Remedies for infringement of copyright
July 11, 2022
Biswajit Sarkar - IP Law Firm India
Post time: 4:43 pm
The Copyright Act, 1957 protects creative and artistic works in India granting exclusive rights to the author. In case of infringement of copyright, the author is entitled to certain remedies under the act that can be both civil or criminal in nature.
Section 55 of the Act provides for civil remedies in cases of copyright infringement. It empowers the author to remedies by way of injunction or damages when any right of the author is infringed under the act. The Supreme Court in Dabur India Ltd. v. K.R. Industries held that section 55(1) provides for remedies by way of injunction, damages, accounts and any other way that is conferred by law for the infringement of an author’s right. A similar provision can be found in Order VII Rule 7 of the Code of Civil Procedure. There are two types of civil remedies for infringement of copyright, they are:
- Preventive civil remedies
- Compensatory remedies
The types of injunctions and orders available under preventive civil remedies are as follows:
- Interlocutory injunction: It is considered as the most important type of remedy against infringement of copyright. It is a judicial process which restrains the infringer from continuing with such action of infringement and is ordered to restore the copyright to its previous position before any infringement took place. An interlocutory injunction stops the infringer from duplicating more of plaintiff’s works and as a result the plaintiff does not have to wait till the end of the trial to stop the infringer.
- Ad interim injunction and temporary injunction: A temporary injunction consists of two stages: one which is granted before the application is finally disposed and operates till the application is completely disposed, known as ad interim injunction. The other is granted while finally disposing the main application which is ensured till the suit is disposed, called temporary injunction.
- Mareva injunction: This is a specific type of interlocutory injunction, the main purpose of it is to restrain the defendant from disposing of assets which may be required to satisfy the plaintiff’s claim or removing them from the jurisdiction of the court. In CBS v. Lambert, the assets were cars and the order required the defendant to disclose its whereabouts.
- Permanent/Perpetual infringement: If the plaintiff establishes that the defendant infringed the copyright, then he will be entitled to permanent injunction which restrains future infringements. A permanent injunction is granted in accordance with Section 38 of the Specific Relief Act, 1963 and operates till the term of the copyright. In effect, it is considered as the decree of the court where the defendant is perpetually restrained from committing an act that is against the rights of the plaintiff.
- Anton Piller Orders: These orders are a form of civil search warrants that permits the plaintiff to inspect the defendant’s premises and other times, the defendant may be ordered to keep the infringing stock to preserve the evidence.
- John Doe Order: This order is issued against unknown persons who have committed some wrong and whose identities cannot be ascertained by the plaintiff. It is also known as Ashok Kumar order.
Compensatory civil remedies can be divided into three parts:
- Damages: The purpose of an award of damages is to restore the plaintiff’s to its original position, i.e before infringement. Since copyright infringement is tortious in nature, damages are compensatory in nature in accordance with tort law. Damages can be awarded under three heads namely:
- Compensatory/Actual damages: Damages which the plaintiff actually suffers due to infringement of copyright.
- Damages to good will and reputation: Actions of the infringer that undermine the reputation and good will of the plaintiff in the market.
- Exemplary and punitive damages: These damages are usually awarded in addition to the other two compensatory damages. This type of damages serve a larger purpose of deterring not only the defendant but others committing an unlawful act of similar nature. Here are all the details about Remedies for infringement.
- Damages for conversion/delivery up: The infringing copies of any work in which copyright subsists and the method of production of such infringed material is considered to be the property of the copyright owner. It entitles the copyright owner to enter proceedings and recover the infringing copies along with the plates used for such production.
- Account of profits: The plaintiff is entitled to recover the account of net profits, i.e profits earned by sale of infringing copies. The idea is that the defendant should be deprived of any profits earned by committing the wrongful act of selling the infringing copies. Additionally, the plaintiff can either opt for damages or account of profits but not both. Know all details about Remedies for infringement.
Section 63- 70 under Chapter XIII of the Copyright Act, 1957 includes offences that constitute copyright infringement. They are as follows:
- Section 63: A person who knowingly infringes or abets the infringement of copyright in a work or any other rights conferred by this act shall be punished with imprisonment of not less than six months which may extend up to three years with a fine of not less than fifty thousand rupees which may extend up to two lakh rupees. In cases where infringement has not been made for gain or in the course of trade the court may impose a sentence of less than six months or a fine of less than fifty thousand.
- Section 63A: If a person has been convicted of an offence under section 63 and is again convicted of an offence for the second time then the court will impose a sentence of imprisonment of not less than one year which may extend up to three years with a minimum fine of one lakh which may extend up to two lakhs.
- Section 65: Any person who knowingly makes or has in his possession plates for production of infringing copies will be punishable with imprisonment which may extend up to two years with fine.
- Section 65A: Any person who circumvents an effective technological measure that has been applied for the protection of any of the rights under the act with the intention of infringing such rights shall be punished with imprisonment which may extend up to two years with fine. Know all details about Remedies for infringement.
- Section 65B: Any person who removes or alters knowingly any rights management information or distributes, imports or communicates to the public without authority copies of any work or performance will be punished with infringement which may extend up to two years with fine.
- Section 68A: Any person who publishes a sound recording or a video film contrary to Section 52 shall be punished with imprisonment which my extend up to three years with fine.