Pakistan

Legal background

Copyright legislation	The Copyright Ordinance 1962 ("CO") From http://www.ipo.gov.pk/Copyright/Downloads/Copyright_Ordinance_1962__update.pdf
Other relevant laws	PPC 1860 (Pakistan Penal Code) ("PPC") From http://www.pakistani.org/pakistan/legislation/1860/actXLVof1860.html
Copyright treaties	Berne Convention	Berne Appendix	TRIPS	WCT	WPPT
Other relevant treaties

Scope and duration of copyright

Is the period of protection of each type of copyright work limited to the minimum duration mandated by the Berne Convention?	YES	CO s.20
Must a work be fixed in some material form before copyright attaches?	YES No specific conditions exist with regard to the form of the material under the Copyright Ordinance however it may be inferred that the work shall be in a writing form. In light of the Electronic Fund Transfer Act 2007, electronic form may well be accepted as well.
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power?	LIMITED No specific conditions have been established for such regulations however the Competition Ordinance’s scope is wide and varied thus allowing the Competition Commission to exercise its jurisdiction over varied monopolistic issues deemed necessary.
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech?	YES All legislation within the territory of Pakistan is subject to the Fundamental Rights contained within Part II of the Constitution of 1973.
Does the compilation of a database of non-original material fall outside the scope of copyright?	YES There exists little or no authority or case law regarding the compilation of databases although original works that may result in the compilation of computer programs may fall within the scope of copyright. However the basic compilation of data bases for non-original works do not strictly fall within the ambit of the Copyright Ordinance 1962.
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them?	YES Any contract that is construed to be contrary to the Copyright Ordinance shall be overridden and be deemed wholly void unless there exist saving clauses within the contract i.e. severance clauses that may hold only those clauses void that are contrary to the law and leave the remaining contract effective. The premise of this argument is the fact the law overrides contracts.

Freedoms to access and use

By Home Users	Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)?	YES Strict interpretation of the Copyright Ordinance would infer these actions to be infringements of copyrights, however constructive argument may allow such actions to fall within the scope of the exceptions set within section 57 of the Copyright Ordinance 1962, specifically subsection (1)(k) that allows for residents or small gatherings to reproduce recordings for personal use in a manner that is not conducted for profit.	CO s.57(1)(k)
	Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes?	LIMITED The response provided above may be applied here as strict interpretation of the Copyright Ordnance may deem such reproduction as an infringement, however under section 57(1)(a) such consumers may fall within the exception provided for fair dealings with respect to private study or subsection (k) with respect to records made for use of residents of the premise where records are made.	CO ss.57(1)(a), (k)
	Can works be communicated to a limited public (for example, family and friends) without infringing copyright?	LIMITED Copyright work may be communicated for the residents of the premises or to a club, society or other organization that shall not make a profit with respect to such communication.	CO s.57 (1)(k)
	In any other cases may reproductions be made on a private, noncommercial basis, for example through peer-to-peer file sharing?	NO
	Are blank media and computer hardware sold free of compulsory levies collected for copyright owners?	YES The Copyright Ordinance does not specifically contain any provision regarding the same.
For Education	Is reproduction permitted for the purposes of research or study?	YES Reproduction for the purposes of private study and research falls within the ambit of fair dealing and thus is not an infringement of copyright.	CO s.57(1)(a)
	Is it permissible to copy an entire work and to make any number of copies?	LIMITED The making of three copies of a book, pamphlet, sheet of music, map, chart or plan is permissible. However with the permission of a public or non-profit library such book is not available for sale. For any other circumstances, there is no specific provision however by construction it may be inferred that a reasonable number of copies may be allowed under the guise of fair dealings.	CO s.57(1)(o)
	Does any such research and study provision cover distance and online education?	YES No such specific provision is provided within the Copyright Ordinance 1962 however the same has not been excluded either thus the law is silent on the matter.
	May translations of works be made for educational purposes?	YES All exceptions provided under fair dealing in section 57(1) of the Copyright Ordinance 1962, including reproduction for educational purposes, are applicable to translations of works under subsection (2).
	May works be reproduced and published by educational institutions in connection with systematic instructional activities?	YES A compulsory licence for the reproduction of textbooks may be granted where necessary in the public interest. Besides this, the three main exceptions relevant to systematic instructional activities are for reproduction of literary or dramatic works "in a collection, mainly composed of non-copyright matter, bona fide intended for the use of educational institutions", the reproduction or adaptation of literary, dramatic, musical or artistic works "in the course and for the sole purpose of instruction ... by a teacher or a pupil" including in examination papers, and the performance of a literary, dramatic or musical work if the audience is limited to "staff and students, the parents and guardians of the students and persons directly connected with the activities of the institution.”	CO ss.36, 57(1)(g), (h), (i)
Online	Is hyperlinking to a Web site allowed without permission of the site's owner?	YES The law makes no provision with respect to allowing or prohibiting hyper linking.
	Are temporary or transient copies, incidental to a lawful use, excepted from copyright?	NO Since Pakistan is not a signatory to the WCT and the WPPT Treaties, the law does not possess the sophistication to specifically address the issue of transient copies, however within a strict interpretation of the Copyright Ordinance 1962, they fall within the ambit of breach of copyright.
	Is caching of Web content permitted?	NO The prevailing law does not contain any specific provisions regarding caching of Web content due to the fact that Pakistan is not yet a signatory to the WCT and the WPPT Treaties. A strict interpretation of the Copyright Ordinance may classify it as an infringement.
	Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances?	NO No such protection is issued with regards to copyrights under the law in Pakistan.
	Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material?	NO Under the law there exist no specific provisions pertaining to ISPs monitoring copyright infringements. While ISPs do filter content and block internet sites as per the Ministry of IT and Telecommunications requirements, however the provision of this filtering is via the legislative powers of the Pakistan Telecommunication Authority on an ad hoc, arbitrary and discretionary basis without the existence of specific provisions in regards to web filtering and procedure in order to challenge the same by an aggrieved party.
	Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs?	NO No provisions pertaining to this under the Copyright Ordinance 1962 are known, nor is any other regulation or legislation known to control this scenario.
By content creators	Can a recording or performance of a musical work be made under compulsory license from the composer?	NO
	Can copyright works be non-commercially remixed or mashed up into new works?	NO
	May computer software be reverse engineered for the purpose of creating interoperable software?	NO Any form of reverse engineering would necessarily lead to the copying of a computer program thus it would amount to a violation unless permission of the licensed holder has been obtained.
	Is the incidental inclusion of a work in other material permitted?	LIMITED The Copyright Ordinance 1962 does not specifically create a provision for this. However a wide interpretation of the legislation may allow such actions under section 57(1)(g) that states “the publication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of educational institutions and so described in the title and in any advertisement issued by or on behalf of the publisher, of short passages from published, literary or dramatic works, not themselves published for the use of educational institutions, in which copyright subsists.”	CO s.57(1)(g)
	Is there are copyright exception for parody or satire?	NO
	Is there a copyright exception for professional advice?	NO
	Do creators who license their work retain the moral right of attribution?	NO It would depend upon the terms and conditions of the license that has been issued to the creator.
	Does copyright law contain provisions regarding traditional knowledge/folklore?	NO
By the press	Is there a copyright exception for the news of the day?	YES A fair dealing with a literary, dramatic, musical or artistic work for the purpose of reporting current events in a newspaper, magazine or similar periodical, or by broadcast or in a cinematographic work or by means of photographs is permitted.	CO s.57(1)(b)
	May copyright material be reproduced for the purposes of review and criticism?	YES A fair dealing with a literary, dramatic, musical or artistic work for the purpose of criticism or review, whether of that work or of any other work is permitted.	CO s.57(1)(a)
	May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose?	YES The reproduction of a literary, dramatic, musical or artistic work is permitted for the purpose of a judicial proceeding or for reporting that proceeding, and the judgment itself may be reproduced or published unless prohibited by the judicial authority. Additionally the publication is permitted in a newspaper of a report of an address of political nature delivered at a public meeting, and of any other lecture delivered to the public in a newspaper, magazine or other periodical unless the report is prohibited by conspicuous written or printed notice affixed before and maintained during the lecture at or about the main entrance of the building in which the lecture is given.	CO s.57(1)(c), (n), (q)
	May quotations be used for any purpose?	LIMITED The Copyright Ordinance 1962 does not specifically create provisions for quotations thus a strict interpretation of the law may prohibit the extensive use of them.
By Libraries	May libraries copy works that cannot reasonably be obtained commercially?	YES The making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge of a public library or a non-profit library available for use by the public free of charge or a library attached to an educational institution for the use of such library is permitted if such book is not available for sale.	CO s.57(1)(0)
	May libraries copy works for users for the purpose of research or study?	NO
	Is the reproduction of unpublished works by libraries permitted?	YES	CO s.57(1)(p)
	Are libraries allowed to make preservation or archive copies of materials in their collections?	NO
By disabled users	Is it permissible to copy or adapt work for the use of those with disabilities?	NO
In public affairs	Are laws excluded from copyright?	LIMITED The Copyright Ordinance 1962 makes no such specific provision for such an exception however a wide interpretation of clause 57(1)(e) that allows “the reproduction of any literary, dramatic, or musical work in the certified copy made or supplied in accordance with any law for the time being in force;” could be construed to infer that as the law’s provisions supersede that of copyrights, laws may, by deduction, be excluded from copyright.
	Are other governmental works excluded from copyright?	YES The reproduction or publication of any matter which has been published in any official Gazette, or the report of any committee, commission, council, board or other like body appointed by the Government is permitted unless prohibited by the Government, as are judgments or orders of a court, tribunal or other judicial authority unless prohibited by that authority.	CO s.57(1)(q)
	Is there a copyright exception for use of material in judicial proceedings?	YES The reproduction of a literary, dramatic, musical or artistic work for the propose of a judicial proceeding or for the purpose of a report of a judicial proceeding is allowed.	CO s.57(1)(c)

Freedoms to share and transfer

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual?	The maximum penalty for an individual is either the levying of a fine up to one hundred thousand rupees (Rs. 100,000) or imprisonment of up to three years or both.
What is the maximum penalty for copyright infringement for a corporation?	The maximum penalty for a corporation is either the levying of a fine up to one hundred thousand rupees (Rs. 100,000) or imprisonment of up to three years or both. Where an offence under the Copyright Ordinance has been committed by a corporation, any director, manager, secretary or other officer of the company shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.	CO s.71(2)
Is registration of copyright required before it may be enforced in court?	NO
Is there a distinction between personal versus (large-scale) commercial use?	LIMITED This is a matter within the court's discretion.	CO s.57(1)
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for purposes that would not infringe copyright?	YES There is no provision within the current prevailing legislation as Pakistan is not yet a signatory to the WPPT and the WPC nor have their provisions been incorporated within the legislation of Pakistan.
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright?	YES There is no provision within the current prevailing legislation as Pakistan is not yet a signatory to the WPPT and the WPC nor have their provisions been incorporated within the legislation of Pakistan.
Does national copyright or consumer protection law require disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material?	NO There is no provision within the current prevailing legislation as Pakistan is not yet a signatory to the WPPT and the WPC nor have their provisions been incorporated within the legislation of Pakistan and the customer protection legislation within Pakistan do not address the issues of TPMs.
Are the operations of copyright collectives subject to public oversight?	YES Every performing right society shall, within the prescribed time and in the prescribed manner, prepare, publish and file with the Registrar, statement of all fees, charges, royalties which is proposes to collect for the grant of licenses for the performance in public of works it respect of which it has authority to grant such licenses.	CO s.31
Is any portion of the revenues of copyright collectives set aside for benevolent purposes?	NO
Are copyright collectives precluded from using their revenues for political lobbying?	NO
Is copyright enforced only through mechanisms provided by law, rather than through private intermediaries?	YES It is enforced only through mechanisms of law.
Is the enforcement of copyright restricted to civil or private law, rather than attracting criminal sanctions?	NO Both criminal and civil actions may be brought against infringements of copyright under the Copyright Ordinance 1962.
Are damages for copyright infringement based on the loss sustained, rather than by a preestablished or statutory damages award?	NO The Copyright Ordinance 1962 gauges the loss that has been suffered however the penalty is basically in the form of prescribed fines as opposed to the award of damages.
Is there provision to penalise the wrongful allegation of copyright infringement?	YES Relevant offences include furnishing false information to a public servant, doing so with intent to cause the public servant to use his lawful power to the injury of another person, giving false information respecting an offence committed, making a false charge of an offence made with intent to injure, defamation, and printing or engraving matter known to be defamatory.	PPC ss.177, 182, 203, 211, 499, 501

Conclusions

Pakistan's Copyright ordinance does in the main strike a balance between the interests or producers and consumers, including an unusually generous compulsory licence that can be used to republish textbooks on a non-profit basis where necessary in the public interest.

It must be conceded that in practice this provision has been misused, and that unlicensed content is the main, if not at most times the only means, by which much copyright material is available in Pakistan. Some digital content is imported from China because of the closure of the large production/replication facilities by the government.

In particular the sale of foreign software at very high prices makes it unaffordable for most local businesses or individuals. Hence even those who do not want to break the law sometimes find that the other option is not viable.

In addition, the recent introduction of the Prevention of Electronic Crime Ordinance, 2008 and its draconian provisions are disincentives for the use of digital content and tools by consumers.

The arbitrary, imbalanced, discriminatory and uncoordinated efforts of enforcement agencies and the lack of any substantive and meaningful strategy of the IPO are also important factors that add to this situation.

Pakistan does not require a stricter IP regime in order to address the incidence of piracy, but rather a combination of more realistic pricing with more consistent enforcement of its existing law, allowing for the full measure of the available exceptions.

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May copyright works be freely offered for commercial rental?	NO
May a person in lawfully possession of a copyright work distribute, communicate or make it available without reference to the copyright owner?	LIMITED In the event that the distribution, communication or availability of the work is via reproduction of the work then it may amount to a violation of the copyright, however this would depend upon the terms of the license that has been issued.
May works be dedicated to the public domain without legal formality besides an overt act of relinquishment?	NO The author of the work always remains the copyright owner as that right cannot be relinquished; no provision stipulates an overt act of relinquishment within the Copyright Ordinance 1962.
Are orphaned works treated differently in the law to other copyright works, for example by allowing them to be compulsorily licenced, limiting remedies, or by releasing them into the public domain?	NO
Is parallel importation permitted?	YES The Copyright Ordinance 1962 makes contain no specific provision for parallel importation nor is any other legislation known to do so.
Are there incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy?	NO
Are there incentives for the use, production and dissemination of open access material (e.g. textbooks) within copyright law or elsewhere in national law / policy?	NO

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