Copyright protects to original work of authorship fixed in any tangible medium of expression. Original work means the work which is not copied of any existing work. Copyright is a legal right to prevent others making copies, publish, reproduce, distribute etc. of your work without your permission. Copyright gives protection only to expressions, and not to ideas, procedures, methods of operation or mathematical concepts. It means that copyright doses not give protection to idea only but it gives protection to expression of idea.
Section 10 of the ordinance provides that the copyright shall subsist throughout Pakistan in the following classes of works, that is to say,
- Original literary, dramatic, musical, and artistic works
- Cinematographic works
In the light of the above, works covered by the copyright include, but are not limited to, novels, poems, plays, reference work, newspapers, computer programs, databases, films, musical compositions, choreography, paintings, drawings, photographs, sculpture, architecture, advertisements, maps, and technical drawings.
Understanding Computer Software Copyrights in Pakistan
In 1970s and 1980s there were many conflict regarding computer software protection. Some experts were in the opinion that the computer software should be protected under the copyright system and some were in the opinion that it should be protected under the patent system. Finally they reached to consensus that computer software should be protected by copyright, whereas apparatus using computer software or software-related inventions should be protected by patent. The reasons behind this consensus was that the Copyright system gives protection only to expressions, and not to ideas, procedures, methods of operation or mathematical concepts as such, whereas a patent system gives an exclusive right for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem.
In Pakistan the computer program has been protected under the copyright domain. For this purpose, the definition of `literary work is amended by the Copyright (Amendment) Act, 1992 to include computer programmes under the copyright regime. The ordinance defines literary work to include work, on 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”
The function of a computer program or what the program does is not protectable under the copyright regime, instead it gives the owner only the right to prevent anybody else from duplicating the expression or manner of presentation of the set of instructions that constitute the program.
Copyrights Law Applicable In Pakistan
Who Is The First Owner Of Copyright?
Section 13 of the Ordinance provides that the author of a work shall be the first owner of the copyright. Authorship applies to either the individual creator or to a “work for hire”. When an independent individual creates an original work he will be the first owner of copyright. Where a work is made by an employee in the course of employment and as part of the employee’s usual duties, the employer will be the first owner of copyright.
Is Copyright Registration Necessary For Protection?
The Ordinance does not require mandatory registration of copyright but registration does provide certain rights and is highly recommended. Copyright rights are obtained automatically without its registration or other formalities. The rights under copyright law arise as soon as the author creates the work in any tangible medium. As it has been specified above that Pakistan is a member of Berne Convention 1886 for the Protection of Literary and Artistic Works, according to the Berne Convention, literary and artistic works are protected without any formalities in the countries party to that Convention.
Procedure For Registration Of Copyright in Pakistan
The author or publisher or any other person interested in copyright in any work may make an application in prescribed form accompanied by the prescribed fee to the Registrar for entering particulars of the work in Register of Copyrights. For each work separate application has to be filed by the applicant. For registration of copyright the following documents are required to be submitted to the Registrar of Copyrights:
- Application for registration in triplicate in Form-II. The person applying for registration shall simultaneously send a copy of the application to every other person who may be affected and interested in the copyright of the work.
- All application for registration must be accompanied by Statement of Particulars. This statement will be submitted in triplicate.
- In addition to the Statement of Particulars, a Statement of Further Particulars in triplicate is also required to be submitted for the registration of Literary, Dramatic, Musical and Artistic works.
- Two copies of the actual work to be copyrighted.
- Where professionals services are hired to create a work to be copyrighted, affidavit of that professional will be submitted along with the application stating that he does not have any right or claim regarding the work to be copyrighted.
- Registration fee of Rs. 1000/- by Demand Draft made out in favor of DG IPO.
- For the registration of artistic work, applicant shall place an advertisement in the newspaper and submits two copies of this advertisement to the registrar copyrights. Advertisement should be placed in the prescribed format as given in the Copyright Rules.
On receipt of application, the Registrar shall enter the particulars of the work in the Register of Copyrights and issue a certificate of such registration to the applicant unless, for reason to be recorded in writing, he considers that such entry should not be made in respect of any work. A certificate of registration of copyright in a work shall be prima facie evidence that copyrights subsists in the work and that the person shown in the certificate as the owner of the copyright is the owner of such copyright.
Copyrights for Foreign Authors in Pakistan
The Ordinance has distinct provisions for Pakistani and foreign works. It provides that a work published in Pakistan, will be considered to be first published in Pakistan even if this work has been published simultaneously in some other country, unless process of attaining, copyright for such work in that country is of shorter term. The work will be considered to be simultaneously published in Pakistan and in another country, if the time between the publication in Pakistan and the publication in that country does not exceed thirty days. The Ordinance also entitles a corporate body 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.
Duration of Copyrights
Section 18 of the ordinance provides that in published literary (including computer program), dramatic, musical and artistic work copyright shall subsist within the lifetime of the author until fifty years after the death of the author.
Infringement of Copyright in Pakistan
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. The Ordinance provides copyright protection in the following cases:
- When any person without the consent of the owner of the copyright or without a license granted by owner of copyright or the Registrar under the Ordinance
- Evades any of the rights given to the author of the Copyright
- 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
When any person:
- Makes for sale or hire or sells or lets for hire, or by way of trade displays or offers for sale or hire
- Distributes either for the purpose of trade to such an extent as to affect prejudicially the owner of the copyright
- By way of trade exhibits in public
- Imports into Pakistan any infringing copies of the work
Remedies For Infringement Of Copyright in Pakistan
There are two remedies for breach of copyright in Pakistan; civil proceedings and criminal proceedings. Accordingly, a person whose copyrights have been infringed may sue for damages, claim an injunction, claim account of the profits gained by the defendants as a result of the infringement, confiscate infringed articles etc. Recently added section of the Ordinance provides that all offences under the Ordinance are cognizable and non-bailable. The Ordinance provides that the original owner of the copyright may bring an action, which includes the person to whom an exclusive licence has been granted. Amended Section 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.
The Ordinance, as amended by the Amendment Act, provides that any person who knowingly infringes or facilitates the infringement of the copyright in a work (defined to include computer programmes), or any other right conferred by the Ordinance will be punishable. The punishment may be in the form of imprisonment extended to three (3) years, or fine upto to Rs. 100,000, or both. Additionally, the Ordinance provides that where any person convicted for an offence punishable under this law is again convicted for the same offence, he shall in such event be imposed with a fine (beside the imprisonment upto 3 years) of upto Rs. 200, 000. Recently amended section of the Ordinance now gives additional powers to the police to seize infringing copies of the work wherever found, without warrant, and all copies, plates and recording equipment seized shall, as soon as possible, be produced before a Magistrate.
Offences By Companies
In case of an offence committed by a company, the person who was in charge of, or was responsible for conducting business of the company is considered to be guilty of that offence and is liable to be proceeded against and punished accordingly.