Module 4-Infringement

and Defences of
Copyright Liability
SUNDAR ATHREYA. H
BBA;LL.B ( SASTRA UNIVERSITY) LL.M (O.P. JINDAL GLOBAL LAW SCHOOL)
 Sample question

Jones Soda puts short sayings, collected from various sources, on the inside of its bottle
caps. Jones Soda is sold in six-packs (though individual bottles are also sold at fast-food outlets
and convenience stores). Each flavor has its own set of bottlecaps, so that each six-pack comes
with the same six bottlecaps as every other six-pack of that flavor.
These are the sayings on the Grape Soda bottlecaps:

A distant romance will begin to look more promising.

Fear creates danger and courage dispels it.

Your job needs more concentration. Success will be achieved.

Get excited over nothing.

Listen.

Forget your watch.

 Sample question

Jones Soda has obtained registration for the six sayings put together above as a literary
work. A competitor, Bones Soda (idea behind the name was to invoke and alert the buyer
about the negative effects of drinking soda which tends to cause block calcium absorption),
copies 50 percent of the sayings and adds his own lyrics to it that in a way creates or
reconnects the buyer to Jones Soda’s saying but ridicules the content that is sold by Jones
Soda. Bones Soda sells healthy drinks tetra packs and the sayings are made available on every
tetrapack drink it sells. Bones Soda has become a leading brand in both US and Indian markets
after it started using these sayings on the tetrapack. Jones Soda sues for copyright
infringement. Evaluate the parties’ claims and defenses and explain who should win. Would
fair use or fair dealing defence prevent Jones Soda from winning the case
 Infringement

 Direct infringement: violating a statutory exclusive right

(not otherwise privileged)
 reproduce work in copies, make derivative works, distribute
copies to public, public performance/display
 Indirect infringement:
 inducing or materially contributing to another’s infringement
 responsible for other’s infringement because of right of control
and financial benefit from infringement
Essential to show that the allegedly infringing work was copied or
Casual connection
derived from the relevant copyrighted work.

Independently creating the same or similar work will not amount to

infringement.

Sometimes Defendant will argue that the circumstances in which they

created their work had nothing to do with the claimant’s copyright
work.
Copyright infringement in India

The Copyright Act was passed in India for the first time in 1914. Section 7,8 and 9 of the erstwhile Act was drafted regarding
infringement.
In the current legislation Sec 14 of the Copyright Act gives exclusive right for the owner to make copies, make reproduction of
the work, make adaptation of the work, or perform the work in public
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 condition imposed by a competent authority under this Act—
does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or 1[(ii) 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] 1[(ii) 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]"
 RG Anand V. Deluxe films

1. The appellant, R. G. Anand, an architect by profession and also a playwright,

dramatist and producer of several stage plays, wrote and produced a play called
‘Hum Hindustani’ in 1953.
2. It ran successfully and was re-staged in 1954, 1955 and in 1956.
3. Aware of the interest of the plaintiff in filming the play in view of its increasing
popularity, the second defendant, Mr. Mohan Sehgal, contacted plaintiff.
4. In January, 1955, plaintiff met the second and third defendants and had detailed
discussions about the play and its plot and the desirability of filming it.
5. However, after this discussion, the plaintiff received no further communication
from the second defendant.
RG Anand V. Deluxe filims

1. In May, 1955, the defendants started to make the film ‘New Delhi’, which, the
plaintiff gathered, was based on his play, “Hum Hindustani’.
2. The defendant, however, assured him that it was not so.
3. In September, 1956, the movie was released and after viewing it, the plaintiff
filed a suit for infringement of his copyright in his play ‘Hum Hindustani’.
4. His claims included damages, account of profits and a permanent injunction
against the defendants restraining them from exhibiting the movie.
 Facts

1. It was argued by Anand that Delux Films and the other defendants were fully
aware of the theme of his play and its intricacies.
2. He had had detailed discussions with them about the same. There were various
similarities between the play and the movie made by Delux Films in terms of the
main theme of provincialism, characterization and situations.
3. Anand pleaded that he was the owner of the copyright in the play ‘Hum
Hindustani’ and that his copyright in the play had been violated.
4. The Delhi High court recognized the copyright of the plaintiff under the
Copyright Act of 1911.
5. Delux Films and others, on the other hand, asserted that the movie was not
substantially similar to the play in terms of the themes it dealt with and there
were lot of differences in terms of characterization and treatment.
 Decision

1. The court held that the film produced by the defendants cannot be said to be a
substantial copy of the play and the defendants can not be held to have
committed an act of piracy because of differences in story, theme,
characterization and climaxes.
2. Moreover, copyright can not be acquired in an idea; the idea being provincialism
in this case.
3. A copyright offers protection only to the expression of an idea and not the idea
itself.
4. The allegation by Anand that the defendants violated his copyright by copying
his idea was held invalid.
 The plaintiff could not prove that the defendant had committed a colorable
imitation of his play.
 Where similarities between the copyrighted work and the copy are so many and
the similarities between the two works are not coincidental, a reasonable inference
of colorable imitation can be drawn.
 The court held that a case for infringement may be made out only when such
infringement may be identifiable by a reasonable man; and, in this case, the court
observed, that no prudent person could get an impression that the film appears to
be a copy of the original play.
 The opposite of this case transpired in YRF V. Sri Sai Ganesg Productions
 YRF Films v. Sri. Ganesh films
 The classic case of movies passing off one as another.
 Facts

 YRF made a movie called as Band Baja Baarat in 2010, and YRF holds rights
over this movie.
 In the very next year, a telugu movie called jabardast was released by Sri. Ganesh
productions.
 Around the end of 2011, the plaintiff got to know that the defendants had made a
movie which was a spitting image of their movie band baja baarat.
 The plaintiff duly sent two C & D notices.
 The defendant chose not to respond to any of the notices and released the movie
instead and chose to license the same to a tamil movie production house.
 The court held that cinematography of the movie is entitled to protection
independent of the individual rights, and the sum total of parts is more than the
individual parts.
The metamorphosis of a Copyright
infringement suit.
The Plaintiff’s work is a Copyrighted work.
The defendant had access to plaintiff’s work
The defendant copied the plaintiff’s work
What was copied was qualitative or quantitative
https://youtu.be/2Mfve0oxbPA
Kookaburra sits in the old gum tree v. Down under album
What was copied whether was it de-minimis copying? One line from a book.
Whether there is substantial similarity in both the works?
Substantial similar to who?- ordinary lay observer or a trained ear.
 Nichols v. Universal picture
The defendant produced a
The plaintiff is the author of a
motion picture play, "The
play, "Abie's Irish Rose,"
Cohens and The Kellys,"
which it may be assumed was
which the plaintiff alleges was
properly copyrighted.
taken from it.
 Nichols v. Universal picture

1. "Abie's Irish Rose" presents a Jewish family living in prosperous circumstances in

New York. The father, a widower, is in business as a merchant, in which his son and
only child helps him.
2. When the play opens the son, who has been courting a young Irish Catholic girl, has
already married her secretly before a Protestant minister, and is concerned about
softening the blow for his father, by securing a favourable impression of his bride,
while concealing her faith and race.
3. To accomplish this he introduces her to his father at his home as a Jew, and lets it
appear that he is interested in her, though he conceals the marriage.
4. The girl somewhat reluctantly falls in with the plan; the father takes the bait, becomes
infatuated with the girl, concludes that they must marry, and assumes that of course
they will, if he so decides.
5. He calls in a rabbi, and prepares for the wedding according to the Jewish customs.
 Nichols v. Universal picture

1. Meanwhile the girl's father, also a widower, who lives in California, and is as intense
in his own religious antagonism as the Jew, has been called to New York, supposing
that his daughter is to marry an Irishman and a Catholic.
2. Accompanied by a priest, he arrives at the house at the moment when the marriage is
being celebrated, but too late to prevent it, and the two fathers, each infuriated by the
proposed union of his child to a heretic, fall into unseemly and outlandish antics.
3. The priest and the rabbi become friendly, exchange sentiments about religion, and
agree that the match is good.
4. Apparently out of abundant caution, the priest celebrates the marriage for a third
time, while the girl's father is enticed away.
5. The second act closes with each father, still outraged, seeking to find some way by
which the union, thus trebly insured, may be dissolved.
 Nichols v. Universal picture

1. The last act takes place about a year later, the young couple having meanwhile
been avoided by each father, and left to their own resources.
2. They have had twins, a boy and a girl, but their fathers know no more than that a
child has been born.
3. During Christmas, led by his craving to see his grandchild, goes separately to the
young folks' home, where they encounter each other, each laden with gifts, one
for a boy, the other for a girl.
4. After some slapstick comedy, depending upon the insistence of each that he is
right about the gender of the grandchild, they become reconciled when they
learn the truth.
5. The curtain falls as the fathers are exchanging amenities, and the Jew giving
evidence of an abatement in the strictness of his orthodoxy
 "The Cohens and The Kellys" presents two
families, Jewish and Irish, living side by side in

Nichols v. Universal picture

the poorer quarters of New York in a state of
perpetual enmity.

The wives in both cases are still living, and share

in the mutual animosity, as do two small sons,
and even the respective dogs.

The Jews have a daughter, the Irish a son; the

Jewish father is in the clothing business; the
Irishman is a policeman.
The children are in love with each other, and
secretly marry, apparently after the play The extremity of his feelings makes the Jew

Nichols v. Universal picture

opens. The Jew, being in great financial
straits, learns from a lawyer that he has fallen
heir to a large fortune from a great-aunt, and
sick, so that he must go to Florida for a rest,
just before which the daughter discloses her
marriage to her mother.
moves into a great house, fitted luxuriously.

Here he and his family live in vulgar

The Jew then abuses the Irishman over the
ostentation, and here the Irish boy seeks out
telephone, and both become hysterically
his Jewish bride, and is chased away by the
excited.
angry father.
 Nichols v. Universal picture

 On his return the Jew finds that his daughter has borne a child; at first he suspects
the lawyer, but eventually learns the truth and is overcome with anger at such a
low alliance.
 Meanwhile, the Irish family who have been forbidden to see the grandchild, go to
the Jew's house, and after a violent scene between the two fathers in which the
Jew disowns his daughter, who decides to go back with her husband, the Irishman
takes her back with her baby to his own poor lodgings.
 The lawyer, who had hoped to marry the Jew's daughter, seeing his plan foiled,
tells the Jew that his fortune really belongs to the Irishman, who was also related
to the dead woman, but offers to conceal his knowledge, if the Jew will share the
loot.
 Nichols v. Universal picture

 This the Jew repudiates, and, leaving the astonished lawyer, walks through the
rain to his enemy's house to surrender the property.
 He arrives in great dejection, tells the truth, and abjectly turns to leave. A
reconciliation ensues, the Irishman agreeing to share with him equally.
 The Jew shows some interest in his grandchild, though this is at most a minor
motive in the reconciliation, and the curtain falls while the two are in their cups,
the Jew insisting that in the firm name for the business, which they are to carry on
jointly, his name shall stand first.
 Nichols v. Universal picture

 “Upon any work, and especially upon a play, a great number of patterns of
increasing generality will fit equally well, as more and more of the incident is
left out…there is a point in this series of abstractions where they are no
longer protected.” [since they are idea]
Justice. Leonard Hands opinion of Abstraction, Filtration and Similarities test
 Abstraction, similarities and
comparison test
Story main
idea
Plot
Sub plot

Scene

Character
description-
specific

Text
01 02 Filtration03
Abstraction, and Similarities
Lastly, compare What would an If the observer feels
whatever is left after ordinary lay observer that the latter work
filtering to conclude perceive when he resembles the original
whether there are watches both the work then it is likely
similarities or original and to have been copied.
dissimilarities. subsequent work?
Abstraction, Filtration and Similarities

 Abie’s Irish Rose Cohen’s and Kellys

 I. Jewish and Irish families Jewish and Irish families

 One wealthy, one not Both poor at start

 Strangers to each other Long time enemies

 A. Son and daughter marry A son and daughter marry

 Twins born Single child born

 No lawyer Lawyer
 Fair dealing in UK

 A person is not liable if they can show the following:

 Fair dealing for the purposes of research or private study
 For the purposes of criticism or review
 For the purpose of reporting current events
 Quotation, Pastiche, Parody or caricature
 The restricted approach in the UK can be contrasted with American copyright law
which has a general defence of fair use – if the court is satisfied that the use is fair,
then no infringement
 Research or Private study

 The exception does not apply when the dealing is with a sound rec, film or
broadcast – applies to LDMA works only
 The limited scope of the defence – criticized because it fails to reflect the
increasing importance of non-textual media for study and research
 Rationale for defence
 Research and study are necessary to generate new works
 Also, non-commercial research and study do not normally interfere with the
rewards that copyright provides to its creators
 Research or private study

 What is the meaning of ‘research’ and ‘private study’? How far is private study
inherently non-commercial?
 Sillitoe v. McGraw-Hill [1983];
 Facts: M published study notes for use in exam preparation.
 These included extracts from the set texts which amounted to at least 5% of the
work and were accompanied by brief explanations.
 This was a low ratio of explanation-extract.
 Decision: Research – Private study must be inherently non-commercial.
 Study must be pursued by Defendant.
 Others cannot rely on the exception – people to who they sold the books relied on
it.
Fair dealing for criticism or review

 The defence recognizes the value of criticism and review

 courts take an objective approach when deciding the purpose for which the work
was used
 The courts have said that criticism and review should be construed liberally
 Hubbard v. Vosper

1. On September 9, 1971, The Mind Benders, a book critical of Scientology written by Cyril Vosper, a
former scientologist of 14 years, was published by Neville Spearman Ltd.
2. The Church of Scientology obtained an interim injunction on the same day to restrain publication of
the book.
3. The book contained many extracts from the works of L. Ron Hubbard, including books such as
Axioms and Logics and Introduction to Scientology Ethics.
4. These extracts were often accompanied by criticism and explanations in Vosper's book.
5. Also included in the book was information obtained by Vosper through Scientology courses, which
the Church of Scientology claimed was confidential by virtue of a declaration signed by Vosper not
to divulge any of the information to outsiders - specifically to those who were not "Clear".
6. At issue was whether the extracts in The Mind Benders constituted copyright infringement, and
whether the information published in the book amounted to an actionable breach of confidence.
7. The lower court granted the injunction to prevent publication of the book, finding that there was a
strong case for infringement.
 Hubbard v. Vosper

 In clarifying the doctrine of fair dealing, Lord Denning considered previous case law, and
described a legal test for determining what would constitute a valid use of the defence:
 It is impossible to define what is "fair dealing."
 It must be a question of degree.
 You must consider first the number and extent of the quotations and extracts.
 Are they altogether too many and too long to be fair?
 Then you must consider the use made of them.
 If they are used as a basis for comment, criticism or review, that may be fair dealing.
 If they are used to convey the same information as the author, for a rival purpose, that
may be unfair.
 Next, you must consider the proportions.
 Hubbard v. Vosper

 To take long extracts and attach short comments may be unfair.

 But, short extracts and long comments may be fair.
 Other considerations may come to mind also.
 But, after all is said and done, it must be a matter of impression.
 As with fair comment in the law of libel, so with fair dealing in the law of
copyright.
 In the present case, there is material on which the tribunal of fact could find this to
be fair dealing.
 For the Purpose of reporting

 ECB V. Tixdaq Ltd and Anr

 The claimant was the England and Wales Cricket Board ("ECB"), cricket’s
governing body.
 It had entered a broadcasting agreement with Sky TV in 2012.
 The defendants ran the website www.fanatix.com and a fanatix app.
 The case involved the use of two types of copyright work: television broadcasts of
matches, and recordings of broadcast footage (for particular use in action replays).

 By using screen capture technology, users of the fanatix app (as well as the
defendants) were able to upload eight-second clips of match broadcasts.
 ECB V. Tixdaq and anr

 The features of the defendant's app changed over time:

 from v8.3 users were required to attribute clips to the source broadcaster, or confirm
they contained no third party broadcast footage;
 from v8.3.2 users were required to add at least 70 characters of commentary to each
clip;
 v8.5 used an algorithm restricting the footage from each match that could be viewed
within a 24-hour period.
 The claimants claimed copyright infringement.
 The defendants relied on the defence of fair dealing for purposes of
reporting current events.
 ECB V. Tixdaq and Anr

 the correct test for what amounts to a substantial part of the works was held to be
both qualitative and quantitative.
 Although the 8 second clips were not, in the context of a day's play, or even a
morning's session, quantitatively significant, each clip was one of the highlights
of the play, and was therefore highly significant in qualitative terms.
 As such they substantially exploited the claimant's investment
 Parody

 Parody has been protected within the realm of Copyright Act

 The purpose and character of use
 Commercial or non commercial purposes
 Nature of the copyrighted work
 Amount and substantiality of the portion used
 Effect of the use on the potential market
 Fair Dealing in India

 The Courts have traditionally articulated and applied the following three factors in
deciding the cases:
 The Amount and Substantiality of the Dealing
 Purpose, Character (and Commercial Nature) of the Dealing
 Effect on the Potential Market: Likelihood of Competition
 Amount and substantiality

 The more you take from an existing work, the unfairer it is.
 It is pertinent to keep in mind that what is being taken is the expression and not
the idea of a work.
 There is no copyright infringement unless there is substantial copying from the
existing work, after a prima facie case has been made out the Court gets the
opportunity to decide how much is too much?
 Is a line from a entire book too much?
 Is “Naam toh suna hoga” copyrightable? Can someone use it without taking prior
permission?
 Amount and substantiality is not a test of just quantity but also quality
 Amount and substantiality

 A Rajasthani singer Gazni Khan from Manganiyar tribe made an album from his
cultural song “ Nimbooda” the same was being performed by him in the Dilli
Haat, it was heared by Mr. XYZ a composer from B’wood and included it in his
movie “Hum Dil De Chuke Sanam”.
 It is the claim of Gazni Khan that the word nimbooda has been taken from his
song and the tune of it aswell, the same was rehashed by the xyz music composer
to make the popular hit number nimbooda nimbooda.
 Is there a copyright violation in this case?
Civic Chandan v. Ammini Amma

 Ningal enna communist akKI V. Ningal are commuinist aki?

 You made me a communist v. whom did you make a communist?
 The first play is about a rich landlord valliya vittil kesavan nair becoming a
communist because his daughter fell in love with a labour class worker, he starts
feeling sympathy for them because he has oppressed them for ages.
 The same was taken by the defendant but to make a parody of it.
 The following tests were laid down by the court
 he quantum and value of the matter taken in relation to the comments or criticism;
 the purpose for which it is taken; and
 the likelihood of competition between the two works.”
 Effect on the potential market

1. the possibility of competition is all that is necessary for determining

infringement of a copyright.
2. if the work is being used to convey the same information as the author, for a rival
purpose, it may be unfair.
3. Effect of the publication as a competitor with the plaintiff's copyright work is
also one of the aspects sometimes taken into account by the Indian courts for
ascertaining whether the reproduction is substantial
4. Why is the effect on potential market a very important test
 OUP V.
Rameshwari
Photocopying
services
OUP V. Rameshwari Photocopy services
 Issue

 Whether the making of course packs by the first and second defendants amounted
to infringement of copyright of the plaintiffs?
 Need for license

1. The Court clearly stated that it agreed with the submission of the defendants that
the question of taking such a license only arises if the Court comes to the
conclusion that the making of course packs is not covered under Section 52 of
the Copyright Act and therefore, constitutes infringement.
2. Therefore, the Court rightly recognized that it was absolutely unnecessary for the
defendants to negotiate any license from copyright societies for making course
packs if the law provides the defendants with the right to do so.
 Difference between issuing and
photocopying
1. The Court recognized that copyright is a statutory right and according to the
provisions of the copyright act, photocopying original literary work is an
exclusive right of the owner of the copyright and that the making of photocopies
by DU would constitute infringement under Section 51 unless such act is listed
under Section 52 of the Copyright Act.
2. The Court also noted the differences between the DU library issuing copies of
the book to the public and DU making photocopies of the work.
3. Regarding the former, the Court stated that this would be permissible as it would
be a direct application of the principle of exhaustion which is the genesis of
libraries, educational institutions as well as the business of resale of books.
 All that looks the same may not be the
same!
1. the Court stated that the phrase “ to issue copies of the work to the public” under
Section 14 (a) (ii) cannot be interpreted as “making copies of the work”.
2. Therefore, the Court stated “The defendant No.2 University thus, though entitled
to issue the books, published by the plaintiffs and purchased by it and kept by the
defendant No.2 University in its library, to whosoever is entitled to issuance of
the said books from the library, per Section 14(a)(i) and Section 51(a)(i) would
not be entitled to make photocopies of substantial part of the said book for
distribution to the students and if it does the same, would be committing
infringement of the copyright therein.”.
 The Court then moved on to the
interpretation of Section 52 of the

Exception or user rights?

Copyright Act, which forms the pivotal part
of the decision.

Section 52 lists out certain acts that are not

to be considered as infringement of
copyright.

The Court accepted the contention of DU

that the acts under Section 52 are not to be
viewed as a proviso or exception to Section
51.
S:52 to be viewed as rights of persons:
User Rights
 The Court stated that, “Similarly here, to hold that inspite of the legislature
having declared the actions listed in Section 52 to be not amounting to
infringement,
 the same have to be viewed putting on the blinkers of being infringement would
amount to holding that the Copyright Act which allows actions listed in Section 52
to be done without the same constituting infringement and consequences thereof
not constituting infringing copy, cannot be done to the extent permitted by the
language of Section 52.
 User Rights

 I thus agree with the contention of the senior counsel for the defendant no.2
University that the rights of persons mentioned in Section 52 are to be
interpreted following the same rules as the rights of a copyright owner and are
not to be read narrowly or strictly or so as not to reduce the ambit of Section 51,
as is the rule of interpretation of statutes in relation to provisos or exceptions.”
 Justice. Pradeep Nandrajog
 the realities of our education system.
cannot and should not be interpreted in such a fashion that it does not reflect
Education in India has for long been institutionalized and therefore, the law
The Court unequivocally held that it cannot be so restricted especially when
considering the societal realities.
Section 52(1)(i) states that the reproduction of a work by a “teacher/ pupil in
the course of instruction” would not constitute infringement. The question
Section 52(1)(i)
before the court was whether the interpretation of this section was restricted
to an individual teacher and an individual pupil or whether it would extend
 The court was faced with the challenge of interpreting “ Instruction”?
 The Court interpreted to state that the term “ instruction cannot be limited to the
ambit of physical lectures alone”.
 Alternative approach

1. The Court approached this issue from a different angle as well.

2. The Court noted that a student issuing a book from the DU library and copying the
same, whether by hand or by photocopying for her private or personal use would be
protected under fair dealing.
3. Therefore, it was absurd to state that if the Delhi University did the exact same act as a
direct result of its resource constraints, then the action of DU would constitute
infringement and not be protected under fair dealing.
4. Hence, the Court stated, “When the effect of the action is the same, the difference in
the mode of action cannot make a difference so as to make one an offence.”
5. Similarly, the Court also noted that if a student took photographs of pages of a
textbook from the DU library on his cellphone and then proceeded to print the same,
that would be protected under fair dealing as it is merely an advancement in
technology of copying by hand or photocopying.
Effect being the same, does not matter who is making
the photocopies

1. The Court held that it was irrelevant whether DU was making the course packs
by itself or had licensed it to a contractor.
2. As long as the impugned act was protected under Section 52, it was irrelevant
whose hands did the photocopying and the making of the coursepacks, whether it
is individual students, the educational institutions or a licensee such as
Rameshwari.
3. Moreover, the Court stated that Rameshwari was not a competitor of the
plaintiffs, as they were only making compilations of small portions of prescribed
textbooks for the students.
4. If Rameshwari was not permitted to do so, the consequence would not be that the
students would buy the textbooks.
 Access to education

1. Instead it would be that the students would have to resort to sitting in the library
and copying out the pages by hand.
2. This is particularly likely as education in DU is heavily subsidized, thereby
enabling students from low-income families to also attend the university.
3. Therefore, the Court stated that it was unfair to expect students to eschew the
comfort provided by modern technology and to regress to the studying practices
of an ancient era.
4. Additionally, the Court held that “No law can be interpreted so as to result in
any regression of the evolvement of the human being for the better.”
Access to research- Curious case of sci-
hub
 The tragic
story of pay walls
 Researches have always had huge
difficulty in accessing resources
online ( especially without
Institutional access) .
 Especially when the knowledge is
hidden behind a very fat robust pay
wall.
 For instance, the book “ Donald
Chisum on Patent is priced about
12,00,000 INR.
 How accessible is it for a Patent
enthusiast?
 Sci Hub and Lib Gen Case

 Three global publishers, Elsevier, Wiley and American Chemical Society, filed a
copyright infringement suit in the Delhi High Court against websites, LibGen &
Sci-Hub.
 Lib-gen and sci-hub gives access to the Copyrighted contents without charging
any cost, they procure the articles in a robin hood way.
 The aforementioned publishers had approached the Hon’ble Delhi High Court to
permanently block these websites ( Dynamic injunction).
 In December 2020, these publishing houses filed a copyright infringement suit
against Alexandra Elbakyan, the owner of Sci-Hub and a group of websites
known as LibGen. Sci-Hub is a digital library of over 85 million research papers
while LibGen is a links aggregator which provides free of cost access to scholarly
articles, books and magazines.
 Sci Hub and Lib gen case

 Sci Hub and Lib Gen have been widely accessed by researches and other scholars
who cannot afford to penetrate through the pay wall culture.
 From 24th December 2020 there has been no new article updated in sci hub as
undertaken by Alexandra the creator of sci hub.
 In December 2021, researchers and academicians filed an IA to be heard.
 The IA was dismissed by Justice. C. Hari Shankar.
 Will the OUP ruling have an effect on Sci Hub case?
 Will Sec 52(1)(i) be extended to allegedly rogue sites like Lib gen and sci hub.
What holds water for OUP case does it
hold water for sci hub?
 In both the cases we have to understand the realities of Copyright struggle.
 In OUP case, it was within a university and specifically for the students and
research purpose.
 In Sci-hub case, there is no limitations as to university, it through it performs
academic work.
 OUP is offline and Scihub is Online
 Would courts be taking the Copyright laws to a time of piracy heaven if sci hub is
allowed?
 Or does sci hub actually help in achieving the fulfilling the dreams and visions of
Copyright in a robin hood way
What is the purpose of Copyright?

Is the idea of Copyright only to make revenues for the rights holder? is it a switching off
mechanism of competition?
The Berne convention post TRIPS states that a reproduction license can be procured only after
5 years.
In the process it has to be realised that there are lot of administrative costs that are incurred by
those who manage the IPRs ( Journals in this case)
Effectively the administrative costs incurred/certain costs not incurred by the administrators
also get bundled up in the price of the product, and the user has to pay more for the work
because of the bundled up cost ( Market power of IPR).
The tenure of IPR protection can be further divided into short-run and long-run.
The short-run protection aims at enhancing the monopoly for the right holder to receive
maximum revenue from the work that is created.
The long run protection aims at enhancing the creativity and access to knowledge
 Economic analysis of Access to
knowledge and some questions
 If the short run protection is extended to the long-run, what would be the effect
on further creation?
 Will it dry up? Will there be debilitated creations?
 Does a strict copyright regime necessarily corelate with more creative works to
nourish the market?
 Does it mean the diluted copyright work would encourage piracy?
 Who is loosing out on revenue because of pirate sites like sci-hub, the author of a
work? Or the journal?!
 What should a journal do to avoid a rival edition or a pirate edition of the work?
 Should publishing houses publish the work at a subsidised price to make the work
accessible? Would it nullify piracy?
 Flexible copyright?

 A flexible copyright is not a copyright system with just exceptions and limitations.
 Exception and limitations are created after understanding the realities of copyright
hardships.
 What about orphaned works? What about works that are made available to
differently abled persons
 Similarly, should Copyright law exempt research as such?
 Orphaned work

 Orphan works are those works in which Copyright exists but the owner is
untraceable or unknown.
 Orphaned works lead to issues when a user intends to use the creation for either
commercial or non-commercial purpose but does not know whom to approach to
obtain the permission.
 What should a user do? Wait for the Copyright term to get exhausted and then use
it? Or anyway go ahead and use it?
 Especially in the internet age, when a last set of Copy of books are available and
the publisher has closed business and the author is untraceable
 Does Copyright Act provide any sort of solution to this problem
 Orphaned work

 Section 31 of the Act provides the scope for Compulsory licensing of works in India
( Generally).
 Section 31A addressees this situation specifically when the Author is untraceable or
dead.
 The user can approach the Commercial Court for the same and seek the license for
it.
 Before filing the Application the user has to communicate the same in a newspaper
with the intention to do so.
 The commercial court conducts an enquiry in the matter and fixes a royalty amount
that needs to be paid to the account as prescribed the commercial court.
 The onus is on the user to enquire and make reasonable effort to procure a voluntary
license in this case.
Creative
commons
Creative commons and OPA Books and
Digital Access libraries
 https://youtu.be/nMdsLGmmVkU
 A creative commons license is a license issued by the copyright owner to allow
anyone in the world to use his or her copyright work in any manner consistent
with that license.
 Creative Commons licenses are essentially standard form license agreements
which can be attached to a work to enable its use under certain circumstances
without the need to contact the author or negotiate terms of use.
 Is creative commons and open access books the way forward for access to
education?
 What about NDLI do they violate Copyright when books are made available to
the public for no cost and allow them to download a copy of it in their respective
devices.
 Sample question

 Arivu and Dhee composed a peppy Tamil-English number called “ Enjoy

Enjaami”. The song was very popular and garnered ten lakh YouTube hits in two
days, it garnered great listeners in Spotify and the song became a house hold
name.
 A youtuber by name Little Kaluwitarana seth created a song which super imposed
the “Enjoy Enjaami” song to support a regional political party KMD, Arivu and
Dhee are unsure that if a permission has been taken from the label “Coffee
series”, it turns out that permission has not been taken.
 Identify the sections that could be attracted in this case and argue the same.
 Sample question

 Eminent Professor. Tatva Vasudev has a huge repository of books in her collection, it
is pertinent to note that some of the books are very valuable and even out of print as
they date back to the year 1963. When the covid-19 pandemic started showing its
effects in India, Prof. Tatva was shocked and overwhelmed with deep fears regarding
the future of Indian students’, her younger brother tech geek prof. Vedh Vybhav gave
her a suggestion of digitising the books and making it available on a online platform.
 Tatva proceeded in furtherance of this idea, and made those books available in
regional languages and English for ease of access to the students, the website did not
charge a penny from students to access the books but had in-built advertisement
features in it, and she released it with a CC license.
 Publishing houses like Oxmard and Hardad sent a C&D notice to Prof. Tatva, she paid
no heed to it, and then a dynamic injunction was sought by the publishing houses.
 Prof. Tatva has approached you to give her the legal advice in the issue
 Sample question

 Mr. Yogesh Mishra is a singer who is dynamic like Elvis Presley, he has released a
cover version of the 2022 Punjabi number “Pasori”, it is pertinent to note that the
cover version of the song is more popular that the original version of the song.
 The music label approaches Mr. Yogesh to release the cover version under their
label, following the due procedure, what are all the procedure that he has to
follow please elucidate the same?
 If he decides to release it in his own label, can he claim exception under fair
dealing under Section 52 of the Act.
 Sample question

 Vishy Arora celebrates his 25th Birthday and he is a famous cricketer who
represents Kochi tuskers Kerala as a mark of his 25 th Birthday, he posts pictures
on twitters that are taken by paparazis since his birth with a tweet thread “ Boy
hood” to concatenate a relationship with legendary director Richard Linklater’s
movie “ Boy hood”, the people who have taken the photographs have went on a
rampage and have called him a copyright thief.
 Is there a Copyright violation? Or is there a personality rights violation in the first
place?