limited vs. Rajan Mandal
(2003)
FACTS:
The matter dealt with unauthorized transmission of channel (“Ten
Sports”) by unlicensed cable operators without entering into
agreements with marketing partners of the plaintiff.
Around 1377 cable operators had taken licenses but several prominent
cable operators had not signed up and broadcasted the same without
any approvals.
The plaintiff was the owner of the registered broadcasting
rights of the channel for the Soccer World Cup, 2002. The
unauthorized broadcasting caused losses to the plaintiff and also
strained their relationship with the other licensees.
ORDER:
The Court recognized the unique nature of cable piracy and
it being virtually impossible to enforce such rights.
Having to wait and find the specific cable operators would
have led to huge losses of revenue to the plaintiff.
In light of the said situation the Court exercising its
inherent power under Section 151 of the CPC and in
consonance with internationally recognized principles of
John Doe in the other foreign jurisdictions passed a John
Doe order and appointed Court Commissioner to search
premises of other unnamed cable operators and seize
evidence by taking photographs and video films.
 ESPN Software vs. Tudu Enterprises
It was held that subscription to channels without license will be
impermissible.
The Plaintiff herein also claimed to be the sole and exclusive
distributor of three pay channels, namely, ESPN, STAR Sports and
STAR cricket Channels in India having obtained the exclusive right
from ESPN STAR Sports telev in India till the year 2015 for all ICC
events.
The plaintiff filed for a John Doe order apprehending unauthorized cable
transmission of the Plaintiff's channel leading to irreparable loss and
damage including subscription loss as well as advertisement revenues.
Such practices would also encourage other cable operators who have
currently procured licenses from the Plaintiff and possessed valid licenses
to also transmit unauthorized signals without making necessary payments
thereby defeating public interest.
Super Cassettes Industries vs. Myspace Inc. & Anr.
(2011) held that social networking sites (“SNS”) such as
YouTube, Myspace etc. may be held liable for copyright
infringement caused due to infringing material posted on
such websites, provided it may be established that
intermediaries had control over the material posted, had
the opportunity to exercise due diligence in preventing
infringement and derived profits out of such infringing
activities in consonance with Section 79 of the Information
Technology Act read with Information Technology
(Intermediaries guidelines) Rules, 2011.
Reliance Big Entertainment v. Multivision Network and Ors.
 Reliance Big Entertainment v. Multivision Network and Ors. (CS(OS)
3207/2011) -  In this case, the court termed the anonymous
respondents, who were indulging in acts of piracy of the movie Singham
as "Mr. Ashok Kumar".  Furthermore, relying upon  Order 39 Rule 1 and
Rule 3 of CPC, 1908, they added that-
 Court said :
Plaintiff has succeeded in making a prima facie case in its favour. Plaintiff
has exclusive copyright over the film "Singham" which is yet to be released.
In case, CD, DVD, Blue-ray, VCD are made by unidentified persons and
distributed and shown on cable TV, DTH, internet, MMS, Tapes and CAS,
plaintiff will indubitably suffer irreparable loss and injury.
Defendants and other unnamed and undisclosed persons / “Mr. Ashok
Kumar:, are restrained from communicating or making available or
distributing, or duplicating, or displaying, or releasing, or showing, or
uploading, or downloading, or exhibiting, or playing, and/or defraying the
movie "Singham" in any manner without proper license from the plaintiff or
in any other manner which would violate/infringe the plaintiff's copyright in
the said cinematograph film "Singham" through different mediums like CD,
DVD, Blue-ray, VCD, Cable TV, DTH, Internet, MMS, Tapes, Conditional
Access System or in any other like manner.
 Producers of films such as Housefull 3, Waiting, Veerappan and
Azhar have received orders from the Bombay High Court, which
allow them to ask the ISPs to block user access to any website
they believe hosts links which allow downloading of pirated
content. One of the older orders also lists torrent sites.
  In April 2010, in the Indian Performing Right Society
vs Badal Dhar Chowdhry and Ors case, Justice Rajiv
Sahai of the Delhi High court observed,
“Breach of injunction has serious consequences for the violator.
However, before the defendant can be so injuncted the
defendant ought to be made aware of the precise act which he
is prohibited from doing.
“…A vague and general injunction of anticipatory nature can
never be granted.”
DAMAGES AND ACCOUNT OF PROFITS
Formula for calculation of damages in cases where the
copyright work is not priced and the award for exemplary
damages came for consideration in P.N.Krishnan Murthy v.
Co-operativefor american relief everywhere (AIR 2001Del
258)
 Specific remedy in case of threat sec 60
Party can file a declaratory suit and obtain an injunction
against the continuance of such threats. He can also
obtain damages which he may have sustained by
reason of such threats.
However once the party who has commenced with due
diligence an action for infringement. Suit under section
60 becomes infructuous as the section ceases to apply
in such cases.
 Jurisdiction of Court
Sec 62
District court having jurisdiction copyright owner
can file suit where he actually or voluntarily resides
or carries on his business or personally works for
gain and not necessarily where the infringement
occurred.
Trademark Act, 1999 also provides similar issue.
Administrative remedies  IPR (Imported goods)
enforcement rules empower custom officer to enforce IPR
over imported goods. Custom officials can suspend the
clearance of goods of it has prima facie evidence or
reasonable grounds to believe that the goods are
counterfeit. This suspicion or belief can arise when either a
notice is filled by the right holder or suo moto action can be
taken.
Registration with Custom empowers the authority to
intercept, seize and confiscate goods found to be or
suspected to be infringing IPR registered and inforce in
India by any person without authorization by right holder.
CRIMINAL REMEDIES (S 63-70)

 Sec 63  6 months to 3 years and fine of 50,000 to 2

lakh.
 However where the infringement has not been for gain.
Lesser punishment can be given by court.
 Explanation: exclusion of building structures
 Sec 63A  The punishment increases for the second
conviction. One who has already been convicted under S
63. Punishment increases to 1 year to 3 years and fine
of 1 lakh to 2 lakh. However if infringement not for gain
then lesser punishment and fine.
Sec 63 B –Knowing use of infringing copy of computer
programme to be an offence  7 days to 3 years and fine
50,000 to 2 lakh.
Sec 64  power of police not below sub inspector to seize
infringing copies for infringement which is committed, or is
likely to be committed seize without warrant all copies of work,
plate used for infringement and present before magistrate.
Any interested person within 15 days of seizure can make an
application for restoration of seized good before magistrate.
(Prior to 1984 police can only exercise this power once the
matter was already before magistrate)
Constitutional validity of sec 64 was questioned in Girish
Gandhi & Ors. v Union of India[AIR 1997 Raj 78 )
 Event and Entertainment Management Association  v. Union of
India (Delhi HC) Order dated 2nd May 2011 
Delhi High court struck down the notification issued by the Commissioner
of Police which had instructed all subordinate functionaries of the police
to "attend to and provide assistance" whenever any complaint "in respect
of violation of the provisions of Copyright Act, 1957" was received from
three companies: Super Cassettes Industries Limited, Phonographic
Performance Ltd and Indian Performance Right Society Ltd.  This virtually
amounted to the commandeering of the criminal enforcement system by
a few private owners for their own private interests. In their suit, the
petitioner — Event and Entertainment Management Association —
had contended that the police machinery "cannot be made to act
at the behest of certain privileged copyright owners". 
Court said there has to be equal protection of the law in terms of Article
14 of the Constitution. The police are not expected to act differently
depending on who the complainant is. All complaints under the Act
require the same seriousness of response and the promptitude with
which the police will take action, Likewise, the caution that the Police is
required to exercise by making a preliminary inquiry and satisfying itself
that prima facie there is an infringement of copyright will be no different
as regards the complaints or information received under the Act
Sec 65  possession of plates for purpose of making infringing
copies (2 years and fine)
Sec65 A  circumvention of TPM with intention may extend to 2
years and fine.
Sec 65 B  Rights management information 2 years and fine
Civil remedies also available.
Sec 66  disposal of delivery (to owner) of infringing copies or
plates, whether the alleged offender is convicted or not doesn’t
matter.
Sec 67  Penalty for making false entries in register, etc., for
producing or tendering false entries (one year or fine or both)
Sec 68  penalty for making false statements for the purpose of
deceiving or influencing any authority or officer. (one year or fine
or both)
 In Syed Asifuddin and Ors. v The State of Andhra
Pradesh 2005 CriLJ 4314 (Andhra Pradesh HC ). the
accused had altered the software on the mobile handsets
provided by one service provider (Reliance), so that the
same handset could be used to access the network of a
rival provider (Tata Indicom). The Court observed that
"if a person alters computer programme of another
person or another computer company, the same would
be infringement of the copyright."  
 COPYRIGHT AND CONFIDENTIALITY
Diljeet Titus, Advocate v Mr. Alfred A. Adebare & Ors (Delhi High Court
2006).
Four associates of the plaintiff’s law firm quit together to start their own
practice. While leaving they took documents they had drafted including
agreements, due diligence reports and a list of clients along with them.
The plaintiff filed a suit for injunction, asserting both that this material was
confidential and that he owned the copyrights over them.
The Delhi High Court agreed and issued an injunction restraining the
defendants from “utilizing the material of the plaintiff forming subject
matter of the suit and from disseminating or otherwise exploiting the same
including the data for their own benefit.”
There was a conflation of confidentiality and copyright – both in the
allegations of the plaintiff and the rebuttals of the defendant who sought to
resist claims of confidentialty on grounds that they had themselves
authored the papers in question.
 Copyright and publicity
 Phoolan Devi v Shekhar Kapoor DLT (Vol. 57 (1995)
 The Delhi High Court was faced with the question of whether
‘public figures’ are entitled to any degree of control over the
representation of their lives.
 Here the petitioner, Phoolan Devi, a reformed bandit, had 'licensed‘ the
production of a biopic on her life to the defendant, a film director of
note, who was to consult the plaintiff’s own writings and those of her
authorised biographer in making the film. However, the defendant – the
director of the biopic – had exceeded this mandate and also depicted
incidents that emerged from various newspaper accounts – including a
graphic gang rape scene where the plaintiff was the victim, and a
massacre which she had allegedly orchestrated.
 Although generally well-known, neither of these incidents were either
admitted to by the plaintiff herself or mentioned in the plaintiff’s own
writings and those of her biographer. Even worse, the film had not been
shown to her even several months after it had been released to national
and international audiences. 
 One of the contentions that the petitioner’s advocate
had advanced was that the defendant had no right “to
mutilate or distort the facts as based upon prison diaries”
and that any such distortion would fall afoul of her right
under Sec 57 of the Indian Copyright Act. This section
confers certain ‘special rights’ on the author including the
right to claim authorship and to restrain any
distortion/mutilation or modification of the work that
would be prejudicial to his/her honour or reputation.
 These rights survive any assignment of the copyright
made by the author i.e. they can be asserted by the
author above any contract entered into by her with third
parties such as the producer in this case. The Court
framed the question it was faced with in these terms:
 The question is whether such person like the plaintiff has no right to
defend when someone enlarges the terrible facts, enters the realm of
her private life, depicts in graphic details rape, sexual intercourse,
exhibits nudity, portrays the living person which brings shame,
humiliation and memories of events which haunts and will go on
haunting the plaintiff, more so the person is still living.
 Whether the plaintiff has no right and her life can become an excuse
for film makers and audience to participate in an exercise of
legitimate violence with putting all inhibitions aside.
 Ultimately, the High Court sided with the petitioner and issued
an injunction restraining the defendant from exhibiting his
film. This decision was based more on a consideration of
constitutional right to privacy principles than an evaluation of
the plaintiff’s case under Copyright law. However, it does
provide an interesting factual matrix for the exploration of the way in
which protection of copyright and privacy might overlap.
 Sec68 A  violation of sec 52A( 3 years and fine)
 Sec 69 offence by companies
Companies include partnership firm or other
association of persons ( J.N. Bagga v. AIR Ltd (AIR
1969 Bom 302)
Sec 70  metropolitan magistrate or a judicial
magistrate of 1st class.
 In the same manner as all cognizable offences in
India i.e., by following the procedures under the
Code of Criminal Procedure, 1973. 
In siaram Silk Mills v. State (2001) 21 PTC 600(Del), bases
on the complaint of the owner of the copyright a prosecution
was initiated for copyright infringement under sec 63 of
Copyright act and Trademarks Act 1958 read with sec 420,
489 and 486 of IPC.
A search was conducted in pursuance of the directions of the
magistrate and infringing goods were seized. The magistrate
also took cognizance of the offence. However a petition was
filed before HC u/s 482 of CrPC for compromise of the
criminal case. the court after identifying the party’s role
observed thus:
“in view of the above no useful purpose would be served by
permitting the above complaint and proceedings to continue.
Accordingly the petition is allowed. “
 Gulfam exports and others v. sayed Hamid (2000)
20 PTC 496
The Bom HC was also reluctant to invoke criminal
jurisdiction while a civil suit was pending and
copyright not registered.
However existence of civil remedy is not a bar to
criminal remedy.
 State of Andhra Pradesh v. Nagoti Venkataramana(1979)
The SC examined the need to identify the owner and prove the ownership of
parties before convicting the accused for an offence under the act.
The inspector of police Tenali, guntur District of Andhra pradesh, in one of his
regular raids, seized 90 video cassettes of various films in telugu, hindi and
english from the video library of the accused and charged him for offence under
sec 52A read with sec 63 of Act. He was convicted by lower court and was
acquitted by HC on the ground that the owners of the film were not identified
and the prosecution failed to adduce evidence to prove the ownership of the
film.
The SC on appeal examined the requirement of ownership as a precondition for
the conviction of an offence under the Act. The court after examining various
provisions in the Act dealing with punishment found that the objective of
introducing sec 52A was to prevent piracy of film and sound records and protect
the interest of owner of copyright and the public. The act mandates the
punishment of the accused in case of violations of the provisions. In this context
the court rejecting the contention that the identification of the owner of
copyright was a precondition for conviction of the act observed that:
“ in view of the finding of the courts below, the
offence would fall under section 68A of the Act. It
would, therefore, be unnecessary for the prosecution
to track on and trace out the owner of the copyright
to come and adduce evidence of infringement of
copyright. The absence thereof does not constitute
lack of essential elements of infringement of
copyright. If the particular on video films etc,. as
mandated under section 52A do not find a place, it
would be infringement of copyright.”
APPEALS
 Sec 71  appeal against order of magistrate made under
sec 64 and 66
 Sec 72  Appeals against the orders of registrar of
copyright and copyright board
1) Copyright registrar to copyright board within 3 months
of order
2) Against order of Copyright board to HC within whose
jurisdiction the applicant actually and voluntarily resides
or carries on business or personally works for gain.
3) No appeal lie for an order made u/s 6 by Copyright board.
4) Time taken for certified copy to be delivered is excluded.
Sec 74  HC can make rules in respect of appeals u/s 72.