Fiji

Thu, 09/07/2009 - 03:30 — joshika@a2k.org

Legal background

Copyright legislation	Copyright Act 1999 ("CA") From http://portal.unesco.org/culture/en/files/30383/11424205153fj_copyright_1999_en....
Other relevant laws
Copyright treaties	Berne Convention	Rome Convention	Berne Appendix	TRIPS	WCT	WPPT
Other relevant treaties	Member of Universal Copyright Convention since December 1971

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 Copyright in a literary, dramatic, musical or art work expires at the end of 50 years after the end of the calendar year. If the work is a photograph, copyright expires at the end of 50 years after the end of the calendar year. If the work is computer generated, copyright expires at the end of 50 years after the end of calendar year of authorized publication or if there is no authorized publication within 50 years after the making of the work. If the work is unknown authorship, copyright expires at the end of 50 years. Copyright in a broadcast or a cable programme expires at the end of the period of 5 years. Copyright in a typographical arrangement of a published edition expires at the end of 25 years.	CA s.22
Must a work be fixed in some material form before copyright attaches?	NO
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 The terms of licensing is operated by a licensing body. A Tribunal determines the licensing for copyrights.
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?	LIMITED The Fiji’s Constitution is abrogated and therefore the right to free speech is restricted in many respects.
Does the compilation of a database of non-original material fall outside the scope of copyright?	NO There is no legislation protecting databases.
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them?	LIMITED No such ruling directly on copyright law.

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
	Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)?	NO Not expressly provided for in the Act. The making for private use and domestic use of a recording of a broadcast or cable programme solely for the purpose of enabling the recording to be viewed or listened to at a convenient time does not infringe copyright
	Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes?	LIMITED Back up copy for computer program is not infringed if the copy is made by or on behalf of the lawful user of the copy of the program.
	Can works be communicated to a limited public (for example, family and friends) without infringing copyright?	LIMITED The issue of copies of a work to the public is a restricted act in relation to every description of copyright work. The performance of a work in public is a restricted act in relation to a literary, dramatic or musical work. The playing or showing of a work in public is a restricted act in relation to a sound record audio visual work, broadcast or cable programme. The broadcasting of a work or its communication to the public is restricted act in relation to a literary, dramatic, musical or artistic work; a sound recording or audio visual work, a broadcast or cable programme.
	Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy?	NO
For Education	Is reproduction permitted for the purposes of research or study?	YES An exception that the copying of a published edition for the purposes of research or private study by an individual does not infringe copyright in either the typographical arrangement of the edition or in any literary, dramatic, or musical work or part of a work in edition. In determining whether copying is for the purposes of research or private study by an individual, the court will have regard to the (a) the purpose of the copying (b) nature of the item copied (c) whether the item could have been obtained within a reasonable time at an ordinary commercial price (d) the effect of the copying on the potential market, or value of the work and (e) where part of an item is copied – the amount and substantiality of the part copied taken relation to the whole item. Similar exemption from copyright infringement is for a school (kindger garden, primary school, an intermediate school, a secondary school and special school) and educations establishment for the purpose of research and research study) unless there is a collective licence available of which the school is or should be aware of.	CA s.42
	Does any such research and study provision cover distance and online education?	LIMITED
	May translations of works be made for educational purposes?	NO Nothing expressly provided in the Act. The “adaptation” is defined as the translation of the work from one language to another. The adaptation is when it is recorded or in writing. This is restricted in relation to a literary, dramatic, audio visual or musical work.
	May works be reproduced and published by educational institutions in connection with systematic instructional activities?	NO A licensing scheme must be applied for by the educational establishment for the reprographic copies of a published literary, dramatic, musical or artistic work, or of the typographical arrangement of a published edition.
Online	Is hyperlinking to a Web site allowed without permission of the site's owner?	YES No express provisions.
	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?	LIMITED Nothing expressly in the Act.
	Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material?	YES
	Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs?	LIMITED
By content creators	Can copyright works be non-commercially remixed or mashed up into new works?	NO Nothing expressly provided.
	May computer software be reverse engineered for the purpose of creating interoperable software?	NO Nothing expressly provided.
	Is the incidental inclusion of a work in other material permitted?	LIMITED Incidental inclusion of work is permitted in an artistic work, a sound recording, an audio visual work, a broadcast or a cable programme. Or the issue of the public copies of an artistic work, the playing of sound recording, the showing of an audio visual work, the making of a broadcast, or the inclusion of a cable programme. However, the work is not regarded incidentally copied in another work if the musical work or as the case requires, such words of that sound recording, broadcast, or cable programme is deliberately copied. Incidental recordings for purpose of broadcast or cable programme applies where, under an assignment or licence, a person is authorized to broadcast or include a cable programme service (in literary, dramatic, musical work or an adaptation of such work, an artistic work and a sound recording or audio work).	CA s.77
	Is there are copyright exception for parody or satire?	YES
	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 Work must be accompanied by sufficient acknowledgement.	CA s.41
	May copyright material be reproduced for the purposes of review and criticism?	YES Work must be accompanied by sufficient acknowledgement.	CA s.171
	May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose?	LIMITED Copyright is not infringed for the purpose of parliamentary judicial proceedings.	CA s.176
	May quotations be used for any purpose?	LIMITED Act not very clear on this.
By Libraries	May libraries copy works that cannot reasonably be obtained commercially?	LIMITED Copying parts of published works in relation to a literary, or musical work contained in a book by one author, not more than one copy of a short excerpt from the work. It has its conditions accompanied as well. Copying by librarians with conditions, make for supply to any person a literary, dramatic, or musical work, and any artistic work included in that work, containing an article in a periodical or a published edition that is an article in a periodical.	CA s.49
	May libraries copy works for users for the purpose of research or study?	LIMITED (as above) The librarian may make copy from a published edition, in relation to literary, dramatic or musical work contained in a book by one author. The conditions with it amongst other is that a copy supplied only to a person who satisfies the librarian that the person require is for the purpose of research or private study.	CA s.49
	Are libraries allowed to make preservation or archive copies of materials in their collections?	YES Can make copy of an item in the permanent collection of the library or archive for the purpose of preserving or replacing that item. This applies where it is not reasonably practicable to purchase a copy of item in question.	CA s.52
	In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)?	NO Not provided.
By disabled users	Is it permissible to copy or adapt work for the use of those with disabilities?	NO Not expressly provided.
In public affairs	Are laws excluded from copyright?	LIMITED Any act as defined in the Interpretation Act Cap 7, any subsidiary legislation as defined in Interpretation Act Cap 7.	CA s.27
	Are other governmental works excluded from copyright?	LIMITED Any bill introduced into the House of representatives, the debates of the Parliament of Fiji, a report of a Royal Commission of Inquiry, ministerial inquiry or statutory inquiry.	CA s.27
	Is there a copyright exception for use of material in judicial proceedings?	YES Copyright is not infringed by anything done for the purpose of parliamentary judicial proceedings.	CA s.176
	Are the results of publicly funded research required to be published under an open access license?	NO Nothing expressly provided. Probably through Ministerial consent application.

Freedoms to share and transfer

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual?	It is wide, by way of civil remedy and criminal remedy damages, injunction, order to seize and detain copies, criminal liability is a fine of $50,000 and to the imprisonment for 12 months. A second or subsequent offence is a fine of $100,000 and to imprisonment of 2 years.	CA Part VII
What is the maximum penalty for copyright infringement for a corporation?	Does not expressly list the maximum penalty and only says that every director and every person concerned in the management of the body corporate is guilty of the offence.	CA Part VII
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge?	YES	CA s.223
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?	NO	CA s.223
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright?	NO
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
Are the operations of copyright collectives subject to public oversight?	YES The Fiji Performing Right Association Limited (FPRA) is the only collecting society in Fiji.
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
Are damages for copyright infringement based on the loss sustained, rather than by a pre-established or statutory damages award?	YES Court will also consider other factors accompanying it. Liability depends on proof of the requisite knowledge (reason to believe).
Is there provision to penalise the wrongful allegation of copyright infringement?	YES Court can make a declaration that the proceedings was unjustified or order for payment of damages for any loss suffered by the person

Conclusions

As a Commonwealth country, the copyrightⁱ law of Fiji reflects its British heritage. It has been adapted for local needs only to a limited extent, for example a provision allowing archiving of recordings of folk songs. Fiji is one of a handful of countries that have prohibited the circumvention of technological protection mechanisms, despite being under no international legal obligation to do so, since Fiji has not acceded to the WIPOⁱ Copyright Treaty.

Whilst the copyright law of Fiji is not especially flexible, neither is it enforced very effectively. There is a significant degree of piracy of CDs and DVDs, resulting in an out-of-cycle review of the country being performed by the USTR in 2009. This is despite the fact that special anti-piracy customs provisions are included in the Copyright Act. As in many other developing countries, the country's enforcement problems are not due to lack of will, but lack of resources.

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

May copyright works be freely offered for commercial rental?	LIMITED Copyright in a work is infringed by a person who without a licence of the copyright owner does an act which is restricted by copyright. Such acts (amongst others) includes in the course of the business, offers or exposes for sale or distributes. Copyright in a work being a computer program, sound recording, or audio visual work is not infringed by the rental of that work to any person by an educational establishment or a prescribed library for the purposes of making a profit and that the work that is subject to rental had previously been put into circulation with the licence of the copyright owner.
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 Notice given to the Copyright office.
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 Upon reasonable inquiry and that it is impossible to ascertain the identity.
Is parallel importation permitted?	YES A person who owns the copyright in any literary, dramatic or musical work of the typographical arrangement of a published edition, in a sound recording, or in an audio visual work, can by notice in writing to the Comptroller of Customs for parallel importation.
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