Pakistan 2011

Legal background

Scope and duration of copyright

Does copyright end immediately after the minimum period mandated by the Berne Convention? Yes
The Berne Convention states that all works except photographic and cinematographic shall be copyrighted for at least 50 years after the author's death, but parties are free to provide longer terms. In copyright Ordinance 1962 it is mentioned that “A work that was created (fixed in tangible form for the first time) protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 50 years after the author’s death” Section 18, 19 and 20 of CO.
CO s.20
Are works that are not fixed in some material form excluded from copyright? 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.
Has a court or tribunal ever limited the exercise of copyright under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders? In part
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.
Has a court or tribunal ever limited the exercise of copyright pursuant to 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.
Are databases of non-original material excluded from 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.
Are rights holders prohibited from excluding user rights under copyright law? 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.
Is computer software excluded from the scope of patentable subject matter? Yes
In Pakistan, computer programmes are excluded from patent protection under the patent laws. Protection under the copyright laws is the only safeguard available for the computer software industry. Section 2(p) of the Ordinance defines “literary work” to include work, inter alia, on compilation and 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 definition of `literary work' is amended by the Copyright (Amendment) Act, 1992
PO

Freedoms to access and use

By Home UsersIs there any general user right that is based on a set of balancing criteria, such as a "fair use" right? No
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? In part
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 ss.57(1)(k)
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? In part
The response provided above may be applied here as strict interpretation of the Copyright Ordinance 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 s.57 (1)(a), (k)
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? In part
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)
For EducationMay students copy works for private 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)
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.
CO s.57(1)(o)
May translations of works be made for educational purposes? Yes
All exceptions provided under fair dealing, including reproduction for educational purposes, are applicable to translations of works under subsection (2).
CO s.57(1)
May educators copy works for use in the classroom? Yes
Reproduction will not be considered an infringement of copyright where "in the course and for the sole purpose of instruction whether at an educational institution or elsewhere where the reproduction or adaptation is made by a teacher or a pupil otherwise than by the use of a painting process." Performances of literary dramatic or musical work are similarly treated, if the audience is limited to staff, students, the parents and guardians of the students and persons directly connected with the activities of the institution.
CO s.57(1)
OnlineAre 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.
Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network? No
No such protection is issued with regards to copyrights under the law in Pakistan.
Is Internet access free of ISP filtering or monitoring for potential copyright-infringements? 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.
By content creatorsIs there any protection for consumers who non-commercially remix or mash up copyright works? No
May computer software be copied for the purpose of reverse-engineering 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? In part
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
By the pressIs 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 quotations be used for any purpose? In part
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 LibrariesMay libraries copy works if they 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 librarians copy works for users for the purpose of research or study? No
Are libraries allowed to make preservation or archive copies of materials in their collections? Yes
CO s.57(1)(p)
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? No
In public affairsAre laws excluded from copyright? In part
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)
Are the results of publicly funded research required to be published under an open access license? No

Freedoms to share and transfer

Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than 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.
Can public domain works be used without the need for any payment or registration of the use? In part
All exceptions are provided in section 57 of CO.
Does the law make special provision for the legal use of orphaned works? No
Is parallel importation of copyright works 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 national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources? No
Are there national programmes or policies that specify or promote the use of open document formats? No

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 innocent infringement of copyright treated differently by the law? No
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 legal purposes? 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 or intermediaries permitted in the legal exercise of user rights? 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 that the use of TPMs on copyright works be disclosed to consumers? 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 there cases in which the availability of injunctive relief for copyright infringement is limited by the law on public policy grounds? No
Copyright law itself or are derived from civil procedure laws and are always tempered by public policy concerns. Explicit mentioning of public interest are not available through any case laws and doesn’t exist in the CO.
Have major ISPs resisted requests from copyright owners to pass on allegations that their users have engaged in copyright infringement? Yes
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? No
Both criminal and civil actions may be brought against infringements of copyright under the Copyright Ordinance 1962.
Are damages for copyright infringement limited to the loss sustained, rather than a pre-established or statutory damages award? Yes
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
The offence of "Furnishing false information" may apply; it provides that "Whoever, being legally bound to furnish information on any subject to any public servant, as such, furnishes, as true, information on the subject which he knows or has reason to believe to be false, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." There are also offences of "False information with intent to cause public servant to use his lawful power to the injury of another person", "Giving false information respecting an offence committed", and "False charge of offence made with intent to injure", in addition to slander and libel.
PPC, ss.177, 182, 203, 211, 499, 501
Is there provision to penalise the obstruction of consumers' exercise of user rights? No
We don’t have any such provision in CO

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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