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 26–27, 2000, p. 25.]

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