Copyright law in Bangladesh
Mohammad Monirul Azam
Assignment and license
The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign or can grant license to any person the copyright of the work. It may be applicable either for the whole work or partial work. Again assignment or license may be either in general (without limitations) or subject to limitations and either for the whole term of the copyright or any part thereof.
Mode of assignment
Section 18-23 of the Copyright Act, 2000 laid down the nature and procedure of the assignment of copyright. Section 19 laid down the mode of assignment in the following manner-
1) It shall be in writing signed by the assignor or by his duly authorized agent.
2) It shall identify the specific works and specify the rights assigned and the duration and territorial extent of such assignment.
3) It shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the existence of the assignment
4) The assignment shall be subject to revision, extension or termination based on terms mutually agreed upon by the parties.
5) Where the assignee does not exercise the rights assigned to him 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.
6) If the period of assignment is not specified, it shall be deemed to be five years from the date of assignment. If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within the whole of Bangladesh.
However, the author of a work may also relinquish all or any of the rights comprising the copyright in the work by giving notice in the prescribed form to the Registrar of Copyrights, which is laid down in section 22. As per section 20 of the Act, the Copyright Board is authorized to deal with any dispute regarding the assignment of copyright. The Board is empowered to cancel any assignment provided that this kind of order will not be given within 5 years of assignment.
Like an assignment of copyright, a license will be in writing and can be limited in terms of either the scope or the duration or both. A license may be exclusive (to the exclusion of all others including the owner) or non-exclusive (when the licensor may grant the copyright to more than one person). If duration and geographical limit is not mentioned in the license deed, then it will be presumed for 5 years and limited within Bangladesh. It also provides for issuing of compulsory licenses in respect of works withheld from the public e.g., due to unreasonable price, non-publication as per demand and necessity. Compulsory license is also granted for reproduction or translation of original works of foreign origin, but only for the purpose of promoting teaching, research and scientific development etc. Such foreign works and their translation can then be published in Bangladesh. Section 48-54 of the Copyright Act, 2000 laid down the procedure of granting license for copyright.
Duration/Term of Protection
The term of copyright varies according to the nature of the work and whether the author is a natural person or a legal person e.g. a Corporation, Government Institution, etc., or whether the work is anonymous or pseudonymous. Section 24-32 of the Copyright Act laid down the term of protection as follows-
1. In the case of literary, dramatic, musical or artistic work (other than a photograph) when published during the lifetime of the author, copyright subsists during the lifetime of the author plus sixty years from the beginning of the calendar year next following the year in which the author dies.
2. Where the work is of joint authorship the sixty years period will start after the death of the author, who dies last.
3. In the case of anonymous or pseudonymous works the terms of copyright is until sixty years from the beginning of the calendar year next following the year in which the work is first published. If the identity of the author is disclosed before the expiry of the sixty years period, copyright shall subsist until sixty years from the beginning of the calendar year next following the year in which the author dies.
4. In the case of posthumous publications the term will be sixty years from the beginning of the calendar year next following the year in which the work is first published.
5. The period of copyright for a photograph is sixty years from the beginning of the calendar year next following the year in which the photograph is published.
6. For cinematography film and record also the term is sixty years from the beginning of the calendar year next following the year in which the work is published.
7. Where the Government or a public undertaking is the first owner of copyright, the term of copyright is sixty years from the beginning of the calendar year next following the year in which the work is first published.
8. Copyright works of International Organisation also have a term of sixty years from the beginning of the calendar year next following the year in which the work is first published.
Apart from the protection of above mentioned works, Copyright Act 2000 also provides for the protection of broadcast reproduction rights for a term of twenty five years from the beginning of the calendar year next following the year in which the broadcast is made [section 33(2)]. Again, protection of performers' rights is also ensured for a term of fifty years from the beginning of the calendar year next following the year in which the performance is made [section 35(2)].
Moral Rights/Author's Special Right
The copyright besides conferring economic benefits also confers moral rights on the author. The moral right of the author includes following rights-
1. The right to decide whether to publish or not to publish the work i.e., the right of publication
2. The right to claim authorship of a published or exhibited work (i.e., right to paternity or maternity)
3. The right to prevent alteration and other actions that may be harmful for the author's reputation (i.e., the right of integrity)
However the copyright Act of Bangladesh did not used the term moral rights rather it has given similar rights to authors under the term of authors special right, which is laid down in the section 78 of the Copyright Act, 2000. As per section 78 of the Act, the authors even after the assignment or revocation of their copyright will enjoy following special rights-
1. To claim authorship of the work
2. To restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work, if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation.
However, the creator or author of computer programs will not enjoy the right to restrain or claim damages in case of adaptation of computer programs for the purpose for which it was supplied and to make copies or changes to save it against loss or destruction.
Collective administration of copyright
Collective administration of copyright is a concept where management and protection of copyright in works are undertook by a society of owners of such works. Obviously no owner of copyright in any work can keep record of all the uses of his/her work. When s/he becomes a member of a national copyright society, that society, because of its organisational facilities and strength, is able to keep a better vigil over the uses made of that work throughout the country and collect due royalties from the users of those works. Because of the country's membership in international conventions, the copyright societies may also be able to have reciprocal agreements with similar societies in other countries for collecting royalties for the uses of works in other member countries. Therefore, it is undeniable that it will be in the interests of copyright owners to join in a collective administration organization to ensure better protection to the copyright in their works and for reaping optimum economic benefits from their creations. Users of different types of works also find it easy to obtain licenses for legal exploitation of the works in question, with the assistance of the collective administrative society.
A copyright society is a registered collective administration society, which as a separate legal entity safeguards the interests of the owners of the works in which a copyright subsists. In fact, the author of a creative work is assured of commercial management of his/her work by these societies. Section 41-47 of the Copyright Act, 2000 provides for the formation and management of the copyright society in Bangladesh. As per section 41(3) of the Copyright Act, 2000, ordinarily, only one society is registered to do business in respect of the same class of work. Copyright society can issue or grant licenses in respect of any work in which copyright subsists or in respect of any other right given by the Copyright Act.
Functions of a copyright society
As per section 42 (3) of the Copyright Act, 2000, a copyright society may:
i. Issue licenses in respect of the rights administered by the society.
ii. Collect fees in pursuance of such licenses.
iii. Distribute such fees among owners of copyright after making deductions for the administrative expenses.
Unfortunately there is a complete absence of the concept of collective administration of copyright in Bangladesh and till date no registered copyright societies in Bangladesh working effectively.
Copyright as guaranteed by the Copyright Act of Bangladesh is valid only within the territory of Bangladesh. To secure protection to Bangladeshi works in foreign countries, Bangladesh has become a member of the following international conventions on copyright and neighbouring or Related rights:
i. Berne Convention for the Protection of Literary and Artistic Works, 1886 (accepted by Bangladesh on May 4, 1999).
ii. Universal Copyright Convention, 1952 (accepted by Bangladesh on May 5, 1975).
iii. Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement), 1994 under the World Trade Organisation (WTO) (accepted by Bangladesh on January 1, 1995 as part of the WTO package of agreement).
Therefore all the works of Bangladeshi creators will get copyright protection in any of the member countries of the above-mentioned international conventions and agreement. It is also noteworthy that the Copyright Act of Bangladesh under section 68-70 guaranteed protection to the works of other member countries and international organisations on the basis of reciprocity.
Concluding part of the story will be published on February 4, 2006.
The Author is Assistant Professor, Department of Law, University of Chittagong.