September 17, 2021

How to Draft a Legal Copyright Notice in India?

Copyright

Introduction

A Copyright also known as an author’s right is referred to as a legal term which is used to describe the rights that creators have over their creations like literary and artistic works. The artistic works covered by copyright cover a wide variety of creations such as books, music, paintings, sculpture, films, computer programs, databases, advertisements, maps, and technical drawings etc amongst a plethora of other creations. For example, when an author writes an original piece of literature like a novel, he or she becomes entitled to claim copyright on his work to protect the authenticity of his creation and to prevent its recreation by someone else.

A copyright notice is a kind of notice which is generally prescribed to be displayed for the creators own good and is placed on the copies or phone records of a creative work to inform the general public about the underlying claim and state the copyright ownership in a published work however is not legally bound to do so. When a work, of any form, is published under the authority of the copyright owner, a notice of copyright may be placed on all the publicly distributed copies of the work.

The use of this is one of the responsibilities that comes under a copyright owner and it does not require any special permission from, or any registration process to be taken with, the Copyright Office. An author of a work owns all the copyrights to his/her work, by the very simple virtue of him/her having created the work and the copyright protection of such work is not legally conditioned on publicly displaying a legal copyright notice.

What is Copyright Infringement?

Generally, while one refers to a work or original creation for inspiration, ideation or for even blatantly copying from the original work it ends up resulting in the infringement of the copyright. Copyright Infringement is used to protect the use of the original works of a creator or an inventor by any third party. 

Under the Indian Copyright Act, 1957, the exclusive right to protect literary and artistic works is given to the one who is the holder of the Copyright alone. Section 18 of the Copyright Act, 1957, states that the holder of a Copyright could be an assignee of the Copyright or the creator of the work. A person needs to seek out permission from the holder of Copyright in the form of a license to make use of the work which is protected under the Copyright Act, 1957.

 For example, the original novelist of a fan fiction novel reserves an exclusive right for the distribution of his/her work, and for such distribution, he/she grants a distributor the license for the distribution of his/her work. However, if a distributor fails to acquire a license from the author of the book and, despite that , proceeds ahead and distributes the copies of the said novel in public, it will amount to Copyright Infringement.

As per the Copyright Law which is applicable in India, the law gives a certain degree of differentiation between acts that qualify as a Copyright Infringement and between the ones that do not qualify as Copyright Infringement. 

Sections 51 and 52 respectively, of the Copyright Act, 1957 state this differentiation where Section 51 states the provisions pertaining to the ‘acts’ that lead to Infringement of Copyright and Section 52 of the Copyright Act, 1957, provides for provisions related to certain ‘acts’ that do not amount to Copyright Infringement.

When to send a legal copyright notice?

As and when the Infringement of one’s copyright, by some third party, comes to the knowledge of the holder of Copyright, the holder of the copyright instantly becomes empowered to send a Copyright Infringement Notice to the party infringing the Copyright. The holder of Copyright, however, can send the Copyright Infringement Notice to a third entity as and  when the holder of Copyright satisfies certain conditions.

The copyright holder should have a valid proof that a third entity is trying to present or has presented the original work of the holder of Copyright as their own work. Copyright Notice can also be issued when the creator or the holder of the copyright intends to save the work of the holder of Copyright beforehand so that no other entity can proceed with the process of infringing the work in the very first place.

Features and advantages of having copyright protection

A Copyright Infringement Notice is formatted like a cease and desist notice. A cease and desist notice is a type of legal notice which prohibits a person from doing certain acts which can violate the lawful right of a given person. 

The very basic advantage of issuing a copyright infringement notice to cease and desist from the act of copying and recreating an original work is that it exhibits, to the extent of lawful validity, the judicious and legal efforts put by the plaintiff, the copyright holder in order to avoid the lawsuit and give a warning to the infringer of the copyright. 

In Midas Hygiene Industries P. Ltd. and Anr. v. Sudhir Bhatia and Ors., 2004 (3) SCC 90, the Honourable Supreme Court held that a notice of cease and desist functions as a very important and useful tool in order to pronounce injunctions. Thus, the notice is considered as a very crucial tool for adjudicating cases pertaining to copyright infringement in the favour of copyright holder.

Another feature of having a legal copyright notice issued is that it gives an exclusive right, in order to enjoy the work, to the creator of the original  work. This means that the holder of the copyright of the original work stands in advantage as the sole entity to decide whether the work can be reproduced or not. However, this protection of copyright granted in India is only applicable in India. 

The Copyright Infringement Notice, as stated earlier can be presented in the court as a legal proof of a legal measure having been taken to avoid the lawsuit. Thus, If required it can be used to produce as an evidence under the trial and adjudication of the offenses committed by an entity under Copyright Act, 1957 which can be tried by the court below the rank of a Judicial Magistrate of First Class/Metropolitan Magistrate.

There are certain features in a copyright notice which are needed to be mentioned and taken care of in order to complete the purpose of the notice like the kind of work protected by the Copyright, the date of formation of the work and first publication date, the demand of fine with respect to giving compensation to the infringed party etc.

Measures that one can take in case of Copyright Infringement

Sending a Copyright Infringement Notice, stating all the facts pertaining to the infringement of the copyright, to the infringing party, via any legally accepted modes of communication, is the very first step that the holder of Copyright could avail before going into any of the available civil or criminal remedies under the Copyright Act, 1957, to the Copyright holder.

When the entity holding the copyright sends a legal notice for copyright reserved, the receiver has the option to either rectify the dispute by opting for settlement or opt for sending a reply challenging the legal copyright notice.

The holder of the copyright also has the right to ask for an injunction from the Court as a measure to stop the infringer from reproducing the work or from performing an act which is illegal.

The entity issuing the legal copyright notice is also legally entitled to demand for damages in order to compensate the loss and inconvenience suffered due to copyright infringement.

The copyright holder can also take legal action by stating the infringement of copyrighted material as a criminal offence. The given criminal offence will fall under the Section 63 of the Copyright Protection Act. This provides for punishment to the infringing entity both in form of imprisonment and fine. The provision under this is a minimum punishment of six months imprisonment and a fine starting from Rs. 50,000. The said fine can also amount to Rs. 1,00,000 and one-year imprisonment for the second or subsequent offence of the same nature and kind.

Role of a Lawyer in Sending Legal Copyright Notice – Key pointers to keep in Mind

It is of paramount importance to know the legal technicalities of a legal notice for copyright infringement  to draft a legal notice covering all the aspects with no loopholes in a notice. For the same reason a Lawyer comes into play when a legal copyright notice needs to be issued.

A lawyer must take care of certain key aspects while drafting a legal notice for copyright infringement like the notice should always contain the name, detailed facts and grievances in with proper dates and also the place of residence of the entity being accused of copyright infringement. It should state the specific date from when the infringement of copyright has taken place.

The legal notice should also mention how the infringer has caused inconvenience and has infringed the rights of the original creator of the work/ the holder of the copyright of the original work along with the future course of action the copyright holder is intending and entitled to take.

All the communications undertaken pertaining to the said notice must be done via legal modes of communication and the notice should clearly state all the records of communications undertaken. A reasonable amount of time, of 15-20 days for instance, must be given to settle the matter through any mode of amicable discussion or settlement between the copyright holder and the infringer.

Sample Copyright Notice for a website

This website and its content is copyright of [business name] – © [business name] [year]. All rights reserved. Any redistribution or reproduction of part or all of the contents in any form is prohibited other than the following:

•you may print or download to a local hard disk extracts for your personal and non-commercial use only

•you may copy the content to individual third parties for their personal use, but only if you acknowledge the website as the source of the material

You may not, except with our express written permission, distribute or commercially exploit the content. Nor may you transmit it or store it in any other website or other form of electronic retrieval system.

The Copyright Act, 1957

The Copyright Act, 1957 (the ‘Act’) came into effect from January 1958. The Act has been amended five times since then, i.e., in 1983, 1984, 1992, 1994, 1999 and 2012. The Copyright (Amendment) Act, 2012 is the most substantial. The main reasons for amendments to the Copyright Act, 1957 include to bring the Act in conformity with two WIPO internet treaties concluded in 1996 namely, the WIPO Copyright Treaty (“WCT”) and WIPO Performances and Phonograms Treaty (“WPPT”); to protect the Music and Film Industry and address its concerns; to address the concerns of the physically disabled and to protect the interests of the author of any work; Incidental changes; to remove operational facilities; and enforcement of rights.

Some of the important amendments to the Copyright Act in 2012 are extension of copyright protection in the digital environment such as penalties for circumvention of technological protection measures and rights management information, and liability of internet service provider and introduction of statutory licenses for cover versions and broadcasting organizations; ensuring right to receive royalties for authors, and music composers, exclusive economic and moral rights to performers, equal membership rights in copyright societies for authors and other right owners and exception of copyrights for physically disabled to access any works.

Conclusion

The developments made in the arena of Copyright law in India is still considered to be in a very initial stage with a wide scope for improvement nonetheless the efforts in providing improved and better protection of Copyright can be witnessed via the latest amendments being made in the Indian legislation. 

A Copyright Infringement Notice is a widely accepted as one of the fair means and as an effort which is directed towards avoiding lawsuits and settle down the issue of Infringement of Copyright without the court being brought into the picture.

The Copyright Infringement Notice proves effective as a lawful threat, a warning to the parties which indulge or might indulge in the process of  infringing the Copyright. Legal responsibility of the parties and all the stakeholders related to the original creation and work gets clearly stated via a legal notice of copyright infringement.

References

  • https://copyright.gov.in/
  • https://iiprd.wordpress.com/2020/06/13/the-copyright-notice-requirement/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration
  • https://blog.ipleaders.in/notice-for-copyright-infringement/

Author Details: Divyansh Gupta (UILS, Panjab University)

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