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Copyright Act, 1957 51. When copyright infringed- Copyright in a work shall be deemed to be infringed- a. when any person, without a license granted by the owner of the Copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a license 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] a. 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". Comment : Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge : 1. There can be no copyright in an idea, subject-matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work. 2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal imitation of the copyrighted, work with some variations here and there it would amount to violation of the copy-right. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. 3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. 4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises. 5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence. 6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above. 7. Where, however, the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader perspective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved. R G. Anand v. M/s. Delux Films, AIR 1978 SUPREME COURT 1613    |
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