SALIENT PROVISIONS OF THE COPYRIGHT ORDINANCE, 1962, (ORDINANCE NO. XXXIV OF 1962), (AS AMENDED BY THE COPYRIGHT AMENDMENT ORDINANCE 2000), IN RESPECT OF CINEMATOGRAPHIC WORKS AND (AUDIO) RECORDS
SALIENT PROVISIONS OF THE COPYRIGHT ORDINANCE, 1962,
(ORDINANCE NO. XXXIV OF 1962), (AS AMENDED BY THE
COPYRIGHT AMENDMENT ORDINANCE 2000), IN RESPECT OF
CINEMATOGRAPHIC WORKS AND (AUDIO) RECORDS
By ZAIN SHEIKH
2. DEFINITION :
In this Ordinance, unless there is anything repugnant in the subject or context –
(d) ‘author’ means
(i) in relation to literary or dramatic work the author of the work;
(ii) in relation to a musical work, the composer;
(iii) in relation to a cinematographic work, the owner of the work at the time of its completion;
(iv) in relation to record, the owner of the original plate from which the record is made, at the time of the making of the plate;
(h) ‘cinematographic work’ 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;
(ha) ‘copy’ includes any material subject in which a work is fixed by any method and from which the work can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device;
(hb) ‘counterfeit copy’ means a copy which is an imitation of another copy and appears to be, but is not genuine;
(i) ‘delivery’ in relation to a lecture, includes delivery be means of any mechanical instrument or by (broadcast or telecast);
(n) ‘infringing copy’ means
(ii) in relation to cinematographic work, a copy of the work or a record embodying the recording in any part of the sound track associated with the film;
(iii) in relation to record any record embodying the same recording;
(zb) ‘record’ means any disc, tape, wire, perforated roll or other device in which sounds are embodied so as to be capable of being reproduced therefrom, other than a sound track associated with cinematographic work;
(zc) ‘recording’ means the aggregate of the sound embodied in and capable of being reproduced by means of a record;
(zcc) ‘rental’ means the authorization to use the original or a copy of computer program or a cinematographic work for a limited period of time for consideration;
(zd) ‘reproduction’ in the case of literary, dramatic or musical work, includes a reproduction in the form of a record or of a cinematographic work and, in the case of an artistic work, includes a version produced by converting the work into a three dimensional form, or if it is in three dimensions, by converting it into a two dimensional form and references to reproducing a work shall be construed accordingly.
3. MEANING OF COPYRIGHT :
(1) For the purpose of this Ordinance, ‘copyright’ means the exclusive right, by virtue of, and subject to the provisions of, this Ordinance :
(c) in the case of a cinematographic work, to do or authorize the doing of any of the following acts, namely :
(i) to make a 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;
(d) in 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 recording in the sound track of a cinematographic work;
(iii) to cause the recording embodies in the record to be heard in public;
(iv) to communicate the recording embodies in the record by [broadcast].
(2) Any reference in sub-section (1) to the doing of any act in relation to a work or a translation or an adaptation thereof shall include a reference to the doing of that act in relation to a part thereof.
4. MEANING OF PUBLICATION :
(1) For the purposes of this Ordinance, ‘publication’ means :
(b) in the case of a cinematographic work, the sale or hire or offer for sale or hire of the work or copies thereof to the public;
(c) in the case of record, the issue of records to the public in sufficient quantities; but does not, except as otherwise expressly provided in this Ordinance, include –
(i) in the case of a literary, dramatic or musical work, the issue of any records recording such work;
(ii) in the case of a work of sculpture or an architectural work of art, the issue of photographs and engraving of such work.
10. WORK IN WHICH COPYRIGHT SUBSISTS :
(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 it to say –
(a) original literary, dramatic, musical and artistic works;
(b) cinematographic work; and
(2) Copyright shall not subsist in any work specified in sub-section (1), other than a work to which the provisions of section 53 or section 54 apply, unless –
(i) in the case of a published work, the work is first published in Pakistan, or where the work is first published outside Pakistan, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of Pakistan or domiciled in Pakistan;
(ii) in the case of an unpublished work other than an architectural work of art, the author is at the date of the making of the work a citizen of Pakistan or domiciled in Pakistan; and
(iii) in the case of an architectural work or art, the work is located in Pakistan.
[(2A) Copyright shall not subsist in any work referred to in sub-section (2) as respects its reprints, translation, adaptation or publication, by or under the authority of the Federal Government as text-book for the purposes of teaching study or research in educational institutions.]
(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 literary, dramatic or musical work, if, in making the record, copyright in such work has been infringed.
(4) The copyright or the lack of copyright in a cinematographic work or a record shall not affect the separate copyright in any work in respect of which or a substantial part of which, the work, or as the case may be, the record is made.
13. FIRST OWNER OF COPYRIGHT :
Subject to the provisions of this Ordinance, the author of a work shall be the first owner of the copyright therein.
14. ASSIGNMENT OF COPYRIGHT :
(1) The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitation and either for the whole terms of the copyright or any part thereof :
Provided that, in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence :
Provided further that, where the owner of the copyright in a work is the author of the work, no assignment of the copyright in the work or of any interest in such copyright shall be made, or if made shall be effective (except where the assignment is made in favour of Government or an educational, charitable, religious or non-profit institution) for a period of more than ten years beginning from the calendar year next following the year in which the assignment is made; if an assignment of the copyright in a work is made in contravention of this proviso, the copyright in the work shall, on the expiry of the period specified in this proviso, revert to the author (who may re-assign the copyright in the work subject to the provisions herein contained), or if the author be dead to his representatives in interest
Provided further that the copyright in an unpublished work assigned by its author to any person or organization for the specific purpose of its publication shall revert to the author if such work is not published within a period of three years from the date of its assignment.
15. MODE OF ASSIGNMENT :
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.
20. TERM OF COPYRIGHT IN CINEMATOGRAPHIC WORK, RECORD AND PHOTOGRAPHS :
(1) In the case of a cinematographic work, copyright shall subsist until fifty years from the beginning of the calendar year next following the year in which the work is published.
(2) In the case of a record, copyright shall subsist until fifty years from the beginning of the calendar year next following the year in which the record is published.
24A. RIGHTS OF PERFORMERS AN DPRODUCERS OF PHONOGRAMS (SOUND RECORDINGS).
(1) The performers shall have the riht to do or to prevent fixation of their unfixed performance and reproduction of such fixation and broadcasting by wireless means and communication to the public of their live performance.
(2) The producers of phonograms shall have the right to do or to prohibit the direct or the indirect reproduction of their live performance.
(3) The rights specified in sub-sections (1) and (2) shall subsist for a period of fifty years computed from the end of the calendar year in which fixation was made or performance took place.
25. APPLICATION OF OTHER PROVISIONS OF THIS ORDINANCE TO BROADCASTING, PERFORMERS AND PRODUCERS OF PHONOGRMS.
Any person who, without authorization of the broadcasting organization, performers and producers of phonograms (sound recording) does or causes the doing of any of the acts referred to in Section 24 and 24A shall be deemed to infringe the rights of the broadcasting organization, performers and producers of phonograms (sound recording) and the provisions contained in Chapters XII to XVI shall, within the limits permitted by the nature of the matter, apply to broadcasting organization, performers and producers of phonograms (sound recording) as if they were authors and works, respectively.
26. DEFINITIONS :.
(a) “broadcasting” means communication to the public of sound or images or both by means of radio diffusion, including communication by telecast, or wire, or by both, or any other means of communication.
(b) “fixation” means the incorporation of sounds or images or both in a device by means of which they can later be made aurally or visually perceivable.
(c) “phonogram” means any exclusively aural fixation of sounds of a performance or of other sounds.
(d) “producer of phonogram” means a person who or the legal entity which, fixes the sounds of a performance or other sounds.
(e) “rebroadcasting” means the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization.
35. LICENCES BY ONWERS OF COPYRIGHT :
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 licence in writing signed by him or by his duly authorized agent.
39. REGISTRATION OF COPYRIGHTS :
(1) The author or publisher of, or the owner of or other person interested in the copyright in, any work may make an application in the prescribed form accompanied by the prescribed fee to the Registrar for entering particulars of the work in the Register of copyrights.
(2) On receipt of an application in respect of any work under sub-section (1), Registrar shall enter the particulars of the work in the Register of Copyrights and issue a certificate of such registration to the applicant unless, for reason to be recorded in writing, he considers that such entry should not be made in respect of any work :
42. REGISTER OF COPYRIGHTS TO BE PRIMA FACIE EVIDENCE OF PARTICULARS ENTERED THEREIN :
(1) The Register of Copyrights and the indices shall be prima facie evidence of the particulars entered therein and documents purporting to be copies of any entry therein or extracts therefrom certified by the Registrar and sealed with the seal of the Copyright Office shall be admissible in evidence in all courts without further proof of production of the original.
(2) A certificate of registration of copyright in a work shall be 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.
54. POWER TO EXTEND COPYRIGHT TO FOREIGN WORKS :
(1) The Central Government may, by order published in the official Gazette, direct that all or any of the provisions of this Ordinance shall apply –
(a) to works first published in a foreign country to which the order relates in like manner as if they were first published within Pakistan.
56. WHEN COPYRIGHT INFRINGED :
Copyright in a work shall be infringed –
(a) when any person, without the consent of the owner of the copyright or without a licence granted by such owner or the Registrar under this Ordinance or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this ordinance ;
(i) does anything, the exclusive right to do which is by this ordinance conferred upon the owner of the copyright;
(b) when any person –
(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire; or
(ii) imports into Pakistan any infringing copies of the work.
Explanation : For the purpose of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematographic work shall be deemed to be an ‘infringing copy’.
57. CERTAIN ACTS NOT BE INFRINGEMENT OF COPYRIGHT :
The following acts shall not constitute an infringement of copyright namely:
(j) the making of records in respect of any literary, dramatic or musical work, if –
(i) records recording the work have previously been made by or with the licence or consent of the owner of the copyright in the work; and
(ii) the person making the records has given the prescribed notice of his intention to make the records, and has paid in the prescribed manner to the owner of the copyright in the work royalties in respect of all such records to be made by him, at the rate fixed by the Board in this behalf.
Provided that in making the records such person shall not make any alterations in, or omissions from, the work, unless records recording the work subject to similar alterations and omissions have been previously made by, or with the licence or consent of the owner of the copyright, or unless such alterations and omissions are reasonably necessary for the adaptation of the work to the records in question;
(k) the causing of a recording embodied in a record to be heard in public utilizing the record, –
(i) at any premises where persons reside, as part of the amenities provided exclusively or mainly for residents herein, or
(ii) as part of the activities of a club, society or other organization which is not established or conducted for profit;
(t) the inclusion in a cinematographic work of –
(i) any artistic work permanently situate in a public place or any premises to which the public has access; or
(ii) any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the work;
[57A PARTICULARS TO BE INCLUDED IN RECORDS AND VIDEO FILM:
(1) No person shall publish a record in respect of any Pakistani work unless the following particulars are displayed on the record and on any container thereof, namely :
(a) the name and address of the person who has made the record;
(b) the name and address of the owner of the copyright in such work; and
(c) the year of its first publication.
(2) No person shall publish a video film in respect of any Pakistani work unless the following particulars are displayed in the video film when exhibited, and on the video cassette or other container thereof, namely :
(a) if such work is a cinematographic film required to be certified for exhibition under the provisions of the Motion Picture Ordinance, 1979 (XLIII of 1979), a copy of the certificate granted in respect of such work by the Central Board of film Censors under sub-section (3) of section 5 of that Ordinance or by any other agency authorized by the Government for the purpose;
(b) the name and address of the person who has made the video film and a declaration by him that he has obtained the necessary licence or consent from the owner of copyright in such work for making such video film; and
(c) the name and address of the owner of the copyright in such work.]
58. IMPORTATION OF INFRINGING COPIES :
(1) The Registrar, on application by the owner of copyright in any work or by his duly authorized agent and on payment of the prescribed fee, may, after making such enquiry as he deems fit, order that copies made out of Pakistan of the work which if made in Pakistan would infringe copyright shall not be imported.
(2) Subject to any rules that may be made under this Ordinance, the Registrar or any person authorized by him in this behalf may enter any ship, vehicle, dock or premises where any such copies as are referred to in sub-section (1) may be found and may examine such copies.
(4) All copies to which any order made under sub-section (1) applies shall be deemed to be goods of which the bringing into Pakistan has been prohibited or restricted under section 16 of the Customs Act, 1969 (IV of 1968) and all the provisions of that Act shall have effect accordingly.
59. DEFINITION :
For the purposes of this Chapter, unless the context otherwise requires the expression ‘owner of copyright’ shall include –
(a) an exclusive licencee;
60. CIVIL REMIDIES FOR INFRINGEMENT OF COPYRIGHT :
(1) where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by the 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 a 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.
60A. SPECIAL REMEDIES FOR INFRINGEMENT OF COPYRIGHT :
(1) where copyright in any work has been infringed and the owner of the copyright is unable to institute immediate regular legal proceedings for sufficient cause, the owner or any other person having any interest in the copyright in the work, may apply to the court for immediate provisional orders to prevent infringement of the copyright in such work and for preservation of any evidence relating to such infringement notwithstanding that regular proceedings in the form of a suit or other civil proceedings have not yet been instituted by the owner.
(2) The court may pass any interim orders envisaged in sub-section (1) without prior notice to the defendant, if the court is satisfied that the applicant has some interest in copyright in the work and the right of the applicant is likely to be infringed, affected or prejudiced and any delay in passing such orders is likely to cause irreparable harm to the applicant or where there is a reasonable risk of evidence, either being destroyed, hidden or removed from the jurisdiction of the court or otherwise there is a likelihood of frustration of the intended proceedings if immediate action could not be instituted or there is likelihood of multiplicity of proceedings in the absence of such order.
(3) Where the copyright owner or any other person having any interest in the copyright has sought interim orders as provided in sub-sections (1) and (2), such orders shall cease to have effect if a suit for infringement of copyright or other civil proceedings are not initiated within a maximum period of thirty days, and where such regular proceedings have been filed by the owner of the copyright, the provisional proceedings in respect of such a work by whosoever filed shall merge into the regular proceedings.
(4) While exercising powers under sub-sections (1) and (2), the court, in case of import or export of consignment containing infringing copies of works, may direct the customs authorities, in whose custody such consignment is lying for the time being to refuse release of such consignment pending decision of the matter by the court :
Provided that where interim orders are revoked or cease to have effect due to any act or omission of the applicant, the court may award appropriate costs to the defendant for any injury caused.
65. JURISDICTION OF COURT AND LIMITATION :
(1) Every suit or other civil proceedings regarding infringement of copyright shall be instituted and tried in the Court of District Judge which shall ordinarily be decided within a period of twelve months.
Provided that, where the person whose copyright in a work has been infringed does not intend to institute a suit or proceeding in the Court of the District Judge, he may, by petition in the prescribed manner, refer the matter to the Board of decision.
(5) The decision of the Board shall, subject to the provisions as to appeal, be final, and shall be executed in the manner prescribed in section 79.
65A. PROHIBITION :
No infringing copies of any work, whether themselves or depicted or applied to any article or goods or in any other form shall be allowed to be imported into a or exported out of Pakistan either by sea, air, land or through any other means or channel of communication.
65B. JURISDICTION OF OFFICERS OF CUSTOMS :
(1) An officer of customs functioning under the Customs Act, 1969 (IV of 1969), may, upon an application by the owner of copyright in the work or any other person having an interest in the copyright in the work, detain any consignment intended to be imported into or exported out of Pakistan which is suspected to contain infringing copies of any work.
(2) A consignment detained under sub-section (1), shall be examined by an officer of customs in the presence of the parties and upon determination that such consignment contains infringing copies of any work, the same shall be ordered to be confiscated and the importer or exporter thereof, as the case may be, shall be liable to such penalties as provided in this behalf in the Customs Act, 1969 (IV of 1969):
Provided that all the process of detention and examination of the consignment as provided in this section shall be completed ordinarily within a period of fifteen days of the filing of the application by the aforesaid person:
Provided further that an order passed by any officer of customs under this section shall be deemed to be an order passed under the Customs Act, 1969 (IV of 1969), and shall be appelable as such.
65C. RELEASE OF DETAINED CONSIGNMENT :
In case where the consignment intended to be imported into or exported out of Pakistan has been detained by an officer of customs under section 65B and the requirements of the first proviso to that section are not completed, the importer or exporter of such consignment, as the case may be, may apply to the concerned customs authorities for release of such goods subject to furnishing such security as may be deemed appropriate by the officer of customs.
66. OFFENCES OF INFRINGEMENT OF COPYRIGHT OR OTHER RIGHTS CONFERRED BY THIS ORDINANCE :
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.
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.
66B. PENALTY FOR UNAUTHORISED REPRODUCTION OR DISTRIBUTION OF COUNTERFEIT COPIES OF SOUND RECORDINGS AND CINEMATOGRAPHIC WORK :
Any person who unauthorizedly makes or distributes counterfeit of sound recording and cinematographic work for the purpose of business, profit or gain 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.
66C. PENALTY FOR EXPLOITATION AND APPROPRIATION OF RECORDING OR AUDIO-VISUAL WORK INTENDED FOR PRIVATE USE :
Any person who for the purpose of business, profit or gain, exploits or appropriates any sound recording or audio-visual work intended for private use, 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.
66E. PENALTY FOR UNAUTHORIZED RENTAL OF CINEMATOGRAPHIC WORKS AND COMPUTER PROGRAMMES :
Any person who, without authorization of the copyright owner or his licensee rents out the original or copies of the cinematographic works or computer programmes, 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.
70A. PENALTY FOR CONTRAVENTION OF SECTION 57-A :
Any person who publishes a record or a video film in contravention of the provisions of section 57A, 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.
70B. ENHANCED FINE IN THE CASE OF SUBSEQUENT OFFENCE :
Where any person convicted for an offence punishable under section 66, 66A, 66B, 66C, 66D, 66E, 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.
71. OFFENCES BY COMPANIES :
(2)(b) ‘director’ in relation to a firm means a partner in the firm.
72. COGNIZANCE OF OFFENCE :
No Court inferior to that of a Magistrate of the first class shall try any offence under this Ordinance.
73. (3) All offences under this Ordinance shall be cognizable and non-bailable.
79. ORDER FOR PAYMENT OF MONEY PASSED BY REGISTRAR OR BOARD TO BE EXECUTABLE AS A DECREE :
Every order made by the Registrar or the Board under this Ordinance for the payment of any money or by the High Court in any appeal against any such order of the Board shall, on certificate issued by the Registrar, the Board or the Registrar or the High Court, as the case may be, be deemed to be a decree of a civil court and shall be executable in the same manner as a decree of such court.