INTELLECTUAL PROPERTY AND COPYRIGHT

Aligarh Muslim University

Faculty of Law
Tutorial
Intellectual Property Rights
Submitted to: Prof. Tabassum Choudhry

Author: Rajat Kumar Singh

Semester: VII sec: B
17BALLB 59
Group III
Enrollment No. – GI0465
Mail id: rajatkrsingh2311@gmail.com
Mob. No. 9568533357
Session-2020-21
 CONTENTS

1. Introduction
2. Indian perspective on copyright protection
3. Copyright Infringement
4. On-line copyright issues in India
5. Conclusion
6. Bibliography
 Introduction

Copyright is a form of intellectual property protection granted under Indian law to the creators of
original works of authorship such as literary works (including computer programs, tables and
compilations including computer databases which may be expressed in words, codes, schemes or
in any other form, including a machine readable medium), dramatic, musical and artistic works,
cinematographic films and sound recordings.

Copyright law protects expressions of ideas rather than the ideas themselves. Under section 13 of
the Copyright Act 1957, copyright protection is conferred on literary works, dramatic works,
musical works, artistic works, cinematograph films and sound recording. For example, books,
computer programs are protected under the Act as literary works.

Copyright protection is conferred on all Original literary, artistic, musical or dramatic,

cinematograph and sound recording works. Original means, that the work has not been copied
from any other source. Copyright protection commences the moment a work is created, and its
registration is optional. However it is always advisable to obtain a registration for a better
protection. Copyright registration does not confer any rights and is merely a prima facie proof of
an entry in respect of the work in the Copyright Register maintained by the Registrar of
Copyrights.

As per Section 17 of the Act, the author or creator of the work is the first owner of copyright. An
exception to this rule is that, the employer becomes the owner of copyright in circumstances
where the employee creates a work in the course of and scope of employment.

Indian perspective on copyright protection

The Copyright Act, 1957 provides copyright protection in India. It confers copyright protection
in the following two forms:
(A) Economic rights of the author, and
(B) Moral Rights of the author.
(A) Economic Rights:
The copyright subsists in original literary, dramatic, musical and artistic works; cinematographs
films and sound recordings. The authors of copyright in the aforesaid works enjoy economic
rights u/s 14 of the Act. The rights are mainly, in respect of literary, dramatic and musical, other
than computer program, to reproduce the work in any material form including the storing of it in
any medium by electronic means, to issue copies of the work to the public, to perform the work
in public or communicating it to the public, to make any cinematograph film or sound recording
in respect of the work, and to make any translation or adaptation of the work. In the case of
computer program, the author enjoys in addition to the aforesaid rights, the right to sell or give
on hire, or offer for sale or hire any copy of the computer program regardless whether such copy
has been sold or given on hire on earlier occasions. In the case of an artistic work, the rights
available to an author include the right to reproduce the work in any material form, including
depiction in three dimensions of a two dimensional work or in two dimensions of a three
dimensional work, to communicate or issues copies of the work to the public, to include the work
in any cinematograph work, and to make any adaptation of the work. In the case of
cinematograph film, the author enjoys the right to make a copy of the film including a
photograph of any image forming part thereof, to sell or give on hire or offer for sale or hire, any
copy of the film, and to communicate the film to the public. These rights are similarly available
to the author of sound recording. In addition to the aforesaid rights, the author of a painting,
sculpture, drawing or of a manuscript of a literary, dramatic or musical work, if he was the first
owner of the copyright, shall be entitled to have a right to share in the resale price of such
original copy provided that the resale price exceeds rupees ten thousand.

(B) Moral Rights:

Section 57 of the Act defines the two basic 'moral rights of an author. These are:
Right of paternity, and
Right of integrity.
The right of paternity refers to a right of an author to claim authorship of work and a right to
prevent all others from claiming authorship of his work. Right of integrity empowers the author
to prevent distortion, mutilation or other alterations of his work, or any other action in relation to
said work, which would be prejudicial to his honour or reputation.

The proviso to section 57(1) provides that the author shall not have any right to restrain or claim
damages in respect of any adaptation of a computer program to which section 52 (1)(aa) applies
(i.e. reverse engineering of the same).

It must be noted that failure to display a work or to display it to the satisfaction of the author
shall not be deemed to be an infringement of the rights conferred by this section. The legal
representatives of the author may exercise the rights conferred upon an author of a work by
section 57(1), other than the right to claim authorship of the work.

Copyright Infringement

Direct Infringement: Direct infringement is a strict liability offence and guilty intention is not
essential to fix criminal liability. The requirements to establish a case of copyright infringement
under this theory are:
Ownership of a valid copyright; and
Copying or infringement of the copyrighted work by the defendant.
Thus, a person who innocently or even accidentally infringes a copyright may be held liable
under the Copyright Act of the U.S. and under the laws of various other countries. The guilty
intention of the offender can be taken into account for determining the quantum of damages to be
awarded for the alleged infringement.

Contributory infringement:
The contributory infringement pre-supposes the existence of knowledge and participation by the
alleged contributory infringer. To claim damages for infringement of the copyright, the plaintiff
has to prove:
That the defendant knew or should have known of the infringing activity; and
That the defendant induced, caused, or materially contributed to another person's infringing
activity.
Vicarious Infringement:
Vicarious copyright infringement liability evolved from the principle of respondent superior. To
succeed on a claim of vicarious liability for a direct infringer's action, a plaintiff must show that
the defendant:
Had the right and ability to control the direct infringer's actions; and
Derived a direct financial benefit from the infringing activity.

Thus, vicarious liability focuses not on the knowledge and participation but on the relationship
between the direct infringer and the defendant.
Legal precedent for vicarious copyright infringement liability has developed along two general
relational lines. The first relational line involves the employer/employee relationship, whereas
the second involves the lessor / lessee relationship.

Internet and copyright infringement theories

The advent of information technology has made it difficult to apply the traditional theories to
various cyberspace entities and organizations.
These cyberspace players can be grouped under the following headings:

1. Internet Service Providers (ISPs),

2. Bulletin Board Services Operators (BBSO),
3. Commercial Web Page owner/operators, and
4. Private users.

(1) Internet Service Providers (ISPs):

An ISP most often provides Internet access and he may be held liable for copyright infringement.
In Religious Technology Center v Netcom On-Line Communication Services, Inc a former
minister uploaded some of the copyrighted work of the Church of Scientology to the Internet. He
first transferred the information to a BBS computer, where it was temporarily stored before being
copied onto Netcom's computer and other Usenet computers.
Once the information was on Netcom's computer, it was available to Netcom's subscribers and
Usenet neighbors for downloading for up to eleven days. The plaintiffs informed Netcom about
the infringing activity; nonetheless, Netcom refused to deny the subscriber's access because it
was not possible to prescreen the subscriber's uploads, and kicking the subscriber off the Internet
meant kicking off the rest of the BBS operator's subscribers. Thus, plaintiffs sought a remedy
against Netcom for infringement under all three theories –direct, contributory, and vicarious.

The court first analyzed whether Netcom directly infringed plaintiff's copyright. Since Netcom
did not violate plaintiff's exclusive copying, distribution, or display rights, Netcom was held not
liable for direct infringement. The court then analyzed the third party liability theories of
contributory and vicarious infringement. The court held that Netcom would be liable for
contributory infringement if plaintiffs proved that Netcom had knowledge of the infringing
activity.

The court then analyzed whether Netcom was vicariously liable. Here, once again the court
found that a genuine issue of material fact supporting Netcom's right and ability to control the
uploader's acts existed. The court found that Netcom did not receive direct financial benefit from
the infringement. Thus, the court found that the Netcom was not liable for direct infringement,
could be liable for contributory infringement if plaintiffs proved the knowledge element, and was
not liable for vicarious infringement.

(2) Bulletin Board Services:

The BBSs are more vulnerable to copyright infringement litigations than the ISPs because they
can operate independent of the World Wide Web.

The first case in this category was Playboy Enterprises, Inc v Frena.In this case, the defendant
operated a subscription BBS that allowed the subscribers to view, upload, and download
material. The court held that Frena had violated Playboy's exclusive distribution right and their
exclusive display right. Because Frena supplied a product containing unauthorized copies of
copyrighted work, he has violated the distribution right. Moreover, because Frena publicly
displayed Playboy's copyrighted photographs to subscribers, he violated the display right.

The court concluded that Frena was liable for direct infringement, though Frena himself never
placed infringing material on the BBS and despite his arguments that he was unaware of the
infringement. The court relied upon the strict liability theory and held that neither intent nor
knowledge is an essential element of infringement.

In Sega v Maphia the BBS was providing services to numerous subscribers who upload and
downloaded files to and from the BBS. The evidence clearly showed that the BBS operator knew
that subscribers were uploading unauthorized copies of Sega's video games to and downloaded
from his BBS. The court held that since the BBS operators only knew and encouraged uploading
and downloading, but did not himself upload or download any files, he was not liable for direct
infringement.

The court, however, found the BBS operator contributory liable. Regarding the knowledge
element, the BBS operator admitted that he had knowledge of the uploading and downloading
activity. The court rejected the BBS operator's asserted fair use defense since their activities were
clearly commercial in nature. Further, the nature of the copyrighted games was creative rather
than informative and the entire copyrighted works were copied, uploaded, and downloaded. This
copying had adversely affected the Sega's sale.

(3) Commercial Web sites:

The Web Page owners must be cautious of the things they post on their Web Pages so that they
do not violate the stringent provisions of the copyright laws. A Web Page owner cannot
successfully plead and prove that they were unaware about the copyrighted material because
copyright notices are prominently given in authorized software. They also have the controlling
power over the content of their pages. The owner are usually the parties that actually perform the
uploads to their pages.

(4) Private Users:

A computer user who uploads copyrighted material to the Internet is liable for direct
infringement. This liability could be avoided only if he can prove the fair use doctrine. Thus, an
Internet user should not post copyrighted material on the Internet in a casual manner.

On-line copyright issues in India

The reference to on-line copyright issues can be found in the following two major enactments:
1. The Copyright Act, 1957, and
2. The Information Technology Act, 2000.

(1) Copyright Act, 1957 and on-line copyright issues: The following provisions of the
Copyright Act, 1957 can safely be relied upon for meeting the challenges of information
technology:
The inclusive definition of computer is very wide which includes any electronic or similar device
having information processing capabilities. Thus, a device storing or containing a copyrighted
material cannot be manipulated in such a manner as to violate the rights of a copyright holder.

The term computer Programme has been defined to mean a set of instructions expressed in
words, codes, schemes or in any other form, including a machine readable medium, capable of
causing a computer to perform a particular task or achieve a particular result. It must be noted
that Section13(a) read with Section 2(o) confers a copyright in computer Programme and its
infringement will attract the stringent penal and civil sanctions.

The inclusive definition of literary work includes computer programmes, tables and compilations
including computer databases. Thus, the legislature has taken adequate care and provided
sufficient protection for computer related copyrights.

The copyrighted material can be transferred or communicated to the public easily and secretly
through electronic means. To take care of such a situation, the Copyright Act has provided the
circumstances which amount to communication to the public. Thus, making any work available
for being seen or heard or otherwise enjoyed by the public directly or by any means of display or
diffusion other than by issuing copies of such work regardless of whether any member of the
public actually sees, hears or otherwise enjoys the work so made available, may violate the
copyright. The communication through satellite or cable or any other means of simultaneous
communication to more than one household or place of residence including residential rooms of
any hotel or hostel shall be deemed to be communication to the public.

(2) Information Technology Act, 2000 and on-line copyright issues:

The following provisions of the Information Technology Act, 2000 are relevant to understand the
relationship between copyright protection and information technology:
Section 1(2) read with Section 75 of the Act provides for extra-territorial application of the
provisions of the Act. Thus, if a person (including a foreign national) violates the copyright of a
person by means of computer, computer system or computer network located in India, he would
be liable under the provisions of the Act.
If any person without permission of the owner or any other person who is in charge of a
computer, computer system or computer network accesses or secures access to such computer,
computer system or computer network or downloads, copies or extracts any data, computer data
base or information from such computer, computer system or computer network including
information or data held or stored in any removable storage medium, he shall be liable to pay
damages by way of compensation not exceeding one crore rupees to the person so affected.
Thus, a person violating the copyright of another by downloading or copying the same will have
to pay exemplary damages up to the tune of rupees one crore which is deterrent enough to
prevent copyright violation.
While adjudging the quantum of compensation, the adjudicating officer shall have to consider
the following factors:
The amount of gain or unfair advantage, wherever quantifiable, made as the result of the default;
The amount of loss caused to any person as a result of the default;
The repetitive nature of the default.
Thus, if the copyright is violated intentionally and for earning profit, the quantum of damages
will be more as compared to innocent infringement.
A network service provider (ISP) will not be liable under this Act, rules or regulations made
there under for any third party information or data made available by him if he proves that the
offence or contravention was committed without his knowledge or that he had exercised all due
diligence to prevent the commission of such offence or contravention. The network service
provider under section 79 means an intermediary and third party information means any
information dealt with by a network service provider in his capacity as an intermediary.
The provisions of this Act shall have overriding effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force.[55]

Conclusion

The provisions of the abovementioned two enactments show that the Copyright protection in
India is strong and effective enough to take care of the Copyright of the concerned person. The
protection extends not only to the Copyright as understood in the traditional sense but also in its
modern aspect.

Thus, on-line copyright issues are also adequately protected, though not in clear and express
term. To meet the ever- increasing challenges, as posed by the changed circumstances and latest
technology, the existing law can be so interpreted that all facets of copyright are adequately
covered. This can be achieved by applying the purposive interpretatio technique, which requires
the existing law to be interpreted in such a manner as justice is done in the fact and
circumstances of the case.

Alternatively, existing laws should be amended as per the requirements of the situation. The
existing law can also be supplemented with newer ones, specifically touching and dealing with
the contemporary issues and problems. The Information Technology Act, 2000 requires a new
outlook and orientation, which can be effectively used to meet the challenges posed by the
Intellectual Property Rights regime in this age of information technology.
 BIBLIOGRAPHY
1. http://www.legalserviceindia.com/article/l195-Copyright-Law-in-India.html , visited on
10/10/2020, 02:01pm
2. Mustafa Faizan, Copyright Law: A Comparative Perspective [ISO: New Delhi; 1998]
3. Chaturvedi R.G., Iyengor on Copyright (Butterworths New Delhi,2000)