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PAKISTAN’S current copyright regime is essentially a muddied product of thoughtless legal transplantation. The primary legislation in this area, the Copyright Ordinance 1962, has been blindly imported from the UK. In doing so, the drafters have not only developed an ineffective regime for copyright, but have also incorporated the flaws inherent in the UK’s system. Unsurprisingly then, our copyright framework besides being anachronistic, provides inadequate protection to our authors.
Any law’s effectiveness is contingent upon the specific political, legal and social milieu of the country in which it is in force. The mechanical copying of foreign laws into our domestic law without tailoring them to the country’s political, legal, and social context thus diminishes their efficacy.
Copyright grants the owners of creative works a panoply of exclusive rights with respect to that work. The monopoly over such rights can be justified in light of a number of theories such as the natural rights, utilitarian or the personality theory.
Across the globe, various copyright codes are premised upon such theories which lend greater clarity to its object and purpose. In the US, for instance, the copyright regime is based on the utilitarian theory ie the copyright acts as a reward and an incentive to the creator. France’s copyright law, on the other hand, is based on the personality theory that protects the spirit of the author. The UK’s copyright law, however, lacks a clear philosophy without which, it attempts to achieve all but at the same time nothing.
Having fully borrowed our copyright regime from the UK, it naturally mirrors its hapless philosophy as well. The Copyright Ordinance thus makes an ambitious attempt to protect authors but by failing to articulate the reason for such protection, it remains ambiguous and meaningless.
Similarly, another area where this legal transplantation has been problematic is with respect to the categorisation of subject matter. The subject matter under the copyright law is the work which qualifies for protection. It can either be characterised according to the ‘closed list’ or ‘open list’ system. Under an ‘open list’ system, the subject matter of protection is broadly defined whereas under the ‘closed list’ system, it is compartmentalised into a few protectable categories. The UK follows the ‘closed list’ approach. Its Copyright Act is structurally complex and pigeonholes the protectable works to only a handful of categories.
Our copyright law mirrors the flawed UK philosophy.
Accordingly, Pakistan has also restricted protection to a few categories. This is reflected in Section 10 of our Copyright Ordinance, whereby a copyright only subsists in original literary, dramatic, musical and artistic works, cinematographic works and records.
The overarching problem with this scheme is that authors are precluded from protection if they fail to bring their creation within one of the categories.
Such a rigid approach is perilous for a developing country like Pakistan that needs to show appreciation for its authors in addition to generating a stimulating environment for them to flourish.
This has rendered our current copyright law ill-equipped to deal with technological developments in the creation and exploitation of work. For a country like ours, technological innovation is a critical driver of economic development. The inflexibility of a ‘closed list’ system is catastrophic for spurring innovation.
Significantly, an effective system of copyright protection has a positive impact on investment. The strengths and weaknesses of a country’s copyright legal regime have a direct impact on decisions to invest in it or transfer technology to it.
By way of example, the compilation of a database requires substantial investment; investors would hence be reluctant to invest in the creation of databases in Pakistan since the copyright law affords them limited protection. Similarly, investors would be deterred from investing in the creation of works other than those protected by the copyright.
Pakistan clearly cannot afford to rely on copyright law in its current imported form especially since the economic realities and imperatives of the UK and Pakistan are poles apart. Ironically enough, the UK might soon be doing away with its ‘pigeonhole’ approach in light of its EU commitments. But what about us?
We must immediately consider incorporating relevant copyright laws from more progressive systems such as Netherlands or France. For example, under the Dutch Copyright Act, anything can be protected as long as it is original and perceptible. The expansive nature of protection is evident from the fact that even perfumes are protected under the copyright law. Similarly, the French Intellectual Property Code affords protection “in all works of the mind, whatever their kind, form of expression, merit or purpose”.
A viable domestic copyrights legal regime that is reflective of our own cultural and economic values and strives to enhance and preserve them is indeed the need of the hour.
The writer is a lawyer with an interest in intellectual property law.
Published in Dawn, April 30th, 2015
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