Copyright Misuse not a defence: DHC

The Delhi High Court held that the defense of “copyright misuse” is not available neither in a suit for permanent injunction from infringing the copyright of the plaintiffs nor to an action for damages for infringement of copyright.

Refusing to accept American jurisprudence and stating that the concept of “copyright misuse” has no statutory support, the Court said, “To entertain a defence of copyright misuse as has been entertained as aforesaid in the American Jurisprudence would, in my opinion, tantamount to making copyright a conditional right i.e. a right subject to being not misused and / or a right enforcement whereof can be suspended upon the right being found to be misused and which is not as per its definition in Section 14 and would further tantamount to adding to / subtracting from the definition in Sections 51 and 52 of what constitutes and what does not constitute infringement.”

“Allowing a defence of copyright misuse would tantamount to the Court adding to the Clauses of Section 52 and constituting an act, otherwise of infringement of copyright as not infringement of copyright for the reason of the holder of copyright being in misuse thereof”, the Court said.

The Court wondered, “Can a defendant, who is himself violating the right of the plaintiff, be permitted to say that though he is in violation but the plaintiff is not entitled to take action against him because the plaintiff is also in violation of some other law or has asserted a right beyond what he is entitled to.”

The Court further reasoned that to accept the doctrine of copyright misuse as evolved by the American Courts would tantamount to allowing a person to unilaterally decide that the owner has lost the copyright for the reason of misuse thereof and to thereby usurp the rights otherwise exclusively vested in the owner. Allowing the said defences also has a potential of delaying the judicial process of enforcing the copyright and of becoming a tool in the hands of infringers, by raising all kinds of pleas and making all kinds of allegations of misuse and delaying the decision in an action for infringement.”

About DSLegal

A full service international law firm based in New Delhi with an office in Chicago, USA.
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