Bangladesh

Tue, 07/07/2009 - 06:59 — cab

Legal background

Copyright legislation	Copyright Act ("CA") From http://www.copyrightofficebd.com/copyright_act.php
Other relevant laws	Constitution of Bangladesh ("Constitution") From http://www.pmo.gov.bd/constitution/index.htm
Copyright treaties	Berne Convention	Rome 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?	NO Literary and artistic works, excepting film and photography, are protected for 60 years after the author’s death; other works, including film and photography and government works, are protected for 60 years after first publication.	CA Chapter 5
Must a work be fixed in some material form before copyright attaches?	YES
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 competition law enacted. However, CA limits monopoly power of copyright holder.	CA Chapter 9 Para 50 and 51
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 The right of every citizen of freedom of speech and expression; and freedom of the press, are guaranteed, subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.	Constitution Article 39
Does the compilation of a database of non-original material fall outside the scope of copyright?	YES CA does not specify anything about this
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them?	LIMITED Applicable for works done before the CA enacted	CA Chapter 17 Para 105

Freedoms to access and use

By Home Users	Is there a general exception for the fair use of copyright material for any purpose that satisfies a set of balancing criteria?	NO The Fair Use provisions under the Copyright Act contain no mention of general exceptions.
	Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)?	YES In limited quantities and for non-commercial purposes only.
	Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes?	LIMITED Single backups of computer software may be kept as insurance against loss, destruction or corruption.
	Can works be communicated to a limited public (for example, family and friends) without infringing copyright?	YES Club, societies, social events and other organizations, etc. can use copyrighted works for the purposes of entertainment, education, etc.	CA Chapter 13 Para 72
	Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy?	LIMITED Applicable for unavailable work	CA Chapter 9 Para 53
For Education	Is reproduction permitted for the purposes of research or study?	YES	CA Chapter 13 Para 72
	Does any such research and study provision cover distance and online education?	YES The provision makes no mention of distance and online education.
	May translations of works be made for educational purposes?	YES An application to avail the translation can be made out to the Copyright Board three years after the first publication of the original work.	CA Chapter 9 Para 52
	May works be reproduced and published by educational institutions in connection with systematic instructional activities?	YES The permission of the original publisher has to be taken.
Online	Is hyperlinking to a Web site allowed without permission of the site's owner?	YES No specific law exists, but in practice website owners dictate terms for such usage of links.
	Are temporary or transient copies, incidental to a lawful use, excepted from copyright?	YES
	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 known laws protect ISPs in such a manner.
	Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material?	YES No law requires ISPs to conduct such monitoring. Law enforcement agencies perform their own monitoring by their authority.
	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 law prevents ISP from disclosing such information, if a law enforcement agency demands it.
By content creators	Can copyright works be non-commercially remixed or mashed up into new works?	NO No law in the Copyright Act addresses this concern.
	May computer software be reverse engineered for the purpose of creating interoperable software?	NO Nothing mentioned about this provision in the CA
	Is the incidental inclusion of a work in other material permitted?	YES
	Is there are copyright exception for parody or satire?	YES Under Fair Use clause.
	Do creators who license their work retain the moral right of attribution?	YES
By the press	Is there a copyright exception for the news of the day?	YES Acknowledgement is made to the original source.
	May copyright material be reproduced for the purposes of review and criticism?	YES
	May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose?	NO May be referred to in the news (electronic & print media); for research purposes under “Fair Use” clause, etc.
	May quotations be used for any purpose?	NO Length of quotations must be reasonable.
By Libraries	May libraries copy works that cannot reasonably be obtained commercially?	YES No more than three copies than be made.	CA Chapter 13 Para 72
	May libraries copy works for users for the purpose of research or study?	LIMITED Unpublished works preserved at a library can be copied for the purposes of research.	CA Chapter 13 Para 72
	Are libraries allowed to make preservation or archive copies of materials in their collections?	YES
	In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)?	LIMITED	CA Chapter 13 Para72
By disabled users	Is it permissible to copy or adapt work for the use of those with disabilities?	NO This topic is not mentioned in the Bangladesh Persons with Disability Welfare Act 2001 or the Copyright Act 2000.
In public affairs	Are laws excluded from copyright?	YES
	Are other governmental works excluded from copyright?	NO	CA Chapter 13 Para 72 Point 3
	Is there a copyright exception for use of material in judicial proceedings?	YES
	Are the results of publicly funded research required to be published under an open access license?	NO Not mentioned in the CA

Freedoms to share and transfer

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual?	The maximum penalty for copyright infringement for all, except films, is imprisonment for four years and a fine of USD2857. The maximum penalty for copyright infringement for films is imprisonment for five years and a fine of USD7142.The maximum penalty for publishing and distributing computer programs copied unlawfully from the original is imprisonment for four years and a fine of USD5714.The maximum penalty for using pirated computer programs is imprisonment for three years and a fine of USD4285.	CA Chapter 15 Paragraph 82
What is the maximum penalty for copyright infringement for a corporation?	In case of law-breaking by a company or corporation, the official in charge of the business transactions, the individuals concerned with the transaction and any other person the company identifies as involved with the crime are held responsible and the aforementioned penalties are applied according to the crime.	CA Chapter 15 Paragraph 91
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge?	LIMITED In case of computer programs, such a distinction is made in the law. However for other forms of intellectual property, no such distinction is made within the Copyright Act.	CA Chapter 15 Paragraph 82
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 Not mentioned in CA.
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright?	YES
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?	LIMITED Consumer protection law was adopted in Bangladesh in April 2009, and may be applied to the sale of material without disclosure of TPM protection.
Are the operations of copyright collectives subject to public oversight?	NO Only copyright owners involved with the collective can gather information as required. The government can ask for any data at any time	CA Chap 8 Para 44
Are ISPs independent of copyright owners, to the extent that no law or industry code of conduct requires them to notify their users who are alleged to have committed a copyright infringement online?	YES
Are criminal sanctions limited to cases of large-scale commercial counterfeiting?	NO Criminal sanctions are applied to all forms of copyright infringement. Even if it is proven in a court of law that the infringement was not for a commercial purpose, a minimum prison sentence may still be inflicted.
Are damages for copyright infringement based on the loss sustained, rather than by a pre-established or statutory damages award?	YES The court determines the loss.	CA Chapter 14 Para 76
Is there provision to penalise the wrongful allegation of copyright infringement?	NO The Copyright Act does not contain any provisions for penalties against wrongful allegations of infringement. There is a provision for appealing against specific decisions by the magistrates.

Conclusions

The Copyright Act of Bangladesh is not as comprehensive as it might be expected to be. It fails to touch upon many relevant issues of copyrightⁱ law or intellectual property that it needs to. Despite the Act being approved rather recently, the Act addresses very little on copyright and its effects and influences on information and intellectual property on the Internet or with any other form of information technology.

To be relevant to current realities concerning copyright, the Act needs to be updated with a mind to keeping a balance between the rights of copyright holders and intellectual property creators and the common consumers. The law does not specify about open accessⁱ and open knowledge paradigm. In many cases the law does not comply with the country's level of economic development, and prohibits the free flow of knowledge to protect large corporate interests.

This work is licensed under a Attribution Share Alike Creative Commons license

May copyright works be freely offered for commercial rental?	LIMITED Computer software may not be rented.
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?	YES Copyright ownership can be relinquished with just a notification sent to the Registrar of the Copyright Board.	CA Chapter 4 Para 22
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?	YES Orphaned works may be licensed by any individual.	CA Chapter 9 Para 51
Is parallel importation permitted?	NO
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
Are there specifications or incentives in national law/policy for the use of open document formats?	NO