Copyright law in Bangladesh
Mohammad Monirul Azam
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.
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.