An Article on Copyright Law in Bangladesh

Copyright law in Bangladesh

Mohammad Monirul Azam

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings 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 (during the time of the then British regime), the first legislation of its kind, on copyright was introduced in 1914, 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 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-
  1. to reproduce the work in any material form;
  2. to publish the work;
  3. to perform the work in public;
  4. to produce ,reproduce ,perform or publish any translation of the work;
  5. to make any cinematographic film or a record in respect of work;
  6. 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;
  7. to make any adaptation of work etc.

Ownership of copyright
The author of the work is the first owner.

• 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.
• In case of Government work, Government shall be the first owner.

In case of work made or published by or under any public undertaking, it shall be 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 upon disputes on assignment of copyright; 
iv. grant compulsory licenses to publish or republish works (in certain circumstances); 
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 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 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 (except in he case of foreign works)
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.

Next part of the story will be published on January 28, 2006.--Below

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 of copyright. As per section 71 of the Copyright Act, 2000, copyright in a work is deemed to be infringed-

When any person without a license from the owner of the copyright, 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 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 defences 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 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 (subject to certain conditions) or its translation,
10. Making of a drawing, engraving 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 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 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 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 (Search 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.

Concluding Remarks
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 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.

The Author is Assistant Professor, Department of Law, University of Chittagong.