We at Singhwal have a great team of Attorneys competent and experienced to deal with specific copyright enforcement requirements tailored for our clients from across industry domains to ensure their Intellectual Property rights are secured, enforced and monetised. Our highly skilled Copyright Attorneys are well versed and adept at the various copyright enforcement mechanisms and are constantly innovating to ensure optimum protection of your Copyright.
Under Indian Copyright Law, a copyright subsists in the underlying work from the moment it is created or authored. Although a formal copyright registration is not mandatory required by the Law in India, it is highly advisable to register ones work under the Copyright Act in India.
Non registration results in a situation whereby the author or creator of the underlying work has to prove that he was indeed the creator of the underlying work and also prove the date on which the work came into existence. This could be a challenging task with serious implications on your copyright ownership. Furthermore, to be able to enforce your copyright at the borders through Customs Department, Registration of copyright is mandatory.
A registered copyrighted work on the other hand is an acknowledgement of your authorship and ownership of the copyright in the underlying work by the Government of India thereby making it much easier to establish the subsistence of your right from the date of registration. A copyright registration certificate is therefore evidence that you indeed created the underlying work on a specified date and is a government backed evidence for the same. This substantially increases the degree of protection and success rate while the rights are being enforced in Courts of Law.
Copyright enforcement can be broadly categorised under the following three headings
1. Civil Remedy:-
Civil Courts in India have the authority to enforce Copyright and intervene in cases when your Copyrighted work is being commercially exploited without your consent. Such unauthorised use amounts to copyright infringement and remedies such as grant of injunction, damages, destruction of infringing goods or copies etc.
Through the interlocutory/ Temporary/Ad-interim injunction, the infringer is prohibited from commercially exploiting the copyrighted work pending the disposal of the law suit. An injunction is granted by the Courts upon finding of a prima facie case of unauthorised use, and a test to ascertain if inaction would cause irreparable injury to the copyright owner.
Under the Indian law there are the pecuniary remedies; however, a copyright owner has the power to seek for the recovery of all the three remedies which are: (a) the account of the profits, (b) compensatory damages, and (c) conversion damages which are assessed on the basis of value of the article.
Within the Civil law jurisdiction, the following are the most prominent orders in relation to IPR enforcement including Copyrights
- A “Mareva Injunction” is a special type of interim injunction where the interest of the copyright owner is protected during the pendency of the law suit by temporarily freezing the assets of the unauthorised user to stop him from dissipating his assets outside India until the judgment is passed. In the absence of a Mareva Injunction the infringer is free to dissipate his assets beyond the jurisdiction of the Indian Courts and end up frustrating the judgement. This is a very powerful order which can severely affect the business of the infringer. This injunction is also therefore a potent negotiation tool.
- An “Anton Piller” Order is an order which permits the Copyright holder the right to search the infringers premise s and inspect relevant documents and articles and take copies thereof or take them to safe custody as evidence without prior warning so as to prevent the infringer from destroying the evidence… The Anton Piller order gets its name from a 1976 English judgement in Anton Piller v. Manufacturing Process Ltd in 1976 in England and was later adopted in India. Anton Piller orders are often granted in combination with Mareva Injunctions to effectively prevent the infringer from destroying evidence as well as escaping the arms of the law by dissipating the assets beyond the Courts jurisdiction thereby preventing the infringer from adversely affecting the proceedings.
- “John Doe Order also known as Ashok Kumar order” is an ex-parte injunction granted by the Court against an infringer whose identity is unknown as of the date of passing the order. With the rise of internet as a medium through which data and indeed copyrighted content can be freely shared and consumed, there have emerged various players who abuse the anonymity which internet provides to engage in copyright infringing activities. The piracy of movies and music is a prominent instance where the content creators and copyright owners suffer losses to the tune of crores of rupees as a consequence of not being able to ascertain the identity and location of the copyright infringers. Conventional orders were found to be insufficient to tackle this menace. John Doe order or Ashok Kumar orders are therefore special orders passed by the Court to overcome the hardships faced by the Copyright owners in ascertaining the identity and location of the infringers by enabling Copyright holder to serve order upon such persons when their identity is disclosed. This is an especially potent tool to bring online pirates to the book and given the growth of e-commerce and digital services as businesses, John Doe or Ashok Kumar orders gain further significance.
- Permanent/Perpetual Injunction is a final order of the court arrived at after taking all the evidence and arguments into consideration to prevent the unauthorised user from doing any infringing activity is known as the Permanent or the Perpetual Injunction. These orders are operable until such time as the Copyright is in force. In case of repeated infringers, the consequence of violation of a perpetual injunction can result in actions of contempt of court under civil law as well as fine and imprisonment under criminal law. Each subsequent instance of repeated infringement can lead to increased quantum of penalty by way of imprisonment as well as fine to be awarded to the infringer. The infringer may approach the copyright owner to avail a licence to commercially exploit the copyrighted work. This could act as an additional source of revenue to the copyright owner if he desired to monetise the copyright.
- Damages or Accounts of Profits is another remedy provided to the copyright owner. Once the court comes to the conclusion that there has indeed been an infringement of the copyright, the court may order that the Accounts of Profit of the infringer be produced before the court and damages may be calculated. Damages are granted to the Copyright owner which is an attempt to reinstate the position of the copyright owner. Costs as to litigation and other expenses may also be granted in addition to the damages claimed.
- Delivery up and destruction order is an order which directs the infringer to part with the infringing items and deliver the same to the Copyright owner so that the copyright owner may destroy the infringing items at his expense and prevent the circulation of the infringing items into the market thereby preventing loss to his business. This order is especially useful when a quantifiable number of infringing goods or copies of the copyrighted work physically exists and may have been discovered during the inspection conducted under Anton Piller order.
The wilful infringement of a Copyright and the wilful abetment of copyright infringement is punishable by an imprisonment for a term not less than six months which may extend up to three years and fine not less than fifty thousand rupees which may extend up to two lakh rupees. The term of imprisonment and fine can be enhanced for the second and for every subsequent offence, with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than one lakh rupees but which may extend to two lakhs rupees under the provisions of the Copyright Act, 1957.
The Police is authorised to conduct search and seizure of the infringing goods including plates which are defined as including blocks, moulds, transfers, negatives, duplicating equipment or any other device or object that is currently used or is intended to be used for reproducing the copies or printing the copies of the work and place them before appropriate Courts for further action against those to be infringing the copyright.
Piracy or importing copies which are subject to infringement is not allowed in India and the Custom department under its IPR Enforcement Rules 2007 provides for a procedure whereby the owner of the copyright can register the Copyright with the Customs Department and submit along with it such details about the Registered Copyright and goods or works covered by the copyright as may be required by the Customs Authorities.
Upon successful registration of the Copyright with the Customs Department, the Department ensures that no cross border trade of Copyright infringing goods takes place and the owner of the Copyright is notified by the Customs Department where a consignment of potentially infringing goods or works is discovered. Upon an order of infringement being produced before the Customs Department, the infringing goods or works are then destroyed at the expense of the copyright owner.
Copyright infringement Tracking:
Tracking copyright infringement is largely an unorganised and unscientific method which relies largely upon human intervention and surveillance to be able to spot unauthorised use. Given the distributed nature of content delivery mechanisms and also the nature and pattern of consumption, with the raise of digital media and portable media players, it is extremely difficult to be able to track and report copyright infringing use and behaviour in real time without deploying mass surveillance. Mass surveillance unless backed by a court order or a law is illegal for being violate of users and consumers right to privacy. This challenge has deterred many a copyright owners from fully monitoring and enforcing their copyright. Although technologies such as end to end encryption of data streaming and hardware based anti-piracy measures have been deployed globally, there is not yet a single formula which can effectively monitor, track and identify copyright infringers.
Copyright owners are therefore left to themselves to come up with innovative solutions to address the aforementioned shortcoming relating to Copyright and tracking and enforcement. At Singhwal we assist our clients to evolve solutions which are practical, easily deployable and which fit fully within the legal frame work based on the nature of the copyrighted content, the nature of the consumer and the medium over which it is consumed. Our Attorneys understand the underlying business mode of our clients, examine the legal frame work and evolve mechanism which when deployed would improve the enforceability of the copyright which directly translates into additional revenue generated.
It is often noticed that most high value copyrighted content is leaked on the internet from the source where staff either purposefully or negligently shares the content outside of its authorised use cases and personnel. Therefore we also help our clients evolve business practices and work flows which ensure that their staff is sensitised towards Copyright and the importance of respecting Copyright provisions with and outside the work place.
Singhwal provides end to end services from Copyright registration to enforcement through our Attorneys vast experience of handling copyright cases and assisting our clients in enforcing their copyrights through the various provisions under civil, criminal and administrative law.