51. When copyright infringed –
Copyright in a work shall be deemed to be infringed –
(a) When any person, without a licence granted by the owner of the Copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any conditions imposed by a competent authority under this Act-
(i) Does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
(ii) [(Note: Subs. by Act 38 of 1994, S.16(1) (w.e.f. a date to be notified)) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright, or]
(b) When any person –
(i) Make for sale on hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
(ii) Distributes either for the purposes of trade or to such an extent as to affect prejudicially the owner of the copyright, or
(iii) By way of trade exhibits in public, or
(iv) Imports (Omitted by Act 65 of 1984, S.3 (w.e.f. 8-10-1984)) into India, any infringing copies of the work:
[(Note: Subs. by Act 38 of 1994, S.16(2) (w.e.f. a date to be notified)) Provided that nothing in such clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer.]
Explanation – For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an “infringing copy”.
Basis of Copyright Law. – The fundamental idea of violation of copyright or imitation is the violation of the eighth commandment: “Thou shall not steal,” which makes the moral basis of the protective provisions of the Copyright Act.. It is obvious that when a writer or a dramatist produces a drama, it is the result of his great labour, energy, time and ability and if any other person is allowed to appropriate the labours of the copyright work, his act amounts to theft by depriving the original owner of the copyright of the product of his labour.
Test – There is no better way of detecting the piracy in an alleged infringing work than by making a careful examination of it to see whether any of the deviation and mistakes which artistic licence permits in the original have been reproduced in the alleged infringing copy.
Similar mistakes – Where the mistakes committed by the plaintiff in certain calculations in his book were found in the defendant’s book in similar calculations it was held that the defendant had copied the calculations from plaintiff’s book.
Common source – A person is at liberty to draw upon common sources of information. But if he saves himself the trouble and labour requisite for collecting that information by adopting another’s work with colorable variations, he is guilty of infringement of copyright, even though the original work is based on materials which are common property.
It is well-settled that even where the source of information used in a book is common and which is available to all, even then a compilation which has been brought out as a result of labour and industry put by a person, then in such a case he can claim a copyright in the publication brought out by him.
Several persons may originate similar works in the same general form without anyone infringing the law in regard to copyright. The infringement comes in only when it can be shown that someone has, instead of utilizing the available sources to originate his work, appropriated the labours of another by resorting to a slavish copy or mere colorable imitation thereof.
In cases of works composed of or compiled or prepared from materials open to all the true principle is that the defendant is not at liberty to use or avail himself of the labour which the plaintiff has been at, for the purpose of producing his work, that is in fact, merely to take away the result of another man’s labour or on other words, hi property.
A person relying on plea of common source must show that he went to common source from which he borrowed, employing his skill, labour and brains and that he did not merely do the work of copyist by copying away from a work.
In law books the amount of “originality” will be very small, but that small amount is protected by law.
In law reports containing only approved repots of cases decided by courts, there is copyright. A man is not allowed to appropriate for himself the arrangement, sequence, order, idiom, etc., employed by another, using his brains, skill and labour.
The plaintiffs complied their book with considerable labour from various sources and digested and arranged the matter taken by them from other authors. The defendant instead of taking pains of searching into all common sources and obtaining his subject-matter from them availed himself of the labour of the plaintiffs and adopted their arrangement and subject-matter. Such a use by defendant of the plaintiffs book cannot be regarded as legitimate.
Where the balance of convenience and inconvenience on both sides is equal, the defendant who has been proved to have prima facie infringed the copyright of the plaintiff’s work must suffer inconvenience by grant of injunction rather than the plaintiff by not granting it.
Temporary injunction may be granted even if reference pirated by the defendant are insignificant compared to the total volume of the defendant’s work.
Abridgement and translations can both infringe copyright – 70 Cal WN 1130.