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COPYRIGHT INFRINGEMENT IN PAKISTAN

Pakistani Copyright Law:

The Copyright Ordinance of 1962 protects the copyright in Pakistan. It safeguards creators from exploitation and stimulates new ideas. This law was first established in 1962, modelled after the English Act of 1914. Additionally, Pakistan is a member of the Berne Copyright Union and the Universal Copyright Convention. The International Copyright Order of 1968 (Section 54) further guarantees protection for works first published in countries belonging to either convention – granting them equivalent protections as those produced locally.

Pakistan is also a member of the TRIPS Agreement, which contains provisions of the Berne Convention for the Protection of Literary and Artistic Works 1971. Pakistan also protects the copyright of any work in any member country.

The Copyright (Amendment) Act 1992 and the Copyright (Amendment) Ordinance 2000 introduced significant changes to the ordinance.

The Copyright (Amendment) ACT 1992 was a significant step towards protecting copyright in Pakistan. The original copyright protection only extended to literary, dramatic, artistic, musical, cinematographic and architectural works, books, photographs, newspapers, engravings, lectures and records; whereas this legislation defines any disc, tape, wire or another device capable of reproducing sound from it as subject to copyright protection. In addition to this, the law also provides for computer software, periodicals, video films and all other types of audio-visual work. It enforces harsher penalties for violations as well as provides better compensation to persons whose rights have been infringed. Furthermore, it broadens the scope of rights infringement and places stricter limitations on licensing under the Act.

Pakistan’s Copyright Law serves the following purposes:

We know that it is the duty of the state to maintain law and order in society and to protect the rights of its citizens. Protecting copyright is one of the most important and primary functions of the state.

Piracy (unauthorized use, copying, or reproducing of other people’s work) is a major issue in Pakistan today. There have been a large number of people observed illegally copying, using, or reproducing movies, software, and photographic books without any permission or authority. Therefore, these illegal activities must be controlled or protected.

Essentially, the purpose of this act is to protect the creator of a work from infringement of copyright, to protect it from commercial exploitation and to stimulate new ideas, as we discussed above. We will discuss these conditions later on in order to claim this right.

Although this act discusses many things, like rights, licenses, and procedures, our main concern is the infringement of copyright, which is growing increasingly.

Copyright – what is it?

“Copyright” means “the creator’s right”

It may be defined as the complete, full, or exclusive rights granted by law to an originator to publish, film, perform, or record literary, artistic, or musical works for a fixed period of time.

There is, however, a distinction between the term “copyright” and other forms of creator protection, such as patents, which confer exclusive rights to use inventors’ inventions, and trademarks, which are legally protected words or symbols that represent products or services.

Black’s Law Dictionary states:

  • Several conditions must be met in order to qualify for copyright protection:
  • Literature, science, or art must be the subject;
  • It must be original and have its own character.
  • Formally recorded.
  • Perceptible (able to be seen or noticed).
  • The third image

Infringement of copyright is what?

“Infringement” means violating or breaking the terms of a law or agreement.

An infringement of copyright is a violation or breach of a person’s or organization’s copyright, which is protected by law. In other words, it means any use or copy of original content that is the property of another that is illegal or unauthorized.

Under section 2 (ha) of the copyright ordinance 1962, “copy” means:

In 2(ha), the term “copy” includes any material object in which a work is fixed, and from which it can be perceived, reproduced, or otherwise communicated, directly or via a machine or device.

Section 2(n) of the copyright ordinance also defines infringement as follows:

Copying an infringing work means:

  • The reproduction of a literary, dramatic, or artistic work, except for cinematographic works.
  • Record containing the same recording as another record.

If any provision of this ordinance is violated, the reproduction copy or record of a program in which a broadcast reproduction right exists may not be made or imported.

In what circumstances does such infringement occur?

“The infringement of a copyright occurs when someone copies the “expression” of a work, not the idea or information behind the work.”

Even if a work isn’t copied exactly, copyright infringement can occur regardless of whether the works are copied “as it is.” Music and art are the best examples of copyright infringement. If the infringing work is “substantially similar” to the copyrighted work, it constitutes copyright infringement.

In other words, copyright infringement occurs when the rights of the creator or copyright holder are violated.

Here, it would be more appropriate to mention the relevant provisions of infringement law:

As part of Section 56, what is the legal basis for infringement?

A copyright-protected work if copied, by any method whether directly or with the aid of a machine or device, an infringement of that work’s copyright is committed. A work’s copyright is deemed to be infringed in the following situations, according to Section 56 of the Ordinance:-

Whenever any person, without the consent of the owner of the copyright or without a license granted by such owner or Registrar under the Ordinance, violates the terms of such license or violates any conditions imposed by a competent authority.

(i)            violates the owner’s exclusive rights

(ii)           Unless he was unaware and had no reasonable ground for suspecting that such performance would be an infringement of the copyright in the work,

(iii)          Permits for profit any place to be used for the performance of the work in public.

In the event that any person:

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

(ii)           distributes either for the purpose of trade to the extent of adversely affecting the owner of the copyright, or

(iii)          Exhibiting in public as part of a trade show is another option

(iv)          Importing any infringing copies of the work into Pakistan.

(v)           Photographs

Is there any type of activity that does not constitute a copyright infringement?

The following acts are not considered infringements of copyright under copyright law:

(i)            The study, criticism, or review of a literary, dramatic, musical, or artistic work for the purpose of research or private study,

(ii)           Reporting current events through a literary, dramatic, musical, or artistic work –

(iii)          in a newspaper, magazine, or similar publication

(iv)          via broadcast, cinematography, or photography;

(v)           For the purpose of a judicial proceeding or for the purpose of a report of a judicial proceeding; as this exception is also given under section 499 of the PPC.

(vi)          An address delivered at a public meeting that is published in a newspaper

(vii)         Reproduction of literary, dramatic, or musical works in a certified copy made or supplied in accordance with applicable law;

Any reasonable extract from a published literary or dramatic work read or recited in public;

The publication in a collection, primarily composed of non-copyright matter, which is bona fide and intended for the use of educational institutions, and as such described in the title and in any advertisement issued by or on behalf of the publisher, or short passages from published literary or dramatic works, not themselves published for the use of educational institutions, in which copyright applies:

(i)            Reproduction or adaptation of a literary, dramatic, musical or artistic work

(ii)           The reproduction or adaptation is made by a teacher or student without using a printing process, whether at an educational institution or elsewhere;

(iii)          Examined as part of the questions;

(iv)          Answers to such questions;

The performance, in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and students of the institution, or a cinematographic work or a record, when the audience includes only the institution staff, students, parents, guardians, and persons directly involved in its activities;

A literary, dramatic, or musical work may be recorded if:

(i)            The owner of the copyright in the work has previously made or authorized records recording the work;

(ii)           The person making the records has given the prescribed notice of his intention to make the records, and he has paid the owner of the copyright in the work royalties at the rate fixed by the Board for all such records to be made by him.

(iii)          Making a recording embodied in a record available for public listening, —

(iv)          As part of the amenities provided exclusively or primarily to residents of any premises where persons reside;

(v)           As part of the activities of a club, society or other non-profit organization;

(vi)          The performance of a literary, dramatic, or musical work by a club or society for the benefit of a religious, charitable, or educational institution;

(vii)         Reproduction of articles on current economic, political, social, or religious topics in a newspaper, magazine, or other periodical, unless the owner of the copyright has expressly reserved such a right to himself;

(viii)        Publication of a report of a lecture in a newspaper, magazine, or other periodical;

It is the responsibility of the person responsible for a library (including a pamphlet, a sheet of music, a map, chart or plan) to make not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) that is open to the public free of charge or that is attached to an educational institution for the use of the library.

An unpublished literary, dramatic, or musical work kept in a library, museum or other public institution that may be reproduced for research, private study, or publication:

Where the identity of an author of any such work is known to the library, museum or other institution, this clause shall apply only if reproduction is made more than fifty years from the date of their death, or for works of joint authorship, from the date of the last surviving author’s death.

Reproduction or publication of

(i)            Any matter published in any official gazette, or any report of any committee, commission, council, board or other body appointed by the Government, unless reproduction or publication is prohibited;

(ii)           any judgment or order of a Court, tribunal, or other judicial authority, unless the Court, tribunal, or other judicial authority prohibits its reproduction or publication;

(iii)          Creating or publishing a painting, drawing, engraving, photograph, or architectural work of art;

(iv)          Creating or publishing a painting, drawing, engraving, or photograph of a sculpture or other artistic work that is permanently exhibited in a public place;

Inclusion in a cinematographic work of

(i)            If the work is permanently exhibited in a public place or on a premise that the public has access to;

(ii)           In addition, any other artistic work may be included only as background or as an incidental part of the principal subject matter of the work;

(iii)          Using a mould, cast, sketch, plan, model, or study made by the author for the purpose of creating an artistic work when the author does not own the copyright to the work:

(iv)          Insofar as he does not repeat or imitate the work’s main design;

(v)           Creating a three-dimensional object of a two-dimensional artistic work if the object does not appear to persons who are not experts in objects of that description to be a reproduction;

Reconstruction of a building or structure using the original architectural drawings or plans:

(i)            In the event that the original construction was made with the consent or license of the owner of the copyright in such drawings or plans;

(ii)           An exhibition of a literary, dramatic, or musical work recorded or reproduced in a cinematographic work after the expiration of its copyright term.

Is registration necessary to claim copyright?

The Copyright Ordinance, of 1962 does not require compulsory registration of copyright since copyright is automatically protected when a work is created. Registration, however, provides additional legal protection and remedies.

The use of this symbol (©) is highly recommended, and in some countries, it is compulsory, in order to be able to claim compensation under copyright laws.

In accordance with section 39 of the copyright ordinance of 1962:

For the entry of particulars of work in the register of copyrights, the author, publisher, owner, or another person interested may submit an application at the prescribed fee to the registrar. Upon receipt of such an application, the registrar may issue a certificate of registration, unless he believes that such an entry should not be made.

In case of copyright infringement, what remedies are available?

Under the Copyright Ordinance, of 1962, there are two kinds of remedies for infringement:

Remedies under civil law

  • The Copyright Law contains sections 60 and 60A that deal with civil remedies for infringement.
  • The Copyright Act 1962 states in section 60 that where a copyright is infringed, the owner has the right to seek injunctions, damages, accounts, and other remedies provided by law for the infringement.
  • To seize all copyright works, the owner of the copyright may file a suit for declaration, permanent injunction, and damages.

Recourse to criminal law

  • In Pakistan, how to file a complaint against infringement of copyright
  • Infringement of copyright can be punished under sections 66, 66A to 66E, 67 to 70, 70A to 70B, and 71 to 74.

A Complaint can be lodged with the Federal Investigation Agency to get criminal remedy by providing evidence. The FIA will assess the gravity of the situation and act accordingly. If facts are valid and evidence stands as proof, they are likely to conduct a raid instantly and confiscate any copyrighted material. Recently, the FIA apprehended the proprietor of a store in Saddar after they received an allegation from a private entity concerning the trading of illegal products intended for cable internet service violations of customs laws and violation of copyright. A vast amount of illegally replicated, sold, smuggled and imported items were seized during the raid. Products such as CAT-5 and CAT-6 networking cables, Internet connectors and CommScope patch cord logo (a prominent provider of communication infrastructure solutions worldwide based in North Carolina, USA) were confiscated by FIA officials. A First Information Report was submitted citing misuse under sections 15, 156(1)(9) Customs Act 1969 in supplementary with sections 56, 66 & 66-A Copyright Ordinance 1962.

Offences punishable under the Copyright Ordinance, 1962 are dealt with by the FIA

Prime Minister Shaukat Aziz issued a directive in April 2005 to form the Intellectual Property Organization of Pakistan. A 15-member Policy Board consisting of members from both the public and private sectors was established and confirmed through the “Ordinance to Provide for the Establishment of the Intellectual Property Organization of Pakistan”, which went into effect on December 7, 2005. Additionally, an official notification (SRO 321(1)/ 2005 dated 16.4.2005) was inserted into the schedule that designated the Federal Investigation Agency as the lead agency for IPR enforcement.

Upon insertion of Entry No.26 in the Schedule of the Federal Investigation Agency Act, 1974, the Federal Investigation Agency has the authority to investigate cases involving the violation of the Copyright Ordinance, 1962. With concurrent jurisdiction, the FIA can take action in cases in which some Government work is violated, but it does not have jurisdiction over infringements of Copyright between private parties or civil disputes.

Inquiry Procedure
  • On its own initiative or in response to a complaint or written information, the Agency may conduct an inquiry or investigation.
  • A copyright owner or authorized representative must lodge a formal complaint before FIA takes action.
  • The Agency will verify the identity of the complainant upon receiving a complaint. As soon as the Agency has verified the identity of the complainant, it will conduct a preliminary enquiry and obtain from him all the facts supporting his allegations. If the preliminary inquiry indicates that there is a suspicion that an offence has been committed, it will initiate an investigation and register a complaint.
  • However, it is also provided that before the registration of a case, all inquiries shall be kept secret as far as possible, and after a case has been registered, an investigation shall proceed carefully and confidentially, without undue publicity, and special care shall be taken to ensure that no unnecessary damage is caused to the prestige, reputation, and dignity of those involved in the case.
Members of the Agency have the following powers:
  1. For the purpose of an inquiry or investigation under this Act, the members of the Agency shall, subject to any order issued by the Federal Government in this regard, have throughout Pakistan such powers, including powers relating to search, arrest, and seizure of property, and such duties, privileges, and liabilities as officers of a Provincial Police have when investigating offences under this Code or any other law currently in effect.
  2. Subject to rules, if any, a member of the Agency not below the rank of a Sub-Inspector may, for the purposes of any inquiry or investigation under this Act, exercise any of the powers of an officer-in-charge of a Police Station in any area in which he is for the time being. When exercising such powers, the officer shall be deemed to be an officer of a Police Station discharging his functions within the confines of that station.
  3. Without prejudice to the generality of the provisions of sub-section (1) and sub-section (2), any member of the Agency not below the rank of Sub-Inspector authorized by the Director General in this regard may arrest without warrant any person who has committed or for whom a reasonable suspicion exists that he has committed any of the offences referred to in subsection (1) of Section 3.
  4. In exercising the powers of an officer-in-charge of a Police Station, members of the Agency shall include any place declared, generally or specifically, by the Federal Government to be a Police Station.
  5. In the event that a member of the Agency conducting an inquiry believes any element being investigated is at risk of being relocated, moved, or disposed of before a seizures order from the applicable authority has been received, he/she may issue an order in writing to prohibit the owner or anyone who has currently possessed it from moving, transferring, or getting rid of it in any manner without prior consent from said member. This order will be subject to any verdict made by the Court which has jurisdiction over this matter.
  6. A contravention of an order under subsection (5) shall be punished with rigorous imprisonment for a term extending to one year, with a fine, or both.
  7. Any police officer, who is not of lower rank than a Sub-inspector, shall seize without warrant any copies, plates and recording equipment used for making infringed copies of works in the case of an offence under Chapter XIV with regard to copyright. All materials seized must be shown to a Magistrate as soon as possible.
  8. It is prohibited to seize any copy, plate or recording equipment owned by a public library attached to an educational institution or a non-profit library which is accessible to the public free of charge or that is in the possession of a person for his bona fide use.
  9. A person who has an interest in copies of a work, plates or recording equipment seized under sub-section (1) may, within fifteen days of the seizure, request that the copies, plates or recording equipment be returned to them. He shall make such order on the application as he may deem fit after hearing the applicant and the complainant, and after conducting such further inquiry as may be necessary.
  10. All offences under this Ordinance are cognizable and non-bailable.

Infringement of Copyright Law Punishment

According to the Ordinance, anyone who knowingly infringes or abets the infringement of a copyright in a work (which includes computer programs) or any other right conferred by the Ordinance will be punished with imprisonment for up to three years, a fine of up to one hundred thousand rupees, or both.

Offence Repetition

It is very interesting to mention here that as per section 70(b) of the Ordinance when a person who has been convicted for an offence punishable under section 66 is again convicted for the same offence, the said section shall take effect as if the words “one hundred thousand” therein were replaced with “two hundred thousand”.

Who will be responsible, if a Company is involved in copyright infringement?

Whenever an offence under this Ordinance is committed by a company, according to section 71 of that Ordinance, everyone who was in charge of and responsible for the conduct of the company’s business at the time the offence was committed, as well as the company, shall be regarded as guilty of such offence and subject to prosecution and punishment.

Except when the accused proves that the offence was committed without his knowledge or that he exercised due diligence to prevent the commission of the such offence, he is deemed guilty.

Foreigner requirements

Each copyright owner or his agent has the right to access all enforcement agencies and the courts within the legal framework to protect his copyright work.

What are the enforcement authorities?

The authorities responsible for enforcing copyright laws

  • Copyright Law Section 74 (3).
  • FIA Act of 1974, Second Schedule.
  • Sections 58, 65A, and 65C of the Copyright Law apply to Customs.
  • Sections of the Copyright Law pertaining to the judiciary.

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