Infringement of copyright, fair dealing and remedies

1. When copyright is infringed: section 51

Copyright is infringed when any person, without a licence from the owner or the Registrar, or in breach of the conditions of a licence:

• (a)(i) does anything the exclusive right to do which belongs to the owner under section 14 (primary infringement: copying, publishing, performing, communicating, adapting, translating);
• (a)(ii) permits for profit any place to be used for communicating the work to the public where that communication infringes, unless he was not aware and had no reasonable ground to believe it would infringe; or
• (b) makes for sale or hire, sells, lets for hire, displays or offers for sale, distributes for trade or so as to prejudice the owner, exhibits in public by way of trade, or imports into India, any infringing copies (secondary infringement). Import of one copy for private and domestic use is excluded.

Reproducing a literary, dramatic, musical or artistic work in the form of a film is an “infringing copy” (Explanation to section 51).

2. Tests of infringement

In R.G. Anand v. Delux Films, 1978 INSC 138, (1978) 4 SCC 118, the Supreme Court laid down propositions that are still the standard:

• there is no copyright in an idea, theme, plot or historical fact; only the expression is protected;
• where the same idea is developed differently, similarities are bound to occur, and the court must see whether the similarities are in the fundamental or substantial aspects of the mode of expression;
• the safest test is whether a reader or viewer, after seeing both works, gets an unmistakable impression that the later work is a copy of the original;
• where the theme is the same but presented differently so that the later work is a new work, there is no infringement;
• where there are material and broad dissimilarities showing that copying was not intended, or the similarities are only incidental, there is no infringement; and
• infringement amounts to piracy and must be proved by clear evidence.

Copying need not be exact or of the whole: taking a substantial part, judged by quality as much as quantity, is enough. Intention is irrelevant to civil liability.

3. Acts that are not infringement: section 52

Section 52(1) has more than thirty clauses. The examinable ones are:

• (a) Fair dealing with any work (other than a computer programme) for private or personal use including research, criticism or review, and reporting current events, including reporting a public lecture.
• (aa) to (ad) back-up copies, interoperability and study of computer programmes by a lawful possessor.
• (b), (c) transient or incidental storage in electronic transmission or for providing links, with a notice-and-takedown of twenty-one days on complaint.
• (d) reproduction for judicial proceedings or reports of them; (e) works prepared by a Legislature’s secretariat for members; (f) certified copies supplied under law.
• (g), (h) reading reasonable extracts in public; short passages in collections for instructional use (not more than two passages from one author by the same publisher in five years).
• (i) reproduction by a teacher or pupil in the course of instruction, in exam questions or answers.
• (o) making not more than three copies of a book by or under the direction of the person in charge of a non-commercial public library, for the use of the library, if the book is not available for sale in India.
• (p) reproduction of unpublished works kept in a library or museum for research or private study, after sixty years in specified cases.
• (zb) adaptation and reproduction in accessible formats for persons with disabilities, on a non-profit basis.

Whether dealing is “fair” depends on the purpose, the amount taken, and the effect on the market for the original. In The Chancellor, Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services (Delhi High Court, 2016), publishers sued a shop that made course packs of extracts from textbooks for Delhi University students. The court held that section 52(1)(i) is not confined to a classroom and covers reproduction for instruction, including course packs, subject to the extent being justified by the purpose of instruction, and the suit was sent back for trial on that question. Publishers later withdrew it.

4. Civil remedies

• Section 55. The owner is entitled to all remedies by way of injunction, damages, accounts and otherwise. If the defendant proves he did not know and had no reasonable ground to believe that copyright subsisted, the plaintiff gets only an injunction and a decree for the whole or part of the profits. A name appearing on the published work as author or publisher is presumed correct.
• Interim orders commonly granted: temporary injunctions under Order XXXIX CPC, Anton Piller orders to inspect and seize evidence, and “John Doe” orders against unknown infringers before a film’s release.
• Section 58. Infringing copies and plates are deemed the property of the owner, who may recover possession or sue for conversion.
• Section 60. Relief against groundless threats of legal proceedings.
• Section 62: jurisdiction. Suits lie in the district court having jurisdiction, which includes the court where the plaintiff actually and voluntarily resides or carries on business. In Indian Performing Rights Society v. Sanjay Dalia, 2015 INSC 452, (2015) 10 SCC 161, the Court held this does not allow a plaintiff to sue at a place where it has only a branch office when the cause of action arose where its principal office is; the provision is meant to help the plaintiff, not to harass the defendant by dragging him to a distant court.
• Suits of specified value are commercial disputes tried by Commercial Courts.

5. Criminal remedies

• Section 63. Knowingly infringing or abetting infringement: imprisonment from six months to three years and fine from fifty thousand to two lakh rupees; lesser sentence for adequate and special reasons where the infringement was not for gain in trade or business.
• Section 63A. Enhanced punishment for a second or subsequent conviction (one to three years and one to two lakh rupees fine).
• Section 63B. Knowing use of an infringing copy of a computer programme.
• Section 64. A police officer not below the rank of sub-inspector may seize infringing copies without warrant if satisfied that an offence under section 63 has been or is being committed.
• Sections 65A and 65B. Circumventing technological protection measures and tampering with rights management information: up to two years and fine.

In Knit Pro International v. State of NCT of Delhi, 2022 INSC 621, (2022) 10 SCC 221, the Court held that because the maximum punishment under section 63 is three years, the offence is cognizable and non-bailable under Part II of the First Schedule to the Code of Criminal Procedure. The classification is the same under Part II of the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023.

6. Border measures

Under section 53 the owner may apply to the Commissioner of Customs to treat infringing copies as prohibited goods. In Gramophone Company of India v. Birendra Bahadur Pandey, 1984 INSC 40, (1984) 2 SCC 534, pirated cassettes were being brought through India to Nepal. The Court held that “import” covers bringing goods into India even in transit, so the goods could be seized, and that municipal law should be read consistently with international obligations where possible.

7. Problem

Library authorities get five copies of a copyrighted book photocopied because the book is expensive. Is this infringement? (February 2025)

Issue. Whether reproduction of a copyrighted book by a library, on account of its high price, falls within any exception in section 52.

Law. Reproduction in any material form is an exclusive right under section 14(a)(i), and doing it without licence is infringement under section 51(a)(i). Section 52(1)(o) permits only the making of not more than three copies, only by a non-commercial public library, only for the use of the library, and only where the book is not available for sale in India. Fair dealing under section 52(1)(a)(i) covers private or personal use by an individual, not institutional copying.

Application. Five copies exceed the limit of three. The ground given is the high price, which is not the condition in clause (o); the clause applies only where the book cannot be bought in India at all. If the library is attached to a commercial institution, it is not a non-commercial public library. The copying is not for an individual’s research and so is not fair dealing. If the copies were made for students in the course of instruction, the library could argue section 52(1)(i) as in Rameshwari Photocopy, but on the facts the purpose is stocking the library.

Conclusion. The library has infringed copyright. The owner may sue for injunction, damages and delivery up of the copies under sections 55 and 58. Prosecution under section 63 would require knowledge, and the court could impose a lesser sentence since the copying was not for gain. A library can avoid the problem by taking a licence from a reprographic rights society.

How this is examined

June 2025 asked “Explain acts which constitutes and acts which does not constitute infringement of copyright” and February 2025 “What constitutes infringement of copyright? What are the remedies available?” Use sections 1 to 5 above, with R.G. Anand for the tests, Knit Pro for the criminal side and Sanjay Dalia for jurisdiction. The library problem has already been set and is answered as above.