Art and Indian Copyright Law: A Statutory Reading

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

15 September 2011

101: Copyright Infringement and Plagiarism

Copyright Infringement

Copyright, as understood today, is a creation of statute. It subsists in works such as books, and protects them by, among other things, disallowing their unauthorized reproduction, adaptation and translation. The right to do such acts is referred to as copyright, and is described in Section 14 of the Indian Copyright Act, 1957. It vests exclusively in the copyright owner — usually, the author of the work.

The violation of copyright (referred to as copyright infringement) is a legal wrong in respect of which a civil suit may be instituted to seek the grant of a permanent injunction to restrain further infringement, damages, the rendition of accounts of profit, and the delivery up of both infringing copies of the work and the plates used to make them. If required, administrative orders such as Anton Pillar Orders may also be obtained to assess the extent of infringement.

Copyright infringement is also a criminal offence. Section 63 of the Copyright Act states that infringers are liable to be imprisoned for between six months and three years and to be fined between fifty thousand and two lakh rupees, while Section 63A stipulates an enhanced penalty for second and subsequent convictions.

Plagiarism

Plagiarism is primarily an ethical issue (even though it is often confused with copyright infringement). It involves using the work of another author without attributing him/her. To have committed plagiarism, it is not necessary to exactly copy the words contained in the earlier work. For example, merely incorporating the ideas which another person has expressed in writing without according credit to him/her constitutes plagiarism.

Pertinently, Section 57 of the Copyright Act grants authors the “Special Right” to be attributed for their work. Widely referred to as a moral right, this right is perpetual, is independent of copyright, and remains unaffected by transfers of copyright ownership. Thus, the right to attribution recognised by statute could be considered analogous to the right not to be plagiarised.

Further, Section 63 of the Copyright Act which deals with infringement as a criminal offence contemplates the same punishment for both the violation of Section 57 and for copyright infringement. Considering this parity in the statute itself, the confusion between infringement and plagiarism is understandable.

Infringement v. plagiarism

Infringement and plagiarism are distinct and may not occur simultaneously. This is partly because copyright generally subsists in a work for only up till sixty years from the death of its author, while the right of an author to be attributed for his work is perpetual.

As such, if a copyrighted work is plagiarised in a manner violating Section 14 of the Copyright Act, possibly through an exact reproduction, then both plagiarism and infringement occur simultaneously. As a corollary, the plagiarism of a work more than sixty years after the death of its author does not involve copyright infringement.

Further, infringement may take place without plagiarism occurring. For example, the unauthorised, substantial reproduction of a copyrighted work is copyright infringement even if its author is credited. As long as the author is credited, there is not plagiarism. However, according credit does not negate the commission of copyright infringement.

(This post is by Nandita Saikia. An extract from it was first published in the June issue of Booklink.)

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