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A COMPARISION OF COPYRIGHT LAWS OF INDIA AND PAKISTAN

[Vol 3/Issue 1/ April 2017]

[ISSN 2394-9295]

Raghav Bansal
BBA.LL.B (H)
9^th Semester
Amity Law School, Noida (U.P)
Email ID: raghav.bansal@live.com

ABSTRACT

This article reproduces the prominent categories of copyright laws in India and Pakistan, compares them to their relevant counterparts in the other country, and provides an analysis for each of those categories.

Keywords: India, Pakistan, comparison, copyright law, Protected Works

INDIA AND PAKISTAN: PROTECTED WORKS

COPYRIGHT SUBJECT MATTER

Indian Copyright Act, 1957	Pakistani Copyright Ordinance
To be eligible for protection, an item must be both original, and an expression of an idea, as opposed to an idea.^[1] Ideas cannot be copyrighted, and this is well established by the idea-expression dichotomy. The requirement of originality is mentioned in S. 13(a), which extends copyright protection only to ‘original’ literary, dramatic, musical and artistic works.	The copyright does not protect an idea, but only the expression of the idea^[2]

In Pakistan, as well as in India, it is an expression of an original idea that is protected, as opposed to an idea itself. This is the basic requirement and concept of copyright law everywhere.

CATEGORIES OF PROTECTED WORKS

Indian Copyright Act (Section 13)	Pakistani Copyright Ordinance (Section 10)
(1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say- (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recordings;	10.— (1) Subject to the provisions of this section and to the other provisions of this Ordinance, copyright shall subsist throughout Pakistan in the following classes of works, that is to say, (a) original, literary, dramatic, musical and artistic works; (b) cinematographic works; and (c) records.
Literary works: includes computer programmes tables and compilations including computer data basis;	Literary works: includes works on humanity, religion, social and physical sciences, tables, compilations of data or other material in any form and computer programmes, that is to say, programmes recorded on any disc, tape, perforated media or other information storage device, which, if fed into or located in a computer or computer based equipment is capable of reproducing any information;
Dramatic works: includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film	Dramatic works: includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematographic work
Musical works: means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music	Musical work: means any combination of melody and harmony or either or them, printed, reduced to writing or otherwise graphically produced or reproduced;
Artistic works: (i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; (ii) work of architecture; and (iii) any other work of artistic craftsmanship	Artistic work means,— (i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possess artistic quality; (ii) an architectural work of art; and (iii) any other work or artistic craftsmanship;
Cinematograph films: means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films	Cinematograph works: means any sequence of visual images including video films of every kind, recorded on material of any description (whether translucent or not), whether silent or accompanied by sound, which, if shown (played back, exhibited) conveys the sensation of motion;

The copyright laws in India and Pakistan are, to a very large extent, the same. There are only a few differences, and most of those differences are in the letter of the law, as opposed to the spirit of the law. In each of the cases above, in the categories of protected works, what is protected is exactly the same, just worded a little differently.

As regards literary works, the letter of the law is a little different from the letter of the law in India, however, the spirit of the law remains the same, as the same protection that is laid out in Pakistani law is extended to the same subject matter in India.

REGISTRATION

Pakistani Copyright Ordinance

Registration of the work is not compulsory to acquire protection for eligible works under this Act.

Title in copyright is not dependent on registration, the moment artistic work is created or expressed in any tangible medium of expression, unless otherwise so agreed by the author or created in terms of contract if any, with third party and the moment it is shown that the claim based on the registration is founded on fraudulent misrepresentation; such right could be successfully defeated and defended by the author of the work or his representative.^[3]

In both India and Pakistan, as well as every other country that is a signatory of the Berne Convention, registration of copyright is not necessary to avail protection of works under the respective statute.

UNPROTECTED WORKS

Pakistani Copyright Ordinance (Section 10)

(a) in any cinematograph film a substantial part of the film is an infringement of the copyright in any other work;

(b) in any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording, copyright in such work has been infringed.

S. 10 (3) Copyright shall not subsist—

(a) in any cinematographic work, if a substantial part of the work is an infringement of

the copyright in any other work;

(b) in any record made in respect of a literary, dramatic or musical work, if in making

the record, copyright in such work, has been infringed.

As related to unprotected works, the works in consideration are exactly the same, and the respective sections are worded the same as well.

PROTECTION OF COMPILATIONS

2(o)

Pakistani Copyright Ordinance (Section 2(p))

“literary work” includes computer programmes, tables and compilations^[4] including computer “literary data bases

Literary works:

includes works on humanity, religion, social and physical sciences, tables, compilations of data or other material in any form and computer programmes, that is to say, programmes recorded on any disc, tape, perforated media or other information storage device, which, if fed into or located in a computer or computer based equipment is capable of reproducing any information;

Both India and Pakistan protect compilations of data under their respective copyright statutes.

WHO CAN CLAIM COPYRIGHT?

FIRST OWNER

17	Pakistani Copyright Ordinance (Section 13)
First owner of copyright.-Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein	Subject to the provisions of this Ordinance, the author of a work shall be the first owner of the copyright therein
(a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work	a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work;
(b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein	(b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematographic work made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;
(c) in the case of a work made in the course of the author s employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;^[5]	(c) in the case of a work made in the course of the author’s employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;
(d) in the case of a Government work, Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;	(d) in the case of a Government work, Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;
(e) in the case of a work to which the provisions of section 41 apply, the international organisation concerned shall be the first owner of the copyright therein.	e) in the case of a work to which the provisions of section 53 apply, the international organization concerned shall be the first owner of the copyright therein.

As regards the first owner of the copyright, both India and Pakistan have the same provisions, related to author, work made for hire, government work, work for international organizations, and work for consideration.

MODE OF TRANSFER

Pakistani Copyright Ordinance (Section 15)

(1) No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorised agent.

(2) The assignment of copyright in any work shall identify such work, and shall specify the rights assigned and the duration and territorial extent of such assignment.

(3) The assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties.

(4) Where the assignee does not exercise the rights assigned to him under any of the other subsections of this section within a period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period unless otherwise specified in the assignment.

(5) If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment.

(6) If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India.

(7) Nothing in sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) or sub-section (6) shall be applicable to assignments made before the coming into force of the Copyright (Amendment) Act, 1994.

No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorized agent.^[6]

In India and Pakistan, the general mode of transfer of copyright is the same, i.e., transfer by a duly signed agreement. Indian copyright law, however, does have some additional stipulations that dictate whether or not an agreement so made will be valid.

DURATION OF COPYRIGHT

Pakistani Copyright Ordinance (Section 18)

22. Term of copyright in published literary, dramatic, musical and artistic works.-Except as otherwise hereinafter provided, copyright shall subsist in any literary, dramatic, musical or artistic work (other than a photograph) published within the lifetime of the author until sixty years from the beginning of the calendar year next following the year in which the author dies.

Except as otherwise hereinafter provided, copyright shall subsist in any literary,

dramatic, musical or artistic work (other than a photograph) published within the lifetime of

the author until fifty years from the beginning of the calendar year next following the year in

which the author dies.

The duration of copyright protection granted to a work in India is 60 years plus the lifetime of the author, while in Pakistan, the duration is 50 years, in addition to the lifetime of the author.

WHAT COPYRIGHT IS

RIGHTS GRANTED TO THE OWNER OF A COPYRIGHT

Pakistani Copyright Ordinance (Section 13)

For the purposes of this Act, “copyright” means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely

(1) For the purposes of this Ordinance, “copyright” means the exclusive right, by

virtue of, and subject to the provisions of, this Ordinance,

(a) in the case of a literary, dramatic or musical work, not being a computer programme, –

(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;

(ii) to issue copies of the work to the public not being copies already in circulation;

(iii) to perform the work in public, or communicate it to the public;

(iv) to make any cinematograph film or sound recording in respect of the work;

(v) to make any translation of the work;

(vi) to make any adaptation of the work;

(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);

(a) in the case of a literary, dramatic or musical work, to do and authorize the doing of

any of the following acts, namely:

(i) to reproduce the work in any material form;

(ii) to publish the work;

(iii) to perform the work in public;

(iv) to produce, reproduce, perform or publish any translation of the work;

(v) to use the work in a cinematographic work or make a record in respect of the work;

(vi) to broadcast the work, or to communicate the broadcast of the work to the public

by a loudspeaker or any other similar instrument;

(vii) to make any adaptation of the work;

(viii) to do in relation to a translation or an adaptation of the work any of the acts

specified in relation to the work in sub-clauses (i) to (vi);

(ix) to authorize the rental of computer programmes;

(b) in the case of a computer programme-

(i) to do any of the acts specified in clause (a);

(i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work;

(ii) to communicate the work to the public;

(iii) to issue copies of the work to the public not being copies already in circulation;

(iv) to include the work in any cinematograph film;

(v) to make any adaptation of the work;

(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);

(b) in the case of an artistic work, to do or authorize the doing of any of the following

acts, namely:

(i) to reproduce the work in any material form;

(ii) to publish the work;

(iii) to use the work in a cinematographic work;

(iv) to show the work in television;

(v) to make any adaptation of the work;

(vi) to do in relation to an adaptation of the work any of the acts specified in relation to

the work in sub-clauses (i) to (iv);

(d) In the case of cinematograph film, –

(i) to make a copy of the film, including a photograph of any image forming part thereof; (ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;

(iii) to communicate the film to the public;

following acts, namely:

(i) to make copy of the work;

(ii) to cause the work in so far as it consists of visual images, to be seen in public and,

in so far as it consists of sounds, to be heard in public;

(iii) to make any record embodying the recording in any part of the sound track

associated with the work by utilizing such sound track;

(iv) to broadcast the work;

(v) to authorize the rental of cinematographic works;

(e) In the case of sound recording, –

(i) to make any other sound recording embodying it;

(ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions;

(iii) to communicate the sound recording to the public.

(d) in the case of a record, to do or authorize the doing of any of the following acts by

utilizing the record, namely:

(i) to make any other record embodying the same recording;

(ii) to use the record in the sound track of a cinematographic work;

(iii) to cause the recording embodied in the record to be heard in public;

(iv) to communicate the recording embodied in the record by broadcast.

REMEDIES

55	Pakistani Copyright Ordinance (Section 60)
(1) Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, 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 and had no reasonable ground for believing that copyright subsisted 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.	(1) Where 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:^[7] 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. (2) Where, in the case of a literary, dramatic, musical or artistic work, a name purporting to be that of the author or the publisher, as the case may be, appears on copies of the work as published or in the case of an artistic work, appeared on the work when it was made, the person whose name so appears or appeared shall in any proceeding in respect of infringement of copyright in such work, be presumed, unless the contrary is proved, to be the author or the publisher of the work, as the case may be. (3) The costs of all parties in any proceedings in respect of the infringement of copyright shall be in the discretion of the Court.
S. 63 Any person who knowingly infringes or abets the infringement of- (a) the copyright in a work, or (b) any other right conferred by this Act, except the right conferred by section 53A shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees : Provided that 127where the infringement has not been made for gain in the course of trade or business the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees. Explanation.-Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section.	66. Any person who knowingly infringes or abets the infringement of— (a) the copyright in a work; (ab) the rental rights in cinematographic works and computer programmes; (ac) the rights of performers or producers of sound recording; or (b) any other right conferred by this Ordinance, shall be punishable with imprisonment which may extend to three years, or with fine which may extend to one hundred thousand rupees”, or with both.
63A. Enhanced penalty on second and subsequent covictions. – Whoever having already been convicted of an offence under section 63 is again convicted of any such offence shall be punishable for the second and for every subsequent offence, with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than one lakh rupees but which may extend to two lakh rupees : Provided that where the infringement has not been made for gain in the course of trade or business the court may, for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than one year or a fine of less than one lakh rupees: Provided further that for the purposes of this section, no cognizance shall be taken of any conviction made before the commencement of the Copyright (Amendment) Act, 1984.	70B. Where any person convicted for an offence punishable under section 66, 66A, 66B, 66C, 66D, or 70A, is again convicted for the same offence, the said section shall have effect as if for the words “one hundred thousand” therein the words “two hundred thousand” were substituted.

In the matter of offences and penalties, there is a noticeable difference in the laws of Pakistan and India. Pakistani law does not provide a minimum sentence for the infringement of copyright, but their maximum sentence is three years. Indian copyright law does provide for a minimum sentence, i.e., six months, but the maximum sentence is the same as that of Pakistan, i.e., three years. The fine under Indian law is INR 50,000 – 2,00,000, whereas the fine given under Pakistani law is up to a maximum of PKR 1,00,000 (~ INR 61,629) with no minimum limit.

For subsequent offences, the term of imprisonment is from one year to three years in India, while it is unchanged in Pakistan (i.e., a maximum of three years, with no minimum). As far as fine is concerned, Indian law imposes a penalty of INR 1,00,000 – 2,00,000) while Pakistan increases the maximum penalty to PKR 2,00,000 (~ INR 1,23,258), with no minimum limits. Again, if compared in the same currency, i.e., INR, the maximum penalty in Pakistan (similar to Nepal), is slightly more than the minimum penalty in India.

Civil remedies in India and Pakistan are the same in cases of copyright infringement, and at the discretion of the Court.

R.G. Anand v. Deluxe Films AIR 1978 SC 1613 ↑
Independent Media v Ali Saleem & Others (2006 CLD 97) ↑
ADT Services & Another v M/s. ADT Pakistan (Pvt.) Ltd. & Others (2005 CLD 1546) ↑
Eastern Book Company v. D B Modak (2008) 1 SCC 1 ↑
Godrej Soaps (P) Ltd. vs Dora Cosmetics Co. 2001 VAD Delhi 177 ↑
Prof. Yousuf Salim Chishti & Others v Government of Punjab (PLD 1985 Lahore 92); Shakeel Adilzadah v Pakistan Television Corporation Ltd (1989 CLC 2447); Sheikh Saeed Ullah v Mst. Mahmooda Begum Maudoodi & Others (2004 CLD 1468) ↑
Ferozesons (Pvt.) Ltd. v Dr. Col. Retd. K. U. Kureshi & Others ↑

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