The Shape of Copyright Litigation in India

In one line

From the letter that starts it to the appeal that ends it, this is how a copyright case actually runs in India, and what a student should be able to describe from memory.

In the wording a student can write in an exam: a copyright dispute in India ordinarily begins with a cease and desist notice, becomes a commercial suit under section 62 of the Copyright Act, 1957 read with the Commercial Courts Act, 2015 where the Specified Value is met, is effectively decided on the application for an interim injunction, proceeds through case management to trial if it is not settled, and ends in an appeal to the Commercial Appellate Division within sixty days.

Step one: the letter

What it is. A cease and desist notice identifying the work, the right, the infringing act and the relief demanded, with a time to comply.

Why it is sent. It establishes knowledge, which matters for section 51(a)(ii), for section 63 and for an intermediary's position under section 79 of the Information Technology Act, 2000.

And why it is dangerous. A threat of legal proceedings or liability by a person claiming to be the owner exposes him to a suit under section 60, unless he then commences and prosecutes an infringement action with due diligence.

So the letter is a decision, not a formality. Send it and be ready to sue; or sue first.

Step two: choosing the forum

Where. Section 62(1) sends the suit to the district court having jurisdiction; section 62(2) adds the court where the plaintiff resides, carries on business or personally works for gain; and Indian Performing Rights Society Ltd. v. Sanjay Dalia, AIR 2015 SC 3479, reads that down.

Which court there. A dispute relating to intellectual property rights is a commercial dispute under section 2(1)(c)(xvii) of the Commercial Courts Act, 2015. If the Specified Value is met, it goes to a Commercial Court, or to the Commercial Division of a High Court with ordinary original civil jurisdiction.

The Specified Value. Under section 2(1)(i) it is the value of the subject matter determined under section 12, which shall not be less than three lakh rupees, or such higher value as the Central Government notifies.

And pre-institution mediation. Section 12A requires a plaintiff to exhaust pre-institution mediation before instituting a suit "which does not contemplate any urgent interim relief", which is why almost every copyright plaint seeks an interim injunction.

Step three: the interim application

This is where the case is decided. Three tests: a prima facie case, the balance of convenience, and irreparable injury.

What is sought. An interim injunction under section 55 and Order XXXIX rules 1 and 2 of the Code of Civil Procedure, 1908; an order for inspection and seizure under Order XXXIX rule 7 through a Local Commissioner under Order XXVI; and, where the infringers are unidentified, an order against unnamed defendants.