Lucknow, UP, India, 226028

COPYRIGHT INFRINGEMENT IN INDIA

Sakshi Kale

INTRODUCTION

Copyright is a form of Intellectual property right and Intellectual properties empower an artist to protect their ownership by a mere declaration. India has its copyright act has been active since 1958 and any published work comes under the Indian Copyright Act, whether it is registered or not. It is not mandatory to register the work but one should register to protect their work. Once the work is registered, the copyright will be valid throughout the lifetime of the author, and 60 more years after the death of the author. Copyright gives the author of literary, musical, Paintings, writings, songs, dance choreographies, software, video games, cinematographer, and their work the exclusive rights to reproduce, translate, perform, and to communicate their works to the public. These rights of reproducing and performing their works are given to the “broadcasting organizations” under the broadcast reproduction right and performers right also known as “neighboring rights”. Copyright also protects the art with the artist and So in simple words, copyright is a bundle of negative rights that prohibits other people to use the creator’s work without their permission. When someone commits the prohibited rights then it is said to be copyright infringement. In India, copyright infringement is a punishable offense. The defense that one can take against copyright infringement in India is the fair usage of the copyrighted material. The one thing that anyone can use without any permission is public domain contents, as copyright laws do not protect those. These articles mean that no artist or writer owns it, and hence nobody can claim the copyright of it. Copyright infringement can be of two types that are:

  1. Primary infringement is the real act of copying the work like for example photocopying a book and then distributing them in such cases usually, the plaintiff has to establish two things that are substantial taking and casual connection 
  2. Secondary infringement means to copy the work and sell it or distribute it for for-profit purposes. We can understand what is copyright infringement with the help of the following case laws.

The acts that constitute an infringement of copyright are mentioned in section 51 of the Copyright Act, 1957. According to section 51, there are 4 circumstances under which infringement can occur.

  1. If a person without any authorization of copyright does any act which only the author or owner is authorized to do under the copyright act.
  2. When a person provides for the profit committed for communication.
  3. Importing infringing copies of work
  4. When a person unauthorizedly reproduces a literary, dramatic, musical, or artistic work in a film.

Section 52 gives the right to fair use and fair dealing without the work being infringed. So talking about fair use of work. Can sell anime merchandise under the name of fan art, a good escape from license fees? The answer is that NO it’s not. Most of the companies make bucks selling those anime-themed shirts thinking they will be covered under fair dealing. fair dealing does not give the right to violate the exclusive rights of the owner to gain profits. The following is a recent case of character merchandising.

In the case of Disney Enterprises Inc. & Anr. Vs. Santosh  Kumar &Anr The Delhi High Court held the respondent responsible for marketing products comprising depictions of characters such as Hannah Montana, Winnie the Pooh, etc whose merchandising privileges were possessed by the applicant. The court held that there was indeed an extreme amount of link between the applicant’s claims and the aforesaid characters which the sole reason as to why any mention of these characters reminds the consumers exclusively of the applicants.[i]

Now talking about copyright infringement in other cases. A very recent case that we must have all heard of is Emami vs Hindustan Unilever limited.  The death of George Floyd gave rise to public outrage against racial discrimination and the #Blacklivesmatter movement. As a response to this, various multi-national companies worldwide decided to make their brands less discriminatory. HUL that is Hindustan Unilever Limited rebranded its fairness enhancing cream ‘Fair and Lovely’ to ‘Glow and Lovely’ and ‘Fair & Lovely for Men’ to ‘Glow and Handsome’. It’s decision garnered a lot of criticism. Emami claims that it had rebranded its product ‘Fair and Handsome’ to ‘Glow and Handsome’ and launched before HUL announced its rebranding. The altercation, in this case, is the use of the word mark ‘Glow and Handsome’ that is filed for by both HUL and Emami. HUL has been searching for a suitable name to rebrand its product ‘Fair and Lovely’ since September 2018. So here we can see that the trademark was illegally used and communicated to the public This dispute between Emami and HUL is a classic example of why businesses must not wait for the launch or release of its product and file trademarks before. HUL’s had an advantage rather an upper hand because of the practice of filing trademark applications in advance before launching the product.

Now we all love the movie “Band Baja Baarat ” produced by Yash Raj Films, that movie was later reproduced as ‘Jabardasht’ so YRF filed a case of copyright against Sri Sai Ganesh Productions stating that the script, plot, theme, characters, and many other things were similar. the case is  YRF v Sri Ganesh Productions. In the instant case, the court found that the defendants had blatantly copied the fundamental, essential, and distinctive features of the plaintiff’s film.

In the case of Tips industries v Wynk music, the main question raised was whether there is a statutory licensing scheme under the copyright act to stream online. The Tips industries is a music label that has copyright over music and in 2016 wynk music was given a license to access that music. When the license expired, both the parties failed to renegotiate the license, and therefore wynk called on section 31 D of the Copyright act. Later Tips challenged wynk and also prosecuted them under section 14 (1) (e) for using their sound recordings. The court held Wynk guilty for using their sound recordings. Also in addition to that, the court stated that 31 D is an exception to copyright and that the term Download and Purchase are not mentioned and this case was in favor of Tips music industries.

Under the copyright act the owner, author of the work can have two types of Remedies for Infringement of Copyright:-

  1. Civil remedies: under section 55 (1) of the copyright act, the copyright holder is given the remedy in the way of injunction, and in section 55 (2), the copyright holder is also entitled to damages for infringement.
  2. Criminal remedies: the copyright holder has the right to have both civil and criminal proceedings and section 63 of the act states that copyright infringement is a punishable and criminal offense.

CONCLUSION

Copyright is basically to protect the works of authors, singers, etc, and also to provide them with remedies when their work is reproduced, performed, misused without their permission, and although the registration is not mandatory, one should register in order to protect their own work. Also, understand that it’s better to produce original work rather than copying others.

Author(s) Name: Sakshi Kale (New Law College, Bhartiya Vidyapeeth, Pune) 

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[i] https://www.mondaq.com/india/trademark/768282/character-merchandising