SAP Aktiengesellschaft & Anr (Plaintiff) Vs. Sadiq Pasha, Proprietor, M/s Neologik India
1. Whether a permanent injunction restraining the use of SAP Aktiengesellschaft’s products should be granted due to copyright infringement by the Proprietor of M/s. Neologik India.
2. Whether punitive damages should be awarded against the Proprietor of M/s. Neologik India for the infringement.
Rule of Law:
Section 2(o) of the Indian Copyright Act, 1957- “literary work” includes computer programmes, tables and compilations including computer literary data bases ;
Section 51(a)(i) of the Indian Copyright Act, 1957- Copyright in a work shall be deemed to be infringed when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright.
Section 40(a)of the Indian Copyright Act, 1957-The Central Government may, by order published in the Official Gazette, direct that all or any provisions of this Act shall apply to work first published in any class territory outside India to which the order relates in like manner as if they were first published within India.In the case of Time Incorporated v. Lokesh Srivastava & Anr. [2005 (30) PTC 3 (Del)], this Court observed “punitive damages are founded on the philosophy of corrective justice and must be awarded to give a signal to the wrong doers.”
The court while granting the injunction took into consideration that there was not a single license agreement between the two parties and during the search operation the police recovered two servers containing pirated software SAP R3. Moreover, the Proprietor of M/s. Neologik India, having never appeared in the court for contesting had rather sent an email to SAP, after the police raid, not only acknowledging the use of pirated software but also admitting to continue with it.
The court while deciding for the punitive damages was of the view that if punitive damages are not awarded then it would amount to encouraging and giving an unfair advantage to an unscrupulous infringer over those who have a bona fide defense to make and therefore come forward to contest the suit and place their case before the Court. The Court referred to the case of Microsoft Corporation v. Deepak Raval [2006 (33) PTC 122 (Del)], where it had observed that in our country the Courts are becoming sensitive to the growing menace of piracy and have started granting punitive damages even in cases where due to absence of Defendant, the exact figures of sale made by them under the infringing copyright and/or trademark, and therefore exact damages are not available. It was also held that use of pirated software by a commercial enterprise needs to be dealt with more strictly than use by an individual for his personal purposes.
This case sets an example for those who infringe on copyrights and also choose to stay away from the hearing, in order to be saved from the litigation costs as well as from providing the Court with the proper accounts of the profits they accrued by the infringement. The Court has given a detailed reasoning on the importance of punitive damages in such matters and justified the award of punitive damages in the present case.