It must measure the precise value of the right in terms of the remedies that lie for its enforcement. The range of relief provided by civil courts for the protection. The law provides remedies available to the copyright owner for his infringed rights:
- Injunction
- Damages or account of profit
- Anton Piller order
Injunction
Injunction is one mode to restrict the continuance of infringement of the rights guaranteed to the copyright owners. It seeks an interlocutory injunction to maintain the status quo until the trial of the merits take place.
An interlocutory injection orders the defendant not to continue or not to embark upon a course of action; until the trial of the issue with the plaintiff is a rapid and relatively cheap way of buying temporary redress.
It applies for such relief along with the plant supported by affidavit evidence. Whether they should grant such an injunction has always been a matter of discretion. In Quaker Oats v. Alltrades. The motion to buy it must be brought as soon as the plaintiff learns of the alleged infringement of is rights, even short periods of delay may debar interlocutory relief.
It shall grant such an injunction to a plaintiff only if he gives a cross undertaking to make good any damage suffered by any defendant from the injunction, should the plaintiff fail at the trial.
Balance of convenience should favour the plaintiff when he asks for such an injunction. This importance first, is the degree to which they successfully establish plaintiff and defendant in business. Second, if either party appears to lack the financial ability or backing to meet any ultimate liability in damages this may operate against him. Third, unnecessary delay on the plaintiff’s part will weigh against him at least if the defendant has materially altered his position in consequence.proposition was laid down in American Cyanamid case Three factors are of recurrent
Against proven infringement of Copyright and an injunction will be granted in the absence of something special in the case. Such as imminent expiry of the right, no likelihood of repetition by the defendant, or some conduct on the plaintiff’s part that leaves him with unclean hands, such as a representation he would not seek an injunction.
In order to ensure that injunctions are properly effective, courts of equity and their successors maintain discretion to order delivery up of infringing articles of documents for destruction, or else to require their destruction under oath by the defendant or some.
Damages or Account of Profits
The normal aim of an award of damages is to compensate the plaintiff for the harm caused him. There are many ways in which they may exploit particular copyrights and patents. While assessing the damages they consider following conditions.
- Whether the plaintiff and defendant are in actual competition.
- Whether the defendant might have had the plaintiff’s license if only he had sought it, if it finds them in actual competition.
- Then the measure of damages will probably be what the plaintiff would have suffered by the conduct of defendant.
The court will look to his losses through the defendant’s competition. It is only where the plaintiff’s and defendant expected profits are the same in the same market he defendant’s gain will be the plaintiff’s loss.
For example: The plaintiff may be exploiting copyright by selling small numbers of high-priced hardback books, and the defendant may infringe with large quantities of low-priced paperbacks. The issue is the loss to the plaintiff, and this may include not only the lost profit on hardback sales but also the damage to this future prospects his chance of putting out paperbacks, the loss of ancillary suppliers or services and possibly even the fact that infringement has enabled the defendant to build up a strong position in other competitive lines.
It is thus a personal remedy against unjust enrichment of the defendant through his wrongful act.
In principle, the account will give a better recompense than damages; when the defendant has been making profits that the platen would not himself have made. It can be said that the plaintiff must elect either for damages or an account, upon the theory that by seeking an account the plaintiff adopted the defendant’s acts as his own but his explanation is now dubious. The better principle is merely that regarding anyone infringement the plaintiff shouldn’t maybe both reimbursed and compensated.
In the case of P. Lakshmikantham v. Ramakrishna Pictures the court held that damages and accounts are alternative and mutually exclusive remedies.
They held it in Devitre v. Betts that the plaintiff condone the infringement and instead demand an inquiry into the profits reaped by the defendant by the use of his work and recover that amount. Damages are a legal remedy while an account is in a fair remedy.
With Srimagal v. Books they held it that the remedies for infringement of copyright and for damages for conversion are distinct and are founded on separate causes of action. In a claim for damages for infringement; the measure of damages will be the loss suffered by the plaintiff on account of the act of infringement. It would take the estimated loss of profit of the plaintiff; i.e the profit which the profit which him could earn but into account.
In Engle v. Wild Oats, Inc., Plaintiff was the daughter and executrix of the late and renowned photographer Ruth Orkin Engel. Defendant Wild oasts manufactured t-shirts and sweatshirts bearing reproductions of one of Ms. Engel’s still life color photographs of central Park, taken from a book of her photographs. Defendant new damages marketed these shirts. At the hearing plaintiff Engel produced no evidence of either her photographer, but stated that the damage to that reputation resulting from the copyright infringement was difficult to find out. Wild Oats with 104 employees, produces 360000 sits per month; it produced some 2500 shirts with the infringing design or which its records showed net profits and sales commissions of $1878.52. Plaintiff sought statutory damages and defendants argued that defendants should limit such damages profits.
The court finds that the infringement by Wild Oats was willful. The preponderance of the evidence shows that the art director at Wild Oats Copied the late Ms. Engel’s photograph from the copyrighted book More Pictures form My Window. The art director knew or should have known the unauthorized reprinting of a photograph from the book was a copyright violation.
The court said it that the scale of the infringement was not slighted as at the same time the extent of plaintiff’s actual damage is virtually impossible to find out. The harm of the infringement to the late Ms. Englés’s artistic reputation in the form of lost revenues from her works may become clear only over the years to come.
The court finally awarded $20000 as a proper award of damages in this case.
Anton Piller Order
An ex parte order requiring the defendant to permit the plaintiff to enter his premises and take inspection of relevant documents and articles; and take copies thereof or remove then the safe custody. Such as order in the United Kingdom is known as an Anton Piller Order; based on the name of the plaintiff in the Anton Piller v. Manufacturing Process where such an order was firstly made.
They shall make order if the plaintiff:
- Provides a strong prima facie case of infringement.
- Shows that the damage, actual or potential to him is very serious.
- Provides clear evidence that the defendant has in his possession incriminating documents or things; and that there is it can make a real possibility that it will destroy this material before any application inter parts.
While executing an Anton Piller Order the plaintiff’s solicitor who is an officer of the court, is required to attend the same. It requires the plaintiff’s to give a cross undertaking in damages.
Criminal Prosecution
To launch a criminal prosecution under the Copyright Act, it would have to be established that the accused has knowingly infringed or abetted the infringement of a copyright in a work or any other right conferred under the Act. Such a person is punishable with imprisonment for a term of a minimum of six months to three years, and be fined between rupees fifty thousand and rupees two lacs.
With Sheo Ratan v. Gopal that court held that in a criminal proceeding; it is not enough for the prosecution to prove that the accused knowingly printed or published a work in which there is copyright; it must further be proved that he did it knowing that his act makes up an infringement of copyright. A bona fide belief that he had a right to print or publish the work would make up a valid defence.
They give the police the power of seizure of infringing copies and plates used for making such copies; where there has been an infringement of copyright or where infringement is like to be committed.
A person having an interest in copies of the work or the plates; can apply for restoration to the magistrate before they have produced.
A person who knowingly makes or has in his possession, any plate for the purpose of making infringing copies of any work in which copyright subsists; shall be punishable with imprisonment up to two years and fine.
Where an offence is committed by a company or firm, the directors, manager, secretary or any other person; who was at the time of the offence in charge and they may prosecute responsible for the conduct of business. All offences are to be tried by a court not inferior to that of a metropolitan magistrate, or a judicial magistrate of the first class.