Beruflich Dokumente
Kultur Dokumente
AGAINST
INFRINGEMENT
OF COPYRIGHT
SUBMITTED BY
SRUTI RAVINDRANATHAN
1957223
INTRODUCTION
Ubi jus ibi remediem (where there is right, there is a
remedy). The copyright act has not only conferred
the copyright but laid down effective system for
protecting copyright by various remedies, which
maybe classified in following categories:
Civil remedies
Criminal remedies
Administrative remedies
In Tata Oil Co Ltd v Hansa Chemical, (1986 (2) ARBLR
303 Delhi, ILR 1979 Delhi 236 )the Delhi High Court
held that remedies available to holder of copyright
are independent of each other entitling the
aggrieved party to sue for any or all relief available
to him under law.
CIVIL REMEDIES
The civil remedies for infringement of
copyright are of two kinds:
preventive civil remedies, and
compensatory remedies
Preventive civil remedies
These remedies are used prior in time to the
occurring of the actual act of infringement
or before the damage ensues. These are,
for this reason, also the most popular
among the remedies.
CIVIL REMEDIES
(SECTIONS 56-62)
1. ANTON PILLAR ORDER
It is a kind of preventive measure. In appropriate
cases, the court may, on application by the plaintiff,
pass an ex parte order requiring the defendant to
permit the plaintiff, accompanied by solicitor or
attorney to enter the premises and make an
inspection of relevant documents and articles, take
copies thereof and remove them for safe custody.
Court before passing Anton Pillar Order,
should ensure that:
Plaintiff makes full disclosure of all details and facts
within knowledge and that his conduct is
equitable.
There is an urgency of situation and delay might
give the defendant an opportunity to destroy the
offending material.
Further the court should not make an Anton pillar
order which is likely to have safe incriminating
impact on defendant.
Anton Piller order takes its name from a decision of
the English Court of Appeal in Anton Piller K.G. v.
Manufacturing Processes Ltd., [1976] Ch. 55 (C.A.).
The appellant, Anton Piller, was a German
manufacturer of motors and electric generators
used in the computing industry. The respondent
was the appellant's agent in the United Kingdom.
As agents the respondents had received
confidential information surrounding the
appellant's business
The appellants found out that the respondents had been
in secret communication with other German companies
called Ferrostaal and Lechmotoren with a view to giving
those companies detailed plans and drawings of the
appellant's products so that they could be copied. The
appellants were about to launch a new product and
feared that details of it might get into the hands of
competitors if the respondents were forewarned that the
appellants were aware of the respondents' breaches of
confidence. Anton Piller commenced ex
parte proceedings seeking an injunction to restrain
copyright infringement as well as a court order to permit
entry to the respondent's premises to search and remove
all confidential information owned by the appellants. The
injunction was granted but the order for inspection and
removal was refused. The appellants appealed the denial
of the latter order. In the Court of Appeal the order was
granted. From this initial order has grown the
jurisprudence on Anton Piller orders, commonly known as
civil search warrants.
2. INJUNCTION
The plaintiff may seek the relief by way of restraining
defendant from infringing his copyright through
temporary, permanent or interlocutory injunction in
a civil suit at various stages of trial. The provisions
explained in order XXX1X, civil procedure code are
guiding principles.
3. INTERLOCUTORY INJUNCTION
For obtaining an interlocutory injunction the plaintiff
has to establish-
A prima facie case;
Balance of convenience in his favor
That refusal to grant interlocutory injunction would
cause irreparable injury to the plaintiff.
In Microsoft corporation v Yogesh Papat,(118 (2005)
DLT 580, 2005 (30) PTC 245 Del)the Delhi high court
granted injunction against defendant restraining him
to down load software produced by plaintiff on the
computers of their customers without any permission
from appellant.
4. MAREVA INJUNCTION
This form of interlocutory injunction is issued to
restrain the defendant from disposing of assets which
may be required to satisfy plaintiff’s claim or
removing them from jurisdiction of court. In CBS v
lambart,([1982] 3 WLR 746, [1982] 3 All ER 237 )the
Mareva Injunction was granted
where the principal assets, however, were cars and
the order including a provision requiring the
defendant to disclose their whereabouts. The
prevention of disposal is not of much use if the
plaintiff cannot locate the assets when it comes to
seek to enforce any final judgment obtained.
Therefore, such injunctions are usually sought ex
parte.
5. John Doe Order
This kind of order is issued against unknown
persons who have or may have committed
breach of copyright and or trademark and
whose identities cannot be ascertained by
plaintiff. This is a kind of preventive remedy and
acts as deterrent alleged violation. The name
‘John Doe’ is used against a fictitious or
unidentified person in USA and U.K. In India the
name ‘Ashok Kumar’ has been used.
It is a cease and desist order given under Order
30 Rule 1 of the code of civil procedure, where
the plaintiff have made a prima facie case
establishing the likelihood of violation of their
copyright work, which will affect their financial
objectives leading to massive loss.
In India the passing of John Doe order started in famous
Taj Television v Rajan Mandal, [IA NO. 5628/2002 in CS
(OS) 1072/2002] during the course of the 2002 FIFA
World Cup held in Korea and Japan (“2002 Football
WC”). Taj Television Ltd. (“Taj”) owned the sports
channel ‘Ten Sports’ and was the owner of the
broadcasting rights. The Court granted Taj an ex-parte
injunction against both named and unnamed cable
operators for unauthorized transmissions as its
broadcasting rights under section 37(3) were being
infringed. Although a large number of cable operators
had taken licenses, several prominent cable operators
had not signed up with Taj or its authorized operators
and broadcasted the tournament without any
approvals, thereby costing the television industry in
terms of millions of rupees.
RULE OF LAW
Goods in transit, once on Indian Territory, are
considered to have been imported, irrespective
of whether they have been sold, and if such
imported goods are found to be in violation of
Indian copyright laws, they can not be allowed
to be imported/circulated on Indian Territory.
ANALYSIS:
The contention of the consignee that the word
‘import’ implies the incorporation and mixing of
the goods imported with the mass of the
property in the local area and the mere
presence of the pirated consignment in Indian
Territory does not amount to import and that
such goods would not be subject to the
provisions of the Copyright Act and Customs
Act was held invalid by the Supreme court,
which held that ‘import’ includes importation for
transit across the country. Consequently, the
infringing goods were deemed to have been
imported and in violation of provisions of the
Copyright Act and their circulation/import were
banned under the relevant provisions of the
Customs Act.
An important question raised in this case is to what
extent countries parties to international conventions
are bound by such provisions. Nepal, the destination
of the pirated consignment, and India are parties to
several international conventions for IP protection
and have also signed bi-lateral treaties to facilitate
trade. Subject to certain exceptions, either country
can refuse to allow transit of goods in order to
protect industrial, literary and artistic works. This
implies that the State of transit may enforce a
copyright or trade-mark if the goods in transit are in
violation of the same. India, in this case, would be
entitled to seize the pirated consignment heading
towards Nepal and seek remedy for infringement of
copyright It has been settled that such provisions
shall be binding only as long as they are not in
conflict with municipal laws. It is made clear that,
while dealing with the issue of enforcement of
copyright of works, even when the infringing goods
are neither of Indian origin nor intended for the
Indian market, they are subject to Indian laws and
are in violation of copyright.
REMEDIES FOR INFRINGEMENT OF
NEIGHBOURING RIGHTS
All the above discussed remedies are also
available against the infringement of
broadcast reproduction rights and
performers’ rights in India. Section 39A of
the Copyright Act, 1957 provides that
Sections 53, 55, 64, 65 and 66, etc. shall
apply mutatis mutandis in relation to
broadcast reproduction rights and
performers’ rights.
CONCLUSION
An ideal regime for copyright protection would
balance the rights of all stakeholders. On one hand,
India faces major economic losses due to rampant
piracy, especially online; on the other hand, the
peculiar socio-economic conditions of the country
make it imperative to overlook IPRs to an extent for
the greater common good. In these circumstances,
perhaps the stress should be on effective
implementation of the existing remedies rather than
introducing new remedies over and above the
existing provisions, so that the genuine exceptions to
IPRs are not whittled down. With the paradigm shift in
the legal regime governing the subject in India, it
remains to be seen how such a balance continues
to exist.
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