Copyright Registration of software, website and apps in Bangladesh
Bangladesh has no remarkable footprint in tech area yet. In tech industry, producing and marketing software may generate revenue in billion though Bangladesh fails to accrue such benefit. Primarily the reason is the lack of providing effective security, protection and awareness. This article aims to highlight copyright protection for software, website and mobile apps etc. It is worthy to mention that the Association of software firms namely Bangladesh Association of Software and Information Services (BASIS) has 1423 members.
Moreover, in a research post of Brain Station 23 it is said that Bangladesh has software market of 3300 crore taka and half of this amount has been accrued as export revenue. To increase the market it is necessary to provide effective security to those tech firms of their products and establish a proper enforcement system of copyright law.
The Copyrights Act, 2000 (hereinafter “the Act”) is the law for providing legal protection to the software. In the 80’s of last century and afterwards there was a debate on whether computer programme should be registered under copyright law or patent. However, most of the countries now has enacted laws for copyright registration of computer programme. Interestingly, we will not find the word “software” in this Act rather “computer programme” has been provided. Moreover, the words “apps” used in any device or “mobile apps” or “operating system” or website etc. are not mentioned in the Act. However, the definition of computer has been provided. On the other hand, the Copyright Rules, 2006 provides in Rule 3 that the register shall be kept in seven parts and part 1 and part 7 is designated for software, website, computer etc. Moreover, in a leaflet issued by the copyright office of Bangladesh it is stated that amongst others computer software, mobile apps and website are registrable. As per section 2(9) of the Act "computer" means any mechanical, electro-mechanical, electronic, magnetic, electro-magnetic, digital or optical or any other impulse or data processing devices or systems which perform logical and arithmetical, any or all functions, by using those devices or systems. It might be reasonably assumed that mobile phone may fall within the purview of this Act as “…devices or system which perform logical and arithmetical, any or all functions, by using those devices or systems”.
As per section 2(10) of the Act "computer programme" means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result. Again the reasonable assumption is that “software”, “apps”, “mobile apps” or “operating system” etc. fall within the purview of this Act as “computer programme” considering the wide ranging definition of computer which has been indicated in the above paragraph. Moreover, the definition of “literary works” as provided in section 2(46) of the Act includes “a programme produced by a computer intended for study and listening of people in general”. Therefore, a wide ranging adaptation of the definitions is required for extending protection of the Act to software or apps or operating system which is used in any device may it be a mobile phone or computer. “Copyright” means any right, subject to the provisions of this Act, to do or authorize the doing of any of the acts as provided in section 14 of the Act in respect of a work or substantial part thereof. Point to be noted that sub-section (1) of section 14 of the Act provides a list of acts regarding literary, dramatic or musical work, except a computer programme and sub-section 2 has been provided for computer programme.
However, sub-section 2 in clause (a) provides that sub-section (1) is also applicable for computer programme. Again, the definition of “literary works” includes a type of computer programme”. Such anomalies are unexpected. Irrespective of such anomaly, it might be said that copyright actually indicates the range of authority to do or not to do any act regarding the subject matter of copyright. Another interesting point is that “computer programme” has not been included in the list of "works” as we find in section 15 of the Act. Section 15 with the heading “Works in which copyright subsists” provides a list of works and section 2(11) of the Act provides definition of “Works”. It may be argued that “computer programme” though does not fall within the ambit of “works” but it is under protection of this Act as per the other provisions. Section 17(h) of the Act makes it clear that if any programmer is appointed by a person or persons or institution for creating the programme then the appointed programmer will not be the first copyright owner rather the employer(s). However, if there is any other agreement in between the employee and employers then the ownership will be determined as per the agreement. The copyright, in the case of a computer programme as per section 28A, shall subsist until sixty years from the beginning of the calendar year next following the year in which the programme is published.
Section 71 of the Act provides the list of acts which will amount copyright infringement. Section 72(25)[1] of the Act provides that in the following instances making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme, from such copy are not infringement- (i) in order to utilize the computer programme for the purpose for which it was supplied; or (ii) to make back-up copies purely as a temporary protection against loss, destruction or damage in order only to utilize the computer programme for the purpose for which it was supplied; (iii) for further upgrading of a computer programme. "Infringing copy" regarding a computer programme means as per section 2(8)(e) “reproduction or use of the whole work or a part thereof.” Necessarily, such reproduction is to be made without proper approval of the registered author. As per section 56 of the Act the owner software, website, apps etc. may make an application in the prescribed form accompanied by the prescribed fees to the Registrar for entering particulars of such in the Register of Copyrights.
Thereafter, on receipt of an application in respect of software, website, apps etc., the Registrar may, after holding such inquiry as he may deem fit, enter the particulars of the work in the Register of Copyrights and issue a certificate of such registration to the applicant. If the Registrar considers that such entry should not be made then he will do so by recording the reasons in writing. The owner of software, website or mobile apps may seek civil remedy under section 76 of the Act by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right.
As per section 84 of the Act, any person who infringes the copyright in a work of computer programme, publishes it in any medium, sells or distributes it more than one copy, shall be punished with imprisonment for a term which may extend to four years and shall not be less than six months or with fine which may extend to taka four lakh and shall not be less than taka one lakh. If any person uses an infringed copy in computer shall be punished with imprisonment which may extend to 3 three years but not less than six months or with a fine which may extend to taka three lakh and not less than taka one lakh. Also, the owner can make an application to the copyright office for violation of copyright and seek remedy.
For registration the owner of software has to submit three copies of application forms, fees through treasury challan, utility of software, two copies of software recorded in two separate CD and two copies in print, declaration in non-judicial stamp paper containing the statement that there is no case pending in any court regarding its originality and the information given are true, proof of citizenship of applicant, two passport size attested photo of applicant etc. If the application is submitted in the name of an organization or institution, then with the above mentioned documents the following documents are also require to be submitted: attested copy of Memorandum of a company, TIN, trade licence, authorization letter from the Company for and under which the applicant works and assignment deed in non-judicial stamp if the applicant gets the copyright by a transfer etc. However, from the statement of copyright office it is reasonably assumable that website and mobile apps registration process is the same as of software. Copyright may be assigned, transferred or licensed by following prescribed procedures. The time limit for processing application has been fixed by the copyright office but such time limit depends on issues arising during the processing of application. If an exporter of software who is also the owner wants to get copyright protection in country of export then the owner has to apply for copyright in that country. However, a copyright protected software , website or apps may have protection under Berne Convention also. The intention of the copyright authority is to keep the procedure as simple as possible in order to encourage concerned people to register their works. But emphasis needs to be given more on enforcing law and the owners need to be aware of their rights.
