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Copyright Protection Problems in Bangladesh and the UK

ANALYSIS OF THE DEVELOPMENT AND PROBLEMS OF COPYRIGHT PROTECTION IN BANGLADESH AND THE UNITED KINGDOM

 

 

Abstract

Copyright protection has steadily evolved in many jurisdictions over the centuries. From monopoly grants by the State to extensive regulatory policies and enforcement of copyright, owners of copyright have enjoyed state sponsored protection. This essay majorly explores the development of copyright in the United Kingdom as a developed jurisdiction and Bangladesh as a developing country. The scope of analysis covered the similarities and the differences in the legislative, administrative and judicial frameworks with focus on the domestic and international appreciation in both jurisdictions. The research also explored the influence and dynamics of technological advancements on copyright protection. The study revealed that both the United Kingdom and Bangladesh faced serious infringement cases especially digital infringement although Bangladesh suffered more piracy issues as a result of poorer enforcement. The dissertation concludes by making special recommendations for Bangladesh to implement proactive strategies in protecting copyright owners and subsequently boost the economic potential of the industry.

 

CHAPTER ONE

GENERAL INTRODUCTION

  • BACKGROUND TO THE STUDY

Intellectual properties are basically works created from the use of the human mind. It is a form of intangible asset recognized and protectable under the law of a state. There are two major types of intellectual property; Copyright and Industrial property[1] but for the purpose of this essay, I shall restrict the discussion to Copyright law.

Copyright usually grants to its creator an exclusive right over such work usually for a period of time and prohibits any person from infringing on that right or carrying out an act in respect of the work without the author’s permission. The Black’s Law dictionary defines copyright as “The right of literary property as recognized and sanctioned by positive law. A right granted by statute to the author or originator of certain literary or artistic productions, whereby he is invested, for a limited period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them.[2]

Copyright serves as an incentive to encourage creativity and to reward its creators for time, energy monetary and other resources spent in the creation of such works. At the same time, copyright protection also helps to prevent the unauthorized commercial exploitation of these works without payment of compensation and royalties. Without copyright protection, the creativity industry will be stifled which will indirectly have a negatively impact on the economy of that country.

Generally, works protected under copyright throughout the world include literary works such as novels, poems, plays, reference works, newspaper articles; computer programs, databases; films, musical compositions, and choreography; artistic works such as paintings, drawings, photographs, and sculpture; architecture; advertisements, maps, and technical drawings, broadcast, cinematograph films, Sounding recordings etc.

Copyright is generally conferred on works expressed in a tangible medium, i.e. it protects expressions of thoughts and not ideas. Furthermore, different countries have varying national laws on copyright suited to meet the specific needs of each country. The national laws of these various jurisdictions provide criteria and conditions that must be fulfilled before copyright can be conferred on a work. It also provides different durations for the protection of each copyright work. The copyright law mainly serves to balance the right of the author of the creative work and the user of the work in which the copyright subsists.

This essay borders mainly on Copyright in the United Kingdom and Bangladesh. Like several other countries, Bangladesh was colonized by the then British Empire and like many other laws, the Statute of Anne in England, being the first British Copyright Law, thereby, got root in Bangladesh during the British regime.[3] Subsequent British Copyright enactment such as the British Copyright Law of 1911 was also introduced into the colony in 1914. Although the copyright laws of both jurisdictions have since been severally amended, there still remain inherent similarities between the copyright laws of both the United Kingdom and Bangladesh.

In addition to the above, both the United Kingdom and Bangladesh are members of the World Intellectual Property Organisation as well as signatories to several international treaties and conventions on copyright; such as the Berne Convention on Copyright, the Universal Copyright Convention (UCC) and the Trade Related Aspect of Intellectual Property (TRIPS). These treaties and conventions provide for the principle of national treatment which implies that the copyright in a national in a member state will extend to all the other member states who are signatories to these conventions and treaties.

Copyright is growing at a fast pace and there is therefore an urgent need for copyright owners as well as practitioners to keep abreast with these changes in order to better protect their rights. There have been several notable developments in copyright protection over the years all around the world. Copyright protection has advanced from just literary, musical and artistic works to include computer software and database. With the development of the digital age and the internet, several copyright works such as newspapers, novels, music, etc. can be downloaded from the internet in a few minutes at little or no cost. The continuous advancement in technology has also introduced new and evolving areas in copyright law such as block chain and Artificial intelligence. Copyright is also developing in the fashion, sports and entertainment industry.

With these developments are also some attendant problems and challenges. One of the major problems caused by the advancement in technology is that it has greatly enhanced copyright piracy and infringement. The present copyright laws appear to be no longer adequate to effectively protect copyright works and its owners.  All these issues will be discussed in details in this essay

1.2. AIMS AND OBJECTIVES.

The primary aim of this essay is to critically analyse the development of copyright law in the United Kingdom and Bangladesh; and the problems facing Copyright in these countries. The Specific Objectives of this study are:

(1) To examine and highlight the Copyright law and development scenario in the United Kingdom and Bangladesh;

(2) To find out the existing legal frameworks of Copyright law in each of the jurisdictions;

(3) To discuss the inherent problems and challenges to Copyright protection in these jurisdiction and

(3) To provide possible remedies to the problems of Copyright in these jurisdictions.

1.3.

 

LITERATURE REVIEW

In 2017, the Global Intellectual Property Centre of the United States (US) Chamber of Commerce in its international Intellectual Property (IP) Index unveiled the United Kingdom as the most developed IP system in the world closely trailing the US (Global Intellectual Property Centre (GIPC), United States Chamber of Commerce, 2017) . In this Index, 45 global economies representing roughly 90% of global GDP were examined across all continents. With UK emerging the best in Europe, Bangladesh was significantly missing among the 16 Asian countries on the ranking, despite Asia boasting the highest number of continental representatives by far.

To further deepen this chasm between the UK and Bangladesh, the UK has an organized and highly efficient IPL implementation system complemented by digital technology sophistication – electronic filing (United Kingdom Intellectual Property Office). Bangladesh meanwhile has an absolutely manual system of IPL administration coupled with abysmal IP literacy/education. Only an infinitesimal proportion of Bangladeshi judicial decisions are found on the internet and several Bangladeshi citizens and residents wax in the ugly norm of copyright piracy. Piracy is a very lucrative venture in Bangladesh (Mohammed Rahel, 2017).

Moreover, the recent European General Data Protection Regulation (GDPR) further gave the United Kingdom further edge in the scheme of intellectual property and data privacy protection. Against this backdrop, a crucial policy and legislative question must be asked: What are the differences between the Intellectual Property Law systems of Bangladesh and the United Kingdom?

The goal of this Literature Review is to analyse the development and problems faced by the Intellectual Property Law (IPL) systems of Bangladesh and the United Kingdom as they each and both specifically relate to the subject of copyright protection.

Right from the formal incipience of intellectual property law in the UK vide the Statute of Anne in 1710, the UK IP system has developed steadily. At least, manual filing and the fact that there was no automatic copyright protection for unpublished works has since changed (Laddie Justice, 1996). Conversely, the Bangladesh IP system is demonstrably proved to be a relic of British colonialism but no further. The law and overall system of IP administration appears grossly retrograde.

In conclusion, the entirety of statutes and case laws examined gives high-voltage indication that the problems of the Bangladeshi IP system are basically weaved around a carefree government attitude towards legal development. The choice of the UK as a benchmark for this comparative analysis is therefore justified.

1.4. RESEARCH METHODOLOGY.

In order to achieve the aims and objectives outlined above, both primary and secondary sources research methods will be engaged. The primary sources include certain statutes and legislations notably the National Laws of England and Bangladesh, Multilateral/ International Conventional Laws such as the Berne Convention, the Rome Convention etc., local and foreign judicial decisions. Text Books, Journals, Newspapers, Articles, periodicals, relevant comments, Internet and Websites; and Supervisor’s recommended materials will constitute the secondary sources.

CHAPTER TWO

2.0 THE THEORY AND BACKGROUND OF COPYRIGHT PROTECTION

2.1. THE HISTORY AND RATIONALE FOR COPYRIGHT PROTECTION

  • History of Copyright in France

In the early years of printing, books and other written matter were part of the public domain when they were published. Like patents, the grant of book privileges originated in the Republic of Venice in the fifteenth century, a practice which was soon prevalent in a number of other European countries.[4]

The French privilege system was introduced in 1498. The Book Privilege were issued by the crown or state to printers and book sellers granting them exclusive permission to publish certain works for a limited time.[5] There was no need for proof of authorship over these works. The privileges were properties that could be assigned or licensed and its infringement was punished by way of fine or confiscation.

By 1791 and 1793, the French Revolutionary decree had abolished the privilege system and replaced it with uniform statutory claims to literary property. The ‘loi du 13-19 janvier 1791’ concerned dramatic works, while the 1793 Act on literary and artistic property granted authors an exclusive reproduction right for their lifetime plus ten years for the heirs. These laws became the foundation of the modern law of the French Copyright system.[6]

 

The emergence of copyright protection in the USA was influenced by the introduction of the printing press in England and the subsequent enactment of the Statute of Anne 1710. In furtherance of the provision of Section 8, clause 8 of the 1787 Constitution of the USA which provides as follows:

“the Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”, the First congress enacted the Copyright Act of 1790 (modeled after the Statute of Anne). The Act granted authors right to print and publish their works for a period of fourteen years renewable for another fourteen years. The underlining objective of the Act was to balance the needs of the public and the rights of the authors.

The 1790 Copyright Act was further revised in 1831, 1909 and finally in 1976. The Copyright Act of 1976 took into consideration the effects of technological developments and its impact on copyright. The amendment was made in anticipation of the US becoming a signatory to the Berne Convention and to bring the US into accordance with International Copyright Law, practice and policies. The Act also extended copyright protection to the life of the author plus 50 years and also extended copyright protection to unpublished works.

There are also several copyright laws governing specific areas of copyright such as the Digital Millennium Copyright Act (DMCA), Uniform Computer Information Transaction Act (UCITA), Technology Education and Copyright Harmonization Act (TEACH Act), Family Entertainment and Copyright Act etc.

 

  • The Rationale for Copyright Protection

Historically, there have been arguments as to whether works covered by Copyright laws deserve the protection provided by the state. This school of thought that opposes copyright protection argues that the society has invested the education in the individuals who create literary, artistic or such other works for which they want copyright protection. This education was provided via:

  1. Teachers: Many individuals who produce outstanding works today were once taught informally or formally by well-meaning members of the society who freely shared their knowledge.
  2. Materials: New works are obviously built on an existing pool of educational resources available to such individuals or entities. If the creators of the existing pool of resources latched on their works with claims of copyright, then it is not likely that new works would be birthed.

These arguments are the reasons this school of thought believes works should be shared freely among other members of the society.

Proponents of copyright protection have argued fiercely the other way round. The essence of Copyright is to encourage creative works and promote the progress of useful arts by bestowing exclusive control and ownership on its creators and prohibiting unauthorized use of such works. It is also designed to meet the twin objective of safeguarding private ownership rights and promoting public interest.

It is further argued that without copyright protection, there will be little or no motivation to create ingenious works. Also, creators of copyrightable works will be deprived of the economic benefits of their works thus affecting the revenue generated through copyrights and the economy generally.

This writer leans towards the argument for copyright protection and strongly affirms that the benefits of state granted protection for works of copyright far outweigh the arguments for its abolition or reduction of term.

 

 

2.2. THE FOUR THEORIES OF INTELLECTUAL PROPERTY

The background and development of Copyright law in a society is enriched by the influence of theoretical writings on Intellectual Property. These theories are different form the doctrines of Copyright which are actually the legal framework upon which Copyright is actually sustained.

The four prominent theories of Intellectual Property are named by Fisher in their order of prominence: Utilitarian Theory; Labour Theory; Personality Theory and Social Planning Theory.[7] These theories will be explained briefly in this essay.

  1. Utilitarinism: Built on the strong foundations of the utilitarian principle, the theory has gained immense popularity in the American courts and lawyers.[8] It favours that the legal protection of intellectual works is to foster creativity and production of more works and this will ultimately promote the greater good.[9] This theory is also known as the Welfare Theory.
  2. Labour Theory: Closely associated with John Locke’s theory of rewarding labour, proponents of this school of thought believe that copyright terms and patents should be extended to reward the labour and services rendered just like farm work on a property would be rewarded.[10] It is juxtaposed that if the public domain is enlarged by shortening the terms of copyright and patents, authors and inventors would not be able to benefit of their sacrificial investment.[11]
  3. Personality Theory: By far the most popular theory in Europe, this theory has been built around the scholastic philosophies of Kant and Hagel. It is their writings that shaped the model for Copyright laws in France and Germany and the concept of “moral rights”. The views expressed by this school of thought are that Intellectual Property creations are an extension of the creator. They are so closely tied to his personhood that and if unapproved, any mutilation, adaptation or distribution of the work is a violation of the creator’s personality.
  4. Social Planning Theory: Also known as the Culture Theory, proponents of this school seek to establish sets of ideal rules that will shape a “just and attractive culture”. It accounts for the favourable attitude of the courts towards the defence of fair dealing such as education, criticism and commentary.

It is important to note that these theories are not pigeon-holed and distinct from each other. Most often than not, they may interlock. These theories also have several criticisms and gaps. Their main advantage is that they form the thinking and development model of copyright laws in many societies today.[12]

2.3. WORKS UNDER COPYRIGHT

Section 3 of the Copyright, Designs and Patents Act 1988[13] lists the various categories of copyrightable works. These are:

  1. Literary Work- which means any work other than a dramatic or musical work, which is written, spoken or sung and includes a table or compilation (other than a database), a computer program, preparatory design material for a computer program and a database.[14] Examples will include novels, short stories, poems, etc.
  2. Dramatic work – includes a work of dance or mime. A good example is a choreography routine.
  3. Musical work- which means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music. Manuscripts of musical notes are good examples.
  4. Databases- this means a collection of independent works, data or other materials which are arranged in a systematic or methodical way, and are individually accessible by electronic or other means.
  5. Artistic works which includes-

(a) a graphic work[15], photograph[16], sculpture[17] or collage, irrespective of artistic quality,

(b) a work of architecture being a building or a model for a building[18], or

(c) a work of artistic craftsmanship.

Fine examples in this category are paintings, drawings and sculptural works.

6. Sound recordings- which means:

(a) a recording of sounds, from which the sounds may be reproduced, or

(b) a recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or part may be produced regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced.

7. Films- which means:

(1)a recording on any medium from which a moving image may by any means be produced.

No doubt, the series of James Bond belong to this category.

(2) The sound track accompanying a film.

8. Broadcasts- this includes works transmitted to the public via signals.

Broadcasts may also include

transmissions via the internet or transmission of a live event.

 

  1. Typographical arrangement of published editions.

Unless a work falls under any of the above categories, such work will not attract copyright protection in the United Kingdom.

 

2.4. GENERAL REQUIREMENTS FOR COPYRIGHT PROTECTION

The copyright laws of various countries stipulate certain requirements which must be fulfilled before a work can attract copyright protection. The following are however general requirements for copyright protection:

  1. Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.[19] In Designers Guild vs Russell Williams Textiles (2001), Lord Hoffman commented that;

Certain ideas expressed by copyright work may not be protected because, although they are ideas of literary, dramatic or artistic nature, they are not original, or so common place as not to form a substantial part of the work …”

  1. Secondly, a copyright work must be fixed in a definite or tangible medium of expression. This medium of expression can be in a physical or electronic form. Farwell LJ stated in Tate v Fullbrook (1908) that,

” in order to obtain copyright protection it is necessary for the work to be in some tangible form ‘because there is no protection for ideas.’’[20]

  1. A copyright must be the original work of the author. It need not be novel, but a certain amount of effort, skill and creativity must have been expended on the work to give it an original character.[21]

In Interlego AG v Tyco Industries, Lord Oliver reinstated the above point when he said:

“A copy is not an original work, despite skill/effort in copying, there must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work“[22]

2.5. THE BERNE CONVENTION

The Berne Convention of 1886 is the oldest and most fundamental international treaty on Copyright. The Convention was promulgated specifically to protect the rights of authors in their literary and artistic works.[23] It was formulated to bridge the lacuna in the previous treaties on Copyright. It has since its inception been amended several times, in order to meet up with the changing improvements in the copyright law in the international scene. The convention was concluded and adopted on 9th September 1886. The United Kingdom and Bangladesh became a signatory to the Berne Convention in 1887 and 1989 respectively.

One of the most essential provisions of the Convention is its “Principle of National Treatment.” The principle states that works originating in one of the member states of the Berne Union must be given the same protection in each of the other member states as the latter grants to work belonging to its own nationals.[24] The principle further stipulates that the enjoyment of this national treatment shall be automatic and not subject to any form of registration or other formalities. Such protection is also independent of the existence of protection in the work in its country of origin.[25]

One of the biggest changes implemented by the adoption of the Berne Convention was to extend copyright protection to unpublished works, and remove the requirement for registration. In countries of the Berne Convention this means that an individual (or the organization they are working for) owns the copyright of any work they produce as soon as it is recorded in some way.

The Convention also gives recognition to the moral rights of the authors.[26] It lays down certain basic rights to which the authors of the protected works are entitled to. It extends the term of protection of copyright to the life of the author and fifty years after his death or fifty years from the date of publication.[27]

  

CHAPTER 3

DEVELOPMENT OF COPYRIGHT PROTECTION IN THE UNITED KINGDOM

3.1. THE HISTORY AND EVOLUTION OF COPYRIGHT

During the 16th and 17th century, before the enactment of any formal copyright law, restrictions on printing, distribution and sale was imposed by way of monopoly granted by the crown. Upon the invention of the printing press in the 15th century by Johannes Gutenberg, a number of printers became involved in the printing and sale of copies of other people’s work for profit.[28] The Statute of Anne 1710 was enacted to regulate this existing practice and to give authors the right to permit the printing of their work by printers of their choice for a period of 14 years extendable for 28 years.[29]

The statute of Anne 1710 was the first copyright statute in England.[30] The legislation introduced for the first time the concept of the author of a work being the owner of its copyright, and laid out fixed terms of protection. Following this, copyrighted works were required to be deposited at specific copyright libraries, and registered at Stationers’ Hall. There was however, no automatic copyright protection for unpublished works.[31] The copyright law currently in force is the Copyright Design and Patent Act 1988 hereinafter known in this chapter as “the Act”. [32]

 

3.2. DURATION OF COPYRIGHT PROTECTION

Unlike moral rights, the enjoyment of economic rights in a copyright work is not perpetual; it is limited by the enabling laws which provides for the duration of copyright in the different categories of work.[33]

Under the Berne Convention, the duration for all categories of copyright works is the life of author + 50 years. Section 12 CDPA provides for the duration for literary, artistic and dramatic works. Under the Act, Copyright in these works expires at the end of the period of 70 years from the end of the calendar year in which the author dies.

For sound recordings, copyright is for 50years from its making or 70 from publication or making available.[34] Copyright in broadcasts is for 50years from the year it was first broadcast.[35] Copyright in anonymous works expires at the end of the period of 70 years from the end of the calendar year in which the work was made, or if during that period the work is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available.[36]

3.3. AUTHORSHIP AND OWNERSHIP OF COPYRIGHT WORKS

The author of a work is the person that creates the work.[37] Under the Act, the author of a copyright work varies according to the work. In the case of a sound recording, the author of the work is the producer. The author of a broadcast is the person making the broadcast, in the case of a film, the author is the producer and the principal director of the film.[38]

With respect to typographical arrangement of a published edition, the publisher shall be the author, and In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.[39] The author and first owner of the copyright in a published edition is the publisher.

3.3.1. WORKS CREATED DURING EMPLOYMENT

Copyright in a work is generally vested in the author of a work i.e. the author of a work is the first owner of the copyright in the work. However, where a literary, dramatic, musical or artistic work, or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work, subject to any agreement to the contrary.[40] In this case, the employee must have been employed under a contract of employment and must have created the work during the course of that employment. The employee and employer may vary this rule by expressly stipulating in the contract that the copyright in the work created by the employee in the course of his/her employment should belong to the employee.

3.3.2. COMMISSIONED WORKS

Copyright in a commissioned work belongs to the creator. Where a person commissions another person to create a work, the copyright in that work shall be vested in the author of the work, unless otherwise is agreed in writing.

However, in some circumstances, for example when copyright is not dealt with in the contract to commission the work, courts may be willing to find that there is an implied licence allowing the commissioner to use the work for the purpose for which it was commissioned.[41] This does not necessarily result in a transfer of ownership. Instead, the commissioner of the work may only get a limited non-exclusive licence. This situation demonstrates the importance of establishing who owns copyright through a contract.[42]

3.3.3. JOINT AUTHORSHIP AND CO-AUTHORSHIP

A work is said to be jointly authored where the work is produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors.[43]

To qualify as joint authors, each of the authors must have provided a significant creative input in the expression of the finished work, which is not distinct from the contribution of the others. Therefore, a mere suggestion of an idea to a work will not make the person giving the suggestion, a joint author, he must have made significant contribution in expressing the work in a tangible form.[44]

The UK High Court in Martin v Kogan, ruled, that the defendant’s contribution to the screenplay for the film Florence Foster Jenkins, was insufficient to amount to joint authorship. While the parties had worked on early drafts together, HHJ Hacon found that there had been no collaboration between them in respect of the final version of the screenplay and Ms Kogan’s textual and non-textual contributions had been insufficient.[45] The High Court confirmed that there are three requirements to establish joint authorship under section 10(1) Copyright, Designs and Patents Act 1988 (CDPA):

  • collaboration between two or more authors;
  • absence of distinction in contributions; and
  • (implied) the contributions need to be sufficient.[46]

Co-Authorship on the other hand occurs where a work produced by the collaboration of the author of a musical work and the author of a literary work where the two works are created in order to be used together.[47]

  • RIGHTS OF AN AUTHOR

The author or owner of a copyright has exclusive rights over certain uses in respect of that work. There are essentially two categories of rights accruing to the author of a copyright work; Rights of Exploration or Economic Rights and Moral Rights.

  • ECONOMIC RIGHTS

 Economic rights are the rights of an author to commercially explore and make valuable benefits from the work. It confers on the author exclusive right and control over such work, to benefit therefrom and to exclude others from using the work without authorisation. Such rights includes; reproduction, performance, broadcasting, motion pictures, translation, adaptation, rental and lending.[48]

  • THE CONCEPT OF MORAL RIGHTS

The second bundle of right is known as Moral Rights. These rights are also contained in the Berne Convention Article 6bis of the Convention provides that;
Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”

Moral Rights under the UK Act are divided into four parts; Right of Attribution, Right to Object to derogatory treatment of a work, Right to object to false Attribution and the Right to privacy of certain photographs and film.

The Right of Attribution is the right of the author to claim authorship or to be recognized at the author of the work. It also involves a correct attribution or acknowledgment of the author of the work. This is generally known as “paternity”.[49]

The Right of Objection to derogatory treatment of a work on the other hand entitles the author to object to the derogatory use of his work, whether in form of an addition, deletion, alteration to or adaptation of a work which amounts to a distortion or mutilation of the work, or is otherwise prejudicial to the honour or reputation of the author. This is called the right to “Intergrity”.[50]

The Right to object to False Attribution entails the right of an author not to have a work false attributed to him i.e. where he/she has been acknowledged as the author of a work he/she did not create.[51]

The Act also recognizes the right to privacy of certain photographs and film. This right enables someone who has commissioned a photograph or film for private and domestic purposes to prevent it from being made available or exhibited to the public.[52]

Moral rights unlike economic rights are inalienable and perpetual; it belongs solely to the author of the work and cannot be sold or transferred including works made during the course of employment.

  • THE SUBJECT OF RELATED RIGHTS.

Related rights also known as neighbouring rights are extended rights in a copyright work. They include the rights of performers, producers of phonograms, film producer, designers, database creators etc. They are protected for a shorter term than the standard one for copyright and grant their owners a narrower protection than copyright. Among other things, by means of related rights, UK law protects performers’ rights, the database or sui generis right (intended to reward the investment in obtaining, verifying, or presenting the contents of a database), and the droit de suite or artist’s resale royalty right over resale of artworks.[53]

  • INTERNATIONAL TREATIES AND AGREEMENTS

The United Kingdom is a signatory to several international agreements and treaties on copyright. These treaties are international instruments either signed bilaterally or multilaterally with other countries to promote commercialisation and respect or protection accorded to works under copyright in member states. Some of the major treaties are:

  1. The Universal Copyright Convention
  2. The Berne Convention[54]
  3. The Rome Convention
  4. The Madrid Agreement and Protocol
  5. The Trade Related Aspects of Intellectual Property Rights

These international instruments will be discussed more in Chapter Seven of this dissertation.

 

  • MODERN TRENDS AND COPYRIGHT IN THE DIGITAL

There have been many major leaps in information technology during the past century, such as the wide spread use of computers and the internet, the rise of digital media, and the heavy use of computerized databases. Because of all these major changes in how people communicate and use intellectual property, intellectual property rights and laws have needed to evolve with them. Current overall trends are focused on strengthening the protection of copyrighted works.[56]

3.7.1. MODERN TRENDS: CREATIVE COMMONS

Creative Commons allows creators to authorize and grant access to persons to use their work in certain ways. It is a form of license which allows others, other than the copyright owner, to distribute, remix, tweak, and build upon the copyright work, even commercially, as long as they credit the author for the original creation.[57]

This form of license allows the use without permission without amounting to infringement. This however, does not dispose the author of his copyright in the work. The owner may however impose certain restrictions or condition before the creative common license is given.

One major requirement of using Creative Commons (CC) work is to acknowledge the creator. Under UK Copyright law, this is also a requirement. Whenever a person uses Creative Commons works, he or she must make sure the creator has been acknowledged along with any relevant copyright and license information.[58]

3.7.2. DIGITAL AGE: ARTIFICIAL INTELLIGENCE

Artificial intelligence (AI) is the ability of a digital computer or computer-controlled robot to perform tasks commonly associated with intelligent beings (humans).[59] It is the development of computer system’s ability to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making, facial expressions and translation between languages.

The advent of artificial intelligence has given rise to legal issues that were not envisaged by existing legislation. Artificial Intelligence has the capability of taking decisions and creating content that qualifies for intellectual property protection. Thus, this raises the question of who is entitled to the intellectual property rights to content created by Artificial Intelligence.[60]

Although countries like Saudi Arabia has accorded citizenship to AI (Sophia- a humanoid robot) which might imply that the AI can claim authorship of its inventions, the current general legal position however appears to be that artificial intelligence is not seen as an inventor in its own right but rather as a tool that serves the purpose of an end user and as such inventions made by it would belong to the original creator of the AI.[61]

 

CHAPTER 4

PROBLEMS OF COPYRIGHT PROTECTION IN THE UNITED KINGDOM

4.1. COPYRIGHT INFRINGEMENT

Copyright infringement is the usage of a copyright work, for example, a song, a book, a movie clip, a photograph etc. without the authorization or consent of the copyright owner. Upon the creation of a copyright work, the Copyright, Design and Patent Act (hereinafter in this chapter called “the Act”) vests certain exclusive rights on the owner of the copyright. These rights includes; the right to copy the work, issue copies of the work, rent or lend the work to the public, perform, show or play the work in public, make an adaptation of the work and communication of the work to the public.[62] These rights are commonly referred to as “restricted rights.”

Copyright in a work is infringed by a person who without the permission of the copyright owner does or authorizes another to do, any of the acts listed above in relation to the whole work or any substantial part of it either directly or indirectly.[63] In other words, copyright infringement can be carried in two forms; direct (primary) and Indirect (secondary) infringement.

4.1.1. DIRECT/PRIMARY INFRINGEMENT.

A primary infringement involves a direct infringement by the defendant. They are generally strict liability tort i.e. it is not necessary to show that the defendant had prior knowledge or intention to infringe the copyright.[64] Consequently, where an individual or a group of persons undertake any of “the restricted rights” of the copyright owner, such an individual or group of persons will be liable for direct infringement, whether or not he or she had knowledge or intention to infringe.

The Act further describes acts that amount to primary infringement under the various categories of restricted rights.

  1. Infringement of copyright by copying.[65]

Copyright in a literary, dramatic or musical work will be infringed by copying when the work is reproduced in any material form. Copying of artistic works means making of a copy in two dimensions of a three-dimensional work and making of a copy in three dimensions of two-dimensional work. For films and broadcasts, it is the making of a photograph of the whole or a substantial part of any image forming part of the film or broadcast.

  1. Infringement by issue of copies to the public.[66]

This refers to the circulation of copies of a copyright work in the United Kingdom which were not previously in circulation, without the consent of the copyright owner.

  1. Infringement by rental or lending to the public.[67]

Rental means making a copy of the work available for use, on terms that it will or may be returned, for direct or indirect economic or commercial advantage while lending means making a copy of the work available for use, on terms that it will or may be returned, for direct or indirect economic or commercial advantage, through an establishment which is accessible to the public.

  1. Infringement by performance, showing or displaying to the public.[68]

Performance of a work is in respect to literary, dramatic and musical works while showing or playing of the work is restricted to film, sound recording or broadcast. Where a copyright is being infringed by the performance, showing or displaying of the work through an apparatus for receiving visual images or sounds conveyed by electronic means, the person by whom the visual images or sounds are sent, and in the case of a performance the performers, shall not be regarded as responsible for the infringement.

  1. Infringement by Communication to the public.[69]

Communication here means the broadcasting of the work and the making available of the work to the public by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.

  1. Infringement by making Adaptation.[70]

An adaptation of a copyright work is made when it is recorded in writing or otherwise. However, where any of the infringing acts in the above sections is carried out, by way of an adaptation, by an infringer, the infringer shall be liable whether or not the adaptation has been recorded in writing or otherwise, at the time the act was done.

4.1.2. INDIRECT/SECONDARY INFRINGEMENT

For a person to be guilty of secondary infringement, he or she must have knowledge or reasons to believe that such acts carried out in relation to the copyright amounts to an infringement. Secondary infringement often occurs when a person facilitates another person or group of persons to infringe a copyright.

Secondary infringement includes the following acts:

  1. Importation of infringing copies of copyright work.[71]
  2. Being in possession of or dealing with infringing copies.[72]
  3. Providing the means for making infringing copies.[73]
  4. Permitting the use of premises for infringing performance[74]
  5. Provision of apparatus for infringing performances.[75]

 

4.2. CHALLENGES WITH ARTIFICIAL INTELLIGENCE AND COPYRIGHT

 

Artificial Intelligence (AI) is a revolution and continues to stretch into every aspect of human society. With its element of creativity and intellect, the law of intellectual property is not left out of this impact. No longer secret is the fact that robots and software applications create artistic designs, literary works, and news articles and even compose/generate music.[84] The fun of this development comes with attendant legal challenges

Certain creative and inventive computer programs are developed for machine-learning purposes. These computer programmes consist of built-in algorithms giving them the capabilities to learn from data inputs and as a result, evolve and make decisions.

Machine-learning computer programmes pose serious legal implications for the copyright laws of the United Kingdom. Traditionally, the authorship or ownership of copyrightable works which are computer-generated was not in doubt. Computer programmes were seen as mere tools that support the creative process of the copyrightable work, very much like a pen and a paper.[85] The current impact of AI has disrupted this seemingly rigid traditional presumption.

More curiously, agitations are sprouting at different levels on the need to revisit the global intellectual property law regime in view of the need to attribute copyright or other IPRs to the rightful inventor or creator – the machine! A team led by a professor of law and medicine at the University of Surrey in the UK has filed patent applications in multiple jurisdictions which list an AI application named as the sole inventor.[86]

Notwithstanding the dearth of judicial decisions on this subject, it is statutorily clear that copyright to computer-generated works is in existence in the UK. The copyright law challenges of AI in the UK can therefore be streamlined into two major issues:

  1. The ambiguity in the law in not clearly delineating the holder of copyright between the programmer of a machine-learning computer application or the user of computer-generated works; and
  2. The brewing controversy as to the qualification of computers for (independent) authorship and inventorship.

Finally, another challenge that may soon brew deep controversy and require competent legislative and possibly judicial efforts is the possibility of joint collaboration in producing a copyrightable work. The Act clearly fails to contemplate the possibility of an authorial collaboration between machine-learning software and a natural or artificial person.

4.4. FAIR DEALING AS AN EXCEPTION AND PROBLEM TO COPYRIGHT

The UK Copyright, Design and Patent Act, like most copyright legislations makes provision for certain exceptions/defenses to copyright infringement. They are generally referred to as “permitted Acts” and a defendant who undertakes any of such acts may therefore set the exceptions up in defense to an action for copyright infringement.[87]

One of the major defenses to copyright infringement is “the doctrine of fair dealing.” Fair dealing is the right to use a copyrighted work under certain conditions without the permission of the copyright owner. The doctrine of fair dealing is not well developed in the UK as compared to countries like the US and Canada. The UK Act does not define what acts amount to fair dealing or factors that should be considered in determining fair use. This doctrine will be elaborately discussed in a later chapter.

 

CHAPTER 5

DEVELOPMENT OF COPYRIGHT PROTECTION IN BANGLADESH

Art and literature are as old as the universe. As a matter of fact, historical records show that technology and copyright have been married for centuries. With the invention of the printing press in 1436, the global publishing of books and literary works exponentially multiplied – a few thousands to an estimated 10 million within 50 years.[88] This growth brought up the need for protection of individual creativity in view of the huge economic prospects of writing.

The world’s first copyright legislation on record was the Statute of Anne enacted in England in 1710. The United States of America (US) followed in 1790 and thereafter, the legal regime of copyright began to extend. The 21st century Bangladesh is remarkable in Asia for its rich intellectual property law system. It is therefore certainly important to trace how it all began.

5.1. HISTORY AND EVOLUTION OF COPYRIGHT IN BANGLADESH

The copyright history of Bangladesh is inextricably tied to its colonial experience. When talking about the history of copyright, reference must be made to the Statute of Anne, enacted in England in 1710 to help secure rights of authors and inventors. Prior to this, copying restrictions were authorized by the Licensing of the Press Act 1662.

Legislation based on the Statue of Anne (mentioned earlier) gradually appeared in other countries, an example being Bangladesh. In fact, Bangladesh adopted subsequent (after colonialism) British copyright enactment; the British Copyright Law of 1911 was introduced in 1914 and also copyright in registered designs were also available from the British rule through the Patents and Designs Act 1911. This makes the inherent resemblance between the copyright laws of England and Bangladesh more palpable.

Due to books being cheaper and faster to produce, it became clear that enhanced protection of authors and uniform international copyright standard were the way forward. One of such moves for uniformity led to the Berne Convention and its adoption of certain standard of copyright protection and their enforcement by their member nations all over the world.

However, the Berne Convention was complex and made most developing countries unwilling to ratify it. As a result, a compromise was reached in 1952 with the Universe Copyright Convention in Geneva making most nations either signatories to the Universal Copyright Convention and Legal Definition (UCC) or the Berne Convention.

As it relates to Bangladesh they became a member of World Intellectual Property Organization (WIPO) in 1985 and ratified protocol of the UCC in 1975 and then became a signatory to the Berne convention in 1989.

In Bangladesh, The first legislation on copyright was introduced in 1914 during the time of the British regime. After independence in 1947 Bangladesh became the East Pakistan province of the then state of Pakistan, and a new copyright law, the Copyright Act of 1962 was promulgated. Thereafter, the Copyright Rules of 1967 was framed. When Bangladesh became a sovereign state, the 1962 Act was repealed and replaced in 2000 by the Bangladesh Copyright Act 2000.

Currently in Bangladesh, the Copyright Act, 1962 has been replaced in 2000 by the Bangladesh Copyright Act 2000 (Act 28 of 2000).

5.2. THE LEGISLATIVE AND REGULATORY FRAMEWORKS

The Magna Carta of copyright in Bangladesh is the Copyright Act 2000[89] which is an offshoot of Pakistan’s Copyright Ordinance 1962. The Act was amended in 2005 to incorporate new fines in line with economic inflationary gaps.

The Copyright Act (“the Act”) bestows on a copyright holder, exclusive right to his original work for a limited time. In essence, by the Act, copyright includes right to determine reproduction, communication to the public, adaptation and translation of work.[90] The mischief behind the enactment of the Act is to consolidate all extant copyright laws with a view to encouraging the creation of original works by authors, artistic producers and designers, and incentivizing creativity through monopoly rights for a limited time to exploit pecuniary and reputational benefits.[91]

The Act has distinct provisions for computer-generated works and programs, digital media copyrights, database, rental rights, cinematographic and allied rights, literature-related rights, dramatic rights, musical rights, artistic rights, sound recordings rights, broadcasting rights, performer’s rights, phonograms rights, etc. It also provides a number of provisions for uses of protected works without seeking permission from authors for the purpose of fair dealings, such as private study, private use, research, criticisms, review, reporting current events in a newspaper, magazine or similar periodical, in cinematograph films by broadcast or by photograph.

The law contains other provisions to use a protected work without authorization from an author in cases of official gazettes, reports of various commissions, committees’ boards or councils appointed by government or other similar bodies, if it is not expressly prohibited to publish. Similarly, a number of some other provisions also exist in law under which users are given powers to use freely of the protected works in cases of sound recordings, cinematographic film, computer programs under certain exceptional cases.

Copyright is a property right that subsists in certain specified types of works as provided in the act for the owner or creator of those specified subsists.

The Act also provides for Limitations. Limitation simply denotes terms upon which copyright is held. By Bangladesh law, copyright cannot be held in perpetuity.[92] The ownership of copyright is limited to a fixed period of time, after expiry of which copyright does not subsist and it becomes a public domain work and then any person or individual can use it without observing any legal obligations. The term may differ from country to country. It may between 50 to 70 years but it should be minimum 50 years in major work, in accordance with international copyright law i.e., the Berne Convention of the World Intellectual Property Organization for the protection of literary and artistic works of which Bangladesh is a member country.[93]

By the Act, copyright inures in the author of a work automatically at the point of creation; copyright registration is made optional although certificate of registration is prima facie evidence of copyright.[94] Upon registration, the work is entered into the Register of Copyrights maintained in the Copyright Office under the Ministry of Culture Affairs.[95] Importantly, under section 2(11) of the Act, “work” includes a literary, dramatic, musical, artistic work or cinematographic film or sound recording or broadcasting.

The Act guarantees copyright protection for both published and unpublished works with certain eligibility criteria. For a published work to be eligible for copyright protection, it must have been first published in Bangladesh. Where it is not, the author must either be a citizen of Bangladesh or be domiciled in Bangladesh at the material time of the publication. For works published at or after the death of the author, the author must have been a Bangladeshi or domiciled in Bangladesh at the point of death.[96]

Another unique provision is in respect of works simultaneously published in Bangladesh and a foreign country.[97] Recall that the basic rule in the Act is that a published work would only be eligible for copyright protection if it is first published in Bangladesh. This provision is therefore an important exception.

By this exception, a work, (despite being first published in a foreign country) would be regarded as simultaneously published if the difference in days between the publication in Bangladesh and the foreign country does not exceed thirty days or any other date as stipulated in a treaty between Bangladesh and such foreign country. Where this happens, the work would be deemed to have been published first in Bangladesh for the purpose of bringing such work under the eligibility criteria.

For unpublished works, the author must have been either a Bangladeshi or domiciled in Bangladesh at the time of the publication. Architectural works are covered by this provision on unpublished works.[98] For cinematographic works, the place of the total or substantial making of the work must be Bangladesh.[99] In addition to registration, copyright may also be assigned and/or licensed under Bangladeshi law.

Like in several jurisdictions, copyright does have duration. Under Bangladeshi law, duration depends on the nature of the work as well as the status of the copyright holder (i.e. natural or artificial person). Sections 28 – 38 prescribes different terms for copyright as follows:

  1. Literary, musical and artistic works – 60 years from the beginning of the following year after the year in which the author dies;
  2. Photograph, cinematographic film and sound recordings – 60 years from the beginning of the following year after the year in which the work is published;
  3. Works of international organization/Government/local authority – 60 years from publication;
  4. Local authority – 60 years from the first publication;
  5. Broadcasting – 25 years from the beginning of the following year after the year in which the work is published;
  6. Joint authorship – 60 years from the death of the last surviving author.

Importantly, the Act also provides for the offence of copyright Piracy and prescribes remedies for infringement on copyright. Piracy is considered very grievous and makes Bangladesh a global Piracy capital; Piracy is reckoned as a crime on the high.[100]

The Act also institutionalises a quasi-judicial mechanism called the Copyright Board for settlement of preliminary issues arising out of the Act.[101] The Copyright Board performs such functions as determining the term of copyright of a work,[102] settlement of disputes arising from assignment or licensing of copyright,[103] expunging any erroneous entry or correction of any omission in the Copyright Register,[104] and so many other responsibilities.

Moreover, the Act contains salient provisions for Collective Administration of Copyright and Copyright Society.[105] The Act equally makes provisions for remedies for infringement on copyright with the Courts reiterating their readiness to address such cases.[106]

5.3. THE CONCEPT OF ORIGINALITY IN BANGLADESH

In Bangladesh like some other countries in the world, a clear definition of the term “originality” is absent. As a result, the two main concepts of originality: expending skills on a work (sweat of the brow) and the notion of creativity concept are considered.[107]

By section 15 of the Act, copyright shall inure in the creator or author of “original literary, dramatic, musical or artistic work”. Clearly, originality is a cardinal criterion for copyright protection. But what does originality consist of? “Is it the ‘sweat of the brow’ or the ‘creativity of the author’?

It appears that there is a dearth of judicial decisions on this subject of controversy. Meanwhile, in Suraiya Rahman v. Skill Development for Underprivileged Women represented by its Project Director & ors.,[108] the Supreme Court had cause to pronounce on the scope of authorship under the then applicable copyright law and made passing references to the issue of whether the appellant employee’s “creating” of the work entitles her  to authorship and ultimately copyright. The subject of originality seems therefore tied to the trunk of “creativity”. However, it remains substantially unclear with this case.

5.4. THE CULTURAL AND ECONOMIC IMPACT OF COPYRIGHT PROTECTION

Culture and economy are quite related concepts.[109] According to James F. Moriarty:

“Intellectual property rights (IPRs) are the legal mechanisms like copyrights, patents and trademarks that ensure that the products we buy are genuine…… ……… copyright protection fosters an environment in which creativity can thrive and contribute to economic development worldwide… Bangladesh’s film-makers such as Tareque Masud and Catherine have won critical international acclaim for their films but frequently suffer the theft of their work in their home country. The illegal sale of stolen music and films in nearly all of Bangladesh’s markets is a troubling indicator of the scale of the Intellectual Property Protection challenge. Developing countries too often assume that Intellectual Property Protection only benefits first world nations. This perspective unfairly discounts indigenous capacity for innovation – as if good ideas worth protecting and promoting can only come from the first world………………………. An economy built on weak IPR foundations is one in which the abuse of foreign and domestic IPR occurs hand-in-hand. Bangladesh’s artists have proven themselves worthy of the highest awards and recognition world wide – it’s time that Bangladesh’s domestic IPR mechanisms now grant them the same honor.[110]

This was a former United States (US) plenipotentiary to Bangladesh pontificating on the link between the rampancy of copyright piracy and the socio-economic development of the State. Despite the rich legislative enactments and review on the copyright law, there are chronic enforcement problems in Bangladesh.

It is submitted that this poor social consciousness on the need to protect copyright is likely to endanger the national economy and deprive it of fruits of copyright protection. There must be improved public awareness, equipment of the Copyright Registry and Copyright Boards with technological sophisticated facilities and materials to boost the reliability of the copyright protection system. In sum, the Bangladeshi government certainly has to up the ante in terms of proper law enforcement.

5.5. DIGITAL AGE AND TECHNOLOGICAL ADVANCEMENTS

“Imagination is more important than knowledge” is a quote famously attributed to the legendary Physicist, Albert Einstein.

The emergence of digital technology is no fluke. It has stamped its disruptive authority in the entire globe and particularly in diverse disciplines and aspects of life including intellectual property law. An indispensable component of digital technology is Artificial Intelligence (AI); AI is essentially intelligence and creativity of both the natural person and an artificial creature or vehicle.

The artificial vehicle could either be a robot or machine-learning software. As has been exhaustively exposited in preceding chapters, these AI-inventions have evolved to a level that they create or invent independently of their original inventors or programmers. In the midst of this sensitive issue, the controversy as to personhood and authorship quickly pops up.

A crucial question associated with digital technology therefore, is the issue of personhood of AI. Who is entitled to copyright on software or robotic creations? Section 2(14) of the Act confers authorship on “the person or institution who causes work to be created.” It thus appears that the Bangladeshi copyright law has adequately anticipated and covered the field as to this issue.

However, a closely related normative and disruptive question certainly follows. Despite the stipulation of authorship of computer-generated works in the Act, is it fair or proper legislative practice to attribute the creation of a computer software or robot to a supposed inventor who knows practically nothing about the invention of the robot?

It is submitted that the current Bangladeshi copyright Act is in order in this respect. However, to ensure a legal equilibrium, since an initial inventor of AI is entitled to copyright on any output of his AI-invention (regardless of his programming contemplation), then the Bangladeshi tort law must be amended to clearly reflect strict liability to inventors for any damage occasioned by their AI invention, regardless of whether they could reasonably contemplate such damage or otherwise.

  

CHAPTER 6

 PROBLEMS OF COPYRIGHT IN BANGLADESH

According to the 2015 Report of International Property Rights Index, Bangladesh in terms of Intellectual Property protection is 128th out of 129 countries. Moreover it has the highest copyright piracy rate in Asia.[111] Some of the major problems plaguing the copyright system in Bangladesh are frequent piracy, lack of adequate royalty, shortcomings in the law, lack of awareness and absence of proper implementation of law.

6.1. COPYRIGHT INFRINGEMENT

Copyright in a work is deemed to be infringed:

“When any person, without a license from the owner of the copyright, or the Registrar of the copyright, or in contravention of the conditions of a license granted or any conditions imposed by a competent authority under Act:

  1. does anything, the exclusive right to do which is conferred upon the owner of the copyright; or ii. permits for profit any place to be used for communicating the work to the public where such communication constitute an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright.”[112]

Copyright infringement may also arise if any person does any of the following acts; makes for sale or hire, or sells or lets hire or by way of trade displays or offers for sale or hire any infringing copies of the work or distributes, either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, any infringing copies of the work, or exhibits to public by way of trade any infringing copies of the work, or imports into Bangladesh any infringing copies of the work.

One of the major sectors battling with copyright infringement is the music and film industry where the piracy rate is remarked to be a shocking 96%.[113] According to an online report published by Havocscope Black Markets – an online database of black market activities, the music piracy market value in Bangladesh stands at US$ 180 million which is 11 times higher than their neighboring country India,  only 5 to l0 percent of the total music market consists of legitimate sales.”[114]

The lack of general awareness of rights of copyright owners over their works and the governing law by the public is a major contributor to copyright infringement in Bangladesh. Most of the people do not realize that the copyright of a work (literary, artistic or dramatic) belongs to the creators; not to them; and that if they copy it without authorization, it constitutes an infringement or an offense.[115]

There are three kinds of remedies available against copyright infringement under the Copyright Act, 2000. These are:

  1. Civil remedies- include compensation for infringement of copyright.[116]
  2. Criminal remedies- this provides for the imprisonment of the accused or imposition of fine or both, seizure of infringing copies etc. Criminal proceedings are available in order to punish the persons who have violated the copyright law.[117] The infringement of copyright is a cognizable offence and is punishable with imprisonment for a period extending from six months to four years and a fine ranging from Tk. 50,000 to Tk. 200,000
  3. Administrative remedies empower the Registrar of copyrights to ban the import of infringing copies into Bangladesh.[118]

6.2. ENFORCEMENT OF COPYRIGHT

Despite the legislations on Copyright protections, there are several challenges which has constantly hindered copyright enforcement in Bangladesh. Some of these challenges include:

  1. Piracy: The piracy levels are extremely high in Bangladesh; its rate is the highest in the world.[119] Bangladeshi audio and film industry are suffering from increasing trend of piracy of both audio and video products.[120]
  2. Inadequate/ Out-dated Law: the current Copyright law in Bangladesh was enacted in 2000 and amended as far back as 2005. The law is out-dated and can hardly accommodate the new developments in copyright caused by technological advancements. Piracy and other copyright infringement have increased due to the rapid advance of technology and the existing law is no longer sufficient to curb them. In fact, there is no specific provision addressing piracy in the digital world.
  3. Absence of strong Implementation Mechanism: Although the Copyright Act 2000 provides for the establishment of collecting societies, there has not been any so far. This has resulted in a vacuum for a competent bargaining agency for copyright works.[121]
  4. There is also the problem of inadequate manpower and resources and inadequate office accommodation. Bangladesh Copyright office does not have its own Office Building.[122] Law enforcing agencies do not have adequate knowledge and experiences on copyright protection.

 

CHAPTER 7

INTERNATIONAL INSTRUMENTS ON COPYRIGHT

7.1. BANGLADESH AND THE UNITED KINGDOM AS COMMON SIGNATORIES.

Bangladesh and the UK are signatories to the following international Conventions on Copyright;

  1. WIPO Convention establishing the World Intellectual Property Organisation
  2. Universal Copyright Convention
  3. The Berne Convention
  4. The Trade Related Aspect of Intellectual Property Rights Agreement.
    • THE UNIVESAL COPYRIGHT CONVENTION (“UCC”) 1952

The Universal Copyright Convention is another international Copyright Convention developed by UNESCO as an alternative to the Berne Convention. Its main features are the following: (1) no signatory nation should accord its domestic authors more favourable copyright treatment than the authors of other signatory nations, though no minimum protection for either domestic or foreign authors is stipulated; (2) a formal copyright notice must appear in all copies of a work and consist of the symbol ©, the name of the copyright owner, and the year of first publication; a signatory nation, however, might require further formalities, provided such formalities do not favour domestic over foreign works; (3) the minimum term of copyright in member nations must be the life of the author plus 25 years (except for photographic works and works of applied art, which have a 10-year term); (4) all adhering nations are required to grant an exclusive right of translation for a seven-year period, subject to a compulsory license under certain circumstances for the balance of the term of copyright.[123] The UK became a signatory to the convention in 1972 and Bangladesh in 1975.

At the moment, the minimum international standard for duration of copyright protection is the life of the author and 50 years after his death insofar as literary and artistic works are concerned. The duration of protection for cinematographic work is 50 years after the work has been made available to the public, or 50 years after the making of such a work It should be remembered that the international instruments stipulate the minimum standards. Member states are free to grant longer duration of protection.[124]

 

The UCC was adopted in Geneva, Switzerland in 1952 under the auspices of UNESCO. The objects of the Convention also protects foreign authors, without any formalities and independent of the existence of protection in the country of origin.

 

7.2. BANGLADESH AND THE UNITED KINDGOM AS DISTINCT SIGNATORIES

The United Kingdom is also a signatory to other international copyright conventions to which Bangladesh is not a signatory. Some of these include; the WIPO Copyright Convention (WCT) and the International Convention for the Protection of Performing Artists, Producers of Phonograms and Broadcasting Organisations (Rome Convention) 1961, and the Convention for the protection of Producers of Phonograms against Unauthorised Duplication of their Phonograms (Geneva) 1971 .

WCT was introduced to adapt the global copyright regime to the challenges posed by the advent of the digital world. The WCT mentions two categories of copyright works, namely computer programs and compilations of data or other material. The WCT also deals with three exclusive rights, namely the right of distribution, the right of rental and the right of communication to the public. Further, the WCT widens the right of communication to the public to cover on-demand, interactive communication through the Internet. More controversially, the WCT requires its members to provide legal remedies against the circumvention of technological measures in connection with the exercise of the rights of copyright owners and against the removal or altering of information, such as certain data that identify works or their authors, necessary for the management of their rights. It is the international standard as determined by these instruments that has to be the minimum standard of national copyright law in the countries that are party to the instrument.[128]

 

7.3. AGREEMENT ON TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY (“TRIPS”)

Different countries of the world have their own National Intellectual Property laws according to their needs with different procedures and time limit of protection. This heterogeneity in the world Intellectual Property Right system creates barriers and hinders smooth operation of free world trade and necessity standardization of the world IPR regime. To remove these trade barriers TRIPS (Trade Related Aspects of Intellectual Property Rights) agreement was brought in picture by WTO in 1995.[129] It mandates new multinational companies/organizations a minimum standard for protection of IPR as well as procedures and measures for their enforcement. It also spelled out in detailed the responsibilities of the member countries to set standard in their national laws for the practical protection of IP rights as well as procedures for executing rights against infringement. As signatories to the TRIPS agreement, Bangladesh and UK were obligated to bring its laws and enforcement into TRIPS compliance.

Besides the principles of national treatment, automatic protection and independence of protection, the TRIPS Agreement also imposes an obligation of “most-favoured-nation treatment” on WTO members. Pursuant to the TRIPS Agreement, WTO members must comply with the substantive law provisions of the Berne Convention and the Appendix except for the moral rights provisions of the Berne Convention, regardless of whether or not they are party to the Berne Convention.

The Trade Related Aspects of Intellectual Property Rights provides protection for all aspects of intellectual property including copyright, patent, trademarks, trade secrets etc. It incorporates most of provisions of the Paris & Berne Conventions excluding the provisions on moral rights in copyright.

The convention makes general the Berne principle confining the extent of exception in natural legislation to the reproduction right.[130] Furthermore, a computer programmes are required to be protected as literary works under the Berne Convention. It also stipulates comprehensive obligations on the members at an international level with respect to enforcing intellectual property rights against infringement.

The TRIPS Agreement also raises the minimum standard of copyright protection by ensuring that computer programs and databases are added to the categories of copyright works, and by expanding the bundle of rights to include the right to control commercial rental of computer programs and cinematographic works. UK and Bangladesh both ratified the convention in 1994.

 

CHAPTER 8

LEGISLATIVE AND JUDICIAL COPYRIGHT FRAMEWORKS AND PROCEDURES OF BANGLADESH AND THE UNITED KINGDOM: A COMPARATIVE ANALYSIS

 

Preceding chapters have comprehensively but distinctly projected the copyright legal systems of arguably the most vibrant jurisdictions in Europe (the UK) and Asia (Bangladesh). But how do these jurisdictions compare in strength and weakness? Comparatively, how advanced are both systems and what setbacks bedevil them? This chapter breaks down these two important questions in the paragraphs that follow. It does this by beaming high voltage searchlight on the legislative and judicial components of both systems and their respective adjudicatory and remedial procedures.

8.1. COMPARATIVE ANALYSIS OF THE LAWS

The Bangladeshi Copyright Act and UK Copyright, Designs and Patent Act both contain basic provisions on copyright description, eligibility and protection. A striking similarity between both laws is the attentiveness to modern digital technological transformation. It is undoubtedly true that technology is at the heart of economic development. Controversies continue to brew in the world of IP; the disruptive capabilities of AI continue to rock the global boat. With both systems making provision for copyright protection for computer-generated works, the readiness for techno-economic advancement becomes even more assuring. The focal point of creativity continues to move drastically towards digitalization and surely, one of the determining factors of investment havens would be how friendly state laws are to importation of foreign technologies.

Meanwhile, the poor level of law enforcement and policy formulation and implementation in Bangladesh cannot be bypassed. With the fantastically high rate of copyright piracy in Bangladesh over decades, one would naturally expect appropriate legislative and executive actions towards curtailing the menace.

Regrettably, this is not the case. As viral as the internet and online platforms continue to be, there is a staggering dearth of online resources with respect to Bangladeshi copyright knowledge. Worst still, the level of copyright and intellectual property education in Bangladesh is abysmally low. Creativity is barely respected and copyright infringement appears to be a norm.

This is in contrast to the UK copyright system that not only accommodates regular reviews of its IP laws but has a huge chunk of its copyright materials on the internet.[131] The UK is also reckoned as a substantially copyright-informed population.[132]

In addition, the UK copyright system adopts electronic filing of copyright applications.[133] This is a very important feature of the UK but grossly lacking in Bangladesh. The system of manual filing is well entrenched and implemented by the Bangladeshi Copyright Office.[134] The Bangladesh copyright system must take the challenge and simply adopt the electronic filing and operational system currently adopted by its close public service neighbour, the Bangladesh Telecommunication Regulatory Commission.[135]

A very strong point in the Bangladeshi Copyright Act is the salient provision of an exception for works that are intended to be first published in Bangladesh not by coincidence, escaped publication. The Bangladeshi Act accommodates such situation and gives a considerable favourable window of 30 days within which such work must be published in Bangladesh. This is a provision clearly absent in the UK Copyright, Designs and Patents Act.

The legislative trend to make the acquisition of IP rights easier, while making the rights themselves stronger and more intrusive is another distinguishing quality of the UK copyright system. The strategy of the large corporations that hold IP is to play nations off against one another to achieve these ends. As soon as one state, supposedly in its national interest, makes it easier to get an IP right or intensifies an existing right, IP holders trot the globe asserting the need for level playing fields everywhere.

8.2. ANALYSIS OF REGULATORY/ADMINISTRATIVE AND JUDICIAL MECHANISMS

With respect to the copyright regulatory bodies of both systems, while the Intellectual Property Office (IPO) administers the UK copyright law, both the Copyright Office and Copyright Board administer the Bangladesh copyright law. One striking difference between the IPO and the Bangladeshi Copyright Office is that the IPO administers issues of copyright, patent and designs while the Bangladeshi counterpart administers only copyright law.

Furthermore, the draftsman of the Bangladeshi Copyright law apparently made Alternative Dispute Resolution (ADR) considerations unlike that of the UK. The Bangladeshi Act establishes the Copyright Board and clothes it with quasi-judicial powers to hear and determine preliminary copyright issues and disputes. In contrast, the UK has the Copyright Tribunal which has the original jurisdiction to deal with preliminary copyright disputes as well as other matters such as determination of royalties, applications for settlement of terms of copyright license, et cetera.

With respect to ADR, the IPO has mechanisms for setting mediation procedure in motion upon the request of parties to any copyright dispute. But this mediation procedure is at the expense of parties rather than a legislative initiative. It is submitted that this is a loophole in the UK copyright law and appears to partly defeat the spirit and letters of the law itself.

Regarding judicial procedures, the Bangladeshi Copyright Board is also clothed with all the judicial powers in the Copyright Act. It is at least, equivalent to the UK Copyright Tribunal. The major difference is that the Bangladeshi Copyright Board has far wider judicial powers and copyright jurisdiction than the UK Copyright Tribunal. This is quite understandable in view of the well-structured hierarchy of Courts in the UK. The Copyright Tribunal thus handles preliminary copyright disputes as a judicial body of first instance.

8.3. ANALYSIS OF REMEDIES IN BANGLADESH AND THE UK

Unlike in the UK from whence the now judicially entrenched Anton Pillar injunction originated,[136] Bangladesh has a dearth, if not a total blackout of reported cases on this subject. However, a clue may be filtered from a critical examination of the Bangladesh law.

As a starting point, the UK has a Practice Direction on this species of injunction and this ensures that the injunction is neither abused by disputing parties nor the Court.

The Anton Pillar injunction is now regarded as the Search and Seize Order.[137] In Chappell v. United Kingdom,[138] this injunction was comprehensively expatiated in the following words:

“An Anton Piller order will normally contain restrictive or mandatory injunctions: prohibiting the defendant from dealing with materials that are the subject of the action; requiring the defendant to disclose the whereabouts of all such materials and details of suppliers and customers, and to deliver up the materials to the claimant; requiring the defendant to make an affidavit containing all the information to be disclosed by him under the order; requiring the defendant to permit the claimant to enter the premises for the purpose of searching for the items. As regards this last injunction, the court will confine the items specified to documents and materials directly relating to the action. It will also restrict the time of entry and the number of persons who are to be permitted to enter (very rarely more than four or five). The latter will include the claimant’s solicitor, who is an officer of the court.”[139]

This is clearly lacking in Bangladesh law. As a result, a mechanism of great genius might be abused on the altar of copyright justice. Examples of such abuse are not lacking; the Nigerian copyright jurisdiction provides a striking case study. In Akuma Industry Limited v. Ayman Enterprises Limited,[140] the inadequacy of the law was exposed in that the penalty for false information leading to the grant of the injunction is a very paltry sum of one thousand Nigerian Naira![141] This clearly shows the vulnerability of this unique copyright remedy in a system with weak legislative and judicial mechanisms. It is not sufficient for the law to merely permit the grant of the injunction; the purpose of it must be kept in consideration to forestall abuse by parties.

Before granting the order, the court must be satisfied that the claimant has made out an extremely strong prima facie case that his claim will succeed on the merits; the actual or potential damage is very serious for him; there is clear evidence that the defendant has in his possession incriminating documents or things, and that there is a real possibility that if he is forewarned, he may destroy such material.[142] Both the solicitor and the claimant are required to make undertakings as determined by the court in its discretion.[143]

The defendant can apply for the variation or discharge of the order on notifying the claimant usually 24 hours or less.[144] The court will not grant this request except it was applied for soon and it will serve some practical purposes. In addition to this or in the alternative, the defendant can seek damages under the claimant’s cross-undertaking on the ground that the order was improperly obtained or executed.[145] Where the claimant or his solicitors breach their undertakings under the order or the latter acted improperly in executing it, the defendants may proceed against them for contempt of court.[146]

Another unique feature of the UK judicial system is the provision for right of information which applies only where it has been decided that infringement has indeed taken place. The claimant can make a justified and proportionate request that the court orders that information on the origin and distribution networks of the infringing goods or services be provided by the infringer and/or any other person who was found in possession of the infringing goods or using the infringing services in commercial scale, found to be producing commercial services used in infringing activities or was indicated by any of the above persons as being involved in the production, manufacture or distribution of the goods or the provision of the services. It applies also to third parties or intermediaries who may not be infringing.[147] This provision is indeed effective as it helps the IPR holder to be able to get detailed information about the infringing persons and activities.

The Bangladesh copyright law has its strength remarkably in the aspects of its administrative and civil remedies. However, the overall standard of justice administration is slow and whittles down any lofty appearance the Bangladeshi copyright might boast of.[148]

8.4. PROCEDURAL ADVANCEMENT AND SETBACKS

The judicial and administrative system of copyright remedies is particularly enviable in the UK though not without its ugly parts. Similarly, the Bangladeshi copyright law has its flaws but is substantially commendable especially for its legislative foresight in the aspect of Artificial Intelligence (AI) through computer-generated works.

However, the Bangladesh national legislature has to face the copyright urgency well explained in this essay. The laws must be reviewed and consequently amended to align with global best legislative principles and practices as evidenced in the UK copyright system. In addition, the absence of a Copyright Society despite its existence on paper is most abysmal and deserving of serious attention.

Moreover, complaints about unending delays in copyright justice administration have become hackneyed and smirk of decades of legislative and judicial neglect. The Bangladeshi Constitution must be amended to create a specialised Court for the adjudication of intellectual property matters especially related to copyright. This is certainly enhance the pace and standard of copyright justice administration. In addition, the agitation for improved policy formulation and implementation as well as increased copyright sensitization cannot be swept aside in this context. The law cannot thrive in a society that does not recognise its value.[149]

 

CHAPTER 9

THE DOCTRINE OF FAIR USE AND OTHER DEFENCES, SUGGESTED SOLUTIONS AND REGULATORY REFORMS AND CONCLUSION

9.1. EXPLAINING FAIR DEALING/FAIR USE AS A DEFENCE

The exclusive rights granted by the Copyright Act of most jurisdictions are limited by several statutory and constitutional limitations on Copyright law. The most well-known of these limitations is “fair use”. Like most legal concepts, finding an all pervasive and suitable definition for the term fair use has been difficult and it has in fact been described as “the most troublesome in the whole of copyright.”[150]

The lack of a precise definition in the copyright legislation of most countries has not helped to solve this definitional problem. However, attempts have been made particularly by legal writers to provide a suitable and working definition for the doctrine of fair use.[151] According to Nimmer and Nimmer, Fair use is “an equitable defense to the infringement claim under which public policy ground exercise conduct that would otherwise be considered as infringement.”[152] Basically, fair use is a copyright doctrine which permits certain uses of a copyright work without the authorization of the copyright owner. The doctrine is a defense to the infringement of the exclusive right of copyright owners.

The concept was developed to serve as a balance between protecting the proprietary rights of authors to their works and at the same time promoting free flow and exchange of information. The Copyright law of various countries provides for acts that fall under the fair use doctrine.[153] However, most statutes do not expressly state what constitutes “fairness” and so each case is decided based on its facts and circumstances and the courts are given a wide discretion to examine all the facts and circumstances. Courts employ a four factor test that considers 1) the purpose and character of the use (commercial, educational, etc) 2) the nature of the copyrighted work 3) the amount and substantiality of the portion used in relation to the copyright work as a whole; and 4) the effect of the use upon potential market value for or value of the work.

9.2. OPERATION OF FAIR USE IN BANGLADESH AND THE UNITED KINGDOM

 

The doctrine of Fair use is known as Fair dealing in the UK. In Bangladesh it is referred to as Fair use. There are however certain similarities between the statutory provisions on fair use in both countries. For example, Like in the UK Copyright, Design and Patent Act 1988 (‘the CDPA’), the Bangladesh Copyright Act 2000 do not define what fair use is. Also, both Acts limits its application to the following:

  1. For purposes of research or private study
  2. For purposes of reporting current events
  3. For purposes of criticism or review.

Notwithstanding the above similarities, there are still inherent differences in the fair use provision of both countries. The CDPA provides for incidental inclusion of copyright works in an artistic work, sound recording, film, broadcast or cable programme as fair use. Likewise, anything done for the purpose of parliamentary or judicial proceedings will also be covered by fair use. There are no such provisions in the Bangladesh Copyright Act.

Also the CDPA provides that the work must not be used for commercial purposes and it must be sufficiently acknowledged.[154] The Copyright Act 2000 does not specify these conditions.

It is worthy to note that doctrine of Fair use is not as developed in the UK and Bangladesh as it is in the United States. In recent years there have been regular suggestions that the US doctrine of fair use should be introduced in the United Kingdom. The United Kingdom, for example, was persuaded to examine fair use after hearing about its role in the U.S. technology economy. The resulting review found much commendable about fair use, and conservatively recommended the implementation of a new, more limited exception, to try and capture some of fair use’s openness to unexpected technological developments.[155]

9.3. OTHER DEFENCES

Other defenses/exceptions to Copyright infringement includes:

  1. Educational use
  2. Use by Libraries and Archives
  3. Public interest
  4. Caricatures, parodies and pastiches etc.

It is important to note that most of the above named defences are loosely classified as fair use.

 

9.4. SUGGESTED SOLUTIONS AND REGULATORY REFORMS

9.4.1. RECOMMENDATIONS FOR BOTH COUNTRIES.

 There is the need to review the areas of law that is lacking to include modern exigencies of life which it took for granted at the time of enactment. Due to the recent advancements in technology especially as it affects copyright, there is now an urgent need for the existing copyright laws to be reviewed and updated so as to keep up the pace with technology particularly with the digital networks, superhighways, digital delivery and use of copyright products.

With respect to new technologies in copyright such as the recent rise in artificial intelligence, I recommend that the Copyright legislations in the UK and Bangladesh should be amended at intervals in order to meet up with the constant technological developments. The proposed amendments should also contain clear and unambiguous provisions essential to resolving current controversies such as the ownership of copyright works created by artificial intelligence.

The legislative provision on fair use in both countries should also be reviewed. Presently, the application of the doctrine is mainly based on case laws which are very limited in number. Legislative intervention in the form of codification of the factors determining fair use can be done to bring about the much desired element of certainty into this area of copyright law. Also, the doctrine should be exhaustively defined and its scope and limits should also be provided in the statute. Bangladesh and the UK legislators should take a cue from the US copyright provision on fair use. Also, in the UK, it is recommended that the exception to copyright infringement for educational purposes should be expanded so that a copy of a broadcast can be communicated to student who are not located within the educational establishment, provided that the education provided is not commercial and the source is indicated.

It is also considered that the punishment for infringement being meted out by the laws is too mild to serve its function of deterring prospective infringers and punishing those guilty of infringement. The profit made by pirates and other infringers are usually higher compared to the fines paid by them and as such I recommend that stricter penalties be imposed. This will serve as a stronger deterrence mechanism.

9.5. SPECIAL RECOMMENDATIONS FOR BANGLADESH

The protection and enforcement of Copyrights has been a matter of great concern in Bangladesh. In light of the challenges discussed in an earlier chapter, the following recommendations are proposed for Copyright system of Bangladesh:

  1. Copyright Collective Societies should be established which will serve as an ombudsman between copyright owners and users. These societies should be well trained and equipped with modern technologies to enable them keep track of their members’ works, to get adequate and proper compensation or royalties and help to bring infringers to book. This is a more effective way of ensuring that the author gets his due.
  2. General and regular copyright awareness through seminar, symposiums and national workshops should be carried out to educate both the citizens and copyright owners of the rights of copyright owners and penalties for infringement.
  3. Specialized Intellectual Property courts and Intellectual Property judges should be appointed. The copyright cases are brought to the same courts as the other civil or criminal cases which are large in number. This has resulted in ignorance or delay in the adjudication of copyright cases.
  4. Special Anti-piracy task forces should be formed and trained, to undertake regular anti-piracy raids of suspected shops and stores. A Copyright committee consisting of representatives from Copyright experts, police, judicial officers, media and custom officers, should also be created to ensure protection and enforcement of copyright.
  5. The copyright law should provide the foundation for the protection of software as the absence of copyright protection of software is liable for poor flow of foreign clients and low rate of software export. Rules annexed to each particular Act on IP should be amended periodically to reflect the amendments that have been brought since the enactment of any Act.[156]

9.6. CONCLUSION

Copyright and related rights are vital mechanisms for economic and social development of a nation. It is a viable tool for securing a stable environment for creative activities. Sadly, certain loopholes still exist in the copyright systems in the UK and Bangladesh which has if not properly handled might deter creativity.

Although the Copyright law of Bangladesh seems to maintain the standard level in relation to the international standards on copyright protection, there are still several loopholes and shortcomings in its enforcement of the copyright. The high rate of piracy and extreme lack of awareness of copyright in the country is very alarming and has therefore greatly discourage creativity and hindered the development of the copyright system in Bangladesh.

Unfortunately, there has not been any recent effort by the legislatives to amend or enact a more sophisticated copyright Act in Bangladesh; the prevailing Act having been enacted in 2000 and amend only once in 2005. It is obvious that the existing copyright laws are predominately outdated and cannot be effectively enforced to protect the rights of authors and to prevent copyright infringement especially in the form of digital piracy. Upon enactment of a modern copyright law, the enforcement agencies must ensure proper awareness and implementation of the copyright laws and this will invariably bring both cultural and economic development to the country which will make it as a civilized nation in the world of today.[157]

With respect to the UK, because a substantial part of UK copyright law is derived from the EU copyright framework, there are references in UK law to the EU, the EEA, and Member States. Some of these references occur in the UK’s implementation of EU cross-border copyright arrangements. These arrangements are unique to the EU and EEA and provide reciprocal protections and benefits between Member States, covering areas such as cross-border portability of online content services, sui generis database rights, and copyright clearance for satellite broadcasting.[158]

To ensure UK copyright law functions properly if the UK leaves the EU without a deal, the government have introduced the Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019, which removes or corrects references to the EU, EEA, or Member States in UK copyright legislation to preserve the effect of UK law where possible. [159]

However, it is worthy of note that in the event that the UK finally exit from the EU, existing and new copyright works originating from either the EU or the UK will still be protected in the EU and UK respectively based on common international treaties such as the Berne Convention and the TRIPS agreement. These treaties provides for the Principle of National Treatment which  states that works originating in one of the member states must be given the same protection in each of the other member states as the latter grants to work belonging to its own nationals. The UK need not be a member of the EU to benefit from the national treatment principle.

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