INTRODUCTION: The concept of copyright is not new; we have seen in past people copying content created by others most of the time in literal form; with the technological advancement and Internet revolution, one can access millions of websites with a click, and this has given rise to a more significant threat. In the most straightforward form, copyright can be defined as a right that gets automatically vested in the creator of the original work; the work may include literary, music etc. The copyright law comes under the ambit of Intellectual property law, with patents, Industrial design, Trademarks & Geographical Indications being other forms of IPR.
THE COPYRIGHT ACT 1957: All the disputes regarding copyright infringement are dealt with by the Copy Right Act, 1957, which came into force on 21st January 1958. The act has been amended six times, and the latest amendment was in 2012 and made it compliant to WCT and WPPT. The action protects the creator of any creative work from copying and any other form of exploitation. For illustration, if A publishes his book on the IPR, he would be given the right under this act from any content-copying without his consent. The sweat of Brow doctrine and Modicum of Creativity doctrines have been used by our judges while deciding any cases involving copyright protection issues. The Sweat of Brow Doctrine states that one is not at liberty to avail himself of the labour the other has been at to produce his work that is, in fact, merely to take away the result of another man’s struggle or, in other words, his intellectual property. At the same time, the Modicum of creativity doctrine states that copyright protection can only be granted when creativity is involved.
The act provides vast areas where copyright protection can be granted, including typographic works, literary work, dramatic work, musical work, artistic work, and films. And sound recording copyright protection. In R.G. Anand v. Delux Films, AIR 1978, SC 1613, the Hon’ble Supreme Court held that only expressing an idea can get protection, not the idea itself. The meaning of copyright has been explained in Section 14 of the Copy Right Act.
Broadly two types of rights have been provided under the Copy Right: economic and moral rights. Even after the economic rights have been transferred, the moral rights shall remain with the original author or creator. V.T. Thomas and Ors vs Malayala Co. LTD (AIR 1989 Ker 49) is a landmark Judgement dealing with the issue of ownership of the content; the court held that if any content or work has been done before starting of the employment, the exclusive copyright over the position shall remain with the employer.
WHY FIR HAS BEEN REGISTERED AGAINST SUNDAR PICHAI: Recently, an FIR has been registered against Sundar Pichai and four other persons by the Mumbai Police in a Copyright Violation case; it has been alleged that a Bollywood movie, “EK haseena thi, Ek Deewana Tha was illegally uploaded on the YouTube. Initially, police refused to file FIR under the Section 156(3) Criminal Procedure Code, 1973 Magistrate ordered to register FIR. The court found prima facie copyright infringement in said case and ordered further investigation, Section 156(3) CrPc provides, the Magistrate can exercise power to direct the police to conduct an investigation, only in respect of a cognizable offence.
WHETHER THE REGISTRATION FOR COPYRIGHT IS MANDATORY? The act doesn’t make it mandatory to register for the copyright; it is believed that copyright protection is given as soon as the work exists. The registration is said to have an extra advantage as copyright registration is valid as evidence in a court of law. Hon’ble Allahabad High court affirmed that copyright registration is not necessary to benefit from protection for copyright infringement in Nav Sahitya Prakash & Ors. Vs Anand Kumar & Ors. (AIR 1981 All 200.)
Further, Section 44 of the Copyright Act, 1957 “Directs the copyright office to maintain a registration register with the title of work and author details. Section 48 of the act makes the Register of copyright admissible as evidence in any court of law, hence most of the time, authors for the extra layer of security and protection.
TERM OF COPYRIGHT: According to the WTO agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), a minimum of 50 years of copyright protection should be provided from the publication date. It is worth mentioning that Section 3 of the act defines Publication as making a work available to the public by issue of copies communicating to the public. Work can be art, movie or literature, etc. According to the provision of the act, and author of an original literary, dramatic, musical and artistic work gets copyright protection for his lifetime and 60 years after his demise from the work’s publication date.
INFRINGEMENT AND EXCEPTION OF COPYRIGHT: Section 51 of the act defines infringement as unauthorised use of original work or any unauthorised reproduction or distribution of the work without the prior lawful consent of the original author. It is also a well-established principle that infringement can be of moral rights; it’s unnecessary to have an economic loss to prove infringement.
Meanwhile, the act also provides exceptions, including public domain work, use of educational and non-commercial purposes, e.g. research, teaching, etc. (Fair Use Doctrine)
REMEDIES: The act provides for Criminal, Civil and Administrative remedies. Criminal remedies include imprisonment and fine, and the gravity of punishment increases with the subsequent offences. The offence under this section is cognisable, i.e. officer above sub-inspector rank can arrest without a warrant and seize copies of the original work. Civil remedies include injunctions, i.e. temporary or permanent or interlocutory.
LANDMARK JUDICIAL PRONOUNCEMENTS REGARDING COPYRIGHT INFRINGEMENT LAWS:
Myspace Inc. v. Super Cassettes Industries Ltd. (2015)
ISSUES INVOLVED IN THE CASE
Is there a copyright violation by the Intermediaries in the present case or not?
Whether the honourable court has rightfully analysed the order?
Whether the present case of Intermediaries in copyright law?
HELD: The court has observed that the issue of this case is of secondary infringement. Section 51(a)(ii) of the copyright act should be referred which permits for profit to be used for communication of the work to the public and where such communication constitutes a violation of the copyright in the job unless he was not aware and had no reasonable ground to believe that such violation would amount to copyright violation. The Honourable court has observed the following below-mentioned points:
Myspace owns a platform wherein third-party users can upload and view their content. It is only a provider of a place, and with its website, it can communicate various kinds of content. It generates revenue and profit, satisfying the first part of the above provision.
The second issue of the case is that is there is any copyright infringement or not. The court has observed that general awareness attributes knowledge. In the present case, Myspace must possess specific knowledge of the infringing content provided on its website/platform from the original content owner. In the absence of any particular knowledge, Myspace cannot remove the content from its platform, thus resulting in infringement of the doctrine of Copyright law.
The court held that there is no direct infringement of Copyright by Myspace, and the observation of a single judge is set aside. It was concluded that sections 79 and 81 of the Information Technology Act, 2000 and 51(a)(ii) of the Copyright Act, 1957 should be read together. In the case of Internet Intermediaries, Section 51(a)(ii) of the copyright act states actual knowledge, not real awareness and imposes liability on an intermediary. The conditions mentioned under section 79 of the IT Act should be read together and satisfied. In the case of Internet intermediaries, the relief should be given on actual content infringement by the other party.
In the Judgement given by the US Supreme court in Viacom V. YouTube (2007), Viacom right violated YouTube for its work. In this case, the court observed the doctrine of fair use. It stated that even if the violation in the suit is in a small fraction posted by others on the Internet, it is not possible to determine whether the owner has licensed the user or if the copyright owner’s work is authorised or not. The Burden of proof is on the owner to identify the violation. It also stated that the general knowledge is standard, and it does not impose a duty on the internet service provider to inspect every content on the platform. In the case of MGM Studios Inc. V. Grokster (2005), the US Supreme court had laid down a test to determine the violation by the software if it shows the positive approach taken to motivate violation to be held liable for the Infringement by the third party.
CONCLUSION: The Judicial trends mentioned above demonstrate a weak understanding of how online platform functions, especially the role played by the intermediaries in providing access to the internet. It is still ambiguous why the standard of intermediary liability under the copyright is not the same as those under the IT Act. The provision under section 79 of the IT provides a right of censorship for the private intermediaries that act at the instance of any government agency or private individual. On the other hand, section 51 of the Copyright Act raised a question of their application to specific intermediaries. Section 79 and 81 of the Information Technology Act, 2000 and section 51(a)(ii) of the Copyright Act, 1957 should be read together. In the case of Internet Intermediaries, Section 51(a)(ii) of the copyright act states actual knowledge, not real awareness and imposes liability on an intermediary. The condition mentioned under section 79 of the IT Act should be read together and satisfied. The recent amendment is a step to protect online copyright infringement on online platforms and provide safe space for online content creators.
All the disputes regarding copyright infringement are dealt with by the Copy Right Act, 1957, which came into force on 21st January 1958. The act has been amended six times, and the latest amendment was in 2012 and made it compliant to WCT and WPPT. The action protects the creator of any creative work from copying and any other form of exploitation. For illustration, if A publishes his book on the IPR, he would be given the right under this act from any content-copying without his consent. The sweat of Brow doctrine and Modicum of Creativity doctrines have been used by our judges while deciding any cases involving copyright protection issues.
The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.
For the latest news Download The Daily Guardian App.
A PLEA IN SUPREME COURT CHALLENGES THE CHANGED NEET-SS 2022 EXAM PATTERN
The Supreme Court in the case Dr Richa Verma v. National Board of Examination observed the changed examination pattern which would now be comprising of 150 questions from the general i.e., the basic component of the primary feeder broad specialty subject and from all sub- specialty/systems/component of that primary feeder broad specialty subject. A plea filled in the Supreme Court by MD Radiation Oncologists and MD Anaesthesiologists NEET SS 2022 aspirant.
the petitioners have sought issuance of directions to restrain the NBE from excluding / MD Radiotherapy from the eligible feeder specialties for the super specialty course of DM Medical Oncology for NEET SS 2022 and have further sought for restoring the scheme/pattern for the exam further the petitioner deleting the MD Radiation Oncology, against this backdrop.
On 05.10.2021 the Central Government had told the Court that the revised pattern will be implemented only from next year and it may be noted that over the eleventh-hour changes brought to the NEET-SS 2021 pattern after facing the harsh criticism from the Supreme Court.
The petition further states that they will have to compete with candidates who have 100% questions from their postgraduate syllabus/ broad specialty as the new examination scheme is making some candidates write a paper which has no questions from their postgraduate broad specialty.
particularly in favor of MD Medicine in so far as the choice of options is far greater vis-a-vis the choices available to either MD Radiation Oncology or MD Anaesthesia, the pattern is not just a waste of time and effort for all those who have prepared for Critical Care but also grossly biased against few broad specialties and of the other four post-graduate branches there will be no questions from broad specialties.
This is complete waste of time, resources and effort put by the candidates who have been preparing for a super speciality subject for years as it is arbitrarily, illogical, highly partial and unreasonable, while terming the change in pattern, the contentions made by the petitioner.
the new pattern was forcing all the candidates from the broad specialties to write a single paper which will have 100% questions from General Medicine, stated by the petitioner. Furthermore, contending that the erstwhile pattern had a paper with 40% mixed questions from all the broad specialties and 60% questions from Critical Care (i.e., the super-specialty subject) which had ensured a level playing field.
THE CRIMINAL PROCEEDINGS UNDER SECTION 482 OF THE CRPC CANNOT BE QUASHED MERELY ON THE GROUND THAT NO USEFUL PURPOSE WILL BE SERVED: SUPREME COURT
The Supreme Court in the case Satish Kumar Jatav vs State of Uttar Pradesh observed that while by prolonging the proceedings of the case, the criminal proceedings cannot be quashed. As when a clear case is made for the offence alleged on the ground that no useful purpose will be served.
under Sections 307, 504, 506 of the IPC and 9 Section 3(10)(15) of the Act, the serious allegations for the offences were made and while considering the application under Section 482 Cr.P.C. and quashing the criminal proceedings for the aforesaid offences, the High Court ought to have been more cautious and circumspect. on how the order passed by the learned Magistrate summoning the accused was wrong and/or erroneous, has not at all being allowed by the High Court. the application under Section 482 Cr.P.C. and has quashed the criminal proceedings is deprecated in the manner in which the High Court has disposed of further the High Court has observed in the proceedings of the case that no useful purpose will be served. The aforesaid cannot be a good ground and/or a ground at all to quash the criminal proceedings when a clear case was made out for the offences alleged, appeared while quashing the criminal proceedings by the High Court even for the impugned order passed, the bench overserved while allowing the appeal.
The application under Section 482 Cr.P.C The manner in which the High Court has disposed and quashed the criminal proceedings is not appreciated at all Furthermore the Court has emphasized that the High Court must pass a speaking and reasoned order in such matters. The same has been set aside by the High Court in a most cursory and casual manner.
The allegations made against the accused persons and even on the legality and validity of the order passed by the Magistrate summoning the accused, has not been discussed by the High Court the Court noted.
The appellant contended that there are no reasons whatsoever have been assigned while quashing the criminal proceedings and further the appellant contended that there is no independent application of mind by the High Court. The respondent defended the impugned order, on the other hand before the Apex Court.
the Allahabad High Court quashed the criminal proceedings merely opining that “that no useful purpose shall be served by prolonging the proceedings of the case, while allowing the petition filled by the accused challenging this order and the offences punishable under Sections 307, 504, 506 of the Indian Penal Code and Section 3(10)(15) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the accused to face the trial the Magistrate summoned the accused in the present case.
The bench comprising of Justice MR Shah and the justice BV Nagarathna observed and reiterated under Section 482 of the Code of Criminal Procedure that a High Court must pass a speaking and reasoned order while disposing petitions.
Nexus between accused’s negligence and victim’s death has to be established under Section 304A IPC: Supreme Court
The Supreme Court in the case Nanjundappa vs State of Karnataka observed that would not apply to a criminal case, the doctrine of res ipsa loquitur stricto sensu.
when there is no report of a technical expert to corroborate the prosecution story as The Appellants therefore are entitled to be given the benefit of doubt furthermore It is even more unbelievable that Appellant no. 2 came in contact with the same voltage and managed to get away with a few abrasions.
when such current passed through the Television set, it did not blast and melt the wiring of the entire house and the court further added that it sounds completely preposterous that a telephone wire carried 11KV current without melting on contact.
While evaluating such evidence the jury should bear in mind that inference of guilt should be the only reasonable inference from the facts as In case of circumstantial evidence, there is a risk of jumping to conclusions in haste However the conviction of the accused persons seems wholly unjustified against the weight of the evidence adduced, in the present case. The Court also referred to the case of Syad Akbar Vs. State of Karnataka in which this Court proceeded on the basis that doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known, observed by the court in the present case.
The court noted that there is no eye witness to say conclusively that the Appellants were in fact executing the work at the place alleged and further the court notice that no report or even inspection was conducted by a technical expert to assess the veracity of the averments made by the complainants to suggest that it was due to the alleged acts of the Appellants that the incident took place. the allegations against the Appellants are highly technical in nature, notice by the court on perusing the evidence on record.
On 21th November 2003 at 1.00p.m. the deceased was watching TV in his house. Noticing a sudden sound in the TV, the deceased got up to separate the dish wire, the TV connection wire and the telephone wire, which were entwined together, he felt an electric shock and his right hand was burnt and as a result of this shock he succumbed to death at that point of time it was found that the said incident took place because of the negligent act on the part of the accused, the supervisor (an employee in the telephone department ) and daily wage worker employed by him, as it was found out in the investigation. under Section 304A read with Section 34 IPC was upheld by the Karnataka High Court, the appellant is convicted.
the bench comprising of CJI NV Ramana, Justice Krishna Murari and the justice Hima Kohli observed under Section 304A of Indian Penal Code for causing death by negligence, while acquitting two persons that prosecution has to firstly prove negligence and then establish direct nexus between negligence of the accused and the death of the victim, for bringing home the guilt of the accused.
The Court also referred to the case of Syad Akbar Vs. State of Karnataka in which this Court proceeded on the basis that doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known, observed by the court in the present case.
AN ASSOCIATION OF CORPORATE BODIES CAN ESTABLISH A CAPTIVE POWER PLANT PRIMARILY FOR THEIR OWN USE UNDER THE ELECTRICITY ACT: SUPREME COURT
The Supreme Court in the case Chhattisgarh State Power Distribution Company Ltd. vs Chhattisgarh State Electricity Regulatory Commission observed that a captive power plant primarily for their own use can be established by an association of corporate bodies.
The requirement would be that the consumption of SBIPL and SBMPL together should not be less than 51% of the power generated. Admittedly, the joint consumption by SBIPL and SBMPL is more than 51% and under the provisions of the said Act, the use of electricity by it would be for captive use only even an association of corporate bodies can establish a power plant. Since SBMPL holds 27.6% of the ownership, the requirement of not less than 26% of shares is fulfilled by SBMPL as SBMPL holds 27.6% equity shares in SBPIL.
The fourth proviso to subsection (2) of Section 42 of the said Act would also reveal that surcharge would not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use and under Section 9 of the said Act, could be an individual or a body corporate or association or body of individuals, whether incorporated or not, it is clear that the person will get benefit even an association of corporate bodies can establish a captive power plant it has been seen. The definition of “person” is wide enough to include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person it should be primarily for the use of the members of such cooperative society or association is the requirement, the Bench observed while referring to the provisions of the Electricity Act.
The BPIL, the respondent contended and supported the impugned judgment that no permission is required from the Commission for supply of electricity for its own use. Thereafter the appellant Company contended that unless SBPIL consumes 51% of the aggregate electricity generated by it, it will not be entitled to get the benefit under Section 9 of the said Act, in an appeal filled before the Apex Court.
An appeal was dismissed by the Appellate Tribunal for Electricity filed by the Company further The Commission held that SBPIL was entitled to supply electricity to its sister concern SBMPL and the same would qualify to be treating as own consumption and within the ambit of Section 9 read with Section 2(8) of the Electricity Act, 2003 and Rule 3 of the Electricity Rules, 2005 SBPIL submitted a petition for providing open access and wheeling of power through the transmission system of the Chhattisgarh State Power Distribution Company Ltd (Company) for captive use by SBMPL to the Chhattisgarh State Electricity Regulatory Commission, the commission. A Captive Generation Plant is established by SBPIL, and is a sister concern of SBPIL Shri Bajrang Power and I spat Ltd and Shri Bajrang Metallics and Power Ltd, SBMPL.
Where the crime was committed the remission or premature release policy of the state has to be considered: Supreme Court
The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission or premature release in terms of the policy which is applicable in the State.
While allowing the writ petition the court observed and contended that Once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or premature release in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court, as the case may be. The court further stated that under Section 432(7) CrPC the appropriate Government can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments.
the appropriate Government in the ordinary course would be the State of Gujarat. But the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighboring State i.e., the State of Maharashtra by an order dated 06.08.2004. ordinarily, the trial was to be concluded in the same State and in terms of Section 432(7) CrPC as the crime in the instant case was admittedly committed in the State of Gujarat, observed by the Apex Court.
he application for premature release has to be filed in the State of Maharashtra and not in the State of Gujarat, as prayed by the petitioner by judgment impugned dated 17.07.2009 As His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. Thereafter He had filed his petition for premature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973 stating that he had undergone more than 15 years 4 months of custody.
The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed and noted that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of the appropriate Government.
Adopt roster based reservation for preferential candidates as followed by JIPMER: Supreme Court directs all AIIMS institutes
The Supreme Court in the case Students Association AIIMS Bhopal And Or’s. v. AllMS and Or’s observed and directed all AIIMS Institutes to adopt roster-based reservation followed by Jawaharlal Institute of Postgraduate Medical Education and Research, Pondicherry (JIPMER) as a plea was filled in the Court seeking direction to AIIMS to have a defined criteria for arriving at seat matrix for institutional preference candidates in INI-CET examination.
the order of the Apex Court in the case AIIMS Students’ Union v. AIIMS And Or’s, would not be applicable if It emphasized that if the roster-based system is implemented the actual roster points for AIIMS would be different from JIPMER as the same would depend on the percentage of seats decided to be allocated to the preferential candidates but It stated that the reservation would be similar to the one adopted by JIPMER AIIMS New Delhi was willing to provide a roster-point based reservation for its institutional preference candidates, by way of an affidavit 20th January 2022 the Bench was apprised that pursuant to a meeting held on 28th June 2020 as prescribed the relevancy:
It shall not be too wide with the one for the general category candidate, that the margin of difference between the qualifying marks for the Institute’s candidate.
The one who has secured marks at the common entrance PG test less than the one secured by any other candidate belonging to reserved category enjoying constitutional protection such as SC, ST etc. cannot be the AIMS graduate the last student to qualify for admission.
appearing on behalf of AIIMS, Advocate, Mr. Dushyant Parashar, New Delhi was asked to get instructions from AIIMS, Bhubaneswar and Jodhpur so that the Court can pass appropriate orders on the next date of hearing. As that apart from AIIMS, Bhubaneswar and AIIMS, Jodhpur, all other AIIMS before the Apex Court has agreed to implement the roster-based reservation system followed by JIPMER Puducherry for their institutional preference candidates, the Court was informed at the last date of hearing.
the petition had been filed seeking direction to AIIMS to disclose how the seats for institutional preference candidates are to be allotted in the view of the same the petitioners claim that in the INI-CET examination conducted in July, 2021, only 4 seats (1.87%) in AIIMS, New Delhi were allotted to institutional preference candidates. Rivetingly, the petitioners note that no seats were allocated to any other AIIMS for admission of institutional preference candidates.
the Bench comprising of Justice L. Nageswara Rao and the justice A.S. Bopanna observed and noted that to record in the order that the roaster system would be applicable from this year. Mr. Parashar informed it that since new software is to be put in place for counselling, it might cause some delay. The bench further stated that the court will order it to apply this year but in case of delay AIMS can come later.
Opinion2 years ago
South Block’s mistakes will now be corrected by Army
Sports2 years ago
When a bodybuilder breaks Shoaib’s record
News2 years ago
PM Modi must take governance back from babus
Spiritually Speaking2 years ago
Spiritual beings having a human experience
News2 years ago
Chinese general ordered attack on Indian troops: US intel report
Legally Speaking2 years ago
Law relating to grant, rejection and cancellation of bail
Sports2 years ago
West Indies avoid follow-on, England increase lead to 219
Royally Speaking2 years ago
The young royal dedicated to the heritage of Jaipur