Copyright Infringement

Copyright Infringement

Subject: Science and Tech

Section :IPR

• The Supreme Court of India recently held that copyright infringement is a cognisable offence under the CrPC.
• This means that the police can begin investigations into allegations of copyright infringement on receiving a complaint, rather than after a judicial magistrate had taken cognisance of the offence and directed the police to initiate an investigation.
• As a result of the offence being made cognisable and non-bailable, it takes away the right of the accused to post a bail bond with the police and shifts the responsibility on to the courts for judicial determination on a case-by-case basis.

Copyrights Act 1957, amended in 2012

• Copyright is a bundle of rights given by the law to the creators of literary, dramatic, musical and artistic works and the producers of cinematograph films and sound recordings.
• The rights provided under Copyright law include the rights of reproduction of the work, communication of the work to the public, adaptation of the work and translation of the work.
• Copyrights of works of the countries mentioned in the International Copyright Order are protected in India, as if such works are Indian works.
• The term of copyright in a work shall not exceed that which is enjoyed by it in its country of origin.
• Acquisition of copyright is automatic and it does not require any formality.
• Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright.
• However, certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law with reference to dispute relating to ownership of copyright.
• Application for copyright can be filed in the Copyright office.
• Computer Software or programmes can also be registered as a ‘literary work’.
• As per Copyright Act, 1957 “literary work” includes computer programmes, tables and compilations, including computer databases.
• ‘Source Code’ has also to be supplied along with the application for registration of copyright for software products.
• The 2012 amendments make Indian Copyright Law compliant with the Internet Treaties – the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).

Problems in identifying Copyright Infringement

• There are special clauses under the Copyright Act which extinguish copyright in copyrighted works in certain circumstances — for example, if a work is qualified for protection under the Designs Act of 2000, it can no longer claim protection under the Copyright Act once it is reproduced beyond a certain threshold.
• Even the very question of determination of copyright infringement would require the court to apply the test of substantial similarity (both qualitative and quantitative) on a case-by-case basis.
• Also criminalisation of copyright infringement in India is also a problem. The prison term for copyright infringement is three years.

Copyright Infringement and Copyright Piracy

• Article 61 of the TRIPS agreement requires criminal measures to be applied for at least “wilful copyright piracy” on a “commercial scale”.
• Although the term copyright piracy itself remains undefined in TRIPS. Consequently, all piracy of copyrighted works is an act of infringement, but all infringement cannot be termed as piracy.
• So, for example, a person indulging in the mass reproduction of copyrighted books without the authorisation of the copyright owner would be guilty of copyright piracy.
• On the other hand, a dispute between two publishing houses on similar content in their textbooks would qualify only as copyright infringement and not copyright piracy.

Criminalizing conduct

• At best, the Indian Copyright Act makes a distinction between commercial and non-commercial infringement by allowing the courts to impose a sentence of less than six months or a fine of less than Rs 50,000.
• But it does not simply decriminalize acts of infringement that are non-egregious in nature, except where a building/structure is allegedly violating a copyrighted work (for example, in drawings).
• Unless the law is amended to not only differentiate between the different acts of copyright infringement but also require prior judicial cognisance as a precondition of criminal investigation by the police, the Supreme Court’s recent decision will pave the way for the police to impinge on civil liberties, impede the ease of business and have chilling effects on free speech.