THE EFFECTIVENESS OF THE REMEDIES FOR COPYRIGHT INFRINGEMENT

 The Effectiveness of the Remedies for Copyright Infringement

Author: Devang Bhatia, Delhi Metropolitan Education, GGSIPU.

ABSTRACT:

Copyright law shields makers of unique material from unapproved duplication or use. For a unique work to be ensured by copyright laws, it must be in unmistakable structure. In the U.S., crafted by makers is ensured by copyright laws until 70 years after their demise

Introduction

Nowadays, the world has entered the phase of instant communication. Any person sitting at any corner of the world can connect with anyone with the help of recent technological developments. This is the era of smartphones and they have made it possible to have instant communication.

Copyright refers to the lawful owner of the intellectual property. In simple words, copyright is the right to copy. It implies that the original creators of the products and anyone they authorize to are the only ones with the exclusive right to reproduce the work. The whole idea behind such protection is based on the principle that innovations need incentives[1]. Copyrighting recognizes this need and gives them legal sanction to do so.  Also, the commercial exploitation invites extra income for the original creators of the content and thus adding pecuniary advantages for them.

To effectively provide the protection of the given right, the righteous person has to ensure two factors

  • Ex ante: to prevent the event and make prohibitive rules for the action to be taken against the violation of the same.
  • Ex post remedies: which compensate the losses of the right holders as a result of the infringements.

What is Copyrighting infringement?

  • Using the exclusive work of the copyright holder in an unauthorized manner whether respected to the whole or a substantial part of the copyright work.
  • Permitting a platform to be utilized for the infringement purposes on the profit basis and
  • Portraying or exhibiting in public by the way to earn monetary benefit or reproducing copies of the infringed work.

Vicarious and Contributory Liability

Vicarious Copyright Infringement is based on the principle “Respondent Superior”. It is a common law principle that holds employers legally responsible for the acts of an employee, if such acts are within the scope and nature of the employment. In order to prove vicarious liability, there must be an event of direct infringement. It is not necessary that the employer had direct knowledge of the infringement or not, the employer must have a financial support in the infringement and the ability to control the infringement. Contributory Copyright Infringement on the other hand, makes the party liable for infringement where the party persuaded contributed to copyright infringement by another party.

In this scenario, the contributory party must have well known, or had reason to know, of the infringement. In Sony Corporation of America v. Universal City Studios, Inc[2]., the United States Supreme Court held that Sony was not liable for contributory copyright infringement for its sale of home video tape recorders. The judgement stated that the average member of the public used the recorders to record television programs to watch at a later time, which increased viewership to include people who would not otherwise have been able to watch the program due to scheduling conflicts. Where the objecting parties were unable to demonstrate depreciation of commercial value of their copyrights, there was no basis for a copyright infringement claim.

Essentials to file a claim of copyright infringement, the copyright holder must show that:

  • Avalid copyright exists,
  • Violators had means to access the copyrighted work, and
  • The alleged illegal use does not fall within the copyright exceptions of fair use.

What are the remedies available against a copyright infringer?

Imagine a popular singer recently publishes several albums that contain dozens of new songs. He would obviously want to claim the damages which he could have made if his work wasn’t infringed.  Everything goes well until one day he notices that one competitive platform uploaded the track for “Free” without authorization and allows users to download for free. Such action irritates the singer and he accordingly decide to sue them.

The purpose of suing is an answer in itself: imposing punitive actions on violators of the copyrighted work and attaining compensation. Obviously, the most proper remedy under current copyright law is the damages. The remedies provided by the Copyright Act, 1957 against infringement of copyright are:

  • Civil Remedies:It provides legal injunction, damages and the interpretation of accounts, delegating and destruction of infringing work and damages for the same; criminal remedies.It provides imprisonment, fines, seizure of infringing copies and handing back of infringing copies to the owner; and
  • Cross Border Enforcement:It also provides the right to prohibit the import and destroy the imported goods that infringe the copyright of a party with the help of the customs authorities of India.

Is there a time limit for seeking remedies?

Yes. The time limits tofile a suit for damages for infringement of copyright in three years from the date of such infringement.

Are there criminal copyright provisions? If so, what are they?

In the Copyright Act, 1957 the following remedies are provided for infringement:

  • Imprisonment could be till 3 years but, not less than 6 months
  • Fine may not be less than 50,000 but, may extend up to 2,00,000
  • Search and seizure of infringing goods
  • Shopping of infringing work to the copyright holder.

The court typically depends on the case of Hubbard vs Vosper[3] that commands that “It is not possible to outline what’s “fair dealing.” It should be an issue of degree. you want to contemplate initially the amount and extent of the quotations and extracts. area unit they altogether too several and too long to be fair? Then you want to contemplate the utilization product of them. If they’re used as a basis for comment, criticism or review, which will be truthful dealing. If they’re accustomed to convey similar data because the author, for a rival purpose, which will be unfair. Next, you want to contemplate the proportions. to require long extracts and fasten short comments is also unfair. But short extracts and long comments are also truthful. different concerns may return to mind. But, after all, no matter what happens, it should be a matter of impression. like truthful comment within the law of libel, thus with truthful dealing within the law of copyright. The judicature decides on facts of the case.

Remedies for the Copyright Infringement across the Globe

In England and Wales, the limitation period is six years.Monetary damages; damages or an account of profits or a royalty rate if the infringer had taken a license to use the work from the copyright owner. The Criminal Code of Ukraine[4] (article 176) prohibits unlawful reproduction and delegation of science, literature, art, computer codes and databases, videogames, & broadcasting programmes in any type of media, and via cam-cording and card-sharing, or other intentional breaches of copyright. The sanctions under article 176 varies from a fine of €115 to imprisonment for up to six years.


References

[1]https://www.investopedia.com/terms/c/copyright.asp.

[2] https://www.atrizadeh.com/copyright-infringement-direct-vicarious-and-contributory.html.

[3] http://uniset.ca/other/cs3/vosper.html.

[4] https://www.lexology.com/library/detail.aspx?g=f7113284-7139-49bb-b18e-42e6377180fb.

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