This post shall succinctly deal with the law of copyright infringement in India and the remedies provided therein especially those in the nature of damages. The project has been divided into two major chapters accompanied by a conclusion. In Chapter I, the project deals with the bare provisions of the Indian Copyright Act 1957 pertaining to copyright infringement/violations. It talks about the constitutive elements of copyright infringement and some exceptions provided therein. Chapter II specifically deals with the nature of remedies provided in the statute, especially in the form of damages. It begins by analysing the statutory provisions and then supplements it with some relevant case law analysis. This chapter also does a brief comparative analysis with damages awarded by courts in the United States and the nature of remedies in the United Kingdom.
- Whether it is easy to obtain damages for copyright infringement in India?
- Whether court can award punitive damages in case of copyright infringement?
- Whether there exist any formula for calculating damages for copyright violations in India?
CHAPTER I: ELEMENTS OF COPYRIGHT INFRINGEMENT
The act of infringement of copyright has been defined u/s 2(m) of the India Copyright Act 1857. It provides that with respect to a musical, dramatic, literary, or artistic work, infringement means a reproduction thereof otherwise than as a cinematographic film; With respect to a cinematographic film, it means a duplicate of the film made on any medium using any & all means; With respect to a sound recording, it means some other recording epitomizing the same sound recording, made using any & all means; & with respect to a performance or program in which such a broadcast reproduction right or a performer’s right subsists under the provisions of this Act, it means the sound recording or a cinematographic film of such program or performance, if such reproduction, duplicate or sound recording is made or imported in negation of the provisions of this Act.
Chapter XI & XII of the Indian Copyright Act 1999 deals with copyright infringement & civil remedies respectively. S.51 provides the conditions when copyright shall be deemed to have been infringed. This includes the following acts when done by a person with respect to a copyrighted work in absence of the Licence of the owner of the copyright or the registrar of copyright as the case may be-
- He/She does anything, the exclusive right to do which is presented upon the proprietor of the copyright, or
- Allows wherever to be used for the correspondence of the work to the general population for monetary gains where such correspondence constitutes an infringement of the copyright in the work unless he/she was not mindful & had no reasonable ground for accepting that such correspondence to people, in general, would be an infringement of copyright; or
- Makes available to be purchased or contract, or sells or lets for employ, or by method for exchange displays or offers available to be purchased or enlist, or distributes either with the end goal of exchange or to such a degree as to influence preferentially the proprietor of the copyright, or by method for exchange exhibits open, or
- Imports into India, any infringing copies of the work in which copyright subsists.
The proviso however provides that it shall not be an act of copyright infringement if the work has been imported for the private & domestic use of the importer.
The section further provides an explanation that or the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work as a cinematograph film shall be esteemed to be an infringing copy.
Some Exceptions to Copyright Infringement
Section 52 of the Indian Copyright Act provides a host/long list of exceptions that won’t constitute copyright violation/infringement. In short, they include fair dealing with a literary, dramatic, musical or artistic work (hereinafter such work) not being a PC program for the purposes of private use, including research; criticism or survey; the creation of copies or adaptation of a PC program by the legal possessor of a copy of such PC program, so as to use the PC program for the purposes for which it was supplied; or to make back-up copies absolutely as an impermanent security against loss, harm, & so forth; a fair dealing with a literary, dramatic, musical or artistic work to report recent developments; the reproduction of such work with the end goal of a legal continuing; the reproduction or publication of such work in any work arranged by the Secretariat of a Legislature exclusively for the use of the members of that Legislature; the reproduction of any literary, dramatic or musical work in an ensured copy made or supplied as per any law for now in power; the perusing or recitation in public of any reasonable extract from a published literary or dramatic work; the publication in an assortment, for the most part composed of non-copyrighted matter, in accordance with some basic honesty proposed for the use of instructive institutions, thus described in the title & in any advertisement issued by or for the benefit of the publisher, of short passages from published literary or dramatic works, not themselves published for the use of instructive institutions, in which copyright subsists; the causing of a recording to be heard in public by using it, in an enclosed room or corridor implied for the regular use of residents in any residential premises not being a lodging or similar business establishment; the performance of a literary, dramatic or musical work by a beginner club or society, if the performance is given to a non-paying crowd, or to serve a religious institution; the reproduction in a newspaper, magazine or other periodical of an article on momentum monetary, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction; the publication in a newspaper, magazine or other periodical of a report of a talk conveyed in public; the creation of not multiple copies of a book (counting a flyer, sheet of music, guide, graph or plan) by or under the heading of the person accountable for a public library for the use of the library if such book is not accessible available to be purchased in India; the reproduction or publication of any matter which has been published in any Official Gazette aside from an Act of a Legislature; the generation or publication of a translation in any Indian language of an Act of a Legislature & of any rules or orders made thereunder; the creation or publishing of an artwork, drawing, etching or photo of a work of design or the display of a work of engineering; the creation or publishing of a composition, drawing, etching or photo of a sculpture, or other artistic work if such work is for all time situate in a public place or any premises to which the public has access; the creation of a fleeting recording, by a broadcasting association using its very own facilities for its own broadcast by a broadcasting association of a work which it has the right to broadcast; & the maintenance of such recording for chronicled purposes on the ground of its extraordinary narrative character; the performance of a literary, dramatic or musical work or the correspondence to the public of such work or of a sound recording in the course of any true blue religious function, marriage procession & other social festivities or an official service held by the Central Government or the State Government or any local authority, & so forth.
CHAPTER II: DAMAGES & REMEDIES
As far as remedies for copyright infringement are concerned, they include both civil & criminal remedies mentioned in Chapter XII & XIII of the Indian Copyright Act 1957. Here we will only deal with the Civil remedies especially in the form of damages. Chapter XII of the Indian Copyright deals with the civil remedies in case of copyright infringements. These remedies are quite comprehensive in nature & include injunctions, damages, accounts & any other remedy the court deem fit in the given facts & circumstances. S.55 therein provides that where copyright in any work has been encroached, the proprietor of the copyright shall be qualified for every single such cure by method for damages, record, injunction, & otherwise as are or may be presented by law for the infringement of rights.
The proviso to this sections however adds that if the defendant is able to prove or substantiate that on the date of alleged infringement he was ignorant & had no reasonable ground to believe that copyright subsisted in the work, the offended party shall not be qualified for any damage other than an injunction in respect of the infringement & a declaration for the entire or part of the profits made by the defendant by the sale of the infringing copies as the court may in the circumstances consider reasonable. This proviso undoubtedly restricts the scope of damages in case of copyright violation as in most cases defendants easily establish the requirement of this proviso & get away with violations even if done unknowingly & the plaintiff only ends up with the remedy of injunction even through he might have suffered a significant economic loss.
Also, in the case of a musical, dramatic, literary or artistic work, if a name indicating to be that of the author or the publisher appears on copies of the published work then the person whose name so appears or showed up shall be presumed to be the author or the publisher of the work.
The costs of all parties in any proceedings in respect of the infringement of copyright shall be in the discretion of the court.
Types of Damages
There are different kinds of damages that can be claimed in case of infringement. They include actual damages, rendering of account of profits and statutory damages.
Actual Damages-These are the damages suffered by the rightful owner of the copyrighted work because of their illegal use. On the off chance that evaluating the actual damages is found to be inconvenient or troublesome, a judge can also arrange the infringer to pay the royalty for the use of such copyrighted work.
Rendition of Accounts/Profits-here the damages are calculated by the quantifying profits made by the violator. For this the court may order to produce the books of account. It is difficult to prove as infringers do not keep a book of account generally.
Statutory Damages-This is available, especially in the United States. But the precondition for receiving statutory damages is that the impugned work must have been registered in the United States Copyright Office (USCO). While the normal cost of statutory damages lies somewhere in the range of $750 and $30,000, these can be as low as $200 or as high as $150,000 depending upon the circumstances surrounding the infringement/violation. For instance, in the Sony BMG Music Entertainment v. Tenenbaum, the court readily granted a sum of $67,500 as statutory damages ($2,500 per song) after it was discovered that the defendant appropriated the music that the plaintiff has registered to the United States Copyright Office.
Generally, the damages awarded in case of any intellectual property rights (IPR) infringement in India are not as high as in the Western Countries but in a case of 2005 (Time Inc. v. Lokesh Srivastava) concerning trademark violation, Delhi HC for the first time awarded punitive damages worth 5 lacs. In this case, the court held that it would not hesitate in granting a much higher amount of punitive damages if it need be. The court further stated that-‘punitive damages should really be punitive & not flee (sic) bite & quantum thereof should depend on the flagrancy of infringement.’ Delhi HC also asked the defendants to render accounts of Profits in this case. According to Abhishek Malhotra, the underlying rationale behind this holding was the reason that it is quite troublesome in India for a claimant to demonstrate actual damages suffered by him as defendants enjoying such activities never keep up appropriate accounts of their transactions since they realize that the same is unlawful objectionable & unlawful.
This case was however overruled in the Hindustan Unilever v Reckitt Benckiser India Ltd-a judgement delivered by a Division Bench of the Delhi High Court led by Justice Ravindra Bhat in whose opinion the Times Incorporated judgment was a terribly flawed judgment and opened the door to the granting of punitive damages in all IP cases.
Some of the highest damages award in India was in the case of Microsoft v Yogesh Popat and Dyptronics Pvt Ltd (2005), wherein the court considered the violation of trademarks and copyright and, after calculating the actual loss of business caused to the plaintiff, awarded a whooping damages worth ₹20 lacs (US$28,500). In an another case, Glenmark Pharmaceuticals Ltd v Curetech Skincare & Galpha Laboratories Ltd, the Bombay High Court awarded exemplary damages of ₹15 lacs on finding that the defendant was a habitual offender. Though the amount of punitive damage was fixed in several other cases, in the absence of judicial guidelines, the courts generally follow the double or triple damage rule or grant the actual damages as claimed.
In the United Kingdom, a claimant can seek only seek one sort of help/remedy. He/She must choose either a remedy for damages or an account of profit in an infringement action. Damages are compensatory in nature and make great the loss caused to the claimant. An account of profit is an impartial remedy requiring the defendant to hand over to the claimant actual amounts of profit produced using the infringing activities.
In case various rights comprising in the copyright in any work are claimed by various persons, the owner of any such right shall, to the degree of that right be qualified for the remedies gave by this Act & may independently implement such right by means of any suit, action or other continuing without making the owner of some other right involved with such suit, action or continuing.
An author of a work has certain special rights in his work apart from copyright. This is also called the ‘Non-Economic Rights’ or ‘Moral Right’ They exist independently of the author’s copyright in his/her work. These special rights include-
- The right to claim authorship of the concerned work; and
- Right to integrity of work ie to restrain or claim damages in respect of any distortion, mutilation, modification or other act in connection to the said work which is done before the lapse of the term of copyright if such distortion, mutilation, modification or any other act would be unfavourable to his respect or reputation:
However, these special rights are not applicable to the adaptation of a computer program to which clause (aa) of sub-section (1) of section 52 applies. In other words, the author shall not have any right to restrain or claim damages.
Whereas economic rights have been given to the owner of the work, the moral rights vest in the author of the work & they cannot be transferred or assigned to any third party as opposed to the economic rights which can be transferred by licensing, assignment, etc. These special rights however other than the right to claim authorship of the work, can be exercised by the legal representatives of the author after his death.
In Manu Bhandari v Kala Vikas Pictures Pvt Ltd, P wrote a novel ‘Aap ka Banti’ A produced a cinematograph ‘Samay ki Dhara’ based on that. Mutilation & distortion of the novel was alleged by the author of the novel. The author alleged that the end of the film was totality different & objected to some vulgar senses in the movie. Court ordered the film-maker to make appropriate changes to the satisfaction of the plaintiff.
Though failure to display a work or to display it to the satisfaction of the author is not an infringement of the special/moral rights but the courts at times have given in such cases too. For instance, in Amarnath Sehgal v Union of India, Plaintiff created a mural-browns mural & donated it to Vigyan Bhawan in 1957. In 1959, it was removed & kept in a store as renovations were going on in the Bhawan. The Plaintiff claimed a violation of the right to integrity as the mural was kept in appropriate conditions to which the Court agreed & gave appropriate directions.
S.59 provides that all infringing copies of any work where copyright exists, & all plates used or planned to be used for the creation of such infringing copies, shall be considered to be the property of the owner of the copyright, who as needs be may take proceedings for the recuperation of possession thereof or in respect of the conversion thereof.
The proviso adds that that the owner of the copyright shall not be qualified for any remedy in respect of the conversion of any infringing copies, if the rival proves that he was not mindful & had no reasonable ground to accept that copyright subsisted in the work of which such copies are asserted to encroach copies; or that he had reasonable grounds for believing that such copies or plates don’t include infringement of the copyright in any work.
Damages for the false allegation of Copyright
The Indian Copyright Act 1957 envisages damages as a remedy not only for the infringement of copyright but also for false allegations of copyright violations. S.60 provides that where any person claiming to be the owner of copyright in any work, by advertisements, circulars or otherwise, threatens some other individual with any legal proceedings for infringement of the copyright, any person wronged in this manner may, notwithstanding anything contained in Section 34 of the Specific Relief Act 1963 institute a suit that the supposed infringement to which the threats are related to in fact are not any infringement of any lawful rights of the person making such threats & may file a suit to-
- Obtain an injunction against the duration of such threats; and
- Recover such damages, which she/he has sustained by reason of such threats.
The proviso adds that this section shall not have any bearing if the person making such threats, commences & initiates an action/suit for the infringement of the copyright claimed by him.
Some latest Case law analysis-
Microsoft Corporation v Deepak Raval (2006)
This was a case of Internet Piracy. The plaintiffs claimed that they suffered inestimable harm to their IP rights and business by virtue of various forms of copyright theft which included reproduction of the plaintiff’s software and the bundling of that software, so that purchasers are purposely misled into believing that the item they are purchasing is original software; replicating or “copying” the plaintiff’s software onto a blank Disc. In this case, the Delhi High Court awarded exemplary damages worth 12 lacs as was claimed in the suit.
Dabur India Ltd. v K.R. Industries SC 2008
Supreme Court held that in the event that a person is seen as blameworthy of infringement of copyright he will undoubtedly pay damages. With the end goal of evaluation of damages, rendition of accounts may be necessary and it is for this sake the Parliament thought it fit to use “otherwise”. Thus the power gave by law inside the significance of Sub-section (1) of Section 55 of 1957 Act qualifies the intensity of the court to allow remedies as envisaged thereunder if some other cause of action arose under an alternate Act. An action for passing off is customary law right and the same does not decide the jurisdiction of the court. For exercising such jurisdiction, the provisions of the Code would be relevant. 1957 Act being a special law would, thus, beat the general law, viz., the Code.
Yash Raj Films Private Limited v Sai Ganesh Productions & Others Ltd 2019 Delhi HC
In this case, the plaintiffs apart from other remedies including rendition of account & injunction, sought damages worth 20 lac on account of defendants copying their movie ‘Band Baja Barat’ in their movie ‘Zabardast’. The plaintiff contended that the story, the way where the plot unfolded, & the treatment, as well as expression given to the theme in the Plaintiff’s movie, had been brazenly duplicated in the impugned film. She submitted that the similarities between the Plaintiff’s Film & the defendants’ film were substantial & material in terms of theme, concept, plot, character sketches, story, script, structure & expression and so forth. The court after having due consideration over the material facts & circumstances of the case decided in favour of the plaintiff & granted various remedies including damages worth 20 lac for copyright infringement.
Saregama India Limited v Balaji Motion Pictures Limited & Others 2019 Delhi HC
In this case, the plaintiff alleged that the defendant had copied their Marathi song in their movie ‘Dream Girl’. Defendants contended that the impugned song in their upcoming movie was not part of the film and constituted just two lines played towards the end of the film with the due credits. They also contended that the rest of the song which plays toward the end of the film is completely unique, with an alternate theme and is, in best case scenario an adaptive/transformative work and is certainly not a parrot-like the repetition of the whole song in which the plaintiff claims to have copyright and therefore the damages which would be suffered by the plaintiff regardless of whether he succeeds in the suit would be restricted. The court held that since defendants have acknowledged the right and title of the plaintiff in the subject song, at any rate at this prima facie stage, the principles of estoppel would apply and for the present purposes the said title has to be acknowledged. The court said that further that everybody can easily recognize the song in the approaching film of the defendants with the first song where the plaintiff claims copyright and consequently copyright infringement is established. The elements of irreparable injury and balance of convenience were found for the plaintiff. Since the movie was yet to be released, to court did grant damages but only injunctions wrt to the concerned song.
Indian Copyright Act 1957 provides various remedies for copyright infringement that include injunction, damages, and rendition of account of profit, etc provided u/s 51 of the Act. However, S.52 provides a long list of exceptions that include acts that will not be deemed to constitute copyright violation. In such a scenario, it becomes difficult for a plaintiff to prove violation compared to the copyright right infringer who can easily show that he was unaware that copyright subsisted in the concerned work and had no reasonable ground for believing that such utilization or communication to the public would be an infringement of copyright. If the defendant is able to prove this, then at most the court can grant an injunction to prevent further infringement or in some cases ask rendition of accounts. Of lately, however, courts have been unscrupulously granting heavy damages for copyright violations as is evident in the cases of Time Inc. v. Lokesh Srivastava 2005 (overruled later in 2014); Microsoft v Yogesh Popat and Dyptronics Pvt Ltd (2005); Microsoft Corporation v Deepak Raval (2006); Dabur India Ltd. v KR Industries 2008; Glenmark Pharmaceuticals Ltd v Curetech Skincare & Galpha Laboratories Ltd 2018; and Yash Raj Films Private Limited v Sai Ganesh Productions & Others Ltd 2019, etc wherein the damages awarded by court reached up to a whopping 20 lacs in some cases coupled with other remedies like injunction, etc. But it still is very less compared to western jurisdictions like EU and United States where damages awarded by courts run into millions of dollars.
Though it is not difficult to prove infringement in case of civil remedies based on the elements of irreparable injury and balance of convenience, however a very long list of exceptions u/s 52 of the Copyright Act are sufficient to tilt the balance in favor of the infringer in certain cases. The courts in India have not been very forthcoming in awarding punitive damages in case of intellectual property violations but in few cases post-2000 like Time Inc. v Lokesh Srivastava 2005, the court did award punitive damages, however, it was overruled in 2014 by a Division Bench of the Delhi High Court led by Justice Ravindra Bhat. There is no formula as such for calculation of damages and courts generally adopt the approach of doubling or tripling wherein they double or triple the amount of loss suffered by the copyright owner while calculating the damages. Though courts generally do not hesitate in restraining or punishing the IPR offenders, they have not yet laid down any formula or principle to calculate the amount of the punitive damages.
- Indian Copyright Act 1957
- Trademark Act 1999
- Sony BMG Music Entertainment v Tenenbaum Nos. 10-1883, 10-1947, 10-2052
- Time Inc. v. Lokesh Srivastava, CS (O.S.) 2169 of 1999
- Hindustan Unilever v Reckitt Benckiser India Ltd RFA (OS) 50/2008, C.M. APPL. 17116/2008
- Manu Bhandari v Kala Vikas Pictures Pvt Ltd AIR 1987 Delhi 13
- Amarnath Sehgal v Union of India 117 (2005) DLT 717
- Microsoft v Yogesh Popat and Dyptronics Pvt Ltd (2005)
- Microsoft Corporation v Deepak Raval (2006) MIPR 2007 (1) 72
- Dabur India Ltd. v K.R. Industries AIR 2008 SC 3123
- Glenmark Pharmaceuticals Ltd v Curetech Skincare and Galpha Laboratories Ltd COMIP (L) NO. 1063 OF 2018
- Yash Raj Films Private Limited v Sai Ganesh Productions & others Ltd 2019 Indlaw DEL 1433
- Vaishali Mittal, Siddhant Chamola, Anand and Anand, Copyright litigation in India: Overview, Thomson Reuters Practical Law.
- Abhishek Malhotra, Time Magazine Wins Punitive Damages in IP Case in India, 22 Ent. & Sports Law. 18 (2005)
- DPS Parmar, Calculating punitive damages in infringement, Indian Business Law Journal.
- Prashant Reddy, Justice Bhat overruled Time Incorporated v. Lokesh Srivastava in 2014, Spicy IP