Copyright infringement is the violation, piracy or theft of a copyright holder’s exclusive rights through the unauthorized use of a copyrighted material or work, per the federal U.S. Copyright Act.
In the context of copyright infringement, an unauthorized use of a work or material is any unauthorized reproduction, distribution, performance, public display or transfer to a derivative work without the copyright owner’s permission.
An infringement occurs under all of the following three conditions:
- The owner must hold a valid copyright.
- The alleged infringer must be able to access the copyrighted work.
- Duplication of the copyrighted work must occur beyond exceptions. If an exception does not apply, permission is requested by the person seeking to use the work.
Three major exceptions to copyright law – often used by educators – are as follows:
- Fair use
- Virtual instruction
- Face-to-face instruction
Software piracy involves the unauthorized use of copyrighted software programs. Most countries recognize the protection of copyrighted software, but enforcement varies globally.
By law, general copyright infringement penalties mandate that an infringer pay actual profits and damages, with a $200-$150,000 range for each infringed work. The infringer also pays all court and attorney fees. Additionally, the Court may stop infringing activity through an injunction and impound illegal works. Finally, jail time may be served, depending on the scale of infringing activities.
There cannot be any copyright in idea, subject-matter, themes plots or historical or legendry facts and violation of the copyright in such cases is confined to the form, manner, arrangement and expression of the idea by the author of the copyright work.
If a person uses or exploit any of the exclusive rights available to the owner of copyright without his prior permission or without any license granted by the registrar of copyright, he shall be deemed to have infringed copyright, if such use was not allowed under copyright Act.
Chapter XI of Copyright Act deals with infringement of copyright. Section 51 define what will constitute infringement and section 52 talks of permitted uses of copyright work i.e. section 52 gives a list of acts which do not constitute infringement of copyright, if done. Section 51 read with section 14(a) brings out the acts if done will constitute infringement of copyright.
Sometimes it is very difficult to recognize whether infringement of Copy Right took place or not because of ambiguity, deception, confusion and colorable imitation. Hence courts has come out with different test to determine exactly whether copyright took place or not, as minimum standard of creativity is always seen while dealing with the issue of infringement. Another thing is the existence of ownership of a valid copyright and copying of the constituent elements of the work to be seen for the determination of infringement.
Section 52(1)(q) of Copy Right Act talks of reproduction or publication of any judgment or order of a court or other judicial authority unless the publication or reproduction of the same is prohibited by the court or judicial authority.
However where the same idea is being developed in a different manner or a idea is being developed from a common source, it is manifest that similarities are bound to occur. In such cases it is the mode of expression which will be a determining factor. Hence in such cases courts determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyright work.
Law related to infringement of cinematograph film & Sound Recording is a little bit different or liberal then literary, dramatic and musical work. The work copy is not defined anywhere in the Indian Copyright Act. Section 14(d) specifies three categories of acts of which the owner of Copyright in a cinematograph film has exclusive rights. Section 14(e) talks of three categories of which exclusive right are given to the owner of copyright in Sound Recording. In contrast to section 14(d) & (e), Section 14(a),(b)&(c) speak of exclusive rights to the owner of copyright in a literary, dramatic and musical work, these sections give an exclusive right to the owner of literary, dramatic and musical work to reproduce the work in any material form, however this right is absent and excluded in case of cinematograph film or sound recording. Hence production by another person of even the same cinematographic film does not constitute infringement of a copyright in a cinematograph film. However if a cinematograph film is based on some literary, dramatic, musical or artistic work in which copyright already subsist. In such a case producer of a cinematograph film is required to obtain license from abovesaid copyright owner if he want to use the work.