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Penguin Books Ltd. v. India Book Distributors and Others, was a 1984 Delhi High Court court case. Penguin Books Ltd. of England brought a suit for perpetual injunction against the respondents, India Book Distributors of New Delhi, to restrain them from infringing Penguin's territorial license in 23 books, the subject matter of the suit.
A consent decree had been obtained in the United States stating that there shall be no restriction in regard to a book that is lawfully published for sale, import, export, distribution, or resale. Penguin Books Ltd. (PBL) holds territorial copyright license in some books under the Indian Copyright Act, 1957. The respondents, India Book Distributors, were distributing, importing or offering for sale 13 of 23 titles as American editions. A suit for personal injunction was brought against them restraining them from infringing on PBL's territorial license in the subject matter of the suit. The relief of temporary injunction was declined by a single judge on the ground of the US Court’s consent decree.
Clauses V and VI of the consent decree provide as follows:
1.Contended that the consent decree is not a bar to asserting rights under the Copyright Act, 1956. 2.It was contended by the plaintiff that the importation of American Editions for the purpose of resale is an infringement of copyright. 3.Whether temporary injunction can be granted?
Several contentions were raised.
1. Contended that the consent decree is not a bar to asserting rights under the Copyright Act, 1956. It was prima facie evident that PBL had the license to the books in question. The Whitford Committee also observed that there is a practice of challenging the title is more often than not an abuse of process. The court held that the consent decree has no extraterritorial application. The United States of America, being a foreign state, is an independent sovereign government which exercises sovereign authority over its own territory and in accordance with international law has no right to exercise sovereign authority beyond its own territory. The courts of India cannot recognize the writ of a District Court of the United States notwithstanding the principle of comity of nations. This is made abundantly clear from Clause VI which acts as a saving clause. The effect of the clause is that Clause V will not affect the statutory rights that belong to publishers under foreign regional arrangements.
It was also held by the Court that copyright law is territorial in nature and while US might disallow restrictions on the resale of books, the laws of US may not abrogate the effects of laws in the place where those books have been imported. Thus, the importer will be forced to comply with the laws of the country to which he imports, and he cannot defeat the rights of the exclusive license holder.
2. It was contended by the plaintiff that the importation of American Editions for the purpose of resale is an infringement of copyright.
Importation:
The court held that ‘Importation is forbidden unless a license has been given.’ The court said that the above idea needs to be respected as if it is not, then the purpose of granting exclusive licenses would be defeated, as would the idea of the national division of copyright which has been provided for in the International Copyright Convention.
The argument by the defendant was that importation of lawfully published books is not an infringement of copyright under the Act. The court was dismissed this argument by saying that the owner of copyright has been defined to include an exclusive license. Exclusive license in turn has been defined as a license having ‘any right comprised in the copyright’ in a work to the exclusion of all others including the owner of the copyright. The license may be limited in scope, time and territory.
Copyright has been defined to include the exclusive right, among others, to reproduce the work in any form and to publish the work. Furthermore, S. 51 of the Act deals with infringement. It says that copyright in a work will be infringed when an infringing copy of the work has been imported. Infringing copy of work has been defined as any work which has been imported in contravention to the provisions of the Act. The mainstay of S.51 is that a copyright is deemed to be infringed when any person does something which the Act confers as an exclusive right to the owner of the copyright.
The court holds in the judgment that the test of whether an imported work infringes copyright is laid down in S.53 (this section allows seizure of goods by the Registrar of Copyrights). The test is that whether the copy if made in India would infringe copyright? If so, then it infringes upon copyright. This is because the essence of infringement is taking what is not yours. Copyright is a territorial right and has been regarded as something worth protecting in the ultimate public interest.
The court held that the import has infringed upon the copyright of PBL because if they are made here, they would offend the copyright of PBL.
Publication
The court also held that the work has been published in India. To do this, the court said that for literary works publication is ‘the issue of copies of the work, either in whole or in part, to the public in a manner sufficient to satisfy the reasonable requirements of the public having regard to the nature of the work.’ The court held that the India Distributors is not guilty of primary infringement but is guilty of secondary infringement when it allows public distribution of titles.
3. Whether temporary injunction can be granted?
The last question is whether a temporary injunction can be granted. The court said that temporary injunctions are granted in cases where damages are an inadequate remedy. The test for this was laid down in American Cyanamid v. Ethicon. The following questions must be asked:
Injunctions in such cases will usually be granted, as most infringements constitute continuing offences and won’t be granted if the damage to the plaintiff would be out of proportion with the infringement.
This decision was useful in clarifying the law in India with regard to parallel importation. There was a change in law after the judgment where Section 14 of the Act was amended from "publication" to "issue of copies of the work to the public not being copies already in circulation." [1]
In light of this amendment which when read with S. 40, which says that all provisions of this will apply to works first published in any territory as if it was first published in India, would mean that all books published abroad would be akin to books published in India. So, the same limitations should apply, including the doctrine of first sale. This has been the position taken by various commentators. [2] The Court, however, in the recent Eurokids [3] decision seemed not to have taken notice of the change in law and followed the reasoning given in the Penguin judgment.
The decision has also been criticized as it does not deal with the issue of privity of contract i.e. how are the terms of the license (namely the territorial limitation) being imposed on a third party who has no knowledge of the license, and neither is a party to the license? [2]
The US believes in the doctrine of first sale which enables the resident of the US to resell legally obtained items without the copyright owner's permission. In Kirstaeng v. John Wiley & Sons Inc, The US Supreme Court held that the protections and exceptions offered under the copyright act are applicable anywhere and not copies made just in the US. So, the first sale doctrine is applicable anywhere and parallel imports are allowed. [4]
Europe follows an idea of regional exhaustion where the first sale doctrine applies within the European Economic Area (EEA). This is because the idea of free trade of goods is placed on a very high pedestal. However, for goods originating outside the EEA, the countries are free to enact law which stops parallel importation using copyright law. [5]
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educational, or musical form. Copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. A copyright is subject to limitations based on public interest considerations, such as the fair use doctrine in the United States.
The first-sale doctrine is an American legal concept that limits the rights of an intellectual property owner to control resale of products embodying its intellectual property. The doctrine enables the distribution chain of copyrighted products, library lending, giving, video rentals and secondary markets for copyrighted works. In trademark law, this same doctrine enables reselling of trademarked products after the trademark holder puts the products on the market. In the case of patented products, the doctrine allows resale of patented products without any control from the patent holder. The first sale doctrine does not apply to patented processes, which are instead governed by the patent exhaustion doctrine.
Software copyright is the application of copyright in law to machine-readable software. While many of the legal principles and policy debates concerning software copyright have close parallels in other domains of copyright law, there are a number of distinctive issues that arise with software. This article primarily focuses on topics particular to software.
Copyright misuse is an equitable defence to copyright infringement in the United States based upon the doctrine of unclean hands. The misuse doctrine provides that the copyright holder engaged in abusive or improper conduct in exploiting or enforcing the copyright will be precluded from enforcing his rights against the infringer. Copyright misuse is often comparable to and draws from the older and more established doctrine of patent misuse, which bars a patentee from obtaining relief for infringement when he extends his patent rights beyond the limited monopoly conferred by the law.
Patent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder. Permission may typically be granted in the form of a license. The definition of patent infringement may vary by jurisdiction, but it typically includes using or selling the patented invention. In many countries, a use is required to be commercial to constitute patent infringement.
A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 was a landmark intellectual property case in which the United States Court of Appeals for the Ninth Circuit affirmed the district court ruling that the defendant, peer-to-peer file sharing service Napster, could be held liable for contributory infringement and vicarious infringement of copyright. This was the first major case to address the application of copyright laws to peer-to-peer file sharing.
Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, was a United States district court decision on the subject of deep linking and contributory infringement of copyright.
Fair dealing is a limitation and exception to the exclusive rights granted by copyright law to the author of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations.
Under the law of the United Kingdom, a copyright is an intangible property right subsisting in certain qualifying subject matter. Copyright law is governed by the Copyright, Designs and Patents Act 1988, as amended from time to time. As a result of increasing legal integration and harmonisation throughout the European Union a complete picture of the law can only be acquired through recourse to EU jurisprudence, although this is likely to change by the expiration of the Brexit transition period on 31 December 2020, the UK has left the EU on 31 January 2020. On 12 September 2018, the European Parliament approved new copyright rules to help secure the rights of writers and musicians.
The copyright law of the United States grants monopoly protection for "original works of authorship". With the stated purpose to promote art and culture, copyright law assigns a set of exclusive rights to authors: to make and sell copies of their works, to create derivative works, and to perform or display their works publicly. These exclusive rights are subject to a time and generally expire 70 years after the author's death or 95 years after publication. In the United States, works published before January 1, 1928, are in the public domain.
Omega S. A. v. Costco Wholesale Corp., 541 F.3d 982, was a case decided by the Ninth Circuit Court of Appeals that held that in copyright law, the first-sale doctrine does not act as a defense to claims of infringing distribution and importation for unauthorized sale of authentic, imported watches that bore a design registered in the Copyright Office. It is contrasted with Kirtsaeng v. John Wiley & Sons, Inc.
"Authorization" and "Secondary Infringement" are two instances of "indirect infringement" in Canadian Copyright law. In cases of indirect infringement, individuals can be held liable for infringement even where they did not personally make copies of the copyrighted subject-matter. This expands the scope of liability. The Canadian courts have dealt with these concepts in a number of cases, several of which will be elaborated upon below.
A patent holder in Canada has the exclusive right, privilege and liberty to making, constructing, using and selling the invention for the term of the patent, from the time the patent is granted. Any person who does any of these acts in relation to an invention without permission of the patent owner is liable for patent infringement.
Capitol Records, LLC v. ReDigi Inc., 934 F. Supp. 2d 640 , is a case from the United States District Court for the Southern District of New York concerning copyright infringement of digital music. In ReDigi, record label Capitol Records claimed copyright infringement against ReDigi, a service that allows resale of digital music tracks originally purchased from the iTunes Store. Capitol Records' motion for a preliminary injunction against ReDigi was denied, and oral arguments were given on October 5, 2012.
Columbia Pictures Industries, Inc. v. Redd Horne, Inc., 749 F.2d 154 was a copyright infringement case of the United States Court of Appeals for the Third Circuit over the playing video cassettes in-store of a video sale and rental store. The appeals court affirmed the decision of the district court to grant the plaintiffs' motion for summary judgment and enjoin defendants from exhibiting plaintiffs' copyrighted motion pictures.
Warner Bros. Entertainment v. WTV Systems is a 2011 copyright infringement case decided in United States District Court, C.D. California.
Euro-Excellence Inc v Kraft Canada Inc, 2007 SCC 37, [2007] 3 S.C.R. 20, is a Supreme Court of Canada judgment on Canadian copyright law, specifically on the issue of indirect infringement and its application to parallel importation. Kraft Canada sued Euro-Excellence Inc. for copyright infringement due to their importation of Côte d’Or and Toblerone chocolate bars from Europe into Canada. A majority of the court found that the copyright claim could not succeed, although they split on whether the claim failed due to the rights of an exclusive licensee or due to the scope of copyright law.
Authors Guild v. HathiTrust, 755 F.3d 87, is a United States copyright decision finding search and accessibility uses of digitized books to be fair use.
Paul Oliver v. Samuel K. Boateng was a ground-breaking case concerning copyright law in Ghana by the High Court of Justice. It reaffirmed the laws of Copyright relating to the requirements of copyright protection and the law relating to authorship in Ghana. This case elaborated the fact that the law of Copyright in Ghana is a creature of Statute and set out some major general principles in Copyright Law in Ghana.
Contributory copyright infringement is a way of imposing secondary liability for infringement of a copyright. It is a means by which a person may be held liable for copyright infringement even though he or she did not directly engage in the infringing activity. In the United States, the Copyright Act does not itself impose liability for contributory infringement expressly. It is one of the two forms of secondary liability apart from vicarious liability. Contributory infringement is understood to be a form of infringement in which a person is not directly violating a copyright but induces or authorises another person to directly infringe the copyright.
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