Friday, June 26, 2015

Copyright Piracy In Design

With the advent of industrial development and competition in the global scenario the need to protect new and original designs is an absolute necessity. According to Section 2(d) of the Designs Act, 2000 “design” means only the features of shape, configuration, pattern, ornament or composition of lines or colors applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device.

Designs which cannot be registered (Section 4 and 5 of the Designs Act, 2000)
 A design which is not new or original.
A design which is not significantly distinguishable from known designs or combination of known designs.
A design, which has been disclosed, to the public anywhere in the world prior to the filing date or the priority date of application.
 A design which comprises or contains scandalous or obscene matter; and
A design which is contrary to public order and morality.

Copyright is defined as the exclusive right to apply a design to any article in any class in which it is registered. The term of this copyright is 10 years and can be extended by 5 years on payment of prescribed fees before the expiry of the previous term. Thus a Copyright in design lasts for maximum 15 years after which it falls under the public domain. Copyright in an industrial design is governed by the Designs Act 2000. If a design is registered under that Act, it is not eligible for protection under the Copyright Act. In case a design which is capable of being registered under the Designs Act, but not so registered, copyright will subsist under the Copyright Act, but it will cease to exist as soon as any article to which the design has been applied has been reproduced more than 50 times by an industrial process by the owner of the copyright or with his license by any other person.

During the existence of Copyright the following acts lead to Copyright Piracy:
    1.  To publish or cause to be published or expose for sale any article covered by the registration to which either the design or any fraudulent or obvious imitation has been applied.
    2.   To apply or cause to be applied the design that is registered to any class of goods covered by the registration, the design or any fraudulent and obvious imitation thereof.
     3.  To import for the purpose of sale any article belonging to the class in which the design has been registered and to which the design or a fraudulent or obvious imitation thereof has been applied.

The remedies available against infringement of copyright in design are
1.Injunction (temporary or permanent)
2.Damages or compensation

According to Section 22 of the Act, where a person commits an infringement, he will be liable for every contravention of the section to pay the registered proprietor of the design a sum not exceeding 25 thousand rupees. The total sum recoverable in respect of any one design will not exceed 50 thousand rupees.
If the proprietor elects to bring a suit for recovery of damages for any such contravention and an injunction against the repetition thereof, the infringer is liable to pay such damages as may be awarded and to be restrained by injunction accordingly.

Poulomi Paul