Infringement, Fair Dealing and Remedies

Copyright infringement occurs when any person does or authorises any act that only the copyright owner is exclusively entitled to do, without licence from the owner. Exceptions under S.52 (fair dealing) prevent overreach. Remedies include civil (injunction, damages, accounts of profits) and criminal (imprisonment, fine) measures.

Why: Infringement provisions define the boundary of the copyright monopoly. Fair dealing exceptions prevent copyright from becoming a tool to suppress legitimate uses (research, criticism, education, news reporting). The balance between rights and access is fundamental to copyright policy.

Legal Framework

Section	Subject
S.51	When copyright is infringed
S.52	Certain acts not to be infringement (fair dealing + other exceptions)
S.54A	Exclusive licensee's right to sue
S.55	Civil remedies
S.56	Owner's right to copies/plates
S.57	Author's special rights (moral rights enforcement)
S.63	Criminal offence: knowingly infringing copyright
S.63A	Enhanced penalty for second offence
S.64	Power of police to seize infringing copies
S.65	Possession of infringing plates

When Is Copyright Infringed? (S.51)

Does anything which the owner has exclusive right to do (S.14 acts: reproduce, communicate, adapt, translate, etc.)
Permits a place to be used for communicating the work to the public (if such communication constitutes infringement)
Makes, imports, sells, distributes infringing copies for trade purposes
Exhibits in public by way of trade

Tests for infringement

Test	What it measures
Substantial copying	Whether a substantial part (qualitative, not merely quantitative) has been reproduced
Lay observer test	Whether an ordinary reasonable person would recognise the copy as being taken from the original
Idea vs expression	Whether what was copied is expression (infringement) or merely idea/theme (no infringement)
Subconscious copying	Copying need not be deliberate; unconscious reproduction of earlier work can constitute infringement

Why: "Substantial" is qualitative: copying the most recognisable or commercially valuable portion (e.g., the hook of a song) may infringe even if it is a small percentage of the total work.

Fair Dealing and Exceptions (S.52)

Fair dealing (S.52(1)(a))

Fair dealing with any work (not being a computer programme) for purposes of:

Private or personal use, including research (S.52(1)(a)(i))
Criticism or review of that work or any other work (S.52(1)(a)(ii))
Reporting current events and current affairs (S.52(1)(a)(iii))

Other major exceptions (selected)

Exception	Section	Scope
Educational use	S.52(1)(h)	Reproduction for teacher/student in course of instruction
Library copying	S.52(1)(o)	Library makes single copy for research/private study
Judicial proceedings	S.52(1)(b)	Reproduction for purpose of judicial proceedings
Legislative proceedings	S.52(1)(c)	Reproduction for legislature purposes
Reading/recitation in public	S.52(1)(j)	Public reading of reasonable extract with acknowledgment
Transient copies	S.52(1)(b) (amended)	Temporary electronic copies incidental to technological process
Parody/caricature	S.52(1)(a)(ii) read expansively	Criticism/review may extend to parody
Reverse engineering (software)	S.52(1)(ab)	Decompilation of computer programs for interoperability
Persons with disability	S.52(1)(zb)	Adaptation of works for disabled persons' access (2012 amendment)

Factors for determining fair dealing

Indian law does not enumerate factors like US fair use (17 USC §107), but courts consider:

Purpose and character of use (commercial vs educational/transformative)
Nature of the work (published vs unpublished; factual vs creative)
Amount and substantiality of portion taken
Effect on potential market for the original work

Remedies for Copyright Infringement

Civil remedies (S.55)

Remedy	Nature
Injunction (interim + permanent)	Restraining further infringement
Damages	Compensatory; lost revenue due to infringement
Accounts of profits	Profits made by infringer attributable to infringement
Delivery up	Infringing copies delivered to plaintiff
Anton Piller order	Ex parte search and seizure order (to preserve evidence)
Norwich Pharmacal order	Third-party disclosure of infringer's identity

Criminal remedies (S.63-68)

Offence	Punishment
S.63: Knowingly infringing copyright	6 months to 3 years imprisonment + Rs.50,000 to Rs.2,00,000 fine
S.63A: Second and subsequent offence	1 year to 3 years imprisonment + Rs.1,00,000 to Rs.2,00,000 fine
S.63B: Knowingly using infringing computer programme	Minimum 7 days to 3 years imprisonment + Rs.50,000 to Rs.2,00,000 fine
S.65: Possession of plates for making infringing copies	Up to 2 years imprisonment + fine

Administrative remedy

S.53: Prohibitory orders by Registrar of Copyrights against import of infringing copies into India.

Illustrations: "Substantial Part" is Qualitative

Small portion, BIG infringement: A film uses only 4 bars of a famous song's hook (the most recognisable melody). That's 10 seconds out of a 4-minute song (4%). But those 4 bars are the "heart" of the composition — the part audiences remember. This IS substantial copying because quality matters, not quantity.
Large portion, NO infringement: A reviewer quotes 3 full pages from a 500-page textbook to explain why the author's argument is flawed. That's copying, but it's the least distinctive part (factual background chapter) and falls under S.52(1)(a)(ii) criticism. Not substantial in qualitative terms because no creative "heart" was taken.
University of Oxford v. Rameshwari (practical): A professor tells a photocopy shop: "Copy chapters 3, 7, and 12 from this textbook for my class of 60 students." That's 3/20 chapters = 15% of the book. The Court said this is NOT infringement because S.52(1)(h) applies to reproduction in course of instruction — the purpose (education) overrides the quantity.
Oxford v. Narendra (contrast): A publisher copies the same 3 chapters, adds a cover, and sells it as "Complete Guide to Contract Law" at bookshops. Same quantum, different purpose (commercial sale, not institutional education). THIS infringes because fair dealing doesn't cover commercial exploitation of reproduced material.

Recall Check

What is the "substantial part" test for copyright infringement, and is it quantitative or qualitative?
Name three purposes for which fair dealing under S.52(1)(a) is permitted.
What is the difference between "damages" and "accounts of profits" as civil remedies?

Key Cases

Chancellor Masters and Scholars of University of Oxford v. Narendra Publishing House (2008) Oxford-v-Narendra-Publishing-House-2008 Issue: Whether publishing comprehensive guidebooks containing substantial reproductions of textbook content constituted fair dealing for educational purposes. Rule: Reproduction of substantial portions for commercial gain (selling guidebooks) does not qualify as fair dealing under S.52(1)(a) even if used by students. Held: Infringement established. Commercial exploitation of reproduced material exceeds fair dealing; merely labelling a work "educational" does not immunise it from infringement.

The Chancellor, Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services (2016) Oxford-v-Rameshwari-Photocopy-2016 Issue: Whether a photocopy shop within Delhi University making course packs from textbook chapters infringed copyright. Rule: S.52(1)(h): reproduction by a teacher or pupil in the course of instruction is not infringement. "Course of instruction" extends to preparation of course packs prescribed by teachers. Held: Photocopying of portions prescribed as part of course syllabus is permissible under S.52(1)(h). Educational purpose within institutional setting prevails over publisher's commercial interest. Landmark ruling for educational access.

R.G. Anand v. Delux Films (1978) R-G-Anand-v-Delux-Films-1978 Issue: Whether a film infringed copyright in a play by using a similar theme. Rule: Infringement requires copying of expression, not mere similarity of idea/theme. Seven-point test: (1) no copyright in idea; (2) if same idea differently treated, no infringement; (3) material alteration negates infringement; (4) overall comparison, not isolated passages; (5) viewer must have same impression; (6) piracy must be judged by substance taken; (7) intention to copy not essential if result is copy. Held: No infringement; theme was common, treatment was different. Established comprehensive test for copyright infringement in India.

Distinctions

Parameter	Fair Dealing (India, S.52)	Fair Use (USA, 17 USC §107)
Nature	Closed list of permitted purposes	Open-ended (any purpose may qualify)
Factors	Not statutorily listed; judicially developed	Four statutory factors
Commercial use	Generally disfavoured but not absolute bar	Weighed as one factor
Transformative use	Not expressly recognised	Key consideration in US
Educational exception	Separate provision (S.52(1)(h))	Subsumed within fair use analysis
Parody	No express provision; read into criticism/review	Recognised as transformative fair use (Campbell v. Acuff-Rose)

Flashcards

Q: When is copyright infringed under S.51? A: When any person, without licence, does or authorises anything that only the copyright owner is exclusively entitled to do under S.14.

Q: What is the "substantial part" test? A: Infringement occurs when a substantial part of the work is copied; "substantial" is qualitative (importance/recognisability of what is taken), not merely quantitative (percentage of total work).

Q: Name three fair dealing purposes under S.52(1)(a). A: Private/personal use including research, criticism or review, and reporting current events.

Q: What did Oxford v. Rameshwari Photocopy (2016) decide? A: Photocopying textbook portions for course packs prescribed by university teachers falls within S.52(1)(h) (educational instruction) and is not infringement.

Q: What is the maximum punishment for first-offence copyright infringement under S.63? A: Imprisonment from 6 months to 3 years and fine from Rs.50,000 to Rs.2,00,000.

Q: What is an Anton Piller order? A: An ex parte order allowing the plaintiff to enter the defendant's premises to search for and seize infringing material, to preserve evidence before it can be destroyed.

Q: How does Indian fair dealing differ from US fair use? A: Indian S.52 is a closed list of specific permitted purposes; US §107 is open-ended, allowing any purpose that satisfies four factors. Indian law is narrower but more predictable.

Q: What seven-point test did R.G. Anand establish? A: (1) No copyright in idea; (2) same idea differently treated = no infringement; (3) material alteration negates copying; (4) compare works as whole; (5) viewer must get same impression; (6) judge piracy by substance taken; (7) intent not essential if result is a copy.

Exam Scenario

Student A photocopies 3 chapters (out of 20) from a Rs.2,500 textbook at the university photocopy shop for exam preparation. The publisher sues the photocopy shop for infringement.

Discuss: (a) Whether this constitutes infringement under S.51 (reproduction of substantial part). (b) Whether S.52(1)(h) (educational instruction) applies to the photocopy shop, applying Oxford v. Rameshwari Photocopy Services (2016). (c) Whether the commercial nature of the photocopy shop's activity defeats the fair dealing defence. (d) The distinction between this situation and Oxford v. Narendra Publishing House (2008) where commercial guidebooks were held infringing.