Topic 25 — Infringement of Copyright

Infringement is the act that triggers the entire enforcement architecture of copyright law. Section 51 of the Copyright Act 1957 defines two categories — primary infringement (doing any of the bundle-acts under Section 14 without authority) and secondary infringement (commercial dealings with infringing copies, importation of infringing copies, and similar acts). Each category has its own elements, defences and consequences. This topic walks through Section 51 in detail, the leading judicial tests for infringement (substantial similarity, layman observer, lay-listener), the Internet-era doctrines (intermediary liability, transient copies), and the modern challenges thrown up by AI training, deepfakes and cross-border streaming.

1. Section 51 — When Copyright is Infringed

2. The Two Categories of Infringement

A. Primary Infringement — Section 51(a)

Primary infringement consists of doing any of the bundle-acts under Section 14 without authority. The mental state of the infringer is generally irrelevant — copyright infringement is a strict-liability tort. The plaintiff must show:

1. Subsistence — copyright subsists in the work (originality, fixation, eligibility under Section 13(2)).
2. Ownership — the plaintiff is the owner or has standing to sue (assignee, exclusive licensee under Section 30A).
3. Infringing act — the defendant did one of the bundle-acts in respect of the work or a substantial part thereof.
4. Lack of authority — the defendant had no licence and no statutory exception applies.

B. Secondary Infringement — Section 51(b)

Secondary infringement consists of commercial dealings with infringing copies — making for sale, selling, letting for hire, distributing for trade, exhibiting in public for trade, or importing into India. Knowledge or reasonable belief is generally relevant — secondary infringement carries a "good-faith purchaser" defence in cases where the dealer was unaware that the copies were infringing.

3. The "Permit for Profit" Provision — Section 51(a)(ii)

Section 51(a)(ii) deems it infringement to permit for profit any place to be used for the communication of the work to the public where such communication itself infringes copyright. This provision targets venue owners — pubs, restaurants, banquet halls, hotels, gyms, shopping malls — that allow unauthorised public performance of music. The "for profit" qualification is important: a charitable function in a free venue is not within Section 51(a)(ii). The "unaware and no reasonable ground" defence applies — the venue owner can escape liability by showing diligent inquiry into the licensing status of the music being played.

4. The Test for Infringement — Substantial Similarity

Section 14 (read with Section 51) requires that the defendant's act be in respect of "the work or any substantial part thereof". The plaintiff must therefore prove either (i) literal copying of the entire work, or (ii) substantial copying of a part. The latter is by far the more common in litigation. Courts apply three operative tests:

A. The Layman / Reasonable Observer Test — R.G. Anand v. Delux Films

Justice Pathak in R.G. Anand v. M/s Delux Films, AIR 1978 SC 1613 (covered in detail in Topics 7 and 18) laid down the test: "After excluding the material which is the subject of common source, would an ordinary spectator, after seeing both works, be clearly of the opinion and get an unmistakable impression that the subsequent work appears to be a copy of the original?" The test is qualitative; it does not require the spectator to be a literary or artistic critic. The seven propositions of R.G. Anand operationalise the dichotomy between idea (unprotectable) and expression (protectable).

B. The Lay-Listener Test for Music

In music infringement cases, the test is operationalised through the "lay listener" — would an ordinary listener, hearing both compositions, regard the later as a copy of the earlier? Indian courts (Saregama v. Sound Box, 2017; Yash Raj Films v. Sri Sai Ganesh Productions, 2019) have applied this test in cases involving alleged musical plagiarism.

C. The Abstraction-Filtration-Comparison Test for Software

In software infringement, the test borrowed from US law (Computer Associates v. Altai, 1992) involves three steps: (i) abstract the programme into its constituent levels of generalisation; (ii) filter out the unprotectable elements (ideas, public-domain code, scenes-à-faire, elements dictated by efficiency); (iii) compare what remains with the allegedly infringing programme. Indian decisions in the software-copyright space have applied this test in adapted form.

5. Exceptions and Defences — Section 52

Section 52 is the principal exception clause of the Copyright Act 1957. It lists numerous specific acts that do not constitute infringement, including:

• Fair dealing for private and personal use, including research (Section 52(1)(a)(i)).
• Fair dealing for criticism or review (Section 52(1)(a)(ii)).
• Fair dealing for reporting current events and current affairs (Section 52(1)(a)(iii)).
• Reproduction by a teacher in the course of instruction or examination (Section 52(1)(h)–(j)).
• Reproduction of a literary, dramatic or musical work in a judicial proceeding (Section 52(1)(d)).
• Reproduction of any matter published in any official gazette (Section 52(1)(q)).
• Backup copies of a computer programme by lawful possessor (Section 52(1)(aa)).
• Reverse engineering of a computer programme to study underlying ideas (Section 52(1)(ac)).
• Storage of works in cache by transient or incidental electronic links (Section 52(1)(b)).

6. Internet-Era Issues

A. Intermediary Liability — Section 79, IT Act 2000

Online intermediaries (ISPs, search engines, hosting platforms, social-media services) often carry infringing content uploaded by users. Section 79 of the Information Technology Act 2000 grants intermediaries a "safe harbour" — they are not liable for third-party content if they (i) do not initiate the transmission, (ii) do not select the receiver, (iii) do not modify the information, and (iv) act on receipt of actual knowledge to remove infringing content. The Supreme Court in Shreya Singhal v. Union of India (2015) clarified that "actual knowledge" means a court order or government notification, not unilateral notice from a private party.

B. John Doe / Ashok Kumar Orders

A "John Doe" or "Ashok Kumar" order is an injunction against unknown defendants — typically used to block website-based piracy of films released by Bollywood and Hollywood studios. The Madras High Court issued the first major Indian John Doe order in Reliance Big Entertainment v. Multi Screen Media (2011) for "Singham". The Bombay High Court has used such orders extensively for "Don 2", "Singham Returns" and many others. The orders direct ISPs to block infringing URLs and entire pirate websites.

C. Hyperlinking and Embedding

Hyperlinking to a copyrighted work, without more, is generally not infringement — the link merely directs the user to the host page. Embedding, where the content is displayed within the linker's page, is more contested. Indian courts have not yet definitively ruled, but European Court of Justice decisions (Svensson C-466/12, 2014; GS Media C-160/15, 2016) hold that linking to authorised content is generally permissible while linking to unauthorised content with knowledge is infringement.

D. AI Training and Output

Generative AI systems train on massive corpora of copyrighted works. Whether this training amounts to reproduction (and thus infringement) is litigated in multiple jurisdictions. In India, the leading position is currently emerging through cases like ANI Media v. OpenAI (Delhi High Court, 2024-25) — pending. The 2024 WIPO Treaty on Genetic Resources and TK addresses some related concerns but does not fully resolve AI training. This is the cutting edge of contemporary copyright law.

7. Importation of Infringing Copies — Section 53

Section 53 provides for importation of infringing copies. The owner of the copyright may apply to the Commissioner of Customs to treat copies of the work made outside India that, if made in India, would have infringed the copyright, as if they were prohibited or restricted goods under the Customs Act 1962. The Customs Act, read with the IPR (Imported Goods) Enforcement Rules 2007, supplements the regime with operational machinery for border seizures.

8. Author's Special Rights — Section 53A and 57

Section 53A (inserted in 1994) gives the author of an artistic work the resale royalty right — an additional royalty payable on resales of artistic works. Section 57, covered extensively in Topics 4 and 19, gives the author moral rights of paternity and integrity that survive assignment of copyright. Both provisions sit alongside Section 51 — moral-right violations and resale-royalty defaults are distinct from but parallel to economic infringement.