The Hindu Business Line : When copyright is wronged

Copyright infringement is dealt with extremely seriously under the Copyright Act, 1957, which provides not only for civil remedies but also criminal remedies.

Content is king. Everybody wants content. Ad filmmakers want to use catchy tunes and clips from movies; mobile phone companies want to embed content on their phones; newspapers want to provide value-added content to their subscribers by using third party photographs; web sites want to provide third party content to make their site more "exciting"; authors want to borrow a few lines from a book... The list goes on. And the beneficiary, the consumer, gets content like never before.

Everything looks peachy till the owner of the content files a copyright infringement suit against the user, thereby leading to substantial losses for all parties concerned. What is the legal framework to protect content and the dangers of third party using content without proper authorisation?

The Legal Framework

What is content? Content includes articles and news items, video clips, music, artwork etc. In short "content" has become synonymous with anything that can be made available through the Internet, TV, newspapers, radio or any other medium. All content is protected one way or the other as "Works" under the Copyright Act, 1957.

For example, video clips are protected as "cinematograph films;" recorded music as "sound recordings;" books, articles and computer software as "literary works;" tunes of songs as "musical works; and art, pictures and photographs as "artistic works".

The owner of the copyright in any "work" gets certain exclusive rights under the Copyright Act to do or authorise the doing of certain acts with respect to the work.

These rights vary depending on the nature of the work. For example, the owner of copyright in a "cinematograph film" has the exclusive right to make a copy of the film, including any photograph of any image forming a part of the film, to sell or rent the film, and the right to communicate the film to public by making the film available for being seen by the public by any means.

The owner of copyright in a "literary work" has other exclusive rights, including that of issuing copies of the work to the public, reproducing and storing in any medium, making any cinematograph film or sound recording, performing in public; communicating to the public and so on.

What is Copyright Infringement?

Copyright infringement occurs when any person (a) does anything, the exclusive right to which belongs to the owner of copyright; (b) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or (c) makes for sale or hire, distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, by way of trade exhibits in public, or imports into India, any infringing copies of the work.

While certain acts are excluded from copyright infringement (for example, making a copy of a literary work for review and/or criticism or playing a recording of a song in public at a religious ceremony), commercial use of any work without obtaining consent/license from the copyright owner would normally amount to copyright infringement.

The Consequences

Copyright infringement is dealt with extremely seriously under the Copyright Act, 1957, which provides not only for civil remedies, such as injunction and damages, but also for criminal remedies, such as imprisonment and fine.

Further, where any offence has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for, the conduct of the business of the company, shall be deemed to be guilty of such offence and shall be liable to be proceeded against and punished accordingly unless he can prove that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

As a consequence, it is advisable to almost always seek the permissions/consents required and enter into content licence agreements when using third party content so avoid liability which, as explained above, can be civil as well as criminal.

(The author is Partner, IndoJuris Law Offices, Chennai.)

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