Copyright Infringement
Copyright Infringement
Copyright subsists in original literary dramatic musical and artistic works. Concept of originality means the originality in expression of the ideas and not in origin of the ideas. Further, it must originate from the author and labour and skill should be expended sufficiently to impart to the product some quality or character that originally the material did not possess.
The objective of copyright law is protecting the original literary, dramatic, musical and artistic works, cinematograph films, sound recordings, broadcasting rights and/or performers right. “Copyright” in Section 14 of the Copyright Act is defined to mean an exclusive right to authorize the doing of any of the acts as prescribed therein. It confers copyright protection in the following two forms:
(A)Economic rights of the author, and
(B) Moral Rights of
the author.
Nevertheless, Conditions for subsistence of Copyright under the Copyright Act 1957 are as under
Ø For an author
1. The Author should be a citizen of India or must be domiciled in India.
2. For any work of Architecture it should be located in India.
Ø In case of Publication
1. The work should be published in India.
2. When the work was published outside India, the Author was a citizen of India at the time of publication, or if the author is dead he should be a citizen at the time of death.
Meaning of infringement
Infringement of copyright means the unauthorized use of material covered under copyright law, in a manner that violates one of the copyright owner”s exclusive rights, i.e. right to reproduce or perform the copyrighted work, or to make derivative works. It is a fact that all
”infringing copies” of a work in which copyright subsists are deemed to be the property of the owner of the copyright. The owner can sue for the recovery of possession of the copies.
Copyright in electronic and audio-visual media,
Copyright infringement is the unauthorized reproduction and distribution commonly referred to as piracy.
Copyright in literary work
Copyright in literary work is infringed when without a licence granted by the owner of the copyright or the Registrar of Copyrights under the Act or in contravention of the conditions of a licence, so granted or of any condition imposed by a competent authority under the Act the infringer
1. does anything, the exclusive right to do which is by the Act conferred upon the owner of the copyright or;
2. When any person makes
for sale/hire, or sells/lets for hire, or by way of trade displays or offers for sale/hire; or distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright of the literary work
For Computer websites
Infringing Copyright in a web site is when a party violates one of the five exclusive rights given to copyright owners under the Copyright Act. Those rights are the right to prevent others from reproducing or copying a work, publicly displaying a work, or distributing a work. An Internet service provider can also be found liable for copyright infringement even if not directly engaged in the copying of protected materials, as is explained in more detail in the section on ISP liability.
A web page creator must follow the specified guidelines while designing a
webpage.
1. The popular way of obtaining images is to create them in a drawing or other image creation program. It is important to start from scratch rather than from someone else’s creation because even if an image is significantly altered, the new image may infringe upon the copyright in the first image thereby being classified as a “derivative work.”
2. The moment an original image or string of text is fixed on a hard drive for the first time, it is protected by copyright. Therefore, any further unauthorized copying of a protected image is an infringement of the creator’s copyright, unless the use falls within one of the very limited exceptions to the copyright law, such as “fair use.”
3. Some web sites provide free images that are for use by others. These images can be used in a web page, provided the terms proposed by
the image creator are followed. However, these sites only require that some type of credit is given to the author, including a link back to the author’s site. In the event the images were misappropriated at some point and were not original creations of the alleged author they may infringe the copyright rights of the original author.
4. In addition, Developing Java Applets, Java Scripts, and ActiveX scripts i.e text and pictures, is normally a violation of copyright law to appropriate scripting or programming from someone else without permission. On the contrary many parties have made their scripts and applets available for use by the public and use is allowed as long as requirements set forth by the programmer are followed.
Defences for infringement
Fair Use
However, subject to
certain conditions, a fair deal for research, study, criticism, review and news reporting, as well as use of works in library and schools and in the legislatures, is permitted without specific permission of the copyright owners. Some of the exemptions are the uses of the work:
i. For the purpose of research or private study,
ii. For criticism or review,
iii. For reporting current events,
iv. In connection with judicial proceeding,
v. Performance by an amateur club or society if the performance is given to a non-paying audience, and
vi. The making of sound recordings of literary, dramatic or musical works under certain conditions.
Remedies against infringement
The remedies available against infringement are
independent and can be pursued simultaneously or separately.
Civil remedies could be a Suit for injunction restraining the impending infringement or continuing infringement. Suit for damages can be claimed. These suits can be presented before a Civil Court of competent jurisdiction within the territorial limits in which the plaintiff resides or the cause of action arises. The procedure required to be followed is the procedure prescribed in the Civil Procedure Code. The limitation for filing the suit is three years from the date when the cause of action arises.
Criminal Remedies for the owner of copyright and also for any other person would be to initiate criminal proceedings, by filing a complaint before the competent First Class Magistrate within whose jurisdiction, the plaintiff resides or the infringement
takes place or deemed to have taken place. However, only those who are affected by the infringement can initiate prosecution.
Collective administration means management and protection of copyright in works are undertaken by a society of owners of such works. Apparently, no owner of copyright in any work can keep track of all the uses others make of his work. Therefore, when he becomes a member of a national copyright society, that society by its organisational facilities and strength keeps a better vigil over the uses made of that work throughout the country and collect due royalties from the users of those works
Source :ThinkLegal Resources Pvt Ltd (www.thinklegal.co.in)
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