It is a common phenomenon in Bangladesh to watch movies that are available on random websites, sometimes even before they are released. Few of the viewers realise this circulation without proper authorisation is a serious breach of the laws of the land, the Copyright Act 2000 and Rules 2006 & 2010 (the Law). This article will focus on the practical problems associated with the Law and suggest possible and plausible recommendation of the same to secure better copyright protection.
Copyright, being a fundamental form of the intellectual property law, is the exclusive and assignable legal rights of a maker over his/her original works including literary, dramatic, musical, and artistic ones, such as poetry, novels, movies, songs, etc, and the Law protects the works from unauthorised use. The concept of copyright is to protect the expressions of ideas rather than the ideas themselves. The objective is to encourage, nurture, and motivate a creator to create his/her works without any fear of being exploited.
Rock ‘n Roll case and Bangladesh’s copyright scenario
Mr Abul Kalam Azad, a professor of economics at the University of Chittagong, in an article published on the World Trade Organisation’s (WTO) website, refers to the ‘Rock ‘n Roll case’ as the historic illustration of the application of international intellectual property agreements which enabled a local rock band in Bangladesh to successfully challenge the unauthorised use of its song by an Indian filmmaker. In this case, the local band exercised its rights under the Berne Convention and Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, of which Bangladesh is a member.
However, the crucial question remains whether the protection within Bangladesh is as successful as the Rock ’n Roll case. The piracy market in Bangladesh is huge. Now it is important to deal with these issues under a national framework. To find protection under the Law, an owner needs to demonstrate several conditions.
For example, a work must be original irrespective of its accuracy and literary merits. Other conditions apply, depending on the nature of the work published, unpublished, cinematographic or architectural – as illustrated in Section five of the Law. The type of works being covered by the protection is outlined in section 14 (Those include literary works, dramatic works, artistic works, cinematograph films, etc). Although it is not mandatory under the 2000 Act to register the content to be protected, it is encouraged to do so as it is the prima facie evidence in cases of any dispute.
The term of the protection under the Law commences from the creation and is not for an indefinite period, and such period depends on the nature of the work. After the expiry of the term, it becomes public property.
The first shortcoming of the Law resulting in inadequate protection is the outdated provisions. One illustration is the failure to segregate ‘musical works’ from drama or films. A futile attempt was made in the 2006 Rules to provide an independent emphasis; however, it made little difference in practical terms. Furthermore, the applicability of the Law is highly questioned today when the current generation is more inclined towards the usage of technology and online platforms.
In addition, the penalty for the infringement of the provisions is insufficient. Activities including unauthorised forgery, distribution, publication, etc. carried out for commercial benefits are referred to as an infringement. Amongst the remedies, providing criminal sanction is a vital one, but the maximum punishment is four years in jail and Tk 200,000 in fines (for piracy of computer programmes for commercial purpose, the amount of fines under the recent amendment is maximum Tk 400,000), which is barely 1.0 per cent of what is earned as revenues from piracy.
Juboti Radhe and challenges of implementation
The biggest challenge to provide protection is implementation. The Law requires the formation of copyright societies relating to all works, but that has not happened so far. Also, the inefficiency of the Copyrights Register Office is a fundamental practical difficulty.
One prime example would be the recent controversy regarding the registered copyright owner of the song ‘Juboti Radhe.’ Some argued that the song originally derives from the ancient Kirtan and Lila-kirtan genre. And several doubts were raised about the manner using which Shorolpur had obtained the copyright of the song, pointing to the inefficiency of the Office. Needless to say, the infrastructural shortcoming is another major drawback.
As far as the recommendation is concerned, it is vital to be technologically friendly. Creators are encouraged to adapt to the usage of the advanced means of protection, especially when their works are uploaded on the internet. There are many platforms and networks which are highly equipped to provide effective protection. For instance, Multi-Channel Networks (MCNs), a third-party service provider associated with various Youtube channels, not only provides protection but also offers services including enhancing audience development of the channel, content programming, digital rights management, monetisation, and many more services.
Role of the Office
The Office has a vital role to play in the implementation of the Law, for example, ensuring proper and effective investigation before awarding copyright licences.
On the other hand, the Office may organise seminars across the country to spread awareness about piracy. It is observed that generally people who pirate works without proper authorisation are either unaware that it belongs to the creator who ought to be credited or they do not pay much heed to it. The significance of copyright can be introduced as a compulsory subject in academic studies. Furthermore, the government of Bangladesh may contribute by blocking websites containing pirated materials, developing a mechanism similar to the ‘Copyright Alert Service’ in the USA, and taking legal actions against the subscribers acting contrary to the Law.
On the other hand, the legislature is requested to amend the questionable provisions of the Law, to make it easy and user friendly and ensure better protection for creators. Mr Tracey Armstrong, the chief executive officer of the Copyright Clearance Center, USA, commented, “Copyright is not an obstacle. It’s something you need to understand how to navigate, and we want to make that as easy and as transparent as possible.” In light of the observation, it is vital to increase the scope of the penalty to ensure deterrence of the infringement of the Law.
From a lawyer’s point of view, amendments in the existing law are of paramount importance. However, the law itself will not be sufficient to protect the creators unless the implementation is in effect. A combination of effective amendments of the Law and its operative implementation can be the only way to resolve the issues regarding the protection of copyright.
Shahedul Azam is a Barrister-at-Law at Lincoln’s Inn (UK), Advocate for the Supreme Court of Bangladesh, Partner at Credence LP. [email protected]
Farzana Tasreen Synthia is a Barrister-at-Law at Lincoln’s Inn (UK), Accredited Mediator at ADR-ODR International, Senior Legal Executive at Bongo BD. [email protected]