Context:
- The Delhi High Court has issued summons to an Instagram account called People of India (POI), in a copyright infringement suit filed by the storytelling platform Humans of Bombay (HOB). POI tells stories of common people in a similar way to HOB, whose Instagram account has over 2.7 million followers.
- Observing that there was “substantial imitation” of HOB’s storytelling by POI and that in some cases the photographs or images used on the two digital platforms were “identical or imitative”, a single-judge Bench also issued notice to POI.
What is copyright?
- “Copyright” refers to the right given by the law to creators of literary, dramatic, musical, and artistic works and producers of cinematograph films and sound recordings. Essentially, it’s a bundle of rights that includes rights of reproduction, communication to the public, adaptation, and translation of a work.
- The Copyright Act, 1957, aims to safeguard creative works, which are considered to be the creator’s intellectual property.
What is copyright infringement?
- A copyrighted work will be considered “infringed” only if a substantial part is made use of without authorisation. In cases of infringement, the copyright owner can take legal action against any person who infringes on or violates their copyright and is entitled to remedies such as injunctions, damages, and accounts. An injunction is “an official order given by a law court, usually to stop someone from doing something.”
- However, an injunction only acts as a deterrent and does not mean that all alleged instances of misuse will be corrected immediately. This is because even when a court grants it, it is not easy to track all such cases and act on them.
What is passing off?
- Suppose a brand logo is misspelt in a way that’s not easy for the consumer to discern. In such cases, the infringing products need not be identical, but the similarity in the nature, character, and performance of the goods of the rival traders has to be established, as laid down by the Supreme Court in Cadila Healthcare Limited vs. Cadila Pharmaceuticals Limited (2001).
- To make a claim of ‘passing off’, some form of deception, misrepresentation, or harm to the goodwill and reputation of the owner of a mark has to be established.
- In its 2001 ruling, the court also said that passing-off is a “species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which other has established for himself in a particular trade or business”.