Star
Law analysis
World
Book and Copyright Day
Tackling
piracy-The context of Bangladesh
Mohammad
Monirul Azam
While
use of computers and the Internet proliferates, and the
texts of books can be produced onto discs and cassettes,
around the world still most of the peoples depends on
printed books.ÊBooks have been precious tools for
documenting and transmitting learning and knowledge through
generations and works as a repository of our cultural
heritage.ÊTherefore, reading of books as important
today as ever. That is why, the intellectual creations
like a book deserves special attention and protection.
Let us examine on the eve of the book and copyright day,
what is the position of the protection of copyright in
our country.
World
Book and Copyright Day - established in 1995 by UNESCO's
General Conference will be celebrated through out the
world on April 23. In choosing April 23 as World Book
and Copyright Day, UNESCO drew inspiration from a Catalan
tradition. On this day in Catalonia, numerous book fairs
and street festivals are held and customers are offered
a rose with every book they buy. Again April 23 is a symbolic
date for world literature. On this date and in the same
year of 1616, Cervantes, Shakespeare and Inca Garcilaso
de la Vega all died. It is also the date of birth or death
of other prominent authors such as Maurice Druon, K.Laxness,
Vladimir Nabokov, Josep Pla and Manuel Mejía Vallejo.
Therefore, it was a natural choice for UNESCO's General
Conference to pay a worldwide tribute to books and authors
on this date.
By
celebrating this Day throughout the world, UNESCO seeks
to promote reading, publishing and the protection of intellectual
property through copyright. But piracy at the national
and international level is a great threat against the
copyright. In this article, I attempt to identify the
nature and scope of piracy of copyright and examined the
measures for tackling the piracy taken at the national
and international level.
The
nature and scope of piracy and its long term bad impacts
on society
To
some persons the term 'piracy' may have a slightly romantic
connotation conjuring up of making things so simple (i.e.,
producing a very costly book in a very cheap rate). But
there is nothing romantic or boasting about the pirates
of intellectual property. Piracy, in the context of intellectual
property is not a term of art, it means the mere reproduction,
for the purpose of seeking a profit, of the property of
the copyright owner with out his/her permission. They
are criminals, usually operating on a large and organised
scale, engaged in the theft of the products of other peoples'
talents, skills and investment. The real nature of piracy
is revealed by the following considerations
1.
The pirate never publishes a new book or records a new
song or performance.
2.The pirate pays no royalties to the author, the illustrator,
the translator; or to the composer, arranger, lyric writer
or performer, or to any of the other creative people who
have contributed to the original work.
3. In the case of books, the quality of the pirated edition
is often very poor; this may not matter in the case of
fiction, but in text books eg medical books on surgery
- badly reproduced diagrams and illustrations could be
quite serious.
4. The pirate makes no payment to the original publisher
or to the record or film producer, in respect of production,
editorial or distribution costs.
5. The pirates take no financial risks whatsoever. They
concentrate only on works, which are very popular and
best-seller. In fact very few book or recording are financially
successful, perhaps at the first instance these books
are produced at a loss by the legitimate publisher or
producer, and he has to apply or supply part of the profits
from the one successful product to recoup the losses on
the other nine. The pirate keeps all his profits.
6. Pirates do not discriminate between foreign and national
works; the latter are just as vulnerable to piracy as
are foreign works.
7. Not only does piracy cause financial loss to the various
interests responsible for the creation, production and
distribution of legitimate material, but also it leads
to considerable direct and indirect loss of revenue to
Governments from unpaid taxes.
However,
someone may think that the provision of cheap books or
sound recordings or films, especially those needed for
education, is a desirable objective, particularly in developing
countries. But to pursue this objective through piracy
is doubly misguided.
First:
it is unjust to those who create, produce and distribute
legitimate recordings and editions and
Second: such a policy inhibits the development of local
authors and local publishers, thus prolonging dependence
upon foreign music and literature.
Thus
piracy must be eliminated if national culture, national
record production, national authorship and publishing
are to be protected and encouraged. To condone piracy
because of its apparent benefit to the dissemination of
information and culture or the cause of education will,
in the long run, be contrary to the interests of a country.
Tackling
piracy: the context of Bangladesh
Piracy constitutes a disregard for legal rights and obligations
towards the intellectual creators upon which the society
itself is guided for future aspiration and that is why
respect for law and order in an important sector of human
society is seriously undermined by the activities of pirates.
It has clearly become the duty of the State to take steps
to combat this serious public mischief. The measures needed
are described in the below-
A.
An up-to-date National Law on Copyright
To combat piracy, every country must have an up-to-date
copyright law, which will include at least following elements-
A full range of rights for the various categories of protected
works;
An effective and vigilant copyright office;
Recognition and promotion of copyright societies;
Powers to search for and seize evidence of infringement
or of the commission of offences, and to obtain information
relating to such activities.
Rules of evidence which ensure that right owners can effectively
enforce their rights through court proceedings without
unreasonable hindrance from technical rules;
Penal provisions designed to cover all forms of piratical
activity, backed by penalties which are effectively deterrent;
Control over the importation of copies of books (and other
protected works, notably sound recordings), irrespective
of whether the imported copies were made with or without
the authorisation of the copyright owner;
A full range of remedies including, injunctions, both
interim and permanent, accounts of profits, delivery up
or destruction of infringing articles, awards of damages
and reimbursement of costs.
It is quite fascinating that new copyright Act of Bangladesh,
which is enacted in 2000 replacing the earlier law contains
all most all the above elements or similar provisions.
But the problem is due to lack of awareness and non-effective
administrative and judicial measures, the law has becomes
a mere paper tiger. As per study conducted by this writer,
there are only a few cases, which are filed under the
copyright law and even the number of reported cases (as
reported in the law reports like DLR, BLD, BLC etc) in
the country relating to copyright is very marginal and
not so mentionable. One may draw conclusion from the above
observation that piracy is minimal in our country, but
that is not the fact. In real sense, although the incident
of piracy is frequent, the action to combat piracy is
still at the very minimum level. Therefore mere provisions
for enforcement through legal proceedings, either civil
or criminal, will be worthless if actions and remedies
are not adequate and effective.
B.
International dimension of copyright
Copyright has becomes international in character after
the signing of a number of international copyright agreement
among the member countries under which one member country
protect works of creators from other member countries.
Copyright as provided by the Copyright Act of Bangladesh
is valid only within the borders of the country. To secure
protection to Bangladeshi works in foreign countries,
Bangladesh has becomes member of the following international
conventions on copyright and neighbouring (related) rights:
i.
Berne Convention for the Protection of Literary and Artistic
works, 1886 (accepted by Bangladesh on May 4, 1999)- Berne
Convention is the oldest international agreement exclusively
dealing with copyright. Under the Berne, a nation must
at least provide for protection of six rights: translation,
reproduction, public performance, adaptation, attribution
(paternity) and integrity.
ii. Universal Copyright Convention, 1952 (accepted by
Bangladesh on May 5, 1975)- This convention was made under
the auspices of the UNESCO with a desire to ensure in
all countries copyright protection of literary, scientific
and artistic works and thereby to facilitate a wider dissemination
of works of the human mind and increase international
under-standing.
iii. Trade Related Aspects of Intellectual Property Rights
(TRIPs Agreement), 1994 under the World Trade Organization
(WTO) (accepted by Bangladesh on January 1, 1995 as part
of the WTO package of agreement)-It is the most comprehensive
agreement relating to intellectual property rights and
debate is continuing regarding this agreement around the
world, due to paucity of space, which are not included
here. TRIPs include within its ambit almost all the previous
agreement; in addition, the TRIPS agreement adds a significant
number of new or higher standards. This agreement contains
very strict enforcement measures.
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 remarks
A book is a treasure, an instrument for the unprecedented
democratisation of knowledge and culture, a key that opens
doors to the greatest number of people. It is the meeting
point of the masses and the elite. Thus books play an
irreplaceable role as a means of knowledge that deepen
understanding and develop curiosity. It is also a means
of pleasure, which provides flights of imagination and
relaxation. In every sense, time spent in reading is time
well spent.
Therefore,
on the eve of the book and copyright day, it is our prime
and sacred duty not only to promote books and reading,
but also to take steps to aware the peoples about the
copyright and say 'no to pirated copies', which will encourage
the writers, musicians, painters and other creators to
continue their artistic and intellectual efforts.
The
Author is a Lecturer, Department of Law, University of
Chittagong.
