Computer Software Copyright

1. What Is Copyright?

Copyright protects the original work of authorship fixed in any tangible medium of expression. Original work means the work which is not copied of any existing work.

Copyright is a legal right to prevent others making copies, publish, reproduce, distribute etc. of your work without your permission.

Copyright gives protection only to expressions, and not to ideas, procedures, methods of operation or mathematical concepts. It means that copyright doses not give protection to idea only but it gives protection to expression of idea.

In Pakistan, the Copyright Ordinance, 1962 (hereinafter referred as “the Ordinance”) is the law which deals with the copyright protection.

The Ordinance gives the exclusive right to the owner of copyright to do and authorize the doing to reproduce, publish, copy, broadcast etc. of copyrighted work.

Pakistan is also a member of Berne Convention 1886, Universal Copyright Convention 1948 and the Trade Related Intellectual Property Rights (TRIPS) Agreement 1994 under the World Trade Organization (WTO).

2. Works In Which Copyright Subsists

Section 10 of the Ordinance provides that the 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

3. Is Computer Software Protected By Copyright?

In 1970s and 1980s there were many conflict regarding computer software protection. Some experts were in the opinion that the computer software should be protected under the copyright system and some were in the opinion that it should be protected under the patent system.

Finally they reached to consensus that computer software should be protected by copyright, whereas apparatus using computer software or software-related inventions should be protected by patent.

The reasons behind this consensus was that the Copyright system gives protection only to expressions, and not to ideas, procedures, methods of operation or mathematical concepts as such, whereas a patent system gives an exclusive right for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem.

In Pakistan the computer program has been protected under the copyright domain.

For this purpose, the definition of “literary work” is amended by the Copyright (Amendment) Act, 1992 to include computer programmes under the copyright regime.

Section 2(p):

The Ordinance defines literary work to include work, on computer programmes “that is to say programmes recorded on any disc, tape, perforated media or other information storage devices, which, if fed into or located in a computer or computer based equipment is capable of reproducing any information”.

The function of a computer program or what the program does is not protectable under the copyright regime, instead it gives the owner only the right to prevent anybody else from duplicating the expression or manner of presentation of the set of instructions that constitute the program.

4. Who Is The First Owner Of Copyright?

Section 13 of the Ordinance provides that the author of a work shall be the first owner of the copyright.

Authorship applies to either the individual creator or to a “work for hire”.

When an independent individual creates an original work he will be the first owner of copyright. Where a work is made by an employee in the course of employment and as part of the employee’s usual duties, the employer will be the first owner of copyright.

 5. Is Copyright Registration Necessary For Protection?

The Ordinance does not require mandatory registration of copyright but registration does provide certain rights and is highly recommended.

The rights under copyright law arise as soon as the author creates the work in any tangible medium.

A computer program is protected from the moment it is fixed in a “material form” for example, on a CD or on paper.

However, upon registration of copyright, a certificate of registration of copyright is issued which is prima facie evidence that copyrights subsists in the work and that the person shown in the certificate as the owner of the copyright is the owner of such copyright.

As it has been specified above that Pakistan is a member of Berne Convention 1886 for the Protection of Literary and Artistic Works, according to the Berne Convention, literary and artistic works are protected without any formalities in the countries party to that Convention.

6. Procedure For Registration Of Copyright For Software

The author or publisher or any other person interested in copyright in any work may make an application in prescribed form accompanied by the prescribed fee to the Registrar for entering particulars of the work in Register of Copyrights.

On the receipt of the application, the 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.

7. Duration Of Copyrights

Section 18 of the Ordinance provides that in published literary (including computer program), dramatic, musical and artistic work copyright shall subsist within the lifetime of the author until fifty years after the death of the author.

8. Infringement Of Copyright

A person is an infringer of copyright if he deals with protected material in one of the ways exclusively controlled by the copyright owner without permission.

For computer programs, the uses which require permission include making a reproduction and making an “adaptation” (such as an object code version of a program in source code).

If the computer program has been made commercially available, the relevant licensing agreement may set out what permissions the copyright owner has given in relation to the way that program and any accompanying material (such as text or graphics, including typeface designs) are used.

Pursuant to the restrictions imposed under the Ordinance, even the purchasers of computer programmes may not copy, adapt or develop copies of adapted programmes for their own use or their employees.

The unauthorized use of a computer programme in a computer is also an infringement of the copyright.

Accordingly, if someone who has no licence to use it acquires a duplicate of a computer programme, the copyright owner has the right to prevent him from using it.

The Ordinance also restricts renting out of computer programmes to unauthorized users. Intention to copy computer programmes is not an essential ingredient of infringement; nor is it essential that the copying be in the same medium. Thus, a computer programme stored on CD (or any other magnetic media) can be infringed by copying the same on paper, or taking a printout of the same.

9. Remedies For Infringement Of Copyright

There are two remedies for breach of copyright in Pakistan; civil proceedings and criminal proceedings.

The Ordinance, provides that any person who knowingly infringes or facilitates the infringement of the copyright in a work (defined to include computer programmes), or any other right conferred by the Ordinance will be punishable. The punishment may be in the form of imprisonment extended to three (3) years, or fine up to to Rs. 100,000, or both.

Recently added section of the Ordinance provides that all offences under the Ordinance are cognizable and non-bailable.

Additionally, the Ordinance provides that where any person convicted for an offence punishable under this law is again convicted for the same offence, he shall in such event be imposed with a fine (beside the imprisonment up to 3 years) of up to Rs. 200,000.

The recently amended section of the Ordinance now gives additional powers to the police to seize infringing copies of the work wherever found, without warrant, and all copies, plates and recording equipment seized shall, as soon as possible, be produced before a Magistrate.

 

JUS & REM

JUS & REM provides corporate and commercial legal counseling to local and foreign clients on a wide range of legal issues



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