Infringement of Copyright — Intellectual Property Rights II Notes

Infringement of Copyright

In R.G. Anand (1978) the Supreme Court gave the test that Indian courts still use: to decide whether copying has occurred, ask whether an ordinary reader or viewer, seeing both works, would get the “unmistakable impression that the later work is a copy of the earlier.” Copyright infringement is not about counting identical words; it is about whether the substance was taken.

What constitutes infringement — s.51

Section 51 says copyright is infringed when a person, without a licence from the owner or the Registrar:

does any act that only the owner has the exclusive right to do (i.e. any act in the s.14 bundle), or
permits a place to be used for a communication of the work to the public that infringes copyright (unless he did not know), or
makes, sells, hires, distributes, exhibits or imports infringing copies.

Two tests decide most disputes:

The “substantial part” test. Taking a substantial part of the work — judged by quality, not merely quantity — is infringement. Copying a short but vital passage can infringe; copying a long but trivial part may not.
The “colourable imitation” test. Cosmetic changes — paraphrasing, re-ordering, translating — do not escape liability if the substance is lifted. This is colourable imitation [a disguised copy].

The elements to prove: (i) the plaintiff owns a valid copyright; (ii) the defendant copied from it (access + similarity); and (iii) the defendant took a substantial part.

Section 51: copyright is infringed “when any person, without a licence … does anything the exclusive right to do which is … conferred upon the owner of the copyright.”

In Simple Terms: Infringement = doing any act in the owner’s s.14 bundle without permission, where a substantial part (in quality) has been taken. Minor changes to disguise the copy (colourable imitation) do not help.

🧩 WORKED EXAMPLE — the marginally paraphrased chapters

Facts. X writes a work of fiction. Y reads it and writes a book containing 10 chapters of X’s book which Y has marginally paraphrased.

Rule. s.51 with the substantial-part and colourable-imitation tests (R.G. Anand): taking the substance of a work, lightly re-worded, is infringement.

Apply. Ten whole chapters, changed only marginally, is a substantial part taken in quality and quantity. The paraphrase is a colourable imitation, not an independent work.

Decoy. “Paraphrased” tempts you to treat it as original writing; but paraphrasing another’s expression is exactly what colourable imitation means.

Conclusion. Y infringes X’s copyright; X may seek injunction, damages and delivery-up (topic 13).

🧩 WORKED EXAMPLE — cable operator shows films

Facts. Film producers complain that a cable operator, Telelink, shows their films over cable TV without consent.

Rule. Communicating a cinematograph film to the public is the producer’s exclusive right (s.14(d)); doing it without licence is infringement (s.51).

Apply. Cable transmission is communication to the public; Telelink had no licence.

Conclusion. Telelink infringes; the producers are entitled to injunction and damages.

flowchart TD
    ROOT["Claim of infringement"]:::root
    ROOT --> A{"Valid copyright + defendant copied?"}:::dec
    A -->|"No"| N["No infringement"]:::no
    A -->|"Yes"| B{"Substantial part taken (quality)?"}:::dec
    B -->|"No"| N
    B -->|"Yes"| C{"Covered by s.52 fair dealing?"}:::dec
    C -->|"Yes"| N
    C -->|"No"| Y["Infringement — remedies apply"]:::yes
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef dec fill:#FDECC8,stroke:#B7791F,color:#000;
    classDef yes fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef no fill:#FDE2E2,stroke:#C0392B,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

R.G. Anand v Delux Films (1978) — “unmistakable impression of a copy” test; substantial similarity.
Blackwood & Sons v A.N. Parasuraman (1959) — unauthorised translation/adaptation infringes.
Star India Pvt. Ltd. v Piyush Agarwal (2013) — unauthorised communication of match information/broadcast infringes.

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