cpc

does exchange of dvds/cds for free amount of infringement?

Advocate/IP Attorney

Hi,

Does exchange of DVDs/CDs between friends amount to copyright infringement without reproduction or duplication?  And also discussing about exchanging DVDs/CDs on public forums amount to copyright infringement?

I request all the learned members to please clarify this.

Cheers!

 

 

 
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advocate

Exchange of DVDs/CDs between friends does not amount to copyright infringement, if these are exchanged only for playing and not for copying.

 
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Advocate/IP Attorney

Hi,

Please dont think I am prying you, I was a member of a forum where we had a thread containing posts about exchanging our DVDs between the members and the copying cannot be performed as they are protected by software.  We received a email from a premier motion pictures company that we are infringing the copyright by discussing about exchanging them.

If you can provide some provisions, I would be very glad.  As far as I see in Sec 51 and Sec 52 of Indian Copyright Act 1957, there is no mention about exchange being an infringement.

The forum owner got panic and removed the thread as he did not want to pursue unnecessary counter actions.

Cheers!

 

 

 
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Independent Legal Practitioner

 

Dear Venkatesh,

Admittedly the Copyright Act does not use the word “exchange”. However, in interpreting statues one ought not to be swayed by use or non-use of words. It is the objective of the Act that is relevant and with that in background one must interpret the provisions. You must also bear in mind that the Copyright Act, like all other IPR related statutes is an Act creating “negative rights”. This means the IPR laws empower the IPR owner to restrain others from exploiting his work un-authorisedly. The entire purport of the Act is to empower the copyright owner to restrain unauthorised “publication” of his work and to secure his right to gain from his creations. Sec.3 of the Copyright Act also defines “publication” in very wide terms as the “communication” of the work to the public.

Now in respect of your specific query kindly peruse Sec.51(b)(ii) which reads as follows: “Copyright in a work shall be deemed to be infringed when any person distributes either for trade or to such an extent as to affect prejudicially the owner of the copyright any infringing copies of the work”. This section therefore stipulates that a copyright shall be deemed to be violated if

(i)                 any person distributes a work – mind you it does not require sale or hiring, mere distribution.

(ii)               For trade OR TO SUCH AN EXTENT AS TO AFFECT PREJUDICIALLY THE OWNER OF THE COPYRIGHT

The section refers to the distribution of an “infringing copy”. Now in respect of a film an infringing copy is defined in Sec. 2(m) simply as a “copy of the film”.

Applying sec.52(b)(ii) to the activity of your forum:-

(i)                 DVD’s lawfully purchased by one person were being distributed to others thereby letting that other see the film

(ii)               The size of your forum was probably large enough (in the estimation of the copyright owner) to prejudicially affect his right.

In my opinion the producer of the film does have a case to assert a copyright violation. I do not believe that the notice issued by the motion picture company to your forum is misconceived. On the other hand if your forum has not already stopped exchanging of DVD’s I suggest you must stop forthwith to avoid unnecessary complications.

Shalini Kaul

 
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Advocate/IP Attorney

Dear Shalini:

Thank you for your detailed clarification.  Last doubt on my part, as I am partially convinced that we are on the other side of law, is that am I not protected by "first-sale doctrine."  For example, I am buying a DVD for Rs. 500 and I dont like it so I am selling it for 250 after a year or two.  If the copyright prevents me against doing it, am I not ward off my rights to free trade?

Also, does gifting a DVD to a person also amount to infringement?

Cheers!

 

 

 
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Independent Legal Practitioner

 

Dear Venkatesh,

The situation that you are now suggesting calls for a study of section 14 of the Copyright Act. This section sets out the rights that can be exclusively exercised by the copyright owner. Section 14(d) sets out the rights of the owner of the copyright in cinematograph film and states that such owner shall have the right “to sell or give on hire or offer for sale or hire any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions. Hence, ordinarily even the right of resale is protected exclusively for the copyright owner. This is the basic principle of law.

Now regarding the fact situation suggested by you i.e. you have purchased a DVD from the market for Rs.500 and then hence you decide to re-sell the DVD to your friend:-

 Firstly you must remember that each time you buy a DVD from the market you are actually buying a “copy” of the work. Further, you are also obtaining for yourself a limited “license” to hear/see that work. That license is limited to you personally and also restricts you from making copies of the work purchased by you. The license given makes that particular copy your property. You may deal with your private property in any manner either by reselling it or by gifting it. However you do not have the right to make copies of that work and you cannot sell the same in the course of trade. As long as you do not violate these conditions you would not be violating the copyright act. Though the right of resale is exclusively protected for the copyright owner nothing done by you amounts to prejudicing the rights of the copyright owner as you are only “fairly dealing” with your personal copy of the work and the personal copy has been legally purchased. Hence, your act of reselling or gifting your copy does not amount to infringement.

Please also bear in mind that a single act of sale of property does not amount to “trade”. Trade must be an organised activity, performed systematically and repeatedly with the objective of gaining profit. The fact scenario given by you does not amount to trade and hence does not violate your fundamental right to trade also.

Shalini Kaul


Total likes : 2 times

 
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Advocate/IP Attorney

Dear Shalini,

That was such an elaborate and clearcut reply.  Much appreciated!  I did go through the entire ICA after your first reply.

Thank you, again, for clarifying each and every query of mine!

Venkat

 

 

 

 

 
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Consultancy

Well Explained !!!

 
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