What is Copyright Infringement?
Copyright infringement occurs when a person, without authorization from the copyright owner, exercises any of the exclusive rights granted to the copyright owner under the Copyright Act, 1957. These exclusive rights include the right to reproduce, distribute, perform, display, and create derivative works based on the copyrighted work.
Under Section 51 of the Copyright Act, copyright is deemed to be infringed when any person, without a license from the owner or Registrar of Copyrights: (a) does anything the exclusive right to do which is conferred upon the owner of the copyright, or (b) permits for profit any place to be used for the communication of the work to the public where such communication constitutes infringement.
Exclusive Rights of Copyright Owner
- • Right to reproduce the work in any material form
- • Right to issue copies of the work to the public
- • Right to perform the work in public or communicate it to the public
- • Right to make any translation or adaptation of the work
- • Right to make cinematograph film or sound recording of the work
Types of Copyright Infringement
Copyright infringement can take various forms depending on the nature of the work and the type of unauthorized use.
Primary Infringement
Direct Copying
Reproducing the work in any material form without authorization, including photocopying, scanning, printing, or digital copying.
Adaptation Without Permission
Creating derivative works such as translations, dramatizations, cinematographic versions, or abridgments without license.
Public Performance/Communication
Performing the work in public or communicating it to the public through broadcast, internet streaming, or public display without authorization.
Distribution of Copies
Selling, renting, offering for sale, or distributing infringing copies of the work to the public.
Secondary Infringement
- Possession of Infringing Copies: Knowingly possessing infringing copies for sale or distribution
- Providing Venue: Permitting a place to be used for public communication of infringing work for profit
- Importation: Importing infringing copies into India
- Aiding and Abetting: Knowingly facilitating infringement by others
Digital Infringement
Online Piracy
- • Illegal downloading and sharing
- • Torrent websites and P2P sharing
- • Unauthorized streaming platforms
- • Cyberlockers and file sharing
Software Piracy
- • Unlicensed software installation
- • Cracking and key generation
- • Unauthorized distribution
- • Use of pirated software in business
Content Theft
- • Copying website content
- • Image and photo theft
- • Plagiarism in academic works
- • Unauthorized use of music
Circumvention
- • Breaking DRM protections
- • Removing watermarks
- • Bypassing access controls
- • Creating circumvention tools
Fair Dealing Exceptions
The Copyright Act provides certain exceptions where use of copyrighted material does not constitute infringement. These are generally referred to as "fair dealing" provisions under Section 52 of the Act.
Permitted Uses Under Fair Dealing
| Purpose | Conditions | Extent |
|---|---|---|
| Private study/research | Non-commercial, personal use | Fair dealing with any work |
| Criticism or review | Acknowledgment of source | Reasonable extracts |
| Reporting current events | In newspaper, magazine, or broadcast | Not photographs |
| Teaching | In educational institution | Fair dealing for instruction |
| Judicial proceedings | Use in court or legislative proceedings | Reproduction permitted |
| Persons with disabilities | Conversion to accessible formats | Non-commercial use only |
Specific Exceptions
- Educational Use: Reproduction by teachers and pupils in educational institutions
- Library Use: Making copies for preservation and providing access to patrons
- Backup Copies: Making transient or incidental technical copies as part of technological process
- Reverse Engineering: For interoperability of computer programs (with conditions)
- Parody and Satire: Fair dealing for parody, pastiche, or caricature (limited application)
Important Note
Fair dealing is a limited exception, not a blanket permission. The use must be "fair" considering the purpose, nature, amount, and effect on the market. Commercial use generally weighs against fair dealing. When in doubt, seek permission from the copyright owner.
Civil Remedies
Copyright owners can seek various civil remedies through courts for infringement. These remedies aim to stop infringement, compensate for losses, and prevent future violations.
1. Injunction
Court orders restraining the infringer from continuing infringement. Types include:
- • Interim/Temporary Injunction: Immediate relief to stop ongoing infringement
- • Permanent Injunction: Final order restraining future infringement
- • Mareva Injunction: Freezes infringer's assets to prevent dissipation
- • Anton Piller Order: Allows inspection and seizure of infringing materials
2. Damages
Compensation for losses suffered due to infringement:
- • Actual Damages: Proven financial loss including lost profits
- • Conversion Damages: Value of infringing goods as if sold by owner
- • Exemplary Damages: Additional damages for flagrant infringement
- • Statutory Damages: Presumed damages under Section 58 (limited application)
3. Accounts of Profits
The infringer must account for and surrender all profits made from infringement. This is an alternative to damages and prevents unjust enrichment.
4. Delivery Up and Destruction
Court may order delivery of all infringing copies, plates, and materials used for infringement for destruction or other disposition as the court deems fit.
5. Costs and Attorney Fees
The successful party may be awarded litigation costs including court fees, expenses, and in exceptional cases, reasonable attorney fees.
Jurisdiction for Copyright Suits
- • District Court or High Court having jurisdiction over the area where the cause of action arose
- • Commercial Courts (for commercial disputes) where designated
- • Appellate Board (Copyright Board) for certain disputes related to licensing
Criminal Remedies
The Copyright Act provides for criminal prosecution for certain types of infringement, particularly commercial-scale piracy and counterfeiting.
Criminal Offenses and Penalties
| Offense | Section | Penalty |
|---|---|---|
| Knowingly infringing/abetting infringement | Section 63 | 6 months - 3 years imprisonment + ₹50,000 - ₹2,00,000 fine |
| Using infringing copy of computer program | Section 63B | 7 days - 3 years imprisonment + ₹50,000 - ₹2,00,000 fine |
| Possession of plates for making infringing copies | Section 65 | Up to 2 years imprisonment + fine |
| Making false entries in Register | Section 67 | Up to 1 year imprisonment + fine |
| Making false statements for deceiving authorities | Section 68 | Up to 1 year imprisonment + fine |
Cognizance and Bail
- • Offenses under Section 63 are cognizable and non-bailable (police can arrest without warrant)
- • First-time offenders may get reduced punishment for abetment
- • Enhanced penalties for repeat offenders
- • Police can conduct raids and seize infringing materials without warrant
Online Enforcement (DMCA)
While the DMCA (Digital Millennium Copyright Act) is US law, similar takedown mechanisms exist in India under the Information Technology Act, 2000 and Copyright Act.
Notice and Takedown Procedure
Step 1: Identify Infringing Content
Locate the specific URL where infringing content is hosted. Document with screenshots and dates.
Step 2: Draft Takedown Notice
Include: Your contact details, identification of copyrighted work, location of infringing material, good faith statement, accuracy statement, and signature.
Step 3: Send to Platform/ISP
Send notice to designated copyright agent of the website, hosting provider, or intermediary.
Step 4: Follow Up
Platforms typically respond within 48-72 hours. If no action, escalate to higher authorities or consider legal action.
Intermediary Liability under IT Act
Section 79 of the IT Act provides safe harbor to intermediaries (ISPs, platforms) if they:
- • Function merely as a conduit or provide technical services
- • Do not initiate the transmission, select receiver, or modify content
- • Observe due diligence and follow prescribed guidelines
- • Remove infringing content upon receiving actual knowledge
Useful Resources
- • Google Transparency Report - for reporting copyright violations
- • Facebook/Instagram IP Reporting - for social media content
- • YouTube Content ID - for video copyright claims
- • Indian Music Industry (IMI) - for music piracy reporting
Evidence and Proof
Proving copyright infringement requires establishing ownership of copyright and unauthorized copying by the defendant.
Proving Copyright Ownership
- • Copyright registration certificate (presumption of ownership)
- • Drafts, manuscripts, or preliminary versions showing creation process
- • Publication records and dates
- • Contracts and assignment deeds establishing ownership chain
- • Metadata and timestamps of digital works
Proving Copying
Copying can be proved through:
- • Direct Evidence: Admission of copying, witness testimony
- • Circumstantial Evidence: Access to original work + substantial similarity
- • Striking Similarity: Similarity so substantial that independent creation is unlikely
- • Common Errors: Same errors in both works indicating copying
Substantial Similarity Test
Courts apply the "substantial similarity" test to determine infringement:
- • Look at both quantitative (amount copied) and qualitative (importance of copied portion) aspects
- • Consider the "ordinary observer" test - would an average person recognize similarity?
- • Idea-expression dichotomy - copyright protects expression, not ideas
- • Scènes à faire (standard elements) are not protected