The Effectiveness Of The Remedies For Copyright Infringement, A Global Concern
When is infringement said to have occurred?
The rapid growth of the internet has become worrying for the copyright owners. People can now copy large amounts of protected work instantly. The Internet has made this possible. The effect of this ease of copying material is that doubts have risen that if copyright is dead or is it eveneffective. It is undeniable that the internet poses great challenges for the copyright industry and its aim to protect creative expression.
The Acts which contribute to infringement of a copyright are as follows:
- When the whole or a substantial part of the copyright work is used without proper authorization from the owner of the work;
- When a work is displayed or exhibited in public as a way trade or importing or distributing the copyright work also constitutes infringement;
- If a place is permitted for carrying on infringing work, then it is also said to be an infringement of copyright.
Remedies available against the infringement
There are three remedies available against copyright infringement:
(i) Civil Remedies- under this remedy, suit can be filed seeking interlocutory injunction, account rendition, pecuniary remedies, to destroy the infringed copies and damages.
(ii) Criminal Remedies- this includes imprisonment, fines, seizure and it may also require to deliver the infringed copies to the owner.
(iii) Administrative Remedies- this remedy is used for banning the import of infringed copies and to deliver the copies that have been confiscated to the owner.
The statute of limitations for bringing a lawsuit for copyright infringement damages is three years from the date of the infringement.
Other provisions under The Copyright Act, 1957
The Copyright Act of 1957 established a set of punitive penalties under Chapter 13 of the Act to enforce copyright. The primary punitive provisions of the Act are as follows:
- Under section 63, anyone who knowingly infringes or aids in the infringement of a work’s copyright or any other right protected by the Copyright Act, 1957 (broadcast reproduction rights, performers’ rights, moral rights, etc.) can be sentenced to a minimum of six months in prison and a maximum of three years in prison, as well as a penalty of between 50,000 and 200,000 rupees.
- Section 65A makes it illegal to circumvent effective technological safeguards that can be applied to copies of a work in order to preserve any of the Act’s rights (ie, copyright, performance rights). This provision carries a penalty of up to two years in prison as well as a monetary fine. The Copyright (Amendment) Act of 2012 added Section 65A.
- Unauthorized removal or alteration of “rights management information” is punished under Section 65B by up to two years in prison and a fine. If the person is aware that electronic rights management information in the copy has been removed or altered, the clause renders unlawful distribution, transmission, or communication to the public of copies of the work punishable in the same way. The Copyright (Amendment) Act of 2012 added Section 65B.
- On a second or subsequent conviction under section 63, the punishment is increased under section 63A.
- Other parts of the chapter include penalties for using infringing copies of a computer program, producing or having plates for the purpose of making infringing copies of works, and falsifying entries in the Register of Copyrights.
Remedies for online copyright infringement
Certain provisions pertaining to copyright infringement and the internet were incorporated as part of the Act’s 2012 amendment.
Section 52(1)(b) of the Act’s fair use provision states that temporary or incidental storage of a work or performance solely for the purpose of electronic transmission or communication to the public does not constitute copyright infringement.
What Section 52(1) (c) provides is that, unless the person responsible is aware of infringement or has reasonable grounds to believe the storage is of infringing copy, transient or incidental storage of a work or performance for the purpose of providing electronic links, access, or integration that is not expressly prohibited by the rights holder is not a copyright infringement.
If the owner of a copyright work complains in writing to the person responsible for digitally storing an infringing copy of the work that such transient or incidental storage is an infringement, the person responsible is required by section 52(1) to refrain from facilitating access to the infringing copy of the work for a period of 21 days (c).If the person who is responsible does not receive an order from a competent court ordering him or her to desist from giving access within 21 days, access may be restored at the conclusion of that period.
Apart from the clauses listed above, the Copyright Act’s overall scheme makes it abundantly apparent that all of the Act’s provisions must be applied to electronic and digital media in the same way that they are applied to traditional media. In several countries, the Copyright (Amendment) Act of 2012 clarified this.
The provisions of that Act adequately encompass all sorts of work exploitation, including internet exploitation, and copyright infringement penalties would apply to the online platform in the same way they would to any some other medium or platform.
Although no amount of care will guarantee an ‘infringer-free’ environment, copyright owners must take certain preventative measures, such as:
- a record of occasions of use;
- copyright registration;
- copyright notice;
- tracking the activity of repeat infringers;
- requiring secrecy from independent contractors and employees;
- having appropriate licensing agreements with a proper control mechanism in place; and
- Announcing the outcome of a victorious infringement trial.
Protection under International legislation
- TRIPS establishes criteria for judicial review, the protection of confidential information during legal procedures, and the gathering of evidence and obtaining discovery.Members must also allow judicial authorities the power to award injunctions, order the payment of damages sufficient to compensate the injured party for the infringement, and grant alternative remedies such as the destruction of infringing items, according to TRIPS.
- Although, the Berne Convention and TRIPS appear to cover similar ground, however Berne and TRIPS are described in more general, broad language.Certain clauses of the WIPO treaties, on the other hand, appear to be specifically geared to address Internet or digital-related issues, and hence could be valuable to copyright owners dealing with online infringement.
Although, there are sufficient provision for protection of copyright, but with the rapid growth of the internet, it is doubtful whether these provisions will be enough. Even, the WIPO treaties are insufficient in combating Internet-related infringement. They don’t deal with the complicated and thorny questions of jurisdiction and law selection. They also don’t add anything to the enforcement mechanism against countries that don’t provide the necessary degree of protection. TRIPS looks to be the most significant instrument currently in place to ensure that intellectual property rights are recognized and enforced around the world.As a result, a copyright owner who is unable to seek effective remedies through judicial or political systems in a country that serves as a sanctuary for infringement has few legal options.
Contributed by:– Nidhi Jha, Legal intern at LLL