Thursday, 26 November 2015

Remedies against Infringement of Copyright

There are three remedies against infringement of copyright are:
a) Civil
b) Criminal, and
c) Administrative
It is only the first two remedies, namely civil and criminal, which are of any real practical importance.

CIVIL REMEDIES:
The most importance civil remedy is the grant of interlocutory injunction since most actions start with an application for some interlocutory relief and in most cases the matter never goes beyond the interlocutory stage. The other civil remedies include damages – actual and conversion; rendition of accounts of profits and delivery up.

1) INTERLOCUTORY INJUCTIONS: The principles on which interlocutory injunctions should be granted were discussed in detail in the English case of American Cyanamid v Ethicon Ltd. (1975). After this case, it was believed that the classic requirements for the grant of interim injunction, namely,
a) Prima facie case
b) Balance of Convenience; and
c) Irreparable injury

2) PECUNIARY REMEDIES: Under Indian law, however, there is a departure made and the plaintiff, under sections 55 and 58, can seek recovery of all three remedies, namely (a) account of profits (b) compensatory damages and (c) conversion damages which are assessed on the basis of value of the article converted.

3) ANTON PILLER ORDERS: The Anton Pillar Order derives its name from a Court of Appeal decision in Anton Pillar AG V. Manufacturing Processes [1976]. An Anton Piller Order has the following elements:
a) An injunction restraining the defendant from dealing in the infringing goods or destroying, them;
b) An order that the plaintiffs solicitors be permitted to enter the premises of the defendants, search the same and take goods in their safe custody; and
c) An order that defendant be directed to disclose the names and addresses of suppliers and customers and also to file an affidavit will a specified time giving this information.

4) MAREVA INJUNCTION:  Mareva Injunction is an order which temporarily freezes assets of a defendant thus preventing the defendant from frustrating the judgement by disposal of such assets.

5) NORWICH PHARMACAL ORDERS: These are orders by which information can be discovered from third parties.

CRIMINAL REMEDIES:

Criminal remedies for copyright violation include:
I. Punishment through imprisonment which, under Indian law, may extend from a minimum period of six months to a maximum of three years;
II. Fines which, under Indian law, shall not be less than Rs.50.000. and which may extend to Rs.200, 000.

ADMINISTRATIVE REMEDIES:

Administrative remedies consist of moving the Registrar of Copyrights to ban the import of infringing copies into India when the infringement is by way of such importation and the delivery of the confiscated infringing copies to the owner of the copyright and seeking the delivery.

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