Interim Orders in a Copyright Suit

In one line

Most copyright cases are decided at the first hearing, on three tests, and the orders a court makes there have names the Act never mentions.

In the wording a student can write in an exam: an interlocutory injunction in a copyright suit is granted under section 55 of the Copyright Act, 1957 read with Order XXXIX rules 1 and 2 of the Code of Civil Procedure, 1908, on the three established tests of a prima facie case, the balance of convenience and irreparable injury, and the court's inherent power under section 151 supports the search and seizure and unnamed defendant orders that Indian practice has borrowed.

Why interim orders matter more here than elsewhere

Because copyright harm is done at once. A film released, a book printed, a song streamed: by the time a suit is decided the market has moved.

Because the defendant is often not worth suing. A pirate has no assets, so the only useful order is one that stops him now.

And because the evidence disappears. A defendant warned that a suit is coming destroys the plates, the stock and the records.

The three tests

A prima facie case. Not a probability of success, but a serious question to be tried, on which the plaintiff has a real prospect.

The balance of convenience. Whether more harm will be done by granting the order or by refusing it.

Irreparable injury. Whether damages would be an adequate remedy if the order is refused and the plaintiff later succeeds.

All three must be satisfied. A strong case with the balance against the plaintiff fails, and so does a weak case with everything else in its favour.

And there is a fourth consideration in practice. Delay. A plaintiff who knew and waited will find it hard to say the injury is irreparable.

What the Act supplies

Section 55(1). All such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law. That imports the general law of injunctions.

Section 62. The plaintiff may sue where he resides or carries on business, which is why so many copyright suits are filed in a small number of courts.

And section 55 reaches works not yet made. In Time Warner Entertainment Company v. RPG Netcom, AIR 2007 Del 226; 2007 (34) PTC 668 (Del), the Delhi High Court held that section 55 does not require the work to be already in existence, because it empowers the court to grant such injunction as it deems reasonable to prevent or restrain infringement.

The named orders