If you are stuck in such a situation, here is what to do.

A common point of confusion arises when we interact with popular culture. For instance, Ms. Priya, a baker from Jaipur, creates a beautifully designed cake featuring a famous Indian cartoon character, “Chotu Bheem,” for her daughter’s birthday. She posts a tutorial video on a popular video-sharing platform. The video unexpectedly goes viral, and she starts earning advertising revenue from it. This raises a critical question: has she infringed on the copyright of the character’s creators? What begins as a personal, non-commercial act can quickly blur the lines when it gains public traction and financial benefit. Understanding the nuances of copyright law is essential in such scenarios.

Advice in such cases

When dealing with potential copyright issues, it is crucial to understand the distinction between personal use and commercial exploitation. Here is some general advice:

Assess the Nature of Use: Determine if your use of the copyrighted material is for private, personal purposes or if it has a commercial angle. Making a cake for your child is typically personal use. However, monetizing a video about it shifts the context towards commercial use.
Understand Fair Dealing: Indian copyright law allows for “fair dealing” with copyrighted work for purposes like private or personal use, criticism, review, or reporting of current events. However, the scope of “fair dealing” is decided on a case-by-case basis.
Cease Commercial Activity: If you receive a notice from the copyright holder, it is often wise to immediately stop the activity that generates revenue to mitigate potential damages.
Preserve Records: Keep all records of your creation process, the context of its creation (e.g., for a family event), and any communication you receive regarding the matter.
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

Section 14: Meaning of Copyright: This section defines the exclusive rights granted to a copyright owner, which include the right to reproduce the work, issue copies, perform the work in public, and make adaptations.
Section 51: When copyright infringed: This section outlines what constitutes an infringement of copyright. Essentially, doing anything that the owner has the exclusive right to do, without their permission or license, is an infringement.
Section 52: Certain acts not to be infringement of copyright: This is a critical section that lists exceptions. The most relevant exception is “fair dealing” for private or personal use, including research, criticism, or review.
Section 63: Offence of infringement of copyright or other rights conferred by this Act: This section makes copyright infringement a criminal offence, punishable with imprisonment and a fine.

If you are the complainant

If you are the copyright holder and believe your rights have been infringed, you can take the following steps:

Send a Cease and Desist Notice: Your first step should be to send a legal notice to the infringing party, demanding that they stop the infringing activity and, if applicable, pay for damages.
File a Civil Suit: You can file a suit in a civil court seeking an injunction to stop the infringement, as well as damages or an account of profits from the infringer.
Initiate Criminal Proceedings: For deliberate and commercial-scale infringement, you can file a criminal complaint with the police under Section 63 of the Copyright Act.
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

If you have been accused of copyright infringement, here is what you should do:

Do Not Ignore Notices: Take any legal notice or communication seriously. Ignoring it can lead to ex-parte orders against you.
Evaluate Your Use: Honestly assess whether your use of the material falls under “fair dealing” as per Section 52 of the Copyright Act. Was it purely for private use? Was it for criticism or review?
Gather Your Evidence: Collect any proof that supports your case, such as evidence that the use was non-commercial, transformative, or for a legally permitted purpose.
Respond Appropriately: Through your lawyer, respond to the legal notice, explaining your position. You may be able to settle the matter without going to court.
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

Copyright infringement is a cognizable offence under Section 63 of the Copyright Act, meaning the police can register an FIR and investigate. However, police involvement is typically reserved for cases of deliberate and commercial-scale piracy (e.g., selling pirated movie DVDs or counterfeit software). For individual cases like the one described, the matter is more likely to be pursued through a civil court. The police may be hesitant to act without a specific court order, especially if the infringement is not blatant piracy. They will investigate based on the complaint, gather evidence, and file a chargesheet if they find sufficient grounds for a criminal offence.

FAQs people normally have

What exactly is copyright infringement?
It is the unauthorized use of someone else’s copyrighted work, such as a character, story, song, or image, in a way that violates the exclusive rights of the copyright owner, like reproduction or distribution for commercial gain.

Is it illegal to bake a cake of a character for my child and post it on social media?
Generally, no. This would likely be considered “fair dealing” for personal and private use. The act of creation for a family event is not a commercial activity.

What if my social media post goes viral and I earn money from it?
This is where the situation becomes complex. Earning money (e.g., through ad revenue) from the use of a copyrighted character without permission can be considered commercial exploitation and may constitute infringement. The “fair dealing” defence becomes weaker.

Does my location (e.g., living abroad) affect Indian copyright law?
If the copyrighted work is Indian and the infringement occurs on a platform accessible in India, Indian law can apply. International copyright treaties like the Berne Convention ensure that works created in one signatory country are protected in others. Therefore, the copyright holder could potentially take action against you in your country of residence as well.

What evidence is required?

For the Complainant (Copyright Holder):

Proof of copyright ownership (e.g., registration certificate, proof of creation and publication).
Evidence of the infringement (e.g., screenshots of the social media post, URL of the video, records of commercial sales).
A copy of the cease and desist notice sent to the infringer.

For the Accused (Alleged Infringer):

Evidence to support a “fair dealing” claim (e.g., proof that the use was for private study, review, or criticism).
Proof that the use was non-commercial.
If applicable, a license or permission from the copyright holder.

How long will the investigation take?

The duration varies significantly. In civil cases, obtaining an injunction can be relatively quick, but the full trial for damages can take several years to conclude in the Indian judicial system. A criminal investigation by the police depends on their workload and the complexity of the case. It can take anywhere from a few months to over a year to complete the investigation and file a chargesheet, after which the criminal trial begins.

Advocate Sudhir Rao, Supreme Court of India

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Navigating Copyright Laws in India: From Personal Use to Commercial Gain