The growth of e-commerce in India has also lead to a growth of fraudulent e-commerce sites, or websites which do not have content of their own but copy content from another competitor. In a matter of seconds, content from a website can be copied and posted in another website. What can you do about it? In this article we explore the concept of a copyright and the legal remedies available to a victim.
The law governing copyrights in India is the Indian Copyright Act, 1957, as amended (Copyright Act) along with the international treaties to which India is a signatory. Copyright is the exclusive right given to the author of the work to reproduce/ publish the work and to exploit it for his commercial gain. It is a way in which society incentivises innovation.
Can copyright be created on content on a website?
Yes content on a website can be copyrighted. “Literary work” as defined under Section 2(o) of the Copyright Act, includes computer programmes, tables and compilations including a computer literary database. Hence, a compilation of content on a website, which is not otherwise copied from another website is a copyrightable content.
For an e-commerce website this would mean that the compilation of its deals on its website would be a copyrightable work and given legal protection under law. There are however, certain limitations to the legal protection given to the holder of a copyright. If copyright protection had no limitations, it would be impossible for someone to either reproduce the work to criticise it, or make reference to it or review it in their own original work till the term of the existing copyright. In this context, comes the defence of “fair use”.
What is “fair use”?
“Fair use” as a concept originates from the jurisprudence developed in United States, and the key considerations for the determining whether there has been a “fair use” is through a four factor test, laid down in a case, which includes, (a) the quantity and value of materials used, and (b) the degree in which the use would prejudice the sale or diminish the profits, supersede the objects of the original work. (Justice Story in Folsom v. Marsh, 9 F. Cas. 342, 348). In common law countries, such as India and United Kingdom there is a concept of “fair dealing” similar to the concept of “fair use”.
In India, Section 52 of the Copyright Act provides for the fair dealing defence, such that dealing with a literary work for the purpose of its criticism or review would be fair dealing and therefore not infringing on the original copyright of the author. There are judgments of courts in India dealing with the question of “fair dealing”, which state that fair dealing, only protects those whose work do not have an intention to compete with the work of the holder of the copyright and whose work do not derive profit from such competition, and as such is not improper.
What are the remedies available?
If the content on your website which is copyrightable under the provisions of the Copyright Act, is copied or hosted on to another website with the intention of making profits or otherwise to compete with your work, one should consider legal action. The Copyright Act provides for dual legal machinery for enforcement of rights, through (a) the Copyright Board and (b) the courts. Remedies granted in India for copyright infringement include imprisonment and/ or monetary fines depending on the gravity of the crime.