The improvement of the national culture heritage depends on the level of protection given to literary, musical, dramatic and artistic works; cinematography films and sound recordings. The higher the protection level the higher encourage people to create something intellectual, that increase the renown in the world. So, Copyright was one of the essential element for a country in his development process. In India after a long history now copyright related law deal under the copyright Act, 1957. That has mainly twofold objective[ that is to assure the right of original expression to the person who risk their capital in putting their original work before the public and encourage others to build freely upon the ideas and information conveyed by a work. In the section 14 of the Act the definition of the copyright was given. According to that definition copyright means the exclusive right to do or to authorise the doing of reproduction, copies, translation, adaption etc. in respect of the work. Copyright gives exclusive rights to the authors for enjoy the benefit of his labour and investment. Thus, if a person uses any of the exclusive right to the owner of copyright without his permission that shall be deemed to have infringed copyright. In this article, I will be analysing the Indian law on concluding a work as primary infringement of copyrighted work by looking into the provision of the Act and the India case laws and point out some conflicting views of the high courts on some points.
Primary Infringement provision in the Act
In the copyright Act, 1957 the chapter XI define the situation when the copyright infringed. In that chapter, Section 51 of the act stated the way in which the copyright work is deemed to be infringed. Before proving that section the owner of the copyright must established that his work subsists a copyright under section 13 of the Act. In section 13 copyright subsists in the original literary, dramatic, musical and artistic; Cinematograph films and sound recording work. In the act there is no definition of the originality. But In the case of Burlington home shopping vs. Rajnish, held that a compilation may be hold a copyrightable work by the fact that the author put their time, labour and skill in creating the compilation. That means if a person uses his skill and labour in a work that can create originality of work. Later in the case of Easter book company vs. D. B. Modak[, the supreme court of India adopted a “middle path” in which exercise of skill and judgement is the standard for approaching originality of work. After that look into the section 51 of the Act, which as follow
a) i) when any person without the licence under the act or against the condition of the licence does anything on which the owner of copyright have exclusive right (exclusive right under section 14).
ii) used any place for the communication to generate profit where such communication constitutes infringement of copyright unless he was unaware and had no reasonable ground for believing that such act constitute infringement.
b) when any person making sale or hire, selling or offering for sale or hire, distribute either for trade or affecting prejudicially to the owner of copyright, trade exhibit in public or import into India any infringing copies of the work constitute infringement of copyright, also known as secondary infringement.
According to that section infringement are two type that are primary infringement and secondary infringement. Primary infringement was the act of copying (section 51(a)(i)) whereas secondary infringement was other kinds of act like selling the infringement copies (section 51(a)(ii) and 51(b)). Also, in this section the person who infringe the work must be deemed to have knowledge of the owner of copyright or the work is protected under the act and such knowledge can be made if the work was registered under the Chapter X of the act. By the section for Copyright to exit did not need registration but for availing the remedies under the act it was required. Otherwise a person who commit that event in innocent or bono fide intention can easily bring under that section which cannot be the intention of the legislation. On this point, there are conflicting option of the high courts were
1) by Bombay high court in the case of Dhiraj Dharamdas Dewani vs Sonal Info Systems Pvt. Ltd. and Ors. Held, in the absence of registration under Section 44 of the Act by the owner of the copyright it would be impossible to enforce the remedies under the provisions of the Act against the infringer for any infringement under Section 51 of the Act. Hence registration of copyright was compulsory or mandatory for taking recourse to the provisions of the Act.
2) By the madras high court in the case of Manojah Cine Productions vs. A. Sundaresan ans ors. Held that there is no justification for holding that registration is a condition precedent to the subsistence of copyright or acquisition of ownership thereof or of reliefs for violation of copyright7.
Infringing Copy meaning
Infringing copy mention under section 51 of the Act define in Section 2(m) of the same Act by differentiate between the work as for literary, dramatic, musical or artistic work is reproduction; for cinematographic film is a copy of the film made on any medium by any mean; for sound recording is any other recoding representing the same sound recording; for programme or performance is the sound recording or a cinematographic film of such programme or performance. Copying is counted in the primary infringement of copyrighted work. In Mishra Bandhu Karyalaya and ors. Vs Shivratanlal Koshal the high court used a foreign case to define copy as: “In Hanfstaengl v. W. H. Smith and Son (1905) 1 Ch 519, the definition of a ‘copy’ was adopted from an earlier decision which runs as follows: A copy is that which comes so near to the original as to give every person seeing it the idea created by the original”And said that it has throughout been followed and applied in India.
Primary Infringement by copying
There are three types to copy that conclude infringement, that are :
- Direct Copying,
- Indirect Copying
- subconscious Copying
,but the common thing in all these types is that for infringement of copyright there is no need to reproduce the copyrighted work but taking a substantial part of it that conclude as infringement of copyright. So, the test depends on the quality of the copy not the quantity of the copy. In the Easter book company vs. D.B. Modak, the supreme court held that “to invoke copyright protection in a copied work, variation must be substantive in nature then merely trivial.” In FE Engineering & Consultancy Pvt. Ltd. vs. LG Cable Ltd, the Delhi high held that the allegation of the infringement was checked on the touchtone of quality and substantially. In US and UK have another test (audience test, pattern test, abstraction filtration comparison test, total concept and free test) for checking infringement but India only follow substantive test. The first copying type is Direct Copying.
It is basically the reproduction of the copyrighted work. Reproduction of a work vested to the author of the work under the section 14 and section 51(a)(i) (Primary infringement) make it copyright infringement if it was done without the permission or condition of the copyright owner. Court have different view for Cinematography film and sound recording than other work to conclude infringement by direct copying due to the interpretation of section 14 of the Act. For instance, In K. R. Venugopala sarma vs. sangu Ganesan court held that “the degree of similarity between the two pictures by looking must represent that infringes’ picture shall be suggested that it was the copyrighted work. Indeed, every intelligent copying must introduce a few changes. Shortly stated, the effect which produces upon the mind by a study of the two pictures should be to the end that the infringers’ picture is nothing but a copy of the picture of the copyright owner.”And in the case of Shamlal Paharia Vs. Gaya Prasad while giving the decision they reproduce a test that was useful for deciding whether the work of respondent was amount as infringement or not. The test was asking the question whether an impugned work is a colourable imitation of other people’s work is also a question of fact.
The determination factor is to see whether the impugned work is an unoriginal imitation and a copy of another person’s work or it bears the impress of the author’s own labour and exertions. Whereas in the case of Star India Private limited vs Leo burnett (India) private limited court held that the “if a film has been made or shot by a different person and it look like an earlier film, the new film is not a copy of the first film because section 14(d)(i) does not include another film in the phase ‘make a copy, therefore making another movie does not amount to infringement of the copyright of the first film.
In that view a narrow copyright protection is provided to a film/sound recording than for literary, dramatic or artistic work.” The reason also that the originality test for making a work copyrightable is absent from the cinematography and sound recording in the view of section 13 of the Act.
Indirect copying means copying the work of a person by changing of the form. This is also seeming as adaptation or conversion of the work. The exclusive right for adaptation of copyright work vested in the owner of the copyright by section 14. Definition of adaption is given under section 2 (a) of the act. And basic it means that changing/conversing the form of a copyright work. For example, one person owns a right in a drawing and other person covert it into 3D without his permission count as infringement by indirect copying. In case of Urmi Juvekar Chiang vs Global Broadcast News Ltd. the Bombay high court held that plaintiff owns an exclusive right in his literacy work and when the defendant converts it into web series it amounts to infringement of the copyright.
The third type of copying is subconscious/unconscious copying. This may happen when a person read, sees or hear for his work and while doing it he/she unconsciously reproduce it and genuinely believing that the work he did was his only. In the case R. G. Anand vs. Delux Films, the supreme court mention that “Intention to plagiarise is not essential to establish liability for infringement of a copyright or for plagiarism of literary property in unpublished books, manuscripts, or plays. One may be held liable for infringement which is unintentional, or which was done unconsciously.”
Exception, Remedies and Offence of Infringement under the Act
The act itself create some act as exemption to infringement of copyright that are mention under section 39A and section 52, generally are fair dealing, fair use, educational purpose, making of records of work, use by public library, private or personal or closed group use, broadcasting reproduction right or performers’ right etc. Also, in the act, remedies are given to the owner of the copyright under chapter XII of the Act and offence under Chapter XIII of the Act. So, the plaintiff must prove that defendant has copied from or casual connection with his work. The similarity between the work depend on many factors like common source but excluding the idea factor because idea is not protected under copyright. The expression of the idea is protected under the copyright. Hence, once the idea was written down that was protected under copyright.
In India for holding a person accountable to an act commit by him which amount to primary infringement of copyright is in under section 51 read with section 14 of the act. Also,
In India there are some grey area regarding the registration of the copyright because the conflicted view of the high courts. Some high court said that there is no need of registration of copyright to have a right in it and other court said there is mandatory requirement to claim the right of copyright under the act. If we take later view as the correct one, then it was against the former view because if you cannot have right to claim the copyright of the work you did then what is the purpose of having a right in it. Primary infringement was committed by a person when a person without the permission of the copyright owner uses copyrighted work where all right regarding that work vested in the owner.
Infringement of copyright by copying is an act of primary infringement which have three types of copying is direct copying, indirect copying and unconscious copying. To support infringement the plaintiff must show that the substantive part of the copyright work was taken not the quantity. Also, he should first prove that his work was original one. In the copying there was a grey area regarding the cinematography and sound recording work.
The court took a narrow way to concluding infringement in the case of cinematography and sound recording because originality test is not attached to make the work as copyright subsist under section 13 of the act. In my view it was not correct because copyright is provided to those work which is original and when originality test is take away from any work it will destroy the Base for providing the copyright protection to that work. Court is also not wrong will holding the narrow view because the court cannot interpret a phrase that create a new law. For removing that legislation should take step and improve it.