Infringement of copyright and the remedies for it

1. What infringes (section 51)

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

• Primary infringement (51(a)(i)): does anything the owner has the exclusive right to do under section 14;
• Permitting a place (51(a)(ii)): permits for profit any place to be used for the communication of the work to the public where that is an infringement, unless he was not aware and had no reasonable ground to believe it would be;
• Secondary infringement (51(b)): makes for sale or hire, sells, lets for hire, distributes, exhibits in public by way of trade, or imports into India infringing copies.

The Explanation to section 51 says reproduction of a literary, dramatic, musical or artistic work in the form of a film is an infringing copy.

Proving copying

1. Copying in fact. Direct evidence is rare. Courts infer copying from access plus similarity; common errors or traps (deliberate mistakes in a directory) are strong evidence.
2. Substantial part. Taking must be of a substantial part, judged by quality not quantity: Ladbroke (Football) v. William Hill (House of Lords, 1964). A small but essential part may be substantial.
3. The lay observer test. R.G. Anand v. Delux Films, 1978 INSC 138: whether a viewer gets an unmistakable impression that one is a copy of the other.

2. Civil remedies (Chapter XII)

Section 55 gives the owner all remedies by way of injunction, damages, accounts and otherwise as are conferred by law for infringement of a right. Section 54 treats an exclusive licensee as owner for this purpose. The main remedies:

• Permanent injunction after trial.
• Damages, compensatory, and in some Delhi High Court decisions punitive or exemplary, for deliberate piracy: Microsoft Corporation v. Yogesh Papat (Delhi High Court, 2005) is an example in software. Later decisions have been more cautious and tie damages to evidence.
• Account of profits, as an alternative to damages.
• Delivery up of infringing copies and plates (section 58 treats them as the owner’s property).
• Innocent infringer. Under the proviso to section 55(1), if the defendant proves he was not aware and had no reasonable ground to believe that copyright subsisted, the plaintiff gets only an injunction and a decree for profits, not damages.

Interim relief

Most copyright litigation is decided at the interim stage. The tests come from Order XXXIX Rules 1 and 2 of the Code of Civil Procedure: a prima facie case, balance of convenience, and irreparable injury. On appeal from interim orders, the appellate court does not substitute its own discretion unless the trial court acted arbitrarily or ignored settled principles: Wander Ltd. v. Antox India (Supreme Court, 1990).

• Anton Piller orders, after Anton Piller KG v. Manufacturing Processes (Court of Appeal, 1976): an ex parte order allowing the plaintiff’s representatives, with a court-appointed local commissioner, to enter premises and seize or record infringing material before it is destroyed. Indian courts grant these through local commissioners under Order XXVI Rule 9 and Order XXXIX.
• John Doe (Ashok Kumar) orders: injunctions against unnamed defendants, first used in India in Taj Television v. Rajan Mandal (Delhi High Court, 2002) against cable operators showing the football World Cup without licence.
• Dynamic website blocking: UTV Software v. 1337x.to (Delhi High Court, 2019).
• Mareva injunctions to freeze assets, through Order XXXVIII Rule 5.

Groundless threats (section 60)

A person threatened with infringement proceedings may sue for a declaration that the threats are unjustified and for an injunction, unless the threatener starts proceedings with due diligence.

3. Jurisdiction (section 62)

Section 62(2) allows a suit to be filed where the plaintiff actually and voluntarily resides or carries on business, in addition to the usual places under section 20 of the CPC. In Indian Performing Rights Society v. Sanjay Dalia, 2015 INSC 452, the Supreme Court held that the provision was meant to help authors sue where they live, not to let large plaintiffs drag defendants to distant courts. Where the plaintiff has a branch office at the place where the cause of action arose, it must sue there, not at its head office.

Since the Commercial Courts Act, 2015, copyright suits are commercial disputes, heard by Commercial Courts or the Commercial Division of the High Court, with case management, summary judgment under Order XIIIA, and stricter timelines. Pre-institution mediation under section 12A is required unless urgent interim relief is sought.

4. Criminal remedies

• Section 63: knowing infringement or abetment is punishable with imprisonment of six months to three years and fine of fifty thousand to two lakh rupees. The court may impose a lesser sentence for adequate and special reasons where the infringement was not for gain in the course of trade.
• Section 63A: enhanced punishment for second and subsequent convictions.
• 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 a warrant if satisfied that an offence under section 63 has been committed.
• Sections 65A and 65B: circumvention of TPMs and removal of RMI.

In Knit Pro International v. State of NCT of Delhi, 2022 INSC 621, the Supreme 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 same classification follows under the Bharatiya Nagarik Suraksha Sanhita, 2023, which has replaced the Code from 1 July 2024. Police can therefore register an FIR and investigate without a magistrate’s order.

5. Border measures

Section 53 allows the owner to apply to the Commissioner of Customs to treat infringing copies as prohibited goods, implementing TRIPS Articles 51 to 60. The Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 set the procedure. In Gramophone Company of India v. Birendra Bahadur Pandey, 1984 INSC 40, pirated cassettes in transit through India to Nepal were held to be “imported” within section 53. The Court applied the doctrine that international law is part of municipal law unless it conflicts with statute, and read the Act consistently with India’s treaty obligations.

6. Defences

• The acts permitted by section 52 (fair dealing and the specific exceptions).
• Licence, express or implied, and acquiescence.
• Independent creation (no copying).
• Expiry of term; work not protected (idea, title, no originality).
• Limitation: three years under the Limitation Act, 1963, running anew for each act.

How this is examined

For “remedies”, write the civil remedies with interim orders, the criminal provisions with Knit Pro, border measures with Gramophone, and jurisdiction with Sanjay Dalia. Add a sentence on TRIPS Part III (Articles 41 to 61) to show that India meets the international enforcement standard.