COPYRIGHTS

HISTORY OF COPYRIGHT The history of copyright law starts with early privileges and monopolies granted to printers of books. The British Statute of Anne 1710, full title "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned", was the first copyright statute. Initially copyright law only applied to the copying of books. Over time other uses such as translations and derivative works were made subject to copyright and copyright now covers a wide range of works, including maps, performances, paintings, photographs, sound recordings, motion pictures and computer programs. Today national copyright laws have been standardized to some extent through international and regional agreements such as the Berne Convention and the European copyright directives. Although there are consistencies among nations' copyright laws, each jurisdiction has separate and distinct laws and regulations about copyright. Some jurisdictions also recognize moral rights of creators, such as the right to be credited for the work. Copyright are exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. Copyright does not protect ideas, only their expression or fixation. In most jurisdictions copyright arises upon fixation and does not need to be registered. Copyright owners have the exclusive statutory right to exercise control over copying and other exploitation of the works for a specific period of time, after which the work is said to enter the public domain. Uses which are covered under limitations and exceptions to copyright, such as fair use, do not require permission from the copyright owner. All other uses require permission and copyright owners can license or permanently transfer or assign their exclusive rights to others.

COPYRIGHT ACT IN PAKISTAN In Pakistan, copyright protection is governed by the provisions of the Copyright Ordinance, 1962 ("the Ordinance") which is modeled 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 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.

COPYRIGHT FOR 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 license granted by such owner or the Registrar under the Ordinance or in contravention of the conditions of a license 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 programs 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 programs, the definition of `literary work' is amended by the Copyright (Amendment) Act, 1992 ("the Amendment Act") to include computer programs. Section 2(p) of the Ordinance defines literary work to include work, inter alia, on complications and computer programs, "that is to say programs 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 PROGRAMS Pursuant to the restrictions imposed under Section 56 of the Ordinance, even the purchasers of computer programs may not copy, adapt or make copies of adaption of the programs in connection with their use by themselves or their employees. The unauthorized use of a computer program in a computer is also infringement of the copyright. Accordingly, if a duplicate of a computer program is acquired by someone who has no license to use it, the copyright owner has the right to prevent him using it. Section 56 also restricts rental of computer programs to un-authorized users. Intention to copy computer programs is not an essential ingredient of infringement; nor is it essential that the copying be in the

same medium. Thus, a computer program 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 program does any of the restricted acts; or authorizes 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 license 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 programs), 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) up to 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 equipment used for the purposes of making infringed copies of the work, wherever found, and all copies, plates and recording equipment 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.