CORYRIGHT PIRACY AND INFRINGMENT: IT'S ENFORCEMENT IN PAKISTAN

CORYRIGHT PIRACY AND INFRINGMENT: 4. http://www.vellani.com/copyright.htm 5. IIPA Annual Report 1999 6. http://www.totse.com/en/law/justice_for_all/claw4.html Preclusion of formalities: Under Berne, copyright cannot be dependent on formalities such as registration or copyright notice (Art. 5(2)). However, as noted in sections 2.5 and 2.7, this provision apparently does not prevent a member nation from taking adherence to formalities into account when determining what remedies apply. Minimum terms of protection: Under Berne, the minimum duration for copyright protection is the life of the author plus 50 years (Art. 7(1)). Signatory nations may provide a longer durations if they so choose. Minimum exclusive rights: Under Berne, a nation must provide for protection of six rights: translation (Art. 8(1)), reproduction (Art. 9(1)), public performance (Art. 11(1), and Art. liter), adaptation (Art. 12), paternity (Art. 6b is (1)) and integrity (Art. 6b is (1)). In certain of these areas, U.S. copyright law does not quite align with Berne. For example, Berne requires that the paternity and integrity rights endure for the same term as the other rights (Art. 6b is (2)), while in the U.S., those rights terminate at the death of the author (17 U.S.C. 106A (e)). The two have been reconciled by the premise that other sources of federal law, such as trademark, combined with the trademark, unfair competition, and defamation laws of the individual states, satisfy these requirements. 3. International Law and Copyright Piracy: International Legal Framework 7"National laws in almost every country set forth the specific rights of authors, producers and performers of these creators are protected in countries other than their own. 7. http://www.ifpi.org/site-content/copyrightereativity/what_is _copyright..html The Berne Convention for the Protection of Literary and Artistic Works provides basic protections for authors, lyricists and composers internationally. The music industry also relies on treaties that specifically protect sound recordings, including the Rome Convention, the Geneva Phonograms Convention, and the WTO TRIPs Agreement. The International Legal Framework for updating copyright laws for the digital era was laid down in two WIPO Treaties concluded in Geneva in December 1996, the WJPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). Signed by more than 100 countries, the treaties require ratification by 30 signatories in order to become into force worldwide. At the start of the year 2000, approximately 13 States had ratified the treaties, and several other countries are working on their implementing legislation." 4. Piracy, Enforcement and Market Access: 8"The most troubling new development in Pakistan is the very recent establishment of three optical media production plants. The sudden arrival of CD manufacturing capability in Pakistan demands an even quicker solution from the Pakistani Government, lest a small but thriving pirate market turn into the next CD pirate haven. IIPA will be watching extremely closely to determine whether pirate production for export takes place in Pakistan. In any event, the Pakistani Government should immediately take steps to implement effective measures against CD and CD-ROM piracy, including the introduction of effective optical media plant controls. In general, Pakistan must commit more resources to enforce its laws against infringers, and the Pakistani courts must hand down meaningful sentences which will deter infringement of intellectual property rights. With the impending deadline (January 1, 2000) for Pakistan to bring its copyright system (including the enforcement system) up to the standards of TRIPS, Pakistan needs to amend its laws and enforce them to combat piracy of all copyrighted materials of all kinds." 8. http://www.iipa.com/rbc/1999/rbc_pakistan_301_99.htm1 5. Soft ware piracy The extent of the problem in Pakistan: Amongst all types of piracy, software piracy is the one which is spreading very rapidly. 9"Piracy has been the main obstacle to the growth of software sector world-wide, which is reflected in estimated revenue losses to the industry of some $11 billion last year." 10"Software piracy can be defined as "copying and using commercial software purchased by someone else. The roots of software piracy may lie in the early 1960s, when computer programs were freely distributed with mainframe hardware by hardware manufacturers (e.g. AT&T, Chase Manhattan Bank, General Electric and General Motors). In the late 1960s, manufacturers began selling their software separately from the required hardware. 11"Except large corporations and multinational firms, almost every single computer in Pakistan runs pirated software. Piracy is recognized as one of the biggest problems confronting the IT sector in the country." According to a news report 12"If Pakistan wants to take part in the new economy, it needs to reduce its software piracy rate which is higher than many other developing countries. Pakistan's piracy rate fell slightly from 83% in 2001 to 80% in 2002. However, having eight out of every ten software illegal is still an unacceptable situation for the IT industry. 13'"fhe federal cabinet early this month also approved amendments in the Pakistan Copyright Ordinance 1962, and directed the Ministry of Education to include the private sector's opinion, through the law ministry, for making the law more comprehensive. The enforcement has already been started in Pakistan to protect the Intellectual Property Rights, said a Business Software Alliance (BSA) spokesman. In addition, "Copyright" law awareness seminars are planned for all countries in the region. In Pakistan, a number of seminars have already been held in Lahore, Karachi and Islamabad and the Microsoft Open Door Road Show will be brought to Pakistan in November." 9. Software piracy rate set to fall in Pakistan by Irfan Khan, http: //www.apnic.net/mailing-lists/s-asia it/archive/ 1999/09/msg00069.html 10. Article on Software Piracy, by David M. Stone, http://lrs.ed.uiuc.edu/wp/original/crime/d-stone2/piracy.html 11. The Future is open source by Fouad Riaz Bajwa, Free and Open Source Software Foundation of Pakistan 12. Pakistan Times Sindh Bureau Report, Software pirates in Pakistan face damages penalties, pakistantimes.net/ 13. Software piracy rate set to fall in Pakistan by Irfan Khan, http: / /www.apnic.net/mailing-lists/s-asia it/archive/ 1999/09/msg00069.html Few years back software piracy in Pakistan was at its high point. According to IIPA 1998 annual report 14"Pakistan remains essentially a pirate market for both business and entertainment software applications, with an estimated piracy level for business software of 91% for 1997, down a very small amount from the prior year. Estimated trade losses due to piracy of business software are $18.9 million for 1997. Major Banks, financial institutions and government offices use illegal software. Pirate and counterfeit copies of popular programs are openly available. "15Pakistan's software piracy rate dropped to 82 per cent in 2004 against 83 per cent in the previous year, says a latest international report released by Business Software Alliance (BSA), a group of world's leading software developing companies. Though BSA has made slight progress over the last years to reduce the piracy rate, it will continue to work with Pakistan government to reduce it further through public policy, education and enforcement. 16"A report by the International Intellectual Property Alliance (IIPA) says Pakistan was rated in 2003 as a world leader in software piracy. In the intervening period, things have actually become worse as piracy has reached alarming proportions. According to a recent report, Pakistan has secured the top spot in the IIPA's watch list as a "priority foreign country" because of its thriving underground market in illicit digital products. 14. http://www.iipa.com/rbc/1998/rbc_pakistan_301_98.html 15. Daily Times Site Edition, Staff Report, Software Piracy rate in Pakistan drop to 82%:BSA, Wednesday June15, 2005 16. The Future is open source by Fouad Riaz Bajwa, Free and Open Source Software Foundation of Pakistan However, the Pakistani government is committed towards the elimination of piracy and the protection of intellectual property rights. By conducting raids at various locations where illegal software are mass produced, the authorities are trying to eradicate piracy. They also want to educate the people about the benefits of using open source software. 6. Enforcement of Copyright Laws in Pakistan: Remedies provided by Copyright Ordinance 1962: 17"The Ordinance also provides for enforcement of copyright, and allows three types of remedies to the person whose copyright has been infringed. These remedies are civil, criminal and administrative, which though are distinct and independent, can be availed of simultaneously. 7. Problems faced by right holders: 18"Copyright Piracy has assumed global proportions due mainly to the rapid advance in technology. The emergence of new techniques of copying, apart from photocopying, such as recording, fixation and reproduction of audio visual programmes have led to trans national piracy on a massive scale. The object is to avoid payment of legitimate taxes to the Government and royalty to owners of copyright works. In the main there are three types of piracies namely, piracy of the printed word, sound recordings and cinematographic works." Many problems are faced by right holders in order to protect their copyrights in Pakistan. The biggest problem faced other than software piracy is piracy of literacy and artistic work. As explained in Copyright Ordinance, 1962, section 59. 19"For the purposes of this Chapter, unless the context otherwise requires, the expression "owner of copyright" shall include:‑ 17. www.vellani.com/copyright.htm 18. Article on Parallel import in Pakistan by Zain Sheikh. http://www.pakistanconstitution-law.com/Article4.asp 19. Copyright Ordinance, 1962 (a) an exclusive licensee; (b) in the case of an anonymous or pseudonymous literary, dramatic, musical or artistic work, the publisher of the work, until the identity of the author or in the case of an anonymous work of joint authorship or a work of joint authorship published under names all of which are pseudonyms, the identity of any of the authors, is disclosed publicly by the author and the publisher or is otherwise established to the satisfaction of the Board by that author or his legal representatives. RECENT AMEDMENTS IN COPYRIGHT LAWS 20"The Government of Pakistan amended its Copyright Ordinance in 2000 to include an amendment [section 36(3)] that allows a. royalty-free compulsory licence. This provision is clearly overly broad and violates TRIPS. Section 36.3 provides that the government can grant any "institution," including the National Book Foundation (NBF), which is part of the education ministry, reprint rights without authorization of the right holder and without royalty. This amendment was passed without any opportunity for comment from publishers and threatens to further diminish a market already almost completely overrun by piracy. This royalty-free compulsory license violates TRIPS and Pakistan must delete the provision. 20. International Intellectual Property Alliance, 2005 Special 301 Report 8. Statutes and Provisions governing Copyright Laws: The Copyright law in Pakistan is governed by the Copyright Ordinance, 1962 ("the Ordinance") which is based on the English Act of 1914. The Copyright Rules, 1967 have been framed for the proper working of the Ordinance. Many Significant changes in the Ordinance were introduced through the Copyright (Amendment) Act 1992 and the Copyright (Amendment) Ordinance, 2000. "Under the Pakistani Copyright Ordinance of 1962 and its amendments of 2000, original works of literature, art and science, regardless of type, significance or purpose are protectable. Protection includes works of art expressed in writing, sound, drawings, photography and motion pictures, such as books, speeches, oral works, dramatic works, musical compositions, films, phonographic works and applied arts. Such works are protected for the lifetime of the author plus 50 years following his/her death. Civil remedies by way of injunction and/or damages, and criminal remedies by way of fine and imprisonment are available through the Courts of Pakistan. Police raids are also permissible." 9. Remedies Provided by Law: (i) Civil Remedy: According to section 60 of Copyright Ordinance, 1962 Civil remedies include injunction, damages, retention of accounts, delivery of infringing copies and damages for conversion. Temporary and ad interim Injunction can be obtained through Civil Court under Order XXXIX, rules land 2 of Code of Civil Procedure, 1908 (Act V of 1908). Perpetual Injunction in civil cases related to Copyright infringement can be granted under section 53 of Specific Relief Act 1877(I of 1877). According to Copyright 'Ordinance, 1962 section 60(1) "21Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Ordinance, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right: Provided that if the defendant proves that at the date of the infringement he was not aware that copyright subsisted in the work and he had reasonable ground for believing that copyright did not subsist in the work, the plaintiff shall not be entitled to any remedy other than an injunction in respect of the infringement and a decree for the whole or part of the profits made by the defendant by the sale of the infringing copies as the court may, in the circumstances, deem reasonable. (ii) Criminal Remedy: 22"Criminal remedies provide imprisonment of the accused or imposition of fine or both, seizure of infringing copies, and delivery of infringing copies to the owner of the copyright. In particular, there is an express provision in the Ordinance which deals with the offences by companies. According to this provision if a company commits any offence under the Ordinance every person who was in charge of and responsible to the company for the conduct of its business, as well as the company will be deemed to be guilty of such offence and will be liable to be proceeded against and punished accordingly. However, if a person proves that the offence was committed without his knowledge or that he exercised due diligence to prevent the commission of the offence, he will not be held liable to any punishment. Further under the Ordinance a police officer is also empowered to seize without warrant for production before a Magistrate infringing copies of the work and the equipment etc. used in connection therewith. 21. Copyright Ordinance, 1962 22. http://www.vellani.com/copyright.htm (iii) Administrative remedy: 23"Administrative remedies consist of moving the Registrar of Copyrights to ban the import and export of infringing copies in Pakistan. An application may be made to the custom officer (functioning under Customs Act, 1969) for examination and detention of any consignment intended to be imported into or exported out of Pakistan which is suspected to contain infringing copies of any work which is the subject of copyright. 10. Enforcement Procedure: 24"Violations of intellectual property rights in Pakistan are most common in the area of copyrights, where the piracy levels are exceptionally high. The market for imported computer software has remained nearly 95% pirated (multinational firms and other international agencies are the only users of genuine software), while U.S. industry has estimated that the piracy rate for videos has declined to around 80%. The new government, however, has recognized the need for better protection of software in order to establish a Pakistani information technology industry. It has called for regulations to protect intellectual property, promote industry standards, and encourage electronic commerce. As a result of strengthened law enforcement some video outlets are taking steps to offer legitimate products. Foreign industries have reported some improvement in Pakistan's anti-piracy program. Recent raids were conducted on about 50 computer software outlets in Karachi at the behest of the Business Software Alliance. There have also been recent reports of law enforcement agencies sealing numerous video cassette shops in Karachi for a number of days, with the dealers seeking a three-month reprieve to dispose of their existing stocks. Special police anti-piracy task forces have also been established in the different parts of the country. Nevertheless; U.S. industry continues to express concern over the high rate of'-Video piracy in the form of back-to-back copying of videos in video outlets. Furthermore, the entertainment industry reports that motion picture infringement cases more slowly through the court system due to the backlogged court system. Piracy of copyrighted textile designs and reprint piracy of books (especially computer books, business titles, and medical texts) continue to be significant problems. Exports of counterfeit products made in Pakistan have been reported. 23. http://www.vellani.com/copyright.htm 24. http://www.american.edu/carmel/as5514a/Pakistan_Legal.htm Despite improvements in enforcement, the courts have been lax regarding successful prosecution of copyright infringement. According to industry representatives, penalties for infringement imposed by the courts are not strict enough to provide an effective deterrent to piracy. For example, typical penalties imposed on pirate video outlets have amounted to fines of only $16 and no imprisonment. Further, the courts remain extremely backlogged because of inefficient procedures. In the area of copyright infringement alone, in Pakistan, the International Intellectual Property Alliance estimated that piracy of films, sound recordings, computer programs, and books resulted in trade losses of $80 million in 1998. As mentioned earlier Special police anti-piracy task forces have been established. One of their important duties will be to conduct raids against the pirates. The Pakistan Government will protect the rights of copyright owners. Surprise raids will be conducted and deterrent penalties will be imposed. These raids against software pirates will continue to encourage the purchase of original software." Powers of police as an enforcement agency One of the important steps taken to stop this issue is the powers given to police. The powers are made part of the prevailing statutes. According to section 74 of Copyright Ordinance, 1962; Power of police to seize infringing copies "25Any police officer, not below the rank of Sub-Inspector, shall, if he is satisfied that an offence under Chapter XIV in respect of infringement of copyright in any work has been, is being, or is likely to be, committed, 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 practicable, be produced before a Magistrate. 25. Copyright Ordinance, 1962 Provided that no such copy, plate or recording equipment as is owned by any public library for a library attached to an educational institution or a nonprofit library available for use by the public free of charge or in the possession of any person for his bona fide use shall be seized." Flaws in this System 26"Government-initiated enforcement actions against piratical operations are virtually nonexistent (e.g., the police will not undertake a raid without a complaint), forcing right holders to undertake and fund enforcement actions on their own. Nonetheless, some raiding continued on suspected locations of piracy, and there were small pockets of cooperation, for example, from the Central Board of Revenue's (CBR) export monitoring which remains fairly effective. Courts Still do not Mete Out Deterrent Results 27"Aside from the Customs' record in 2004, very few raids have been carried out, and as a result, the courts have not been put to proper use in meting out deterrent penalties against copyright piracy. For example, for publishers, although the law now enables a judge to put someone in jail for 1 to 3 years, and fine them up to Rs.100,000 (US$1,680), the maximum fine that a pirate has received from prosecutions for publishing piracy was Rs.15,000 (US$253) in 2004, hardly a deterrent, and most cases resulted in far lower fines. No sentences involving imprisonments were meted out in 2004. IIPA members report that Judges routinely adopt the public view of piracy as a minor offence, along the lines of a straightforward traffic offence in the U.S. Thus, punishments are often more token than effective. As noted above, IIPA advocates, among other things, minimum jail sentences/fines for crimes involving copyright infringement. Pakistani Court processes are also marred by procedural hurdles. 26. International Intellectual Property Alliance, 2005 Special Report 301 27. International Intellectual Property Alliance, 2005 Special Report 301(page 9) For example, Court cases in Pakistan require significant documentation to support prosecutions, further delaying already slow dockets." Amendments required curing deficiencies According to IIPA Watch List28"Further amendments are required to cure several key deficiencies: 28. http: //www.iipa.com/rbc/ 1999/rbc_pakistan_301_99.html Pakistan needs to provide a rental right for computer programs and sound recordings, currently missing from the law. Exceptions to protection in the Pakistani Copyright law are overly broad. While the reproduction and translation compulsory license was amended in 1992, it remains virtually unrestricted in scope and is therefore incompatible with the 1971 Berne Appendix. Full retroactive protection for works under the law (as required by Article 18 of the Berne Convention, as incorporated by reference into TRIPS) is unclear. The Pakistani Copyright law needs to be amended to provide a clear point of attachment for the protection of foreign sound recordings. Civil ex parte search orders, essential to enforcement against end-user piracy and required by Article 50 of TRIPS, are not available in Pakistan. Clarifications of the provisions providing protection against parallel imports are needed. Pakistan must amend the Copyright law as discussed above forthwith to meet its TRIPS obligations on time. In addition to amending its law, Pakistan should be urged to ratify the 1971 (Paris) text of the Berne Convention." 11. Licensing under Copyright Ordinance in Pakistan: As mentioned above Licensing can be a very effective tool in controlling the copyright piracy and infringement. Even IIPA has emphasized on compulsory Licensing that it can be effective and a very important way to stop piracy. Copyright Ordinance, 1962 explains licensing in detail. Provisions provided by the Ordinance are mentioned in complete detail below in order to understand its purpose as explained by the Copyright Ordinance, 1962. This idea will curtail the piracy rate which is increasing day by day, especially in the field of literary work. Section 35 of Copyright Ordinance, 1962 explains the Licences by owners in detail. S:35.--Licences by owners of copyright. 29"The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the copyright by license in writing signed by him or by his duly authorized agent: 29. http: //www.tic.org.pk/ipro/The%20Copyright%200rdinance%20 1962.pdf Provided that in the case of a license relating to copyright in any future work, the license shall take effect only when the work comes into existence Explanation: When a person to whom a licence relating to copyright in any future work is granted under this section dies before the work comes into existence, his legal representatives shall, in the absence of any provision to the contrary in the licence, be entitled to the benefit of the license. S:36. Compulsory licence in work withheld from public. (1) If at any time during the term of copyright in any Pakistani work which has been published or performed in public, an application is made to the Board that the owner of the copyright in the work‑ (a) has refused to republish or allow the republication of the work or has refused to allow the performance in public of the work and by reason of such refusal the work is withheld from the public; or (b) has refused to allow communication to the public by broadcast of such work or, in the case of a record the work recorded in such record, on terms which the applicant considers reasonable; or (c) is dead or is unknown or cannot be traced or found and republication of the work is necessary in the public interest; the Board, after giving to the owner of the copyright in the work a reasonable opportunity of being heard and after holding such inquiry as it may deem necessary, may, if it is satisfied that such refusal is not in the public interest, or that the grounds for such refusal are not reasonable, direct the Registrar to grant to the applicant a licence to republish the work, perform the work in public or communicate the work to the public by radio-diffusion, as the case may be, subject to payment to the owner of the copyright of such compensation and subject to such other terms and conditions as the Board may determine; and thereupon the Registrar shall grant the licence to the applicant in accordance with the direction of the Board, on payment of such fee as may be prescribed. (2) Where two or more persons have made applications under subsection (1) "the licence shall be granted to the applicant who in the opinion of the Board would best serve the interests of the general public." {(3) The Federal Government or the Board may, upon an application by Government or statutory institution, in the public interest, grant a licence to reprint, translate, adapt or publish any textbook on non profit basis.} CONCLUSION Using Intellectual Property tools musicians, performers, craftsmen and designers of Pakistan can contribute in curtailing Copyright piracy. The importance of copyright protection has been adequately verified by the incorporation of copyright and related rights in the TRIPS Agreement. The need for an efficient and modern system for the protection of copyright in Pakistan is important not only for right owners but also for the country itself as a mean for the development of national copyright industries free from piracy. Out of few examples of developing countries, which have benefited from copyright protection, the first and the most familiar example is Indian software and film industry fighting strongly for the Intellectual property rights by running massive campaigns world wide i.e. STOP PIRACY.