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CHAPTER XI
INFRINGEMENT OF COPYRIGHT
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 condition 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) 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)
makes for sale or 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 purpose
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 into India, any infringing copies of the work: Provided that nothing
in sub-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”.
52.
Certain acts not to be infringement of copyright.— (1) The following acts shall not constitute an infringement of copyright, namely,—
(a) a fair dealing with any work, not being a computer programme,
for the purposes
of—
(i)
private or personal use, including research;
(ii)
criticism or review, whether of that work or of any other work;
(iii) the reporting
of current events and current
affairs, including the reporting
of a lecture delivered in public.
Explanation.— The storing of any work in any electronic medium for the purposes
mentioned in this clause, including
the incidental storage of any computer
programme which is not itself an infringing copy
for the said purposes,shallnot constitute infringement of copyright.
(aa) the making of copies or adaptation of a computer programme by the lawful possessor
of a copy of such computer programme, from such copy—
(i)
in order to utilise
the computer programme
for the purpose
for which it was supplied; or
(ii) to make back-up copies purely as a temporary protection against loss, destruction or damage in order only to utilise
the computer programme
for the purpose
for which it was supplied;
(ab) the doing of any act necessary
to obtain information essential for operating inter-operability of an independently created
computer programme with
other programmes by a lawful possessor
of a computer programme provided that such information is not otherwise readily
available;
(ac) the observation, study or test of functioning of the computer
programme in order to determine the ideas and principles which underline
any elements of the programme while performing such acts necessary for the functions for which the computer
programme was supplied;
(ad) the making of copies or
adaptation of the computer programme from a personally legally obtained
copy for non-commercial personal use;
(b) the transient
or incidental storage
of a work or performance purely in the technical
process of electronic
transmission or communication to the public;
(c)transient or incidental storage
of a work or performance for the purpose of providing
electronic links, access or integration, where such links, access or
integration has not been expressly
prohibited by the right holder, unless the person responsible is aware
or has reasonable grounds for believing that such storage is of an
infringing copy:
Provided that if the person
responsible for the storage of the copy has received a written
complaint from the owner of copyright in the work, complaining that
such transient or incidental storage is an infringement, such person
responsible for the storage shall refrain from facilitating such access
for a period of twenty-one days or till he receives an order from the
competent court refraining from facilitation access and in case no such
order is received before
the expiry of such period of twenty-one days, he may continue to
provide the facility of such access;
(d) the reproduction of any work
for the purpose of a judicial proceeding or for the purpose of a report
of a judicial proceeding;
(e) the reproduction or
publication of any work prepared by the Secretariat of a Legislature
or, where the legislature consists of two Houses, by the Secretariat of
either House of the Legislature, exclusively for the use of the members
of that Legislature;
(f) the reproduction of any work in a certified copy made or supplied
in accordance with any law for the time being in force;
(g) the reading or recitation in public of reasonable extracts
from a published
literacy or dramatic work;
(h) the publication in a collection, mainly composed
of non-copyright matter, bona fide intended
for instructional use, and so described
in the title and in any advertisement issued by or on behalf of the publisher, of short passages from published
literary or dramatic works, not themselves published
for such use in which copyright
subsists:
Provided that not more than two such passages from works by the same author are published
by the same publisher
during any period
of five years.
Explanation.— In the case of a work of joint authorship, references in this clause
to passages from works shall include references to passages from works by any one or more of the authors
of those passages
or by any one
or
more of those authors in collaboration with any other person;
(i) the reproduction of any work—
(i) by a teacher or a pupil in the course
of instruction; or
(ii) as part of the question to be
answered in an examination; or
(iii) in answers to such questions;
(j) the performance, in the course
of the activities of an educational institution, of a literary,
dramatic or musical work by the staff and students of the institution,
or of a cinematograph film or a sound recording if the audience is
limited to such staff and students, the parents and guardians
of the students and persons connected
with the activities of the institution or the communication to such an
audience
of
a cinematograph film or sound recording;
(k) the causing of a recording
to be heard in public by utilising it,—
(i)
in an enclosed
room or hall meant for the common use of residents in any residential premises (not being a hotel or similar
commercial establishment) as part of the
amenities
provided exclusively or mainly for residents
therein; or
(ii)
as part of the activities of a club or similar organisation which is not established or conducted for profit;
(l) the performance of a literary,
dramatic or musical work by an amateur club or society, if the performance
is
given to a non-paying audience, or for the benefit of a
religious institution;
(m) the reproduction
in a
newspaper, magazine or other periodical of an article
on current economic, political, social or religious topics, unless the
author of such article has expressly reserved
to himself the right of such reproduction;
(n) the storing
of a work in any medium by electronic
means by a non-commercial public
library, for preservation if the library already possesses a non-digital copy of the
work;
(o) the
making of not more than three copies
of a book (including a pamphlet,
sheet of music, map, chart or plan) by or under the direction
of the person in charge of a non-commercial public library for the use
of the library if such book is not available for sale in India;
(p) the reproduction, for the purpose of research or private
study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library,
museum or other institution to which the public has access:
Provided that where
the
identity of the author of any such work or, in the case of a work of
joint authorship, of any of the authors
is known to the library, museum or other institution, as the
case may be, the provisions of this clause shall apply only if such
reproduction is made at a time more than sixty years from the date of
the death of the author
or, in the case of a work of joint authorship, from the death of the
author whose identity
is known or, if the identity of more authors than one is known from the
death of such
of those authors
who dies last;
(q)
the reproduction or publication of—
(i)
any matter which has been published in any Official Gazette
except an Act of a Legislature;
(ii)
any Act of a Legislature subject to the condition
that such Act is reproduced or published together with any commentary thereon
or any other original
matter;
(iii) the
report of any committee, commission,
council, board or other like body appointed by the Government if such
report
has been laid on the Table of the Legislature, unless the reproduction
or publication of such report is prohibited by the Government;
(iv) any
judgment or order of a court,
tribunal or other judicial authority, unless the reproduction or
publication of such judgment or order is prohibited by the court, the
tribunal or other judicial authority, as the case may
be;
(r) the production or publication of a translation in any Indian language of an Act of a Legislature and of any rules or orders
made thereunder—
(v)
if no translation of such Act or rules or orders in that language
has been previously been produced or published by the Government; or
(vi)
where a translation of such Act or rules or orders in that language
has been produced
or published by the Government, if the translation is not available
for sale to the public:
Provided that such translation contains a statement
at a prominent
place to the effect that the translation has not been authorised or accepted as authentic
by the Government;
(s) the making
or publishing of a painting,
drawing, engraving or photograph of a work of architecture
or
the display of a work of architecture;
(t) the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic work falling
under sub-clause (iii) of clause (c) of section
2, if such work is permanently situate in a public
place or any premises to which the public has access;
(u)
the inclusion
in a cinematograph film of—
(i)
any artistic
work permanently situate in a public place or any premises
to which the public has access; or
(ii) any
other artistic
work, if such inclusion is only by way of background or is otherwise
incidental to the principal matters represented in the film;
(v) the use by the author of an artistic
work, where the author of such work is not the owner of the copyright
therein, of any mould, cast,
sketch, plan, model or study made by him for the purpose
of the work:
Provided that he
does
not thereby repeat or imitate the main design of the
work;
(w) the making of a three-dimensional object from a two-dimensional artistic work, such as a technical
drawing, for the purposes
of industrial application of any purely functional part of a useful device;
(x) the reconstruction of a building
or structure in accordance with the architectural drawings or plans by reference to which the building
or structure was originally
constructed:
Provided that the original
construction was made with the consent or licence of the owner of the copyright
in such drawings
and plans;
(y) in
relation
to a literary, dramatic, artistic or musical work recorded or
reproduced in any cinematograph film, the exhibition of such film after
the expiration of the term of copyright
therein:
Provided that the provisions of
sub-clause (ii) of clause
(a), sub-clause (i) of clause (b) and clauses (d), (f), (g), (m) and
(p) shall not apply as respects any act unless that act is accompanied
by an acknowledgment—
(i)
identifying the work by its title or other description; and
(ii)
unless the work is anonymous
or the author of the work has previously agreed
or required that no acknowledgment of his name should
be made, also identifying the author;
(z) the making of an ephemeral
recording, by a broadcasting organisation using
its own facilities for its own broadcast
by a broadcasting organisation of a work which it has the right to
broadcast; and the retention of such recording for archival purposes on
the ground
of its exceptional documentary character;
(za) the performance of a
literary, dramatic or musical work or the communication to the public
of such work or of a sound recording in the course
of any bona fide religious ceremony or an official ceremony held by the
Central Government or the State
Government or any local authority.
Explanation.— For the purpose of this clause,
religious ceremony including a marriage
procession and other social festivities associated with a marriage;
(zb) the adaptation, reproduction, issue
of copies or communication to the public
of any work in any accessible format,
by—
(i) any
person to facilitate persons with disability to access to works
including
sharing with any person with disability of such accessible format for
private or personal use, educational purpose or research; or
(ii)
any organisation working for the benefit
of the persons
with disabilities in case the
normal format prevents the enjoyment of such works by such persons:
Provided that the copies of the works in such accessible format are made available
to the persons with disabilities on a non-profit basis but to recover only the
cost of production:
Provided further that the organisation shall ensure that the
copies of works in such accessible
format are used only by persons with disabilities and takes reasonable steps to prevent
its entry into ordinary channels of business.
Explanation.— For the purposes
of this sub-clause, “any organisation” includes an organisation
registered under section 12A of the
Income-tax Act, 1961 and working for the benefit of persons with
disability or recognised under Chapter X of the Persons with
Disabilities (Equal Opportunities, Protection of Rights and full
Participation) Act, 1995 or receiving
grants from the Government for facilitating access to persons with
disabilities or an educational institution or library
or archives recognised by the Government;
(zc) the importation of copies of any literary or artistic work, such as labels, company logos or promotional or explanatory
material, that is
purely incidental to other goods or products
being imported lawfully.
(2) The provisions of sub-section (1) shall apply to the doing of any act in relation
to the translation of a literary,
dramatic or musical work or the adaptation of a literary,
dramatic, musical or artistic work as they apply in relation to the
work itself.
52A. Particulars to be included in sound recording and video films.— (1) No person shall publish a
sound recording in respect of any work unless the following
particulars are displayed on the sound
recording and on any container thereof,namely:—
(a)
the name and address of the person who has made the sound recording;
(b)
the name and address of the
owner of the copyright
in such work; and
(c)
the year of its first publication.
(2) No person shall publish a video film in respect of any work unless the following
particulars are displayed in
the video film,
when exhibited,
and on the
video cassette or
other container
thereof, namely:—
(a) if such work
is
a cinematograph film required to be certified for exhibition under the provisions
of the Cinematograph Act, 1952,
a copy of the certificate granted by the Board of Film Certification under section 5A of that Act in respect of such work;
(b) the name and address of the
person who has made the
video film and a declaration by him that he has obtained the necessary
licence or consent from the owner of the copyright in such work for
making such video film; and
(c) the name and address of the
owner for the copyright
in such work.
52B. Accounts and audit. Omitted by the Copyright Act, 2012 (27 of 2012), s. 33
(w.e.f. 21-6-2012).
53. Importation
of infringing copies.— (1) The
owner of any right conferred by this Act in respect
of any work or any performance embodied in such work, or his duly
authorised agent, may give notice in writing to the Commissioner of
Customs, or to any other officer authorised in this behalf by the
Central
Board of Excise
and Customs,—
(a)
that he is the owner of the said right, with proof thereof; and
(b) that
he requests
the Commissioner for a period specified in the notice, which shall not
exceed one year, to treat infringing copies of the work as prohibited
goods, and that infringing copies of the work are expected to arrive
in India at a
time and a place specified in the
notice.
(2) The
Commissioner, after scrutiny of the
evidence furnished by the
owner of the right and on being satisfied may, subject to the
provisions of sub-section (3), treat infringing copies of the work as
prohibited goods that have been imported into India,
excluding goods in transit:
Provided
that the owner of the work deposits such amount as the Commissioner may require
as security having regard
to the likely expenses
on demurrage, cost of storage and compensation to the importer
in case it is found that the works are not infringing copies.
(3) When
any goods
treated as
prohibited under
sub-section (2) have
been detained, the Customs
Officer detaining them shall inform the importer
as well as the person who gave notice under sub-section (1) of the
detention of such goods within forty-eight hours of their detention.
(4)
The Customs
Officer shall
release the goods, and they shall no longer be treated as prohibited goods, if the person who gave notice
under sub-section (1) does not produce
any order from a court having
jurisdiction as to the temporary or permanent
disposal of such goods within
fourteen days from the date of their detention.
53A. Resale share right in original copies.—
(1) In the case of resale for a price exceeding
ten thousand rupees, of the original copy of a painting, sculpture
or drawing, or of the original
manuscript of a literary
or dramatic work or musical work, the author of such work if he was the
first owner of rights under section 17 or his legal heirs shall,
notwithstanding any assignment of copyright in such work, have a right
to share in the resale price of such original
copy or manuscript in accordance with the provisions of this section:
Provided that such right shall cease to exist on the expiration of the term of copyright in the
work.
(2) The share referred to in sub-section (1) shall be such as the 1[Commercial Court] may fix 2[***]:
Provided that the 3[Commercial Court] may fix different shares for different classes of work:
Provided further that in no case shall the share exceed ten percent of the resale
price.
(3) If any dispute arises regarding the right conferred
by this section,
it shall be referred to the 4[Commercial Court] whose
decision shall be final.
1Subs. by ordinance No. 2 of 2021, for “Appellate Board” (w.e.f. 04-04-2021).
2The words “and the decision of the Appellate Board in this behalf shall be final” omitted by ordinance No. 2 of 2021 (w.e.f. 04-04-2021).
3Subs. by ordinance No. 2 of 2021, for “Appellate Board” (w.e.f. 04-04-2021).
4Subs. by ordinance No. 2 of 2021, for “Appellate Board” (w.e.f. 04-04-2021).
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