:: Copyright Protection In Pakistan

Introduction:-

In Pakistan, copyright protection is governed by the provisions of the Copyright Ordinance, 1962 ("the Ordinance") which is modelled on the English Act of 1914. Pakistan is a member of Berne Copyright Union and the Universal Copyright Convention.

Recent Developments:-

One of the most significant developments in relation to the protection of copyright in Pakistan is the recent promulgation of the Copyright (Amendment) Act, 1992 ("the Amendment Act"). Copyright protection originally available to literary, dramatic, musical, artistic, cinematographic and architectural works, books, photographs, newspapers, engravings, lectures, records (defined as "any disc, tape, wire, perforated roll or other device in which sounds are embodied so as to be capable of being reproduced there from, other than a sound track associated with a cinematographic work") and sculptures is now extended to computer software, periodicals, video films and all kind of audio-visual works.

The Ordinance now provides stiffer penalties for offenders and better compensation to the persons whose rights have been infringed. The manner in which the copyright is breached has also been extended. Entirely new offences have been created through the Amendment Act which, inter alia, include penalties for publishing collections or compendiums of work (the Ordinance defines "work" to include literary, dramatic, musical, artistic, cinematographic works and a record) which have been adapted, translated or modified in any manner without the authority of the owner of the copyright.

Section 37 of the Ordinance has been amended to restrict granting of licenses to produce and publish translation of a literary or dramatic work in English, French or Spanish, hence an applicant requesting the grant of license, upon granting of the license and payment of prescribed royalty to the author, can produce and publish translation of a literary or dramatic work in any Pakistani language or any language not being English, French or Spanish.

Foreign Authors:-

The Ordinance has distinct provisions for Pakistani and foreign works. Section 6(1) provides that a work published in Pakistan shall be deemed to be first published in Pakistan, notwithstanding that it has been published simultaneously in some other country, unless such other country provides a shorter term of copyright for such work; and a work is deemed to be published simultaneously in Pakistan and in another country if the time between the publication in Pakistan and the publication in such country does not exceed thirty days. Section 8 entitles a body corporate to be considered domiciled in Pakistan if it is incorporated under any law in force in Pakistan or it has an established place of business in Pakistan. Although the Ordinance has provisions for granting compulsory licenses, nevertheless, such a license can only be acquired for Pakistani work and no compulsory license can be granted for any work whose author in not a citizen of Pakistan or whose `record' is not manufactured in Pakistan.

Duration of Copyright:-

The period of copyright of a literary, dramatic, musical or artistic work (other than a photograph) is the life of the author and 50 years thereafter. In the case of a cinematographic work and a photograph, copyright subsists until 50 years from the beginning of the calendar year from publication of the work.

Infringement of Copyright:-

The act of copying of work, which is entitled to copyright protection, by any method, either directly or with the aid of a machine or device constitutes an infringement of the copyright in the work. Section 56 of the Ordinance provides that copyright in a work shall be deemed to be infringed in the following cases:-

(a) when any person without the consent of the owner of the copyright or without a licence granted by such owner or the Registrar under the Ordinance or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under the Ordinance:-

(i) does anything the exclusive right to do which is by this Ordinance conferred upon the owner of the copyright; or

(ii) permits for profit any place to be used for the performance of the work in public where such performance constitutes an infringement of the copyright in the work unless he was not aware and had no reasonable ground for suspecting, that such performance would be an infringement of the copyright, or

(b) when any person:-

(i) makes for sale or hire or sells or lets for hire, or by way of trade displays or offers for sale or hire, or

(ii) distributes either for the purpose of trade to such as extent as to affect prejudicially the owner of the copyright, or

(iii) by way of trade exhibits in public, or

(iv) imports into Pakistan,

any infringing copies of the work.

Application for Registration of Copyright:-

Section 39 of the Ordinance allows the author or publisher of, or owner of, or other person interested in the copyright in any work, to make an application for registration of the copyright. Rule 4(1) of the Copyright Rules, 1967 ("the Rules") requires every application for registration of copyright to be made in triplicate in Form-II. Rule 4(2) of the Rules requires every application to be in respect of one work only and to be accompanied by a copy of the work.

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COPYRIGHT FOR COMPUTER PROGRAMMES IN PAKISTAN

Introduction:-

In Pakistan, computer programmes are excluded from patent protection under the patent laws. Protection under the copyright laws is the only safeguard available for the computer software industry.

Under the provisions of the Copyright Ordinance, 1962 ("the Ordinance") copyright protection is only available for `works' which fit within one of the categories of works or subject matters specified in the Ordinance. Section 10 of the Ordinance provides that copyright subsists, inter alia, in original, literary, dramatic, musical and artistic works. As regard to the computer programmes, the definition of `literary work' is amended by the Copyright (Amendment) Act, 1992 ("the Amendment Act") to include computer programmes. Section 2(p) of the Ordinance defines literary work to include work, inter alia, on complications and computer programmes, "that is to say programmes recorded on any disc, tape, perforated media or other information storage devices, which, if fed into or located in a computer or computer based equipment is capable of reproducing any information".

Infringement of Computer Programmes:-

Pursuant to the restrictions imposed under Section 56 of the Ordinance, even the purchasers of computer programmes may not copy, adapt or make copies of adaption of the programmes in connection with their use by themselves or their employees. The unauthorised use of a computer programme in a computer is also infringement of the copyright. Accordingly, if a duplicate of a computer programme is acquired by someone who has no licence to use it, the copyright owner has the right to prevent him using it. Section 56 alsorestricts rental of computer programmes to un-authorised users. Intention to copy computer programmes is not an essential ingredient of infringement; nor is it essential that the copying be in the same medium. Thus, a computer programmme stored on diskettes (or any other magnetic media) can be infringed by copying the same on paper, or taking a print-out of the same.

Liability for Infringement:-

In the event of infringement, liability of infringement falls upon the person who, without the consent of the owner of the computer programme does any of the restricted acts; or authorises any other person to do any such acts; or commits any acts of infringement.

Remedies for Infringement:-

There are two remedies for breach of copyright in Pakistan; civil proceedings and criminal proceedings. Accordingly, a person whose copyright has been infringed is able to sue for damages, claim an injunction, an account of the profits gained by the defendants as a result of the infringement, delivery up of infringing articles etc. Recently added section 74(3) of the Ordinance provides that all offences under the Ordinance are cognizable and non-bailable. Section 59 of the Ordinance provides that an action may be brought by the original owner of the copyright, which, inter alia, include the person to whom an exclusive licence has been granted. Amended Section 65 of the Ordinance provides that every suit or other civil proceedings regarding infringement, at the discretion of the applicant, should be instituted and tried in the Court of the District Judge.

Section 66 of the Ordinance, as amended by the Amendment Act, provides that any person who knowingly infringes or abets the infringement of the copyright in a work (defined to include computer programmes), or any other right conferred by the Ordinance shall be punishable with imprisonment which may extend to 3 years, or with fine which may extent to one hundred thousand rupees (one US dollars nearly equals twenty five rupees), or with both. Additionally, Section 70B of the Ordinance provides that where any person convicted for an offence punishable under, inter alia, Section 66 is again convicted for the same offence, he shall in such event be imposed with a fine (beside the imprisonment which may extent to 3 years) upto rupees two hundred thousand.

Recently amended Section 74(1) of the Ordinance now gives additional powers to police to seize infringing copies of the work. The section empowers any police officer, if he is satisfied that an offence in respect of infringement in any work has been, is being, or is likely to be committed, to seize without warrant all copies of the work and all plates and recording equipments used for the purposes of making infringed copies of the work, wherever found, and all copies, plates and recording equipments so seized shall, as soon as possible, be produced before a Magistrate.

Offences by Companies:-

Section 71 of the Ordinance provides that where an offence under the Ordinance is committed by a company, every person who at the time was in charge of, and was responsible to the company for the conduct of the business of the company as well as the company is deemed to be guilty of such offence and is liable to be proceeded against and punished accordingly. Except in the circumstances, the accused proves that the offence was committed without his knowledge or that he exercised due diligence to prevent the commission of such offence, he is deemed guilty.