What penalties apply to copyright infringement in commercial advertising in India?

INTRODUCTION

Advertisements tend to use creative works, such as images, music, text, and videos, which are the works that are under copyright. Such material was seen as infringement under the Copyright Act of India, 1957, and is used without permission. The copyright is infringed when a person engages in an action that only the owner has the power to reproduce or broadcast (without permission). This may occur in a business environment when an advertisement firm/company infringes copyright by incorporating unlicensed content in adverts, billboards, or online advertisements. The legislation has both civil and criminal means of dealing with infringers (civil remedies, such as injunctions and damages, and prison and fines) and administrative enforcement tools. Significant parts are Section 51 (definition of infringement), 55 (civil relief), 63 (criminal punishment), etc.

Civil remedies sought by owners

Authors of the copyright have the right to sue the violators in court. Section 55 of the Act provides the owner with remedies for the infringement by injunction, damages, accounts, and otherwise as is or may be provided under the law. Practically, this implies that a court may command an infringer to cease the usage of the material (any injunction) and to compensate money (damages) to cover the change of losses or profits made by the infringer. The court can also demand an accounting of the profits obtained from the infringing advertisement. In the case the infringer displays that they did not know that the work was copyrighted (innocent infringement), only the injunction will be awarded by the court, which might support the copyright owner with the gains of the defendant; however, not with damages.

Advertising cases are associated with injunctions. An example is in Wieden Kennedy v. Jindal Steel (2024), where an advertisement was alleged to have duplicated Jindal Steel. The Delhi High Court observed that there was prima facie copying and, rather than placing an outright bar (because millions had already watched the ad), ordered Jindal Steel to pay 50 lakh in the court. Failure to make this deposit, as the court threatened in the notice of it, would mean an injunction to prevent further publication of the advertisement. This indicates that courts strike the balance between interests; in most cases they permit the running of the advertisement but obtain compensation and a right to cease the running of the advertisement should infringement eventually be established.

Courts also put a heavy focus on substantive similarity tests. In MRF Ltd. v. Metro Tyres (2019), MRF, a tire maker, filed a lawsuit against a competitor because it was duplicating its TV commercial. Based on the overall impression that an average viewer gets, the Delhi High Court was interested in whether this or that advertisement was an obvious copy of another one. The ads were in effect found not substantially similar in that scenario. These examples teach the lesson that, despite the fact that an ad is not a shot-by-shot replica, the imitation of the main creative factors (topic, order, images) may cause a liability. In any of the events, a court may, in case of infringement, permanently ban the advertisement and pay damages.

Criminal Penalties

In addition to civil suits, the Copyright Act criminalizes the infringement. Section 63 says that any individual that infringes knowingly, particularly on copyright, is liable to a sentence of imprisonment and a fine. The highest jail sentence is three years maximum, with fines ranging between 50,000 and 200,000, as the minimum jail term is 6 months. Section 63A adds one year (up to 3 years) and 100,000 (up to 200,000) as the minimum imprisonment and fine respectively to a second or subsequent conviction.

Notably, the Supreme Court has concluded that copyright violations are cognizable (police do not need a warrant to suspect and arrest them) and non-bailable. This implies that police are able to act implicitly to investigate cases of infringement. Section 64 provides that a police officer (sub-inspector or above) who is of the opinion that an infringing copy is occurring may take control of the infringing copies (e.g., printed ads, CDs, DVDs) in the presence of the infringement without a warrant. Then, it is presented to a magistrate. Therefore, by posting an advertisement campaign, one with plagiarized content would not only be exposed to a civil suit, but they would also be subjected to criminal charges. The parties or company executives involved can spend time in jail as a result of conviction. (Also see Section 65: jail up to 2 years in case of plate or equipment possession to make infringing copies, and Section 66/67 of disposal of infringing copies.)

Police enforcement and administration.

These penalties are backed up by a number of enforcement mechanisms. To take an example, a copyright holder may request Customs to treat imports that infringe the copyright in a manner that alters the treatment of the goods in accordance with Section 53. This assists in the prevention of fake or duplicated products (such as CDs, posters, and merchandise) at the border. In section 64, police are given the authority to seize infringing ad materials, as mentioned in the above section. Destruction or delivery of an infringing material may also be ordered by the courts when the accused is not found guilty (Section 66). Practically, when a brand or an agency discovers that its advertising is copied, it may request the police intervention or approach the court.

Preventive Measures

These penalties can be restricted by strict compliance on businesses:

Get the required licenses and authorizations. Always license music, images, videos, or scripts before using any third-party music, images, videos, or scripts in an advertisement (e.g., by license of the music rights society such as IPRS, or by the owner of the copyright).

Clearance procedure: legal departments need to be involved in examining advertisements with respect to copyright-related matters prior to a campaign. Manage documents of releases and contracts.

Internal monitoring and enforcement. In the event that employees/agencies pitch campaigns with untested content, intervene. Also keep an eye on the campaigns of the competition (true, in the case of MRF), and thus you can move fast in case infringement has been found.

Including indemnities in contracts. The contract of an ad agency needs clauses wherein the agency claims that the content is original or licensed and guarantees that the client is indemnified in the event that it is not. This insures businesses in case of the work of an agency being questioned.

Be quick to react to takedowns. Liability can be restricted by making early withdrawals or by settling.

CONCLUSION

To conclude, copyright infringement in commercial advertisement in the Indian context has created dramatic civil and criminal liabilities as outlined in the copyright law of 1957. Organizations involved in the usage of artistic works without the lawful authorization are prone to injunction, substantial damages, confiscation of infringing resources, financial fines, and even imprisonment. Original artistic, literary, musical, and audiovisual creations used in promotional materials are strictly protected by the judiciary, and the law enforcers and customs control entities are also endowed with the responsibility of enforcing same. With such strict punitive actions, businesses and advertising firms, as well as marketing managers, are bound to take the initiative and enforce the rules by means of purchasing relevant licenses, carrying out a strict questioning of the law, and attempting to incorporate solid terms of contract. The protection of intellectual property is not a legal obligation but an underlying aspect of good business practices and brand extension.