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 therefrom,
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 licences to produce and publish translation of a
literary or dramatic work in English, French or Spanish,
hence an applicant requesting the grant of licence, upon
granting of the licence 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 licences,
nevertheless, such a licence can only be acquired for
Pakistani work and no compulsory licence 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.
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.
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