It is always advisable or recommended to send a cease and desist notice or takedown notice to the infringer before approaching the Court or filing a proceeding. The reason being, this notice acts as an important tool or evidence before the court of law. Rule 75 of the Copyright Rules, 2012 provides the “Take Down Notice” format that can be sent to the infringer.
In Midas Hygiene Industries Private limited and Anr. Vs. Sudhir Bhantia- The Hon’ble Supreme Court held that a cease and desist notice has to be sent as it is always recommended to exhaust these remedies before approaching the Court.
Who can file the case?
The Copyright Owner is entitled to file a suit for injunction, damages or any other remedy against the infringer before the Court having competent jurisdiction.
Declaratory Suit: Section 60 states that any person who is threated by the copyright owner with respect to infringement proceedings, can institute a declaratory suit and claim appropriate remedies. However this has to be done before the infringement suit is filed by the owner of the copyright, otherwise, it becomes infructuous. (Super Cassette Industries Limited v. Bathla Cassettes India private limited)
Where to file the case?
Section 62 of the Act defines the applicable jurisdiction to file the case:
Civil suit- There are two jurisdictions where case can be instituted. Section 62(1) states that civil suits shall be instituted in district courts having competent jurisdiction. It is however to be noted that suit s can also be instituted here the person resides or carries its business. (Indian performing rights society V. Sajay dalia)
Criminal suit- No court below the Court of Metropolitan Magistrate of the first class has the power to entertain or try the offence under Copyright Act, 1957. To initiate a criminal proceeding under Copyrights Act,1957, the complainant can register an FIR under Section 154 of the Cr.P.C or file an application under Section 156(3) of Cr.P.C.
Remedies or Liability:
The following civil remedies are available against copyright infringement:
Anton pillar order
Temporary/ permanent injunction
Accounts of profit
Deliver-in or destruction
The following criminal remedies are available:
Imprisonment for a term not less than six months that can be extended upto three years.
Fine of an amount between Rs.50, 000 up to Rs. 2, 00,000.
Note: if the infringer is able to prove with undisputed evidence that the infringement was not made for any gain in the course of trade, the sentence can be reduced, at the sole discretion of the court.
There are chances where the infringer tries to commit the same offense again and again- that is they become habitual offenders, the law prescribes punishment in the form of infringement of not less than one year extended up to three along with a fine of INR 1-2 lakhs.