Copyright law have been established all around the world however in Bangladesh such law is very weak in terms of implementing intellectual property right laws. Show the importance of formulation and implementations of intellectual property right law in Bangladesh.
Introduction:
Copyright is a right given by the law to creators of literacy, dramatic, musical and artistic works and producers of cinematograph films and sound recording etc. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. However, there could be slight variations in the composition of the rights depending on the work. There is no copyright in ideas. Copyright subsists only in the material form in which the ideas are expressed. There is an acute lack of awareness on various issues relating to copyright and related rights amongst stakeholders, enforcement agencies, professional users like the scientific and academic communities and members of the public. In this article, an attempt has been made to provide a basic idea and clarifications on most of the issues relating to copyright law and its enforcement.
Objectives of copyright law:
The importance of copyright was recognized only after the invention of printing press, which enabled the large production of books in large quantity practicable. However, the prime objective of copyright law is to encourage authors, composers, artists and designers to create original works by rewarding them with the exclusive right for a limited period to exploit the work for monetary gain. It protects the writer or creator of the original work from the unauthorized reproduction or exploitation of his materials.
Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. Creativity being the keystone of progress, no civilized society can afford to ignore the basic requirement of encouraging the same. Economic and social development of a society is dependent on creativity. The protection provided by copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create.
Domestic laws
In Bangladesh, the first legislation of its kind, on copyright was introduced in 1914[1], which was mainly based on the British Copyright law of 1911. After the independence from the colonial rule, new law was promulgated in 1962. The Copyright Ordinance 1962 is replaced again in 2000 by a new copyright Act, according to the prevailing situation in the Bangladesh and around the world.
Nature and scope of protection
Copyright subsists in original literary, dramatic, musical and artistic works etc and relates to the expression of thought, but the expression need not be original or novel. However, to accord copyright, following factors, are taken into consideration-
- The work must not be copied from another work but must originate from the author.
- Two authors independently producing an identical work will be entitled for copyright in their respective works.
- The emphasis is more on the labor, skill judgment and capital expended in producing the work.
- Section 14 and 15 of the Copyright Act 2000[2] laid down the broad scope of copyright protection. A copyright more or less gives the right to do and authorize the doing of any of the following acts, namely-
- to reproduce the work in any material form;
- to publish the work;
- to perform the work in public;
- to produce ,reproduce ,perform or publish any translation of the work;
- to make any cinematographic film or a record in respect of work;
- to communicate the work by broadcast or to communicate to the public by loud-speaker or any other similar instrument the broadcast of the work;
- to make any adaptation of work etc.
Ownership of copyright
In case the author is employed by newspaper, magazine etc under a contract of service, the proprietor will be the first owner in the absence of an agreement to the contrary in the case of a literary, dramatic or artistic work.
- Where a photograph is taken, or a painting or portrait drawn for a valuable consideration at the instance of person, such person is the first owner.
- Where any address or speech is delivered in public, the person delivering is the first owner and where it is delivered on behalf of another person such other person is the first owner.
Copyright board
The Copyright Act provides for a quasi-judicial body called the Copyright Board consisting of a Chairman and two or more, but not exceeding six, other members for dealing with copyright issues. The Chairman of the Board is either a present or former district judge or a civil servant having the status of Additional Secretary or a lawyer having the qualification to become a judge of the High Court Division. The Board has the power to:
i. Hear appeals against the orders of the Registrar of Copyright;
ii. Hear applications for rectification of entries in the Register of Copyrights;
iii. Adjudicate[3] upon disputes on assignment of copyright;
iv. Grant compulsory licenses to publish or republish works
v. Grant compulsory license to produce and publish a translation of a literary or dramatic work in any language after a period of one, five or seven years as the case may be, from the first publication of the work;
vi. Hear and decide disputes as to whether a work has been published or about the date of publication or about the term of copyright of a work in another country;
vii. Fix rates of royalties[4] in respect of sound recordings under the cover-version provision; and
viii. Fix the resale share right in original copies of a painting, a sculpture or a drawing and of original manuscripts[5] of a literary or dramatic or musical work.
Procedure to obtain copyright
In order to secure copyright protection what is required is that the author must have bestowed upon the work sufficient judgment, skill and labor or capital. It is immaterial whether the work is wise or foolish, accurate or inaccurate or whether it has or has not any literary merit. In order to qualify for copyrights the works apart from being original, should satisfy the following conditions
1. The work is first published in Bangladesh.
2. Where the work is first published outside Bangladesh the author, at the date of publication must be a citizen of Bangladesh. If the publication was made after the authors’ death the author must have been at the time of his death a citizen of Bangladesh.
3. In case of unpublished work the author is at the date of making the work a citizen of Bangladesh or domiciled in Bangladesh.
4. In case of the architectural work of art, the work is located in Bangladesh.
Registration of copyright
The steps for Registration
1. Application in triplicate with prescribed fees.
2. To serve notice of concerned application to every person who has any interest in the subject matter of that application.
3. If the Registrar receives any objection he may after holding such inquiry as he deems fit, enter such particulars of work in the register of copyright, which he considers proper.
Registrar then sends copies of the entries made in the register to the parties concerned.
Infringement of copyright
The owner of copyright work has the exclusive right to do certain acts in respect of the work. If any person does any of these acts without authority, s/he will be liable for the infringement[6] of copyright. As per section 71 of the Copyright Act, 2000[7], copyright in a work is deemed to be infringed-
When any person without a license from the owner of the copyright[8], or the Registrar of the copyright, or in contravention of the conditions of a license granted or any conditions imposed by a competent authority under Act:
- Does anything, the exclusive right to do which is conferred upon the owner of the copyright, or
- Permits for profit any place to be use for communicating the work to the public where such communication constitute an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright.
When any person does any of the following acts, it will also be considered as infringement of copyright:
- makes for sale or hire, or sells or lets hire or by way of trade displays or offers for sale or hire any infringing copies of the work
- distributes, either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, any infringing copies of the work, or
- exhibits to public by way of trade any infringing copies of the work, or
- Imports into Bangladesh any infringing copies of the work.
In general it is the commercial exploitation of the work in any form by a person without authority that constitutes infringement.
Essential ingredients of Infringement
Depending upon the nature of copyright work, infringement involves one or more of the following acts without the authorization of copyright owner:
a) Reproduction of the work in any material form;
b) Publication of the work;
c) Communication of the work to the public;
d) Performance of the work in public and
e) Making of adaptations and translations of the work and doing any of the above acts in relation to a substantial part of the work.
Infringement of copyright cannot be avoided by a mere difference in dimensions or inexact or indirect copying of the original work. Although in most of the cases, it is quite difficult to prove direct copying, it can be deduced by inference from the surrounding circumstances. For example, in case of infringement of literary works, the defendants’ work containing the same error/mistake that occurred in the original work. Again, similarity in style, language, design and sequence may also constitute some evidence of copying. However, one of the safest tests is to determine whether or not there has been an infringement of copyright is to see whether a spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an inimitable[9] impression that the subsequent work appears to be a copy of the original.
Exceptions to infringement
The Copyright Act provides certain exceptions to infringement. The object of these provisions is to enable the encouragement of private study and research and promotion of education. They provide defenses in an action for infringement.
The exceptions as laid down in section-72, come under the following categories:
1. Fair dealing without commercial benefits.
2. Reproduction for use in academic discussion, review or criticism.
3. Reproduction for use in judicial[10] proceedings and for use of members of the legislature,
4. Publication of short passages, restricted reproduction or performance for educational purposes,
5. Making of records under license from Copyright Board on payment of royalty,
6. Playing of records or performance by a club or society for the benefit of the members of religious institutions,
7. Reproduction of an article on current economic, political, social or religious matters in newspapers, magazines etc,
8. Reproduction of a few copies for use in libraries or for research or private study,
9. Matters published in official gazettes including Act of Parliament[11] (subject to certain conditions) or its translation,
10. Making of a drawing, engraving[12] or photograph of an architectural work of art, or a sculpture kept in a public place,
11. Use of artistic work in a cinematography film,
12. Use of an artistic work (author not the owner of copyright) by the author of any mould, cast, sketch, plan, model, etc., made by him for the work,
13.Making of an object in three dimension of an artistic work in two dimensions subject to certain condition, and
14.Reconstruction of a building in accordance with architectural drawings etc.
Therefore, copyright law does not prevent a person from taking what is useful from an original work and create new work with additions and improvements. Under the guise[13] of a copyright the owner of a copyright cannot ask the court to close all the venues of research and scholarship and all frontiers of human knowledge.
Suit for Infringement
Where different persons own the several rights conferred by a copyright in any work, the owner of any such right, to the extent of his/her right, may enforce that right by a civil or criminal proceeding. The following issues arise in a suit for infringement of copyright:
a) Is the plaintiff [14]entitled to file the suit?
b) Whether copyright subsists in the original work or not;
c) How far the act of defendant/s within the ambit of infringement;
d) How far the defendant/s[15] can claim exemption under the exceptions (laid down in the above)
e) What remedies the plaintiff is entitled to, etc.
Remedies against Infringement
There are three kinds of remedies against infringement of copyright, namely:
1. Civil remedies
Civil suits provide remedy for claiming compensation for infringement of copyright and loss of profits as well. The owner of the copyright can bring civil action in which reliefs such as Anton Pillar Order injunction, accounts and damages can be sought. A suit or other civil proceedings relating to infringement of copyright is to be filed in the Court of District Judge, within whose jurisdiction the plaintiff resides or carries on business or where the cause of action arose irrespective of the place of residence or place of business of the defendant
2. Criminal remedies
Criminal remedies provides for the imprisonment of the accused or imposition of fine or both, seizure of infringing copies etc. Criminal proceedings are available in order to punish the persons who have violated the copyright law. The infringement of copyright is a cognizable offence and is punishable with imprisonment for a period extending from six months to four years and a fine ranging from Tk. 50,000/- to Tk. 2,00,000/. The Act also provides for seizure of infringing copies and confiscation of all duplicating equipments used for manufacturing counterfeit copies. However, if the court is satisfied that infringement is committed without having an intention for profit or non-commercial purpose, the court may give lesser punishment, which may be imprisonment for less than six months and fine for less than 50, 000 taka. However, in case of piracy of computer programs, the amount of fine is extended by an amendment to the Copyright Act on May 18, 2005, which is now minimum Tk 1, 00000 and maximum Tk. 4, 00000, if it is committed for commercial purpose. However, in case of mere use of infringing copy or if the court is satisfied that it is committed for non-commercial purpose, the court may impose lesser punishment and lesser fine as well.
3. Administrative remedies
Administrative remedies consist of moving to the Registrar of copyrights to ban the import of infringing copies into Bangladesh, when the infringement is by way of such importation and the delivery of the confiscated infringing copies to the owner of the copyright.
Importance of implementing copyright act In Bangladesh
The Copyright Act 2000 of Bangladesh is a comprehensive law, the prime object of which is ‘thou shall not steal’. This law is drafted in tune with international system of protection i.e., fully compatible with the provisions of the Berne convention and TRIPS[16] Agreement as well. Now as per the present law, Bangladesh has one of the most modern copyright protection laws in the world. But unless or until this law is not implemented properly, this will become a mere paper tiger. That is why proper and effective implementation of the copyright law is a must. It is expected that in line with the changes of copyright law, Government of Bangladesh will take proper steps and effective measures to streamline and strengthen the process of administration and enforcement system of copyright. Protection of copyrights is automatic. This means when a person creates a work, he/she becomes the owner of copyright as soon as it is created and he/she is free to decide on its use. Since by law the work is protected by copyright from the moment it comes into being, there is no formality to be complied with, such as deposit of any work etc. as a condition of protection, He/she can also take legal action through a court of law against the violation of a right or fights comprising copyright.
The very notion of copyright law is that nobody is authorized to use or commercially sell copies of a protected work without authorization from the author concerned with the work. An unauthorized use of a work, except for certain cases, is illegal and punishable under the relevant sections of copyright law. Copyright law in Bangladesh provides a number of provisions for uses of protected works without seeking permission from authors for the purpose of fair dealings, such as private study, private use, research, criticisms, review, reporting current events in a newspaper, magazine or similar periodical, in cinematograph films by broadcast or by photograph,
The law also provides some other provisions to use a protected work without authorization from an author in cases of official gazettes, reports of various commissions, committees boards or councils appointed by government or other similar bodies, if it is not expressly prohibited to publish. Similarly, a number of some other provisions also exist in law under which users are given powers to use freely of the protected works in cases of sound recordings, cinematographic film, computer programmes under certain exceptional cases.
Copyright law provides a number of provisions for limitations. Limitation refers to terms of copyright. Copyright is not a perpetual property unlike other movable or immovable properties. The ownership of copyright is limited to a fixed period of time, after expiry of which copyright does not subsist and it become a public domain work and then any person or individual can use it without observing any legal obligations. The term may differ from country to country. It may be 70 or 60 or 50 years but it should be minimum 50 years in major work, in accordance with international copyright law i.e. the Berne Convention of WIPO[17] for the protection of literary and artistic works of which Bangladesh is a member country. In Bangladesh, copyright terms are as follows: (a) in cases of literary, artistic, musical, dramatic works, the terms is 60 years from the beginning of the calendar years next following the year in which the author dies (Life + 60 years); (b) in cases of photograph, the term is 60 years from the beginning of calendar year next following the year in which the photograph is published (60 years from publication), (c) in case of cinematographic film, the term is 60 years following the year in which the film is published (60 years from publication), (d) In cases of Govt. works, it is 60 years from publication (60 years from publication,), (e) In cases of local authority, the term is 60 years from first publication (60 years from first publication); (f) in case of sound recordings, it is 60 years from publication (60 years from publications) (g) in case of works of international organizations, the term is 60 years from 1st publication (60 years from first publication) (h) in case of broadcasting, the term is 25 years from the beginning of the calendar year next following the year in which the broadcasting is made (25 years from broadcasting); (i) in case of performance, it is 50 years from the beginning of the year next following the year in which the performance is made (50 years from the first performance is made); j) in case of published edition (typographical arrangement), the term is 25 years from the beginning of the calendar year next following the year in which the edition is first published (25 years from the first publication); (k) in case of joint authorship of a work, the term will be 60 years from the death of last surviving author ( 60 years from death of the last surviving author)
Conclusion:
In Bangladesh such problems are also now becoming serious. Currently, Bangladesh has a good copyright law, enacted in 2000, under which different provisions are available to form copyright societies for each class of works mentioned in the copyright law, under which authors or the creators of works, such as writers artists, film makers, broadcasters, musical composers, software producers or programmers, musical performers, including phonogram producers are entitled to administer their own copyrights as members of the societies in accordance with the copyright law, and at this it may be easier to solve piracy problems, through coordination, negotiations and collection of royalties on behalf of the members and legal actions, either nationally or internationally. With regards to infringements/piracy of copyrights it is now becoming a great problem all over the world. In recent years, copyright piracy in the form of counterfeiting, bootlegging and plagiarism have increased manifold in many countries, due to advent of various techniques or devices for easy reproduction and communications of works resulting in unauthorized transfer and use of protected works and also in depriving legitimate remunerations to authors.
References:
Dowd, Raymond J. (2006). Copyright Litigation Handbook (1st ed. ed.). Thomson West. ISBN 0314962794.
Nimmer, Melville; David Nimmer (1997). Nimmer on Copyright. Matthew Bender. ISBN 0-8205-1465-9
Sorce Keller, Marcello. “Originality, Authenticity and Copyright”, Sonus, VII (2007), no. 2, pp. 77–85.
Rosen, Ronald (2008). Music and Copyright. Oxford Oxfordshire: Oxford University Press. ISBN 0195338367.
[1] The Copyright Act 1911, also known as the Imperial Copyright Act of 1911, is an Act of the Parliament of the United Kingdom (UK) which received Royal Assent on 16 December 1911.[1] The act established copyright law in the UK and the British Empire
[2] Copyright in original works
(1) Copyright is a property right that exists, in accordance with this Act, in original works of the following descriptions:
-
- (a) literary, dramatic, musical, or artistic works:
- (b) sound recordings:
- (c) films:
- (d) communication works:
- (e) typographical arrangements of published editions.
(2) A work is not original if—
-
- (a) it is, or to the extent that it is, a copy of another work; or
- (b) it infringes the copyright in, or to the extent that it infringes the copyright in, another work.
(3) [Repealed]
Compare: 1962 No 33 ss 7(1), 13(1), 14(1), 15(1), 17(1); Copyright, Designs and Patents Act 1988 ss 1(1), 5(2), 6(6), 7(6), 8(2) (UK)
Section 14(1): substituted, on 31 October 2008, by section 11(1) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section 14(3): repealed, on 31 October 2008, by section 11(2) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
[3] Put on trial or hear a case and sit as the judge at the trial of
[4] Payment to the holder of a patent, copyright or resource for the right to use their property
[5] The form of a literary work submitted for publication
[6] An act that disregards an agreement or a right
[7] 71.—(1) The copyright in a work is not infringed by anything done for the purposes of parliamentary or judicial proceedings or for the purpose of reporting those proceedings.
(2) Subsection (1) shall not be construed as authorising the copying of a work which is itself a report of the proceedings which has been lawfully made available to the public.
[8] A document granting exclusive right to publish and sell literary, musical or artistic work
[9] Defying imitation; matchless
[10] Decreed by or proceeding from a court of justice
[11] A legislative assembly in certain countries
[12] A block, plate or other hard surface that has been engraved
[13] An artful or simulated semblance
[14] (law) a person who brings an action in a court of law
[15] (law) a person or institution against whom an action is brought in a court of law; the person being sued or accused
[16] The TRIPS Agreement is Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakesh, Morocco on 15 April 1994.
[17] The World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations. It is dedicated to developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest
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