starting point for his/her own collation of information or as a means of checking his/her own independent research. It is generally not possible to establish copying by direct evidence, since it is rare that the plaintiff has available a witness to the act of copying. Apart from the unavailability of witnesses, copying may occur without any objective physical manifestation since copying from memory is no less actionable than is copying from direct view. Therefore copying is established indirectly by the plaintiff's proof of access and substantial similarity- although proof of access and substantial similarity are sine qua non to a finding of copying, such evidence does not require the trier of fact to find copying. 18 But, despite proof of access and substantial similarity, the trier of fact may uphold a finding of no copying if such trier believed the defendant's evidence of independent creation, except where the similarity between the two works is such that no explanation other than copying is reasonably possible. If the defendant in fact copied from a work other than that of the plaintiff's (and such work was not itself copied from the plaintiff's) it is irrelevant in plaintiff's infringement claim that the defendant may have infringed the copyright in such other work. Since a plaintiff ordinarily can do no more than offer evidence of access and substantial similarity in proving the act of copying, the Courts have sought to give some measure of protection to the plaintiff's against a trier's uncritical acceptance of the defendant's answering claim of independent creation. This has been achieved through the imposition on the defendant of a high standard of proof of independent creation where the plaintiff has clearly established access and substantial similarity. Where, however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental, no infringement of the copyright comes into existence. Infringement of copyright being a tort, in the ordinary course, an employer will be vicariously liable for any infringement committed by an employee in the course of his/her employment and for the acts of independent contractors which he/she specifically requested. In this The Copyright, Designs and Patents Act, 1988 has introduced three forms of infringement: i. Authorizing infringement by others [section (16)(2)] ii. Permitting a place of public entertainment to be used for performance of a work [section 25] iii. Providing apparatus for performing, playing or showing a work, etc.[section 26] Authorize has been read as bearing its dictionary meaning of sanction, countenance or approve. In line with theses broad synonyms, it has been said that indifference, exhibited by commission or omission, may reach a degree from which authorization or permission may be inferred.
18
.Nimmer, Melville B., Nimmer on Copyright, Vol. 3, Mathew Bender, New York, 1985, at 13-6.
11