Copyright in Nepal
Pustun Pradhan
Pustan Pradhan is the Project Director for the Centre for Economic Development
& Administration (CEDA) at Tribhuvan University, PO Box 797, Kirtipur,
Kathmandu, Nepal. +977 1 331722 (tel), ceda@wlink.com.np
Nepal's Copyright Act dates from 1965 and was updated in 1997. The 1965 Copyright Act came
at a time when the infrastructural and other institutional supports
and facilities needed for the development and promotion of creative
works, were virtually non-existent; the few that existed were poorly
equipped and their impact was negligible. Sound broadcasting began in
Nepal in 1951 with short-wave broadcasts by Radio Nepal from Kathmandu.
A radio was then a luxury. Television was a distant phenomenon. There
was no recording industry as such. The film industry was yet to make
its appearance.
The printing industry was in the early stages
of development. Off-set lithography printing technology was introduced
only towards the mid-seventies. Book printing was mostly carried out
in Varanasi, on the Indian border. The book industry was dominated by
foreign imports, and national authorship had not yet taken root. All
that existed in the name of a publishing industry were a handful of
government and private publishing houses which operated on a small scale.
Publication of newspapers, periodicals and magazines was limited, and
much of the domestic need for such publications was provided by foreign
imports.
It is obvious that a Copyright Act framed against
such a landscape can barely meet the needs of the present developments
in various sectors of the copyright industry. With new technologies
offering different ways of creating, reproducing and disseminating protected
works, the prospect for exploiting these works for various commercial
purposes has broadened immensely. As a result, intellectual property
containing protected works has now become a subject of foremost importance
in the world of trade and commerce.
Unfortunately, the 1997 Amendment of the 1965
Copyright Act failed to consider the range of new developments and their
implications in a national and global perspective. It made only a few
alterations on matters of immediate concern relating to coverage and
punishment. Coverage was extended to include computer programmes and
research works, and the punishment for infringement of copyright (unauthorised
publication), hitherto negligible, was made more severe with a first-offence
fine of up to Rs 100,000 (approx. US$1,500), or six months' imprisonment,
or both, and for each offence thereafter RS 200,000, or one year's imprisonment,
or both.
Enforcement
Copyright in Nepal is administered by the
Nepal National Library (NNL). The first amendment to the Copyright Act
in 1997 handed this responsibility to the Department of Archaeology
but it is still being administered through the NNL. Despite the existence
of copyright law since 1965, there was little evidence of its implementation
until copyright rules were formulated and brought into effect from December
1989. Neither the Copyright Act nor the copyright rules contain procedures
for legal action to be instituted against infringement. In such circumstances,
the scope of copyright administration is confined to being a mere instrument
for copyright registration. As of August 1999, works of various description
being brought to copyright registration at the NNL included 250 books,
325 audio cassettes, 60 paintings and five video films. To date, only
three complaints have been lodged with the NNL against copyright violation
- one relates to a book, one to a video film, and one to an audio cassette.
Such complaints, however, do not receive the necessary investigation
or legal redress because of the lack of adequate and well-defined authority
on the part of the copyright registrar. The law has recognised copyright
infringement as a criminal offence for which both criminal and civil
remedies have been provided. Yet at the operational level these provisions
have no meaning for want of enforcement procedure. There exists not
a single case of copyright litigation in Nepal.
Another important element missing in Nepalese
copyright law is the absence of provision for a copyright collecting
society. Without the existence of such a society, authors can hardly
exercise their rights, for it is virtually impossible for them to keep
track of the various uses made of their works in this digital environment.
Publishing industry
In the publishing sector, one of the major concerns
of copyright, many new entrepreneurs have come into view over the last
few years. With the development that is now taking place in various
sectors, especially education, demand for books of all kinds is growing
at an ever-increasing rate. In the absence of a reliable database, it
is still not known exactly how many new titles a year are published
from Nepal: estimates vary in the range of 600 to 700 titles. Nepalese
copyright law makes no provision for a compulsory library deposit and
there is no other mechanism to find out the titles of books produced
in the country every year. Besides, there exist no official statistics
indicating the annual consumption of books, nor the volume of imports
and exports. According to one estimate, 40-60 per cent of the demand
is met by domestic production while the rest is fulfilled by the foreign
imports. Although the lack of detailed information makes it difficult
to describe the present status of the publishing industry, the growth
in the number of publishing houses, printing set-ups, bookstalls, reading
materials and such other factors, definitely indicates that the market
for the publishing industry is growing, as has the investment in this
sector over the last few years. But it is not clear, in the absence
of any reliable study, to what extent this growth has been able to develop
and promote the national authorship needed to strengthen the domestic
publishing industry and achieve self-sufficiency in book production.
The existence of an effective copyright regime
is largely a reflection of a well-developed and well-established indigenous
copyright industry. Whether we talk of music, publishing or any other
sector of the copyright industry, people tend to see more harm than
benefit in copyright compliance at the earlier stage of development,
when the scope for their products generally remains inelastic due to
limited market size. But once they see the market for their products
growing viable and more stable and lucrative, they are inclined to look
for strong copyright protection. The reason perhaps is that with the
steady growth of the market more investment is required to exploit the
increasing opportunities. However, such investment may be highly insecure
and negative in relation to market potentiality if there exists no effective
mechanism to deter the large-scale piracy and other counterfeiting acts
that usually take place along with market growth, depriving the legitimate
producers from exploiting their due share of market. It is at this level
of market development that producers of copyright goods begin to see
copyright adherence as in their best interest and start putting pressure
on the government for the enactment and effective enforcement of copyright
laws.
A case in point is the recent development of the
music industry in Nepal. Until a decade ago, neither the government
nor those in the copyright profession ever articulated any concern for
the enforcement of copyright laws in Nepal. But a few years back the
issue of copyright abruptly came into the light when some artistes and
music producers put pressure on the government for the revision and
enforcement of the existing copyright law. It is interesting to discover
why only music and other audio cassette producers are so concerned about
copyright enforcement, while the responses of the majority of those
in other sectors of the copyright industry, like publishing, are still
lukewarm.
The reason perhaps is simple. Over the last few
years, the market for music cassettes has picked up dramatically whereas
no such fast growth for other sectors of copyright industry could be
detected. But, much to the distress of the producers, almost half this
market is flooded with counterfeit copies of cassettes. Copyright infringement
not only means loss of revenue to the government exchequer but, more
important, will pose a major setback to the flow of investment needed
for growth and innovation in the copyright industry of the country. [end] [BPN, no 2627, 2000, p. 25.]
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