Copyright at Peril

By Mahesh Kumar Thapa

While travelling by bus from Biratnagar to Bahuni (a village of Morang District) last March, I enjoyed by the most popular song of the time "Ekadashi Bazaraima" over the music systems of the bus. My enjoyment was not only due to the popularity of the song but also because it aroused a loving memory of my childhood. I have listened to this song from the time immemorial. It is the song of everyone who once visits "Ekadhashi Bazar Mela" at Manakamana Shrine in Shankhuwasabha district.

Soon the song was over. I went to the driver and asked if I could see the cassette. I was surprised that it was not the originally produced one but dubbed into a Hindi film song’s cassette.

Unauthorized publication of copyrighted work is forbidden by law which further provides for punishment in case of infringement. Section 17 of Copyright Act, 1965 prescribes a fine between Rs. five thousand and Rs. one lakh or imprisonment for upto 6 months or both for the first time offender. If it is committed again, the punishment would be a fine between Rs. ten thousand and two hundred thousand or imprisonment for upto one year or both for every time thenafter. The word ‘publication’ includes in its meaning any duplication for public sale or public demonstration.

The bus drivers are not the only culprits. They include a large number of other business holders. These are cassette sellers, cassette producers, hotels, restaurants, discotheques etc. The cassette seller usually dubs the selected songs and charges the customer for each song, which is not his property. It has been evident that some of the cassette manufacturers produce the new cassettes as collections of songs already produced by others. The reproduction is for sale and there are rare examples of royalty being paid to the real owners. The restaurants, hotels and discos play the songs for their customers but pay nothing against the use of others’ copyrighted items.

Not that only the individuals or private organizations are infringing upon others’ copyright. Government owned corporations like Nepal Television also appear in the front line in this race. In many cases it is evident that NTV (in some cases its employees’ union) records the copyrighted songs played at live programmes held at special occasions and sells the product to the cassette producers.

The above illustration, however, does not mean that the copyright applies only to the musical work. The Copyright Act says that any article, essay, story, poem, novel, epic, lyric or any other kind of book, research work, prospectus, descriptive writing in prose or poetry, as a whole or part thereof written, printed, lithographed, typed or issued or produced through any other mechanical device or broadcast in original or in translated form, whether it be a complete set or part thereof, are the creations to which copyright can be claimed.

The Act goes further to recognize the copyright on any drama or cinema or any dialogue, audio-scenographic arrangement or techniques of acting contained therein or any part thereof, any drawing, map, photograph made, engraved, photographed in any manner or any other kind of direct impression or work or part thereof, any notation or sound records or part thereof; any other kind relating literature, music or art or part thereof.

The first amendment to the Act in 1997 extends it to computer software. Despite the inheritance of conservative and traditional conceptual framework of the Act, the acceptance of computer software as copyright work has been appreciated. However, problems seem to appear more for the musical work, and it is not simply a ‘chance’ happening but is caused also by the growing music industry.

However, the Act still lacks the important features of the modern copyright regime. The Act requires the creators to have their works registered with the Registrar of Copyright. Creators will have copyright over their creation only if the creation is registered. International concept is, however, for optional registration. Nobody can raise a question that particular work is not registered. The philosophy behind this concept is that the creators are not traders and their creations should receive honor everywhere regardless of registration formalities.

The related rights are equally important. In the growing trend of mushrooming FM radio stations, TV channels, and music recording units, the absence of related rights leaves them outside the periphery of copyright. Even at this period of chaos, certain FM stations and music recording companies of the private sector have decided to provide royalty to the creators of songs. They deserve appreciation. This trend of rewarding the creators through royalty should be followed for other creations too.

Lack of protection of foreign origin work, failure to recognize moral rights of creators, absence eligibility of legal entity for acquiring copyright (indirectly it can be used for delaying the process of public domain), and qualifying the transfer of creators’ status can be taken as other drawbacks of the Act.

The major problem faced by the copyright holders at this time is related to the jurisdiction of authority designated. The registrar is explicitly authorized to regulate the copyright registration and related administrative matters. The Act is silent on the question about who is going to decide on the case if copyright is infringed. Such a question was actually raised in the case of Music Nepal Vs. Dil Bahadur Lama. It was the case of duplication and sale of copyrighted songs at Bhrikuti Mandap Bazar. The Registrar refused to decide on the case on the basis of the legal opinion of Attorney General’s Office. The opinion was that as the Act does not specify the jurisdiction, cases under the Act automatically fall under the jurisdiction of District Court. Due to the nature of the crime, a simple petition at District Court is of no value specially in terms of evidence collection. So, a writ petition was filed at Supreme Court with a view to seek a guideline and interpretation of Act. The Court, without entering into the legal aspect of the Act, denied to issue an order on the ground of Alternative Remedy. The said case now is subjudiced in Kathmandu District Court and all the people concerned with copyright issues are eagerly waiting for the decision.

Though WTO, WIPO and other national forums and personalities and industries related to copyright are pressing to upgrade the copyright protection system, the government is still turning a blind eye to it. It is so evident from the allocation of government functions. The words used as ‘copyright on archeological matters’ clearly indicates that the authorities are still unaware of the meaning of copyright. The archeological matters cannot be copyrighted but are protected as cultural and religious heritage. On the other hand, copyright is rather the right over the creation of one’s brain.

The negligence of government is further evident if we look at the legal infrastructure provided to safeguard the copyright. The Chief of National Law Library has been designated as Registrar but without sufficient and technical manpower to support him. Presently, except the Registrar, no single person there has the necessary legal background.

I do not mean here that all the problems are rooted at the government. The big problem is the lack of awareness among the general public as well as the creators themselves. There are few creators who really know that there is a copyright, and even if some of them have heard of the copyright, they are still unaware of present legal requirement of registration. The awareness building programmes are occasionally being conducted by the elite groups in coordination with WIPO and other regional copyright related institutions but the recommendations of such programmes are gathering dust in the corners of the Ministry. The long pending new draft bill on copyright is one of the freshest examples.

However, the intent of this article is not to blame the government. There is a progress though it is in a tortoise pace. The punishment as provided for by the first amendment to the Act has definitely put some oxygen into the almost dead body of the Act. Before the amendment, a first time offender could escape scot-free, if pleaded and proved to be ignorant. The fine was very small amount of between Rs. 100 and 500. The imprisonment could hardly be awarded. The Act was really a paper tiger.

As a private sector initiative, the Copyright Society is established and working for awareness building through publication etc. It is heard that it has been giving pressure to the government to put the bill in parliament as soon as possible. The creators of other sectors such as computer software and books also seem to be interested. It is true that higher the economical value, the more crime thereon, and the more the crime, the more legal remedy. From the age of saluting to the person publishing/broadcasting one’s creation, we have come to the age of recognizing our rights.

Nepal has an observer’s status in the WTO and it is about to join the organization. Upon joining, Nepal will be a party to the TRIPS Agreement. The member countries of TRIPS Agreement shall be obliged to comply with almost all the substantive part of the Berne Convention. There are other conventions too in the field of copyright such as Rome Convention and Phonogram Convention, WIPO Performance and Phonograms Treaty.

Nepal is in a transitional phase of improving its copyright system. The draft bill has tried to cover most of the things applicable in present copyright era. The demand of the time now is to replace the obsolete copyright law with a new one. During the time it takes to approve, the most urgently needed efforts would be to interpret and apply the existing law with the new concept. If we fail to cope with the present development, the copyright issue would be at Peril.

Thapa is an Advocate and is associated with Sinha-Verma Law Concern

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