INTRODUCTION

Due to the emergence of new techniques of reproduction of written material and recording and fixation of audio visual works in the later part of the twentieth Century piracy of literary musical and cinematographic works have assumed global proportion. The major nations of the world and many third world countries have had to revamp their legislation on copyright in order to address the problems raised by the new technologies available to the trade and public at large.

NEW FORMS OF COPYRIGHT WORK AND MODES OF INFRINGEMENT

In addition to stringent enforcement of existing laws the legislation on copyright protection itself had to be amended in order to encompass new forms of work such as computer software and the new dimensions of audio visual works which have emerged after the video revolution. The revolution brought with it new modes of reprography such as photocopying, laser printing, and facsimiles. Today there are machines which can duplicate sound recording and cinematographic works on tapes, videos and compact discs which elude detection. Video parlours have taken neighbourhoods by storm. These parlours can exhibit sell and hire out pirated audio visual works at a fraction of authorized and hire charges because they pay no royalty in return for the intellectual property which they market.

Enforcement of copyright and proprietary interests under the traditional law became increasingly difficult. In addition to loss of revenue to the Government due to tax evasion film producers and authoris of protected literary works suffer lossess of Crores of rupees.

LEGISLATIVE STEPS TO COMBAT PIRACY

In order to combat piracy Pakistan also amended its Copyright Ordinance, 1962. the legislative intent was twofold namely, to extend the scope of protection to new forms of copyright material and to ensure stringent enforcement of copyright. In line with the recommendation of the World Intellectual Property Organisation (WIPO) Section 2, clause (p) now includes computer programmes within the difinition of literary works. In addition Clause (ca) to the said Section incorporates a new definition of audio visual works which covers all forms of visual and sound recordings regardless of the nature of the material object, such as film or tape in which the work is embodies. The clause (h) video films of ever kind were included in the definition of the cinematographic works.

Major changes in the copyright legislation were made in the area of enforcement of copyright by the copyright (amendment) Act, 1992. Section 66 has been amended in order to enhance the punishment for infringement of copyright to imprisonment which may extend to 3 years and/or a fine which may extend to Rs. 100,000/- and in the case of a second conviction section 70(b) stipulates the fine may extend to Rs. 200,000.00.

Pursuant to Section 74, as amended all offences under the copyright law have been made cognisable and non-bailable. It further provides a Police Officer may if satisfied seize without warrant all copies of the work and all plates and recording equipment for purpose of making infringing copies. Prior to the amendment such Police Officers could only seize infringing material after a Magistrate had taken cognizance of the matter.

According to new Section 57(a), new disclosure requirements are required to be displayed on records and video films. Today publishers of records and video films in respect of any Pakistani works are required to display on the record and video cassette and containers thereof the following information :

(a) the name and address of the person who made the record or video film and in the case of video film a declaration by him that he has obtained the necessary licence or consent from the owner of the copyright for making said video film;

(b) the name and address of the owner of the record or video film;

(c) the year of first publication in the case of a record and a copy of the censorship certificate in the case of film.

The display of the above mentioned information will greatly facilitate the detection and prosecution of pirates.

Considering the extent of piracy of foreign audio visual works it would be advisable to extend the disclosure provisions to publication of foreign audio visual works. At any rate the restriction to Pakistani works does not effect the copyright as such in foreign works and the right of the owner to sue for infringement thereof. Failure to comply with the said provision is punishable with imprisonment which may extend to 3 years and/or with fine which may extend to Rs. 100,000.00 in accordance with Section 70(a).

CIVIL REMEDIES FOR INFRINGEMENT

Apart from the penalties outlines above the copyright Ordinance of 1962 provides civil remedies for infringement of copyright. Pursuant to Section 60 of the Ordinance where copyright in any work has been infringed the owner of copyright including the exclusive licensee is entitled to sue the infringer for an injunction, damages and accounts in respect of the said infringement. Under section 63 the owner of copyright can recover from the possession of the infringer all plates used in the production of such copies. The infringing material and the plates are deemed to be the property of the owner of the copyright who may take proceedings for recovery of possession thereof or in respect of conversion of the same.

INFRINGEMENT LITIGATION IN PAKISTAN

Despite the fact that the Copyright Ordinance 1962 has been in the field for 33 years litigation in respect of copyright infringement is still uncommon in Pakistan. Whereas there is extensive case law in the field of Trade Mark infringement and frequent appeals from the decision of the Registrar of Trade Marks, The superior courts have not been provided with an opportunity to familiarize themselves with the concepts and intricacies involved in copyright litigation. The citizens of Pakistan are also unaware of the potential remedies available today under the Copyright Laws.

As Pakistan is a member of the Berne Convention recordal of copyright is not mandatory, and considering the very nature of copyright protection the recordal of copyright should remain optional. However, pursuant to Section 42(2), a certificate of registration of copyright in a work is prima facie evidence that copyright subsists in the work and that the person shown in the certificate as the owner of the copyright is the owner of such copyright. Sometimes this presumption in law works to detriment of the plaintiffs and real owner of copyright in an action for infringement.

Considering the ease with which copyright can be infringed today by the new techniques of reproduction the enhancement of criminal sanctions in 1992 has provided owners of copyright including exclusive licensees of foreign owners of copyright in Pakistan an ideal opportunity to test the copyright laws to its fullest extent. Recently, the new measures for enforcement of copyright were successfully tested in Pakistan. Some major motion picture producers and a giant publisher of foreign books in Pakistan filed a complaint with the law enforcement agencies and successful raids were conducted against the infringers. As infringement is now a cognisable and non-bailable offence the persons quality of infringing the copyright work were arrested and the infringing material in their possession was seized.

The main purpose of the law of copyright is to protect the labour and skill of persons involved in various fields of creative work. If adequate protection and effective enforcement machinery is not available such creative output will diminish to the detriment of the public at large in Pakistan. The need of the hour is to familiarize the citizens and the law enforcement agencies of the new opportunities available under the law to bring infringers to book.

1- The Management of Intellectual Property by Satyawrat Ponkshe

2- Lal's Law of Copyright & Neighbouring Rights, (2nd Revised Edition), by Dr. G.S. Karkara

3- The Copyright Ordinance, 1962 & Copyright Amendment Act, 1992.