Two of these deserve emphasis because they are routinely overlooked:

• 2D to 3D and 3D to 2D. Making a physical product from a drawing, or a drawing from a product, is reproduction of an artistic work.
• A single frame of a film is a copy of the film. Screenshots and stills used commercially are infringement of the film copyright.

The infringing acts — Section 51

Section 51(a)(i) — doing anything the exclusive right to do which is conferred on the owner, without a licence.

Section 51(a)(ii) — permitting, for profit, any place to be used for communication of the work to the public where such communication constitutes infringement, unless the person was not aware and had no reasonable ground to believe. This reaches venues, event organisers and premises owners.

Section 51(b) — making for sale or hire, distributing either for trade or to an extent prejudicial to the owner, exhibiting in public by way of trade, or importing into India infringing copies. The proviso exempts import of one copy for the private and domestic use of the importer.

The test the court applies

Following R.G. Anand v. Delux Films, the question is whether an ordinary observer, reading, seeing or hearing both works, would form the unmistakable impression that the later work is a copy of the earlier. Substantiality is assessed qualitatively, not by percentage — taking a small but essential part can infringe, while taking a large but commonplace part may not.

The most persuasive evidence of copying is not similarity. It is shared error. Identical typographical mistakes, the same idiosyncratic phrasing, a redundant line of code, a deliberate “trap” entry in a database, an unnecessary flourish in a drawing — these cannot be explained by independent creation, and they win cases.

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The Defences You Must Test Before You Write

Section 52 — fair dealing and permitted acts. Not a general “fair use” doctrine; a closed list. It includes fair dealing with a work, other than a computer programme, for private or personal use including research, for criticism or review, and for reporting current events and current affairs. There are specific exceptions for computer programmes covering back-up copies, obtaining information for interoperability, and observing or studying the functioning of the programme. There are educational exceptions covering reproduction in the course of instruction and performance in the course of the activities of an educational institution, an exception for accessible-format copies for persons with disabilities, and the exceptions for photographing public sculpture and architecture.

Independent creation. A complete defence. Copyright prohibits copying, not coincidence.

Licence, including implied licence. Where the work was supplied for a purpose, a licence for that purpose may be implied. Submitting a design to a client, publishing on a platform with terms of use, or supplying artwork to a printer may all carry implied permissions.

No subsistence. The material is a bare fact, a title, a short phrase, a common idea, or lacks originality.

Section 15(2). Where the work is a design capable of registration under the Designs Act, 2000 but unregistered, and articles bearing it have been industrially reproduced more than fifty times, the copyright has ceased. Product businesses relying on copyright routinely discover this in the defendant’s reply.

Innocent infringement — the proviso to Section 55. If the defendant proves that at the date of infringement they were not aware and had no reasonable ground for believing that copyright subsisted in the work, the owner is not entitled to any remedy other than an injunction and a decree for the whole or part of the profits. Damages are off the table.

This proviso is the strongest practical argument for sending a notice. Once a properly particularised notice is received, innocence ends. Every day of continued use afterwards is knowing infringement.

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The Warning: Section 60

Section 60 provides that where any person, by circulars, advertisements or otherwise, threatens any other person with proceedings or liability in respect of an alleged infringement of copyright, any person aggrieved may institute a declaratory suit that the alleged infringement was not in fact an infringement, and may obtain an injunction against the continuance of the threats and recover damages.

The proviso removes the protection where the person making the threats, with due diligence, commences and prosecutes an action for infringement.

What this means in practice:

• Do not send a notice you are not prepared to back with a suit. An abandoned threat is actionable.
• Do not write to the recipient’s customers, distributors, platforms or investors before you have sued. Broadcast threats are the classic Section 60 fact pattern.
• Do not overstate. Threatening criminal prosecution where the facts do not support knowing infringement invites the counter-claim.
• Follow through, and do it promptly. Delay after a notice both exposes you under Section 60 and hands the defendant a delay argument when you eventually seek an injunction.

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Pre-Notice: Build the File First

Establish the chain of title

• Who created the work, and when? Named authors, dated.
• Was the creator an employee under Section 17(c), a commissioned photographer or film maker under Section 17(b), or a freelancer who retained ownership absent an assignment?
• Is there a written assignment complying with Section 19 — specifying the work, the rights, the duration, the territory and the consideration? Remember the defaults: no duration means five years, no territory means India only.
• Where the work is derivative, is there consent from the owner of the original?
• For films and sound recordings, are the underlying clearances in place?

If the chain is broken, fix it before you write. A defendant’s first move is to ask for the assignment.

Assemble the evidence of creation

• Dated drafts, version history, layered working files with intact metadata, RAW images
• Version control history for code — close to definitive on both authorship and date
• Publication evidence — dated posts, print runs, ISBN, dispatch records, archived captures
• Extract of the Register of Copyrights, if registered — Section 48 makes it prima facie evidence
• Where unregistered, note that Section 55(2) presumes the person whose name appears on copies as author or publisher to be so, unless the contrary is proved

Capture the infringement before you alert anyone

• Notarised screenshots with visible URLs, timestamps and full-page context
• Archived captures of the infringing pages, establishing the period of use
• A trap purchase with invoice, packaging and photographs, made through an independent person
• Downloaded copies of the infringing files, with hash values recorded where relevant
• Forensic comparison: a side-by-side annotated exhibit marking every point of correspondence, and separately marking shared errors and idiosyncrasies
• Entity identification through MCA, GST, WHOIS, platform seller information and app store listings

The instant a notice arrives, listings vanish. Evidence gathered afterwards is worth a fraction of evidence gathered before.

Decide the objective

Cessation and takedown; delivery up and destruction; damages; attribution restored where moral rights under Section 57 are engaged; or — frequently the best commercial outcome — conversion of the infringer into a paying licensee. The objective determines the tone.

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Anatomy of a Copyright Infringement Notice

1. Advocate’s letterhead, date and mode of dispatch — Registered Post AD, speed post, courier and email, all of them, with proof preserved
2. Correct legal entity as addressee, with registered office and, where personal liability is asserted, directors or partners by name
3. Statement of authority — acting under instructions on behalf of the client
4. The work — title, category under Section 13, date and place of creation, author, first publication details
5. Subsistence and originality — how the work was created and why it is original
6. Ownership and chain of title — employment, commissioning or assignment, with the Section 19 compliant deed referenced
7. Registration, where obtained — diary number, registration number, and the Section 48 presumption
8. The infringing acts — precisely what has been done, since when, on which platforms and in which territory, cross-referenced to numbered annexures
9. The legal case — the specific exclusive right under Section 14 exercised without licence, and the specific limb of Section 51 engaged; moral rights under Section 57 where the work has been distorted or attribution removed; and, where the same asset carries them, trademark and design rights pleaded in addition
10. Substantial similarity — the annotated comparison exhibit, with shared errors highlighted
11. Knowledge — facts establishing that the infringement is knowing, which matters for damages and for Section 63
12. Demands, enumerated — immediate cessation; removal from every listed URL, platform, application and physical channel; delivery up of infringing copies, plates and materials for destruction under Section 58; disclosure of accounts, quantities, sources and distributors; withdrawal of any registration or application over the work; restoration of attribution; damages where claimed; and execution of a written undertaking in the enclosed format
13. Time for compliance — seven to fifteen days, realistic and defensible
14. Consequences — civil proceedings under Section 55 for injunction, damages and accounts; criminal complaint under Section 63 where knowing infringement is established; all at the recipient’s risk as to costs
15. Reservation of rights — without prejudice, not exhaustive, no waiver or acquiescence
16. Annexures — registration extract, chain of title documents, comparison exhibit, evidence captures, draft undertaking

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The Enforcement Toolkit Beyond the Notice

Platform takedowns — often faster than a notice

Under Section 79 of the Information Technology Act, 2000 read with the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, an intermediary’s safe harbour is conditional on observing due diligence, including acting on actual knowledge through a court order or government notification, and operating a grievance mechanism with prescribed response timelines.

In practice this means structured takedown routes exist for:

• E-commerce marketplaces — brand registry and IP complaint mechanisms
• Video and social platforms — copyright complaint and content identification systems
• App stores — IP infringement reporting
• Search engines — removal requests for infringing URLs
• Web hosts and registrars — abuse and IP complaints

For high-volume online infringement, takedown is usually the first and most cost-effective action, and it should be run before or alongside the notice, not after.

Civil suit — Sections 55, 58, 62

Section 62 provides that a suit may be instituted in a district court within whose limits the plaintiff actually and voluntarily resides, carries on business or personally works for gain — the same plaintiff-friendly rule as Section 134 of the Trade Marks Act.

Section 55 provides for injunction, damages and accounts. Section 58 deems infringing copies to be the property of the owner, who may take proceedings for their recovery.

Courts routinely grant ex parte ad interim injunctions, appoint Local Commissioners under Order 26 CPC for search, seizure and inventory, and pass John Doe (Ashok Kumar) orders against unidentified defendants. Following the Delhi High Court’s approach in the rogue-website line of cases, dynamic injunctions are granted allowing mirror and alphanumeric variants of blocked sites to be added without a fresh suit.

Note that Section 12A of the Commercial Courts Act, 2015 requires pre-institution mediation except where the suit contemplates urgent interim relief — which is why the enforcement strategy and the notice strategy must be decided together.

Criminal action

Section 64 empowers a police officer not below the rank of Sub-Inspector, if satisfied that an offence under Section 63 has been or is likely to be committed, to seize without warrant all infringing copies and plates and produce them before a Magistrate. The Supreme Court has held in Knit Pro International v. State of NCT of Delhi that an offence under Section 63 is cognizable and non-bailable, which materially changes the leverage in serious counterfeiting and piracy matters.

Section 69 addresses offences by companies, extending liability to persons in charge of and responsible to the company for the conduct of its business.

Customs

Copyright can be recorded with Indian Customs under the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007, enabling suspension of clearance of consignments carrying infringing copies. Essential for publishing, software, media and merchandising businesses facing imported piracy.

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Enforcement in Specific Sectors

Software. Section 63B creates specific criminal exposure for the knowing use of an infringing copy of a computer programme, which reaches corporate end-users and not merely distributors. Licence audits, notices to corporate users and conversion to paid licensing are the usual sequence.

Ed-tech, coaching and publishing. Leaked PDFs, mirrored course libraries and messaging-app distribution channels. The effective route is platform and channel takedown at scale, combined with a suit seeking a dynamic injunction so that new mirrors can be added without fresh proceedings.

Photography and stock imagery. Unlicensed use on websites, advertising and social media. Note Section 17(b) — where the photograph was commissioned for consideration, the commissioning party may be the owner, so the chain of title must be confirmed before the notice.

Music and venues. Playing recorded music at restaurants, hotels, gyms, retail outlets and events requires licences covering the musical work, the associated literary work and the sound recording. Section 51(a)(ii) reaches the venue that permits the place to be used for profit.

Film and audiovisual. Alongside the Copyright Act, the Cinematograph (Amendment) Act, 2023 introduced express prohibitions on unauthorised recording and unauthorised exhibition of films, with substantial imprisonment and fines linked to a percentage of the audited gross production cost.

Product and packaging. Check Section 15(2) before relying on copyright for anything industrially produced, and plead design and trademark rights where they exist.

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Mistakes That Sink Enforcement

1. Sending a notice without a written assignment from the freelancer or agency who created the work
2. An assignment with no duration or territory, reduced by Section 19 to five years within India
3. No evidence capture before dispatch, after which the listings disappear
4. Asserting infringement without identifying the Section 14 right or the limb of Section 51
5. Ignoring Section 60 and threatening parties, platforms or customers without following through
6. Relying on copyright for an industrially applied design already caught by Section 15(2)
7. Failing to plead trademark and design rights that exist over the same asset
8. Overlooking the innocent infringement proviso to Section 55 and losing the damages claim for the pre-notice period
9. Alleging criminal offences where knowledge cannot be established
10. Delaying after the notice, weakening the interim injunction application
11. Running takedowns after the notice instead of before or alongside
12. Not obtaining a written undertaking from an infringer who complies, so a repeat starts from zero

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How Delhi Legal Company Provides Enforcement Support

• Enforceability opinion first — subsistence, chain of title, the specific rights infringed, the defences available to the other side, and a candid view of prospects before anything is sent
• Evidence and forensics — trap purchases, notarised captures, archived records, annotated comparison exhibits and shared-error analysis
• Chain of title repair — assignments, NOCs and Section 19 compliant deeds executed before enforcement begins
• Takedowns at scale — marketplace, social, video, app store, search and hosting complaints
• Notice drafting and dispatch — particularised, annexed and with a ready-to-sign undertaking
• Civil proceedings — suits under Sections 55 and 62 with applications for ex parte injunction, Local Commissioner appointment, John Doe and dynamic injunctions, before the Commercial Court and the Delhi High Court Intellectual Property Division
• Criminal complaints — under Sections 63, 63B and 65, including Section 64 seizure support
• Customs recordation under the IPR (Imported Goods) Enforcement Rules, 2007
• Commercial resolution — settlement, undertakings, retrospective licensing and conversion of infringers into licensees

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Frequently Asked Questions (FAQs)

1. What is copyright infringement?

A. Under Section 51, infringement occurs when a person, without a licence from the owner, does anything that only the owner has the exclusive right to do under Section 14, or permits a place to be used for profit for infringing communication to the public, or makes, distributes, exhibits by way of trade or imports infringing copies.

2. Do I need a copyright registration to send an infringement notice?

A. No. Copyright subsists automatically on creation and registration is voluntary. However, registration helps considerably, because Section 48 makes the Register of Copyrights prima facie evidence of the particulars entered in it, so you begin with the presumption on your side instead of having to prove authorship and originality from scratch.

3. How much copying is enough to amount to infringement?

A. There is no percentage. The test, following R.G. Anand v. Delux Films, is whether an ordinary observer would form the unmistakable impression that the later work is a copy. Substantiality is assessed qualitatively, so taking a small but essential portion can infringe while taking a larger but commonplace portion may not.

4. What is the strongest evidence of copying?

A. Shared errors and idiosyncrasies. Identical typographical mistakes, the same unusual phrasing, a redundant line of code, or a deliberate trap entry in a database cannot be explained by independent creation. A well-prepared comparison exhibit that highlights these is worth more than pages of argument.

5. What is Section 60 and why does it matter?

A. Section 60 allows a person aggrieved by groundless threats of copyright proceedings to sue for a declaration that there was no infringement, an injunction against the continuance of the threats, and damages. The protection does not apply where the person making the threats commences and prosecutes an infringement action with due diligence. It is the reason a notice should never be sent unless you intend to follow it with a suit.

6. Can I write to the infringer’s customers or the platform hosting the content?

A. Be careful. Circulating threats to third parties before instituting proceedings is the classic Section 60 fact pattern. Formal platform takedown requests follow their own defined process and are a different thing from broadcast threats, but they should still be handled deliberately and on advice.

7. What is fair dealing and can the other side rely on it?

A. Section 52 sets out a closed list of permitted acts, including fair dealing with a work other than a computer programme for private or personal use including research, for criticism or review, and for reporting current events. There are also specific exceptions for computer programmes, education, accessible formats and photographs of public architecture and sculpture. It is a defence you should assess before you send anything.

8. What is the innocent infringement defence?

A. Under the proviso to Section 55, if the defendant proves that at the date of infringement they were not aware and had no reasonable ground to believe that copyright subsisted, the owner is entitled only to an injunction and a decree for the whole or part of the profits, not to damages. This is why a properly particularised notice matters — after it is received, the defence is no longer available for continued use.

9. What remedies can a court grant?

A. Under Section 55, an injunction, damages and accounts. Under Section 58, infringing copies are deemed to be the property of the owner, who may take proceedings for their recovery. Courts also grant ex parte ad interim injunctions, appoint Local Commissioners for search and seizure, and pass John Doe and dynamic injunction orders.

10. Where can I file a copyright infringement suit?

A. Section 62 provides that the suit may be instituted in a district court within whose limits the plaintiff actually and voluntarily resides, carries on business or personally works for gain. This is broader than the ordinary rule under Section 20 CPC and is a significant advantage for the rights owner.

11. Is copyright infringement a criminal offence?

A. Yes. Section 63 makes knowing infringement punishable with imprisonment of six months to three years and a fine of ₹50,000 to ₹2,00,000, with enhanced punishment on a second conviction under Section 63A. Section 63B specifically addresses knowing use of an infringing copy of a computer programme, and Sections 65A and 65B address circumvention of technological protection measures and tampering with rights management information.

12. Is the offence under Section 63 bailable?

A. The Supreme Court held in Knit Pro International v. State of NCT of Delhi that an offence under Section 63 is cognizable and non-bailable. This materially changes the position in serious piracy and counterfeiting matters.

13. Can the police seize infringing goods without a warrant?

A. Yes. Section 64 empowers a police officer not below the rank of Sub-Inspector, if satisfied that an offence under Section 63 has been or is likely to be committed, to seize without warrant all infringing copies and plates used for making them, and to produce them before a Magistrate.

14. Someone is using my photographs on their website. What can I do?

A. Send a takedown request to the host and the platform, and issue a notice demanding removal, disclosure of use and compensation. Before doing either, confirm the ownership position — under Section 17(b), where the photograph was taken at the instance of another person for valuable consideration, that person may be the first owner rather than the photographer.

15. Our course material is being circulated in PDF form on messaging channels. What works?

A. Platform and channel takedowns at scale, combined with a suit seeking injunctive relief drafted to cover mirrors and variants, so that new channels can be added without fresh proceedings. Evidence should be captured and preserved before any takedown, because channels disappear immediately once reported.

16. A company is using pirated software. Is that actionable?

A. Yes. Section 63B specifically penalises the knowing use of an infringing copy of a computer programme, and reaches corporate end-users rather than only distributors. The usual sequence is a notice, a licence audit and conversion to paid licensing, with proceedings where that is refused.

17. Do I need a licence to play music at my restaurant or event?

A. Yes. Commercial use of recorded music requires licences covering the musical work, the associated literary work and the sound recording. Section 51(a)(ii) makes it infringement to permit a place to be used for profit for communication of a work to the public where that communication infringes, which reaches the venue and the organiser.

18. Someone modified my work and removed my name. What is the remedy?

A. That engages moral rights under Section 57, which survive assignment of copyright. The author retains the right to claim authorship and to restrain or claim damages for distortion, mutilation or modification prejudicial to honour or reputation. Restoration of attribution should be expressly demanded in the notice.

19. My logo has been copied. Should I use copyright or trademark?

A. Both, where both exist. Copyright protects the artwork against copying in any field, and trademark protects the mark as an indicator of origin for your goods and services with its own statutory infringement remedy. A well-constructed action pleads every available right rather than choosing one.

20. Our product design is being copied. Is copyright the right route?

A. Check Section 15(2) first. Where a design is capable of registration under the Designs Act, 2000 but has not been registered, copyright ceases once articles bearing it have been reproduced more than fifty times by an industrial process. For industrially applied designs, the Designs Act is the correct route and registration must precede publication.

21. How long do I have to take action?

A. Suits are subject to the ordinary law of limitation, and delay is separately fatal to interim relief because it suggests the injury is not urgent. Where infringement is continuing, each act gives a fresh cause of action, but you should not rely on that — courts refuse injunctions to claimants who sat on their rights.

22. Should I always send a notice first?

A. No. Where evidence, stock or online material will disappear the moment the infringer is alerted, going straight to court with an application for an ex parte injunction and appointment of a Local Commissioner is the better strategy. A notice trades surprise for speed and cost, and that trade is not always worth making.

23. The infringer has agreed to stop. Do I need anything in writing?

A. Yes. Take a signed undertaking recording precisely what will stop, by when, and across which channels, together with delivery up or destruction of remaining material. If they resume, breach of a recorded undertaking is far easier to establish than re-arguing similarity from the start. Verify compliance again at thirty and ninety days.

24. Can an infringement be settled by licensing instead?

A. Frequently, and it is often the best commercial outcome. Where the infringer is a viable business rather than a counterfeiter, a retrospective licence covering past use plus a forward licence converts a cost centre into revenue and avoids years of litigation.

25. I have received a copyright infringement notice. What should I do?

A. Do not ignore it and do not respond in haste or admit anything. Verify that the sender actually owns the work and can show the chain of title, assess whether your use falls within Section 52, consider whether you created the material independently, preserve your own evidence of creation, and obtain advice before replying within the stated period.

26. What does Delhi Legal Company charge for enforcement support?

A. It depends on the scope — an enforceability opinion, evidence capture, takedowns, a notice, or full proceedings. We quote each stage in writing, and we begin with an assessment so that you are not paying for a notice that should not be sent or a suit that should have been a takedown.