Copyright Infringement and Solution
Copyright is intellectual property; if a person owns the copyright to something; it means quite simply, that he has a right to decide who can make a copy. Copyright is “Right to copy”. Copyright does not subsist in ideas, concepts, principles, procedures, etc. it subsists only in the material form in which the ideas are translated. If a work has been created by a person’s knowledge or his creative nature, then that needs to be protected from its infringement “copyright infringement”.
What Is Copyright?
According to section 14 of the copyright act, 1957 “copyright” means ‘the exclusive right to do or authorize others to do certain acts concerning
- Literary, dramatic or musical
- Artistic works
- Cinematograph film, and,
- Sound recording
What Is Copyright Infringement?
When the exclusive rights conferred on the copyright owner includes a reproduction of the work in a material form, storing the work in any medium by electronic means, publication of the work, performance of the work in public, making of adaptations and translations etc. If any of these acts relating to the work is carried out by a person other than the owner without a license from the owner or a competent authority under the act, it constitutes copyright infringement of the work.
According to Section 51 of The Copyright Act, 1957, copyright in work shall be deemed to be infringed:
When any person without a license from the owner or the Registrar of Copyright does anything, the exclusive right to do which is by this act conferred upon the owner of the copyright, or permits for profit any place to be used for the communication of the work to the public, unless he was not aware and had no reasonable ground for believing that such communication would be an infringement of copyright; or
When any person makes for sale/hire or by way of trade displays or offers for sale/hire, or distributes either for trade purpose or to such an extent as to affect the owner of copyright prejudicially, or by way of trade exhibits in public, or imports into India, any infringement copies of the work (unless the import is for private and domestic use of the importer).
In infringement, the following factors are considered:
Copying – casual connection, sub-conscious or indirect copying. Sub-conscious copying generally occurs in music and poetry.
Substantial taking – unaltered copying, the extent of defendants, alteration, the character of plaintiff’s and defendant’s works, nature and extent of plaintiff’s and defendant’s works, nature and extent of plaintiff’s effort, the manner in which defendant has taken advantage of plaintiff’s work, etc.
Limitations of copyright ownership
Copyrighted work comes with certain restrictions and exceptions. Specifically, the law has a “Fair Use” provision that may allow for the distribution and reproduction of copyrighted material without the owner’s expressed consent.
Under Fair Use, if the original created work serves to teach, to be discussed and studied, to be reported in the news, or to be commented in public discourse, then it may be disseminated without any legal repercussions. Fair Use serves to balance the owner’s rights versus public interest.
Exceptions to copyright protection:
- Library and archives – Protected work may be copied for the purpose of its preservation in libraries and archives.
- Educational Use – Copyright infringement doesn’t apply to protected work used for learning, instruction or examination. For this purpose, the material may be photocopied, performed and played as part of the public’s education and enrichment.
- Temporary copies – Having back-up copies of a computer program, provided it has been purchased and used lawfully, will not infringe on the owner’s copyright.
- Specialized format – Reproducing and distributing copyrighted work in a specialized format for people with disabilities is not a copyright infringement.
Terms of protection for copyrighted work
A creator has copyright protection for his work for as long as he lives. The term of protection, however, ends 70 years after his death. If the creator has collaborated the original work, the term of protection will last 70 years after the last surviving creator’s death. Anonymous or pseudonymous creations, on the other hand, carry a protection term of 95 years from its publication.
How to avoid copyright infringement
It’s relatively easy to reproduce and distribute other people’s original work with today’s technology. But the risks of using copyrighted material will not be worth the trouble to your finances, your time, your sanity and peace of mind. Below are some tips on how to avoid copyright infringement and become embroiled in a copyright case.
Assume there’s always copyright: It is safer to assume that any created work is protected under copyright laws. If you cannot find an explicit statement confirming that the material is for public use, there’s still a good chance that someone already owns the rights to it.
It would be better to get written consent from the copyright holder if you’d like to use the original material. Make an effort to contact the person or entities concerned to make a deal or negotiate its use.
Read and research: Some creators were willing to share their material for a price. There are also creators who can grant permission provided that there is proper attribution. If there’s no specific fee or other attribution conditions, you could find the Terms of Use on the owner’s official site. Read and go over the terms and conditions carefully because the crucial details are in the fine line. For instance, while you can use someone’s image for printed materials, such as in magazines, posters or brochures, its copyright or Terms of Use might prohibit the content from being used online.
If there are no explicit fees, attribution conditions or Terms of Use, then it’s better to assume that there are prohibitions to the material. Once again, your best bet is to contact the owner for the expressed consent.
Fair Use: However, if you are also aware of your rights under Fair Use, you can still freely take advantage of original work for non-commercial endeavours if you cannot obtain consent. But you need to consider a few variables that might affect your usage.
Source materials from the Public Domain: There are many sources for free-to-use materials under the Public Domain. Search for the ones which can be commercially viable.
Create your own or pay someone for the original work: If you have the creative or artistic skill, you can create your original materials instead of copying or deriving from other people’s work. If you have the financial resources, then you can also commission other people to be the creators. In this case, you will still hold the copyright under “works made for hire” or within the scope of employment or contract of the creative.
Relevant cases:
Remedies or Solutions available for Copyright Infringement
According to the Copyright Act, 1957, some remedies are provided for infringement of copyright they are as follows:
- Civil Remedies – There are civil remedies which provide for damages, , injunctions, delivery and destruction of infringing copies and damages for conversion; a rendition of accounts
- Criminal Remedies – There are criminal remedies which provide for fines, seizure of infringing copies and delivery of infringing copies to the owner; and imprisonment. The following are the series of penal provisions under The Copyright Act, 1957
- Under Section 63, where any person knowingly infringes or abets the infringement of the copyright in work and any other covered under the Act, then, such person shall be punishable with imprisonment for a term not less than six months and which may extend to three years, and a fine of Rs. 50,000 which may extend to Rs. 2,00,000.
- According to Section 65A, any person who circumvents an effective technological measure that may be applied to protecting any of the rights conferred by this act. The punishment under this provision is imprisonment that may extend to two years and shall also be liable to fine.
The Time-limit for seeking remedies
The time limit for filing a suit for damages is three years from the date of such copyright infringement.
Conclusion
