INDIA Law and Practice Contributed by: Roshnek Dhalla, Bijal Ajinkya, Moin Ladha and Shailendra Bhandare, Khaitan & Co
Non-Criminal/Civil Consequences The most common consequence of copyright infringe - ment is issuance of an injunction by the courts to stop the infringing activity immediately; injunctions are commonly issued at the interim stage of a copyright infringement suit if the court is satisfied with the prima facie infringement claim presented by the aggrieved party. Additionally, entitlements of a copyright owner whose work has been infringed include monetary compensation owing to losses arising from damages (actual as well as statutory) caused due to copyright infringement as well as receiving an account of prof - its earned by the infringing party from the unauthor - ised exploitation of a copyrighted work (which aids in quantifying damages). Further, search and seizure orders are also common under civil remedies. 3.2 Registering Artwork Although Indian copyright laws have set out a pro - cess for copyright registration, such registration is not mandatory and does not confer any additional rights with respect to the registered copyright work per se. The only advantage of securing copyright registration in India is the evidentiary value that such registration provides during an infringement action. With reference to the registration process, once an application is filed, the Indian Copyright Office (CO) allots a diary number to the application. The applica - tion is thereafter examined by the CO, and an exami - nation report is issued in relation to the application. Objections (if any) raised by the CO are to be replied to within the prescribed time. Upon clearing the objec - tions, the application proceeds to registration. If the applicant has acquired rights from other parties or if the work involves other authors, the copyright appli - cation is also required to be accompanied by deed(s) of assignment of copyright or consent letters from such other authors. In the case of artistic works (such as logos, etc), before the above process, an application has to be filed with the Trade Marks Registry to seek a no-objection cer - tificate to the effect that there are no trade marks that are identical/similar to the proposed artistic work.
mental to the artwork, such artwork is categorised as a work of joint authorship under Indian copyright laws. The following applies as per the Indian jurisprudence on copyright over artworks having joint authorship/ collaborative artwork: • mutual agreement is required between all authors concerned with a collaborative artwork for transfer of rights, titles and interests in such artwork; • irrespective of the degree of contribution by each author in a collaborative artwork, the authors’ rights of ownership, monetary exploitation and otherwise of the collaborative artwork will be equal, unless an agreement to the contrary has been executed between the authors; and • individual authors of a collaborative artwork cannot claim exclusive rights in said artwork at the cost of the co-authors or without the approval of such co-authors. 3. Protection Against Plagiarism 3.1 Legal Consequences of Copyright Infringement The consequences of copyright infringement under Indian copyright laws can be broadly categorised as criminal and non-criminal/civil. Criminal Consequences Imprisonment for a period of six months to three years, and a fine of between INR50,000 and INR2,00,000, is applicable. If the copyright infringement was not undertaken for business or trade gains, the courts may impose a sentence of less than six months and a fine of less than INR50,000. However, in cases involv - ing copyright infringement that result in mass infringe - ment or counterfeit copies being distributed on a large scale, Indian courts may impose higher penalties. The penalties and imprisonment could also be greater in the case of habitual infringers. Further, criminal reme - dies also include search and seizure of infringing prod - ucts. It is pertinent to note that copyright infringement is a cognisable offence – ie, the police can investigate allegations of copyright infringement after receiving a complaint.
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