Copyright Infringement: Meaning And Determining Factors For Measuring Infringement


Copyright constitutes an essential element in the development process of a country. The enrichment of the national cultural heritage depends directly on the level of protection afforded to literary, dramatic, musical, and artistic works, cinematograph films and sound recordings. The higher the level, the greater the encouragement for authors to create; the greater the number of a country’s intellectual creation is recognized as one of the basic prerequisites of all social, economic, and cultural development.

The copyright act is enacted in 1957 and it creates a copyright office and copyright board in India. It creates a facility for the registration of copyright and settling the dispute under the act and for compulsory licensing of copyright. The Act says about the infringement of copyright and provides civil and criminal remedies against infringement. The copyright law not only protects the rights of the copyright owner and neighboring rights but also deals with the subject of public interest and tries to strike a balance between the two in this digital environment.


Copyright is an incorporeal property in nature. It gives the justify to the property by the fact that the right owner has created or made it. Since he is the owner of the property, by outright selling or licensing, he may dispose of it. The property is an ‘intellectual property’ in means that it arises in the mind of a person before it is reduced to material form. However, it is noteworthy that ideas and thoughts are not protected which merely exist in a man’s brain, as ideas and thoughts are not working under the copyright law. When the thing is reduced to writing or other material forms, the result becomes a work worthy of protection.


Copyright is a bundle of exclusive rights. This is also called negative rights, it means that the right owner can protect all others from copying his work or doing any other acts which according to copyright law can only be done by him. This is a monopoly as it is recognized that the production of a person’s skill and labour is his property. The term “monopoly” is misleading. The reason is that if it can be shown that two precisely similar works were in fact produced wholly independently of one another, there can be no infringement of copyright by one of the other.

The complete rights in copyrighted work are limited in time. Unlike physical property, which lasts if the object in which it is vested, copyright subsists for a limited period. Once the work got expired, the work passes into the “public domain”. In other words, it becomes public property and can be freely used by anyone without any hindrance. Thus, absolute rights in a copyrighted work for a limited period serve the public interest. (AHUJA, 2016)


The copyright Act, 1957 extends copyright protection to the work by conferring certain exclusive rights on its author. The rationale of providing copyright protection to the owner of the work is to enable him to reap the fruits, on his labour and investment to the exclusion of others. But at the same time, the public has also been given certain rights in his work. If any person uses any of the exclusive rights available to the owner of copyright without his prior permission or without any licence granted by the Registrar of Copyright, he shall be deemed to have infringed copyright provided such use was also not allowed under the act.


Infringement of a copyright is an infringement on a private domain owned and occupied by the copyright owner and protected by statute, and infringement of copyright or privacy which is the same term in this connection, it can be done by any person, without the consent of the owner of the copyright, of anything the sole right to do which is given by the statue on the owner of the copyright.

Under section 51 of the copyright act 1957, copyright work is deemed to be infringed.

A) when any person, without obtaining a licence from the owner of the copyright or registrar of copyrights or in violation of the condition of a licence so issued or of any condition imposed by a competent authority.

  1. Does anything, the exclusive right to do, which is given to the copyright owner.
  2. Permits for profit to use the communication of the work to the public in any place, such communication is leads to infringement of the copyright in the work, unless he was unaware and had no fair reason to assume that such communication to the public would constitute copyright infringement.

B) when any person

  1. Make any infringing copies of the work for sale or hire, or sell or let for hire, or by means of trade displays or offers for sale or hire, or
  2. Distribute any infringing copies of the work either for trade purposes or to the degree that the copyright owner is prejudicially affected.
  3. Public shows, any infringing copies of the work by way of trade. However, it is not an infringement of copyright to import one copy of any work for the private domestic use of the importer.

Acts laid down in section 51(a) are known as primary acts of infringement, the acts laid down in section 51(b) are known as secondary acts of infringement. Section 51 lays down a provision for the infringement of rights of the copyright owner which is different from those of the license. It may be possible that the bundle of the rights of the owner may include the right of the licensee, but the infringement of the rights has to be measured from the right of the owner and not from the limited rights of the licensee. For copyright work, registration is not compulsory but for obtaining civil or criminal remedies against an infringement, such work should be registered.

According to section 51, infringement takes place when the exclusive right of the copyright owner is exercised by the infringer without prior permission of the former. The infringer must be deemed to have knowledge about the copyright owner and such knowledge cannot be attributed unless the provision of the Act is complied with. Otherwise, a person who is innocent can in that event be easily brought in the net of infringement under civil law or criminally, which can never be the intention of the legislature. If the copyright owner wants to enforce civil and criminal remedy before the special forum district court rather than a normal civil court, he must have the registration. (Sehgal, 2019).



The four factors determining for measuring copyright infringement are.

1. The purpose and character of the use, including whether it is of a commercial nature or for non-profit educational purposes

The factor refers mainly to the purpose that the copied content is used for. Since copyright law favours promoting scholarship, study, education, and commentary, if the defendant’s usage is non-commercial, education, science, or historical, a judge is more likely to make a fair use decision. However, an educational or scientific use that is for commercial purposes may not be excused by the law.

For instance, if the author makes scholarly commentary on the work, it would probably be considered fair to use a picture of a painting found in an art history textbook. By comparison, it would not be deemed fair use to use the same copyrighted painting in an advertisement for an unrelated product. Similarly, misuse would not actually be excused by the fact that a user is not for benefit. For example, a teacher makes photocopies of an entire novel for students in her class, even if it is educational this will not be considered fair use.


In this factor, the fair aspects were raised insignificance by U.S Supreme court in 1995. What was important, the high court said, was that the intent and essence of the use were transformative; that is, that the alleged infringement used the work to make a new statement.

For example, if an artist were to take a portion of the copyrighted painting of another artist and integrate that portion into his or her own work to comment on it, this would be a legally protected activity.

2. The nature of the copyrighted work

The second factor is to determine the fair use is the essence of the work being copied. For example, the court would usually determine, whether the copied work is insightful or amusing in nature. If the content was copied from a factual work, such as a biography, a judge is more likely to find a fair use decision than from a fictional work, such as a romance novel or horror movie.


3. The amount of the portion used in relation to the copyrighted work as a whole

How much did the infringer take from the original work? one sentence from a novel, or the whole of a chapter? A five-second movie clip or the entire? One painting detail, or the whole painting? Also, this consideration will weigh on the mind of a judge.

In one case, a court allowed the late novelist writer Richard Wright to quote from six unpublished letters and ten unpublished journal entries by a biographer-defendant. The sum used was one factor that weighed in favour of the biographer. The court determines that no more than 1% of the unpublished letters and journals of Mr. wright were copied.

The court considers not only the quantity of the material but its consistency when evaluating the quantity and “substantiality” of the portion taken. Coping a one minute and 15 seconds of a 72-minute Charlie Chaplin film, for example, was deemed significant and was not allowed to be used equally.


In rare case, copying a complete work can be treated as fair use. The supreme court, for instance, excused the off-the-air copying of full television shows in the Sony case.

4. The effect of the use upon the potential market for or value of copyrighted work

The fourth factor is the work that was copied is the influence of the usage on the future market. Consideration of this factor is intended to strike a balance between the benefit that if the use is allowed, the public will derive and the personal gain that if the use is refused, the copyright owner will get. The judge is considering the effect on the potential market for copyrighted work. this concern goes beyond the past intention of the author or designer or how the work is being used by him or her.

For example, in a case relating to a portrait adapted to a wooden sculpture. The court acknowledges the existence of a demand for alternative versions or new uses of the photograph and found that the possible market was threatened by the unauthorized use of the photographic image. The ultimate question is whether the action of the infringer would damage the holder of the original copyright.


It is not considered that any uses undermine the potential demand. To comparative advertising, copying a magazine cover is fair use because the comparative advertisement does not undermine the revenue or need for the featured magazine. No consumer will simply purchase the magazine because of the advertising. Similarly, in the Sony case, it was the lack of consumer damage that forced the Supreme court to allow off-air videotaping. (NOLO, n.d.)


The object of copyright is to protect the creator’s rights and provide the creator with rewards and economic benefits. The scope of copyright includes literary or creative works that involve imagination, including applications for databases and computers. To be eligible for copyright, there is no necessary for the registration of work, but it is often recommended to register the work because it serves as evidence in the court. If a person infringes someone’s copyright work, he will be responsible for both criminal and civil obligations. However, there are certain exceptions to the infringement of copyright, a person is not allowed in certain cases to seek permission from the copyright holder to use his work.



1. AHUJA, V. K. (2016). nature of copyright. In V. K. AHUJA, Law Relating to Intellectual Property Rights. Lexis Nexis.

2. NOLO. (n.d.). Retrieved from

3. Sehgal, D. R. (2019, 08 22). ipleaders. Retrieved from,or%20perform%20the%20protected%20work.


This Article is Authored by Ishwarya S, B.A. LL.B(Honours) Student at Vels Institute of science, technology and advanced studies (VISTAS).

Also Read – How to Respond to A Copyright Infringement Notice?

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