Copyrights Infringement

Copyright infringement (colloquially referred to as piracy) is the use of works protected by copyright law without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works. The copyright holder is typically the work’s creator, or a publisher or other business to whom copyright has been assigned. Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement.

Copyright infringement disputes are usually resolved through direct negotiation, a notice and take down process, or litigation in civil court. Egregious or large-scale commercial infringement, especially when it involves counterfeiting, is sometimes prosecuted via the criminal justice system. Shifting public expectations, advances in digital technology, and the increasing reach of the Internet have led to such widespread, anonymous infringement that copyright-dependent industries now focus less on pursuing individuals who seek and share copyright-protected content online, and more on expanding copyright law to recognize and penalize, as indirect infringers, the service providers and software distributors who are said to facilitate and encourage individual acts of infringement by others.

Copyright infringement refers to the unauthorized use of someone’s copyrighted work. Thus, it is the use of someone’s copyrighted work without permission thereby infringing certain rights of the copyright holder, such as the right to reproduce, distribute, display or perform the protected work.

Section 51 of the Copyright Act specifies when a copyright is infringed. According to Section 51 of the Act, Copyright is deemed to be infringed if:

• A person without obtaining the permission of the copyright holder does any act which only the copyright holder is authorised to do.
• A person permits the place to be used for communication, selling, distribution or exhibition of an infringing work unless he was not aware or has no reason to believe that such permission will result in the violation of copyright.
• A person imports infringing copies of a work
• A person without obtaining the authority from the copyright holder reproduces his work in any form.

Copyright infringement elements

• The work was the original creation of the author
• The defendant actually copied the work of the author. It is important to note that not all factually copying is legally actionable. The substantial similarity between the works of the author and the defendant has to be established to prove that the defendant has infringed the author’s copyright.

Copyright Issues

• Ownership

The issue of ownership may arise when an employer works for an organisation. In such case who has the copyright over the work? If a person is an employer then it is the organisation which has the copyright over the material but if a person is a freelance writer then it is the person himself who is the sole owner of the copyrighted material.

• Plagiarism

Someone may copy the copyrighted material and pretend it to be his original work. People are allowed to quote the work or refer the work but the person who is using the copyrighted work has to give the credit to the copyright holder.

• Derivative Works

Derivative works use the already existing work of someone. It is a new version of already existing material. For example, translating a book into another language. A person requires a license for it but if he has not obtained the license for it then he can be made liable for copyright infringement.

Types of Copyright Infringement

Copyright infringement can be broadly classified into two categories:

• Primary Infringement
• Secondary Infringement

Primary Infringement

Primary infringement refers to the real act of copying the work of the copyright holder. For example, photocopying a book and then distributing it for commercial purposes.

However, sometimes a person may only copy a part of the work, for example, a paragraph of an article. In such a case, the copyright holder is required to establish two things:

•     Casual Connection

The copyright holder must prove that there is a similarity in the works of the copyright holder and the infringer. However, this may be because of several other reasons like both of them have used the same source for the research. In such a case, the copyright holder cannot claim for infringement.

• Substantial Taking

A copyright is infringed only when an unauthorized person copies a substantial part of the work. For example, copying a catchy phrase of a lyricist.

While deciding the case, the court also tries to conceive, how an ordinary person will perceive the work. If an ordinary person will perceive that the work is copied from a different source then it will be considered infringement.

If the writing style, language and errors are similar to the copyrighted work then it will serve as evidence of copying in a court of law. The minor alterations made by the person in the work of a copyright holder will not affect the claim of infringement.

Secondary Infringement

Secondary Infringement refers to the infringement of copyright work without actually copying it. This can happen in the following ways:

•     Selling Infringing Copies

If a person sells the copies that infringe the right of the copyright holder then it will amount to copyright infringement.

•     Providing a place for Copyright Infringement

If a person provides the place or permits the place (for profit) to be used for communicating of the work the public and such work amounts to copyright infringement then such person can be made liable for the offence of copyright imprisonment. However, if the person is unaware or has no reason to believe that the place is used for copyright infringement then cannot be made liable for the same.

It is important to note that the person should let the place for “profit” to be made liable for copyright infringement. If an NGO lets the place then the NGO cannot be made liable for the same.

•     Importing Infringing Copies

Importing the infringed work of the copyright holder in India also amounts to infringement of Copyright. However, if the person has imported the infringed work for the domestic or personal use then it will not amount to Copyright Infringement.

•     Distributing Infringing Copies

When a person distributes infringing copies of the copyright holder works then it will amount to copyright infringement. For example, if a person uploads a movie on the internet for free then it is an infringement of copyright.