Introduction
Copyright infringement occurs when individuals utilize someone else’s work without permission. While it might seem complex, it can occur inadvertently in commercial organizations. Even though it is quite common, only a few sensational instances may come to light for infringement. In this article, we will look at variations of copyright infringement under the Copyright Act, 1957 (Copyright Act) as applicable in India. Additionally, we will examine how employers could be held accountable for copyright violations committed by their employees, an aspect often neglected during the hiring process and subsequently.
Infringement of copyright
Section 51 of the Copyright Act lists the scenarios constituting copyright infringement. It specifies that infringement occurs when any person, lacking the requisite license from the copyright owner or ‘Registrar of Copyrights’, undertakes actions that are exclusively reserved for the copyright owner by law. This includes unauthorized activities and allowing for-profit, a place where infringing work is communicated to the public unless the person was unaware and lacked reasonable grounds to anticipate infringement. The term ‘place’ encompasses a broad spectrum, including the internet, thus showcasing someone else’s work online without permission constitutes copyright infringement.
Moreover, infringement occurs when individuals partake in commercial activities such as selling, distributing, or importing infringing copies, thereby harming the copyright owner. The law provides an exception permitting individuals to import one copy of a copyright owner’s work for private and domestic use. Furthermore, it specifies that reproducing a literary, dramatic, musical, or artistic work as a film constitutes an ‘infringing copy’, highlighting the prohibition against creating films without proper authorization.
Vicarious liability under S. 51 of the Copyright Act
In essence, copyright infringement can be categorized into two forms: direct infringement and indirect infringement. Direct infringement, as the term indicates, arises when any person directly engages in activities that violates the rights of the copyright owner. In contrast, indirect infringement relates to individuals or entities that indirectly contribute to or derive benefits from copyright infringement. Vicarious liability arises in cases of indirect infringement where the person in charge is held responsible for the actions of their subordinates.
Even though Indian copyright law does not specifically talk about ‘indirect’, ‘vicarious’, or ‘contributory’ infringement, these terms are occasionally used to describe certain aspects of copyright violations. These terms, while not explicitly included in the Copyright Act, are sometimes used informally to refer to situations where individuals or entities indirectly contribute to or benefit from copyright infringement.
Within the legal framework of the Copyright Act, provision pertaining to secondary liability is outlined in Section 51(a)(ii). This provision establishes the accountability of any person for engaging in actions that aids primary infringement, thereby enhancing its impact. Under Section 51(a)(ii), the accused may take a defense, on reasonable grounds, that the action in question, such as sharing copyrighted content publicly, does not fall within the scope of infringing activities. Essentially, this provision allows the accused to take a defense that what the accused did does not constitute a violation of copyright based on valid and justifiable grounds. Further, a defense can be posed to state that the secondary infringer (i.e., any entity or any person providing a platform used to communicate infringing content) was not aware or had no reason to believe that communication of the content was an infringement of copyright.
In this context, the actions of employees could be considered infringement of a copyright by their employer. For example, the usage of pirated software, the creation of work consisting of a copyrighted work without requisite permission, etc. Copyright owners may not pursue individuals for copyright infringement but when the same individuals are associated with any corporation with deep pockets, they could be pursued to great lengths. This could often lead to expensive litigations or settlement amounts for the employers. As the employees are under the direct control of the employer, the liability could directly fall on the employer. If such situations are not handled thoughtfully, corporations risk shouldering the blame for their employees’ / independent contractors’ actions or facing costly legal battles to mitigate liability for alleged infringements.
Pre-emptive measures for employers / corporations to minimize the extent of vicarious liability
Preventive measures would aid employers / corporations in minimizing the extent of liability arising out of vicarious infringement. Here are a few steps which can be implemented to reduce the risks and the potential legal challenges arising out of vicarious infringement.
Clear copyright policy
Implementing a comprehensive policy that clearly outlines and communicates the corporation’s intention to comply with laws regulating copyrights and requiring compliance of the same by the employees. Each corporation may design its policies cautiously to deal with the copyright infringements which are most likely to occur depending on its scope of business.
Incorporating policy into employment agreements
Integrating copyright-related provisions into employment agreements enhances the legal protection of the corporation. This includes specifying the obligations and restrictions related to copyrighted material. Additionally, aligning the corporation’s copyright policy with employees’ employment agreements ensures effective enforcement. Including indemnity clauses in employment agreements further clarifies employees’ responsibility to compensate for the corporation’s losses in cases of vicarious copyright infringement.
Agreements with independent contractors
While entering into agreements with independent contractors, the clauses in the agreement should be drafted in such a manner that clearly lays down roles, responsibilities, and the overall relationship between the parties. For an added layer of protection, the indemnity clause should be a part of these agreements. This would ensure that if any losses, arising out of copyright infringement by the independent contractor, are incurred by the corporation, it would be borne by such independent contractor himself. These agreements should also include provisions clearly providing for the use of only authorized copyrighted materials by independent contractors. These agreements can also be linked to the corporation’s policy around copyrights to the extent possible.
Education, training programs and audits
Conducting regular education and training programs for employees and contractors on copyright laws, policies, and best practices, can increase awareness. Further organizations should consider conducting periodic audits depending on the industry to identify possible misuse of third-party copyright by employees (pirated software, etc.). This proactive approach reduces the risk of unintentional copyright violations.
Conclusion
In conclusion, although copyright infringement is common, corporations can proactively manage and minimize unnecessary legal expenses by implementing preventive measures. Having clear policies, incorporating necessary provisions into agreements, and promoting awareness among employees and independent contractors can contribute to a strong copyright infringement protection strategy. It is important to adapt to these measures based on the evolving legal landscape and technological advancements. While this article explains general legal principles, consulting experts and reliable sources specific to the jurisdiction is recommended for a more tailored and strategic approach.
Dhruv Doshi | Associate; Ajay Joseph | Partner
Views expressed above are for information purposes only and should not be considered as a formal legal opinion or advice on any subject matter therein.