ANALYZING

DEVELOPMENT ON ISSUE
OF COPYRIGHT
INFRINGEMENT
THROUGH CASE LAWS

By Farhin Saba

INFRINGEMENT OF COPYRIGHT UNDER

COPYRIGHT ACT, 1957

Section 51 of the copyright Act.

when any person, without a licence granted by the owner of
the copyright or the Registrar of Copyrights under this Act or in
contravention of the conditions of a licence so granted or of
any condition imposed by a competent authority under this
Act does anything, the exclusive right to do which is by this Act
conferred upon the owner of the copyright.
permits for profit any place to be used for the
communication of the work to the public where such
communication constitutes an infringement of the copyright in
the work, unless he was not aware and had no reasonable
ground for believing that such communication to the public
would be an infringement of copyright;

Issues involved in Copyright Infringement Cases

Does the plaintiff have a valid copyright

over the work that he claims to be his?
Has the defendant actually infringed the
plaintiffs copyright as envisaged by the
act.
Is there any justification for the conduct
of the defendant under the fair use
doctrine.

Copyright Infringement by copying

In Hanfstaengl v. W.H. Smith and Sons

Bailey, J. Stated that a copy is that which comes
so near to the original as to give every person
seeing it an idea of original (1905) I Ch D
519.

Divya Sood Proprietor M/S The Body Care v. Renu Bajaj Proprietor M/S
Perfect Body Care, 2011 (45) PTC 307 (Del.) at p. 311, Delhi High court

in order to constitute an infringement

there should be direct and indirect use of those
features of the plaintiffs work in which the
copyright subsists.
stated that

K.S. Gita v. Vision Time India Ltd. and Others, 2011 (45) PTC
393 (Mad) (DB) at p. 393, See also Mohendra Chandra Nath
Ghosh v. Emperor, AIR 1928 Cal 359. Madras High Court held
that it is difficult to be precise as to what amount of copying or degree
of resemblance necessary to constitute infringement. The conclusion
must depend really on the effect produced on the mind by a study of the
picture.

Mother Dairy Fruit & Vegetable Pvt. Ltd. v. Mallikarjuna Dairy

Products Pvt. Ltd., 2012 (49) PTC 346 (Del.) at p. 351. Delhi High
Court held that The degree of resemblance between the two works must
be such that it suggests an impression in the mind of the observer, that
the work of the defendant is, in fact, the work of the plaintiff.

whether an infringement of a copyrighted work has taken place or not,

court resort to the test that what was the effect that was produced in
the mind of the reader or viewer when he reads or looks at the work
which has been alleged as the infringing copy.

The test of Substantial Reproduction

In Dorsey v.Old Surety Life Insurance 98 F. 2d 872

(10th Cir 1938) CourtStated that for an infringement in
the copyrighted work exact reproduction of the plaintiffs
work is not necessary.
Ladbroke v, William Hill, (1964) 1 W.L.R. 273 at p.
276 Copyright in work can be infringed by taking a
substantial part of it and whether a defendant has copied
the substantial part depends much more on the quality
than the quantity of what he has taken.
Madras High Court in Blackwood and Sons Ltd. v.
A.M. Parasuraman applied this principle for the first
time and held that question to be considered while
determining infringement is whether there is reproduction
of a substantial part of the copyrighted work
quantitatively and what is the quality of the work.

Zee Telefilms Ltd. v. Sundial Communication

Pvt. Ltd. 2003 (27) PTC 457 (Bom) (DB),
Bombay High Court held that that in order to
find out similarity in the concepts what was to be
seen was the substances, and the test whether
the reproduction was substantial was too see if
the rest could stand without it. If it could not then
even if much dissimilarity existed in the rest, it
would nonetheless substantial reproduction liable
to be restrained.

Plea of innocence as defence

Privy Council in Performing Right Society

Limited v. Urban District Council of Bray,
AIR 1930 PC 314 held that offence of
infringement is completed even if the offender
authorizes the infringement innocently.
Lahari Recording Company Limited v. Music
Master Audio Video, 2008 (37) PTC 121
(Mad) (DB) at p. 125, held that innocence is no
defence to a charge of infringement.

Plea of common Source

In S.K. Dutt v. Law Book Co. AIR 1954 All 570. Court
observed that infringement comes in only when it can be
shown that someone has, instead of utilizing the available
sources to originate his work, appropriated the labours of
another by resorting to a slavish copy of mere colourable
imitation thereof.

High Court in V. Govindan v. Gopalkrishnan, AIR 1955

Mad 391 held that:
regarding plea of common source, it is well known that
a person relying on it must show that how went to the
common source from which he borrowed employing
his skill, labour and brain and he did not merely do
the work of the copyist, by copying away from a
work.

Delhi High Court in Federation of Industries of India & Another v. G.

Kesavalu Naidu, 2011 (48) PTC 496 (Del) at p. 507. held that
aminus furandi, that is, an intention to take from another for purpose of
saving labour, is one of the important ingredients to be found against a
defendant, if he take plea of common source.

Infringement by permission to use place for

communication of the work
According to section 51 of the Copyright Act, 1957, copyright in a
work is also infringed where any person without the prior permission
of the copyright owner permits for profit any place to be used for the
communication of the work to the public where such communication
constitutes an infringement of the copyright in the work.
Delhi High Court in Super Cassettes Industries Ltd. v. Myspace
Inc. & Another 2011 (47) PTC 49 (Del) at pp. 79, 82.opined
that:
since the provision for permitting any place which itself
was loosely worded and was unfettered by any qualification,
the said words any place has to be construed widely so as
to include the place at the webspace or internet in order to
give effect to the provision to be operative in cases of newer
kind of the infringements being caused at the webspace

Registration as pre requisite

In Manojah Cine Production v. A. Sundaresan

Madras High Court stated that the prosecution for
infringement
of copyright
did not
require
registration as a pre condition. AIR 1976 Mad. 22
Bombay High Court in Dhiraj Dharamadas
Dewani v. Sonal Info Systems Pvt. Ltd., 2012
(52) PTC 458 (Bom) at p.475. took contrary view
and held that if a copyright owner wants to enforce
civil and criminal remedy before the special forum
i.e. district court rather than a normal civil court, he
must have the registration.