The Copyright Act, 2002

The Copyright Act, 2059 (2002) is the primary legislation governing copyright protection in Nepal. Its Major Provisions are:

• Automatic copyright protection without requiring registration
• Protection of both economic and moral rights of authors
• Rights granted to performers, producers and broadcasting organizations
• Copyright term of life of author plus 50 years after death
• Exceptions allowing limited use of copyrighted works without permission
• Provisions for enforcement and penalties for infringement
• Establishment of royalty collecting bodies

What is the Copyright Act, 2059 (2002)

The Copyright Act, 2059 (2002) is the main law governing copyright protection in Nepal. It was enacted to update and strengthen the legal framework for protecting intellectual property rights related to literary, artistic and other creative works.

This Act replaced the previous Copyright Act of 1965 and introduced several new provisions to align Nepal’s copyright law with international standards. It extends protection to a wider range of works, recognizes related rights, and provides for more effective enforcement mechanisms.

The Act defines the types of works protected by copyright, outlines the rights granted to copyright owners, specifies the duration of protection, and sets out exceptions and limitations to copyright. It also establishes procedures for enforcement and prescribes penalties for infringement.

The Act applies to literary, dramatic, musical and artistic works as well as computer programs, databases and other types of creative expressions. It grants authors exclusive rights to reproduce, distribute, perform and adapt their works.

Definitions of Work, Author, Economic Rights, Copyright Owner, & Moral Rights

The Copyright Act provides definitions for key terms related to copyright protection:

Work: Section 2(a) defines “work” as any original intellectual creation in the literary, scientific or artistic domain, including books, articles, computer programs, musical compositions, paintings, photographs, films, etc.

Author: As per Section 2(b), “author” refers to the person who creates a work. This includes writers, artists, composers, photographers, filmmakers and other creative professionals who produce original works.

Economic Rights: Section 2(g) defines “economic right” as the exclusive rights granted to copyright owners under Section 7 of the Act. These include rights of reproduction, distribution, public performance, adaptation, etc.

Copyright Owner: Section 2(h) states that “copyright owner” means the author of a work in cases where economic rights vest in the author. It also includes persons or organizations to whom economic rights are transferred.

Moral Rights: Section 2(k) defines “moral right” as the rights conferred to authors under Section 8 of the Act. These include rights of attribution and integrity that protect the author’s reputation and connection to the work.

Acquisition and Protection of Copyright in Nepal

Copyright protection in Nepal is automatic and does not require registration or any formalities. According to Section 3 of the Copyright Act, copyright protection is extended to any original work as soon as it is created and fixed in a tangible form.

The Act protects both published and unpublished works. For published works, protection is available if:

• The work is first published in Nepal, or
• The work is published in Nepal within 30 days of its first publication elsewhere

For unpublished works, protection is granted if the author is a Nepali citizen or domiciled in Nepal at the time of creation.

Foreign works are protected under the principle of national treatment as per Nepal’s obligations under international treaties. Works of foreign nationals published in Nepal or in countries that are members of treaties to which Nepal is a party are protected.

The protection covers the work in its original form as well as translations, adaptations and other derivative works. Copyright owners do not need to register or deposit copies of their works with any government authority to obtain protection.

Is Registration compulsory for copyright protection?

Registration is not compulsory for copyright protection in Nepal. Section 5(1) of the Copyright Act explicitly states that registration of a work, sound recording, performance or broadcast is not required to acquire copyright.

Copyright protection is automatic as soon as an original work is created and fixed in a tangible medium. The author does not need to register or deposit copies with any government office to secure copyright.

However, Section 5(2) allows for voluntary registration of works with the Registrar. While this registration is optional, it can serve as evidence of ownership and date of creation in case of disputes. The registration process involves submitting an application along with copies of the work to the Copyright Registrar’s office.

But such registration is not mandatory and does not confer any additional rights. Unregistered works enjoy the same level of copyright protection under the law as registered ones. The lack of registration cannot be used as a defense in infringement cases.

Scope of Protection of Copyright in Nepal

The Copyright Act provides broad protection to various types of creative and intellectual works. Section 2(a) defines the scope of protected works to include:

• Literary works like books, articles, poems, etc.
• Dramatic and musical works
• Artistic works including paintings, sculptures, architecture
• Cinematographic works and other audiovisual creations
• Sound recordings
• Computer programs
• Photographic works
• Compilations and databases

The Act protects both published and unpublished works. Copyright covers the work in its original form as well as translations, adaptations and other derivative works based on it.

Protection extends to the expression of ideas, not the ideas themselves. Copyright does not protect facts, concepts, principles or methods of operation. However, the unique way these are expressed or compiled may be protected.

The scope includes both economic rights and moral rights associated with copyrighted works. Economic rights allow copyright owners to control the commercial exploitation of their works. Moral rights protect the author’s reputation and connection to the work.

Copyright owners have the exclusive right to authorize or prohibit certain uses of their works, including reproduction, distribution, public performance, translation and adaptation. The protection applies throughout Nepal.

Economic Rights of Copyrights in Nepal

Economic rights refer to the exclusive rights granted to copyright owners to derive financial benefits from the use of their works. Section 7 of the Copyright Act outlines the following economic rights:

1. Right of reproduction – Making copies of the work in any form
2. Right of distribution – Selling, renting or lending copies to the public
3. Right of public performance – Performing literary, musical or dramatic works in public
4. Right of broadcasting – Transmitting the work through radio, TV or other means
5. Right of communication to the public – Making the work available online
6. Right of translation – Translating the work into other languages
7. Right of adaptation – Modifying or transforming the original work
8. Right of rental – Commercial renting of copies, especially for computer programs and films

These rights allow the copyright owner to control and monetize various uses of their work. They can license or assign these rights to others in exchange for royalties or fees.

The economic rights are transferable and can be exercised separately. For instance, an author may transfer reproduction rights to a publisher while retaining translation rights.

Unauthorized exercise of these rights without permission from the copyright owner constitutes infringement, unless covered by exceptions in the law.

Owner of Economic Right of Work

Section 6 of the Copyright Act specifies who owns the economic rights in a work:

1. The author is generally considered the first owner of economic rights in their work.
2. For works created by co-authors, the economic rights vest jointly in all the co-authors.
3. In case of works made for hire, where a work is created by an employee as part of their job duties, the employer owns the economic rights unless agreed otherwise.
4. For commissioned works created at the initiation and direction of another person/organization, that commissioning party owns the economic rights.
5. For anonymous or pseudonymous works, the publisher is deemed to be the owner of economic rights until the author’s identity is revealed.
6. In case of cinematographic works, the producer is considered the owner of economic rights, except as provided in any contract.

The economic rights can be transferred or licensed by the copyright owner to other parties through written agreements. Such transfers must be registered with the Copyright Registrar to be valid against third parties.

Moral Rights of Copyrights in Nepal

Moral rights protect the personal and reputational interests of authors in relation to their works. Section 8 of the Copyright Act recognizes the following moral rights:

1. Right of attribution – The right to claim authorship and have one’s name associated with the work
2. Right of integrity – The right to object to any distortion, mutilation or modification of the work that would be prejudicial to the author’s reputation
3. Right of disclosure – The right to determine when and in what form the work will be made public
4. Right of withdrawal – The right to withdraw the work from publication

Provisions on Moral Rights of Copyrights

• Moral rights belong to the author even if economic rights are transferred
• They remain with the author for life and continue for 50 years after death
• Moral rights cannot be transferred but can be waived in writing
• Infringement of moral rights is actionable even if there is no economic loss
• Heirs can enforce the author’s moral rights after their death

Moral rights aim to protect the author’s reputation and connection to their work. They ensure proper attribution and prevent unauthorized alterations that may harm the integrity of the work.

Rights of Performer in Nepal

The Copyright Act recognizes certain rights for performers to protect their performances. Section 9 outlines the following rights of performers:

1. Right to broadcast or communicate their live performance to the public
2. Right to fix their unfixed performance
3. Right to reproduce their fixed performance
4. Right to distribute copies of their fixed performance
5. Right to rent out copies of their fixed performance
6. Right to make their fixed performance available to the public

Performers’ rights apply to live performances as well as recordings of performances. These rights allow performers to control and monetize various uses of their performances.

Key aspects of performers’ rights:

• Protection lasts for 50 years from the year the performance took place
• Rights can be transferred or licensed to others
• Performers retain moral rights over their performances
• Unauthorized recording or broadcasting of live performances is prohibited
• Permission is required to use fixed performances commercially

The Act aims to protect the interests of singers, musicians, dancers, actors and other performers whose creative contributions were not adequately recognized under traditional copyright law.

Rights of Sound Recording Producer

The Copyright Act grants certain exclusive rights to producers of sound recordings. Section 10 specifies the following rights for sound recording producers:

1. Right to reproduce the sound recording
2. Right to import copies of the sound recording
3. Right to distribute copies to the public through sale or other transfer of ownership
4. Right to commercially rent or lease copies to the public
5. Right to make the sound recording available to the public by wire or wireless means

These rights allow producers to control the commercial exploitation of sound recordings they have produced. Key aspects include:

• Protection lasts for 50 years from the date of publication of the recording
• Rights can be transferred or licensed to others
• Producers can claim royalties for public performance or broadcasting of their recordings
• Unauthorized reproduction or distribution of sound recordings is prohibited
• Producers have the right to take legal action against infringement

The Act recognizes the creative and financial investments made by producers in creating sound recordings. These rights exist separately from any copyright in the underlying musical or literary work that is recorded.

Right of Broadcasting Organization

The Copyright Act provides certain rights to broadcasting organizations to protect their broadcasts. Section 12 outlines the following rights for broadcasters:

1. Right to re-broadcast their broadcast
2. Right to communicate their broadcast to the public
3. Right to fix their broadcast
4. Right to reproduce fixations of their broadcast

These rights allow broadcasting organizations to control the use and re-transmission of their broadcast signals. Key aspects include:

• Protection lasts for 50 years from the date the broadcast took place
• Rights apply to both radio and television broadcasts
• Unauthorized retransmission or recording of broadcasts is prohibited
• Broadcasters can take legal action against signal piracy
• Rights are independent of any copyright in the content being broadcast

The Act aims to protect the technical and organizational skills and investment of broadcasters in assembling and transmitting program content. These rights exist separately from copyright in the individual programs or other content included in broadcasts.

Term of Protection of Copyright in Nepal

The Copyright Act specifies different terms of protection for various types of works:

Category	Duration of Protection
Literary, artistic, and musical works	Life of the author plus 50 years after death
Joint works	50 years after death of the last surviving author
Anonymous/pseudonymous works	50 years from first publication or public disclosure
Cinematographic works	50 years from first publication or public display
Photographs	25 years from creation
Applied art	15 years from creation
Performances	50 years from the date of performance
Sound recordings	50 years from first publication
Broadcasts	50 years from first broadcast

The term starts from the beginning of the calendar year following the relevant event (death, publication, creation etc). After expiry of the term, the work enters the public domain and can be freely used without permission.

For unpublished works, protection generally lasts for 50 years from creation. The Act allows for renewal of copyright term in certain cases.

Copyright Protection after Death

The Copyright Act provides for continuation of copyright protection after the death of the author. Key provisions regarding post-mortem copyright include:

1. Duration: Copyright lasts for 50 years after the death of the author for most types of works.
2. Ownership: Economic rights pass to the author’s heirs or assignees as per succession laws or the author’s will.
3. Moral rights: These continue to exist after the author’s death and can be enforced by heirs.
4. Joint works: For works of joint authorship, the term is calculated from the death of the last surviving author.
5. Unpublished works: If a work is published after the author’s death, copyright lasts for 50 years from first publication.
6. Anonymous works: If the author’s identity is revealed after death, the normal term of life plus 50 years applies.
7. Works-for-hire: Copyright ownership depends on the employment contract terms.
8. Renewal: Heirs may apply for renewal of copyright term in some cases.

The Act aims to ensure that the author’s creative legacy continues to benefit their successors and that works remain protected for a reasonable period after the creator’s death before entering the public domain.

Exceptions to Copyright Protection in Nepal

The Copyright Act provides certain exceptions and limitations to copyright protection to balance the rights of owners with public interest. These allow limited use of copyrighted works without permission in specific circumstances:

1. Personal Purposes

Section 16 allows reproduction of small portions of published works for personal use without authorization. However, this does not apply to:

• Architectural works
• Entire books or substantial parts
• Musical notations
• Databases

2. Citation Allowed

Section 17 permits citing portions of published works for purposes like criticism, review or scholarly works, provided the source and author are mentioned.

3. Reproduction Allowed

Section 18 allows limited reproduction for teaching purposes, including:

• Reproducing short excerpts in educational materials
• Performances of works for classroom instruction

4. Reproduction by Library and Archives

Section 19 permits libraries and archives to make limited copies of works for preservation or replacement of damaged copies in their collections.

5. Reproduction for General Information

Section 20 allows reproduction of articles on current topics in newspapers/periodicals for informational purposes, unless expressly prohibited by the author.

6. Computer Programs

Section 21 permits making backup copies of legally acquired computer programs for archival purposes.

7. Public Exhibition

Section 23 allows public display of original or copies of works without authorization, provided no filming or television broadcast is involved.

These exceptions are subject to the “three-step test” – they must be limited to certain special cases, not conflict with normal exploitation of the work, and not unreasonably prejudice the legitimate interests of the rights holder.

Transfer of Copyright in Nepal

The Copyright Act allows for the transfer of economic rights associated with copyright. Key provisions regarding copyright transfer include:

1. Transferability: Economic rights can be transferred in whole or in part through written agreements.
2. Modes of transfer: Rights can be assigned (permanent transfer) or licensed (temporary authorization).
3. Divisibility: Different rights (e.g. reproduction, translation) can be transferred separately.
4. Formalities: Transfers must be in writing and signed by the copyright owner.
5. Registration: Transfers should be registered with the Copyright Registrar to be valid against third parties.
6. Moral rights: These cannot be transferred but can be waived in writing.
7. Future works: Rights in future works can be transferred, subject to certain conditions.
8. Termination: In some cases, authors or heirs can terminate transfers after a specified period.
9. Work-for-hire: Ownership of rights in works created by employees is governed by employment contracts.
10. Inheritance: Copyright can be inherited as per succession laws.

The Act aims to facilitate commercial exploitation of works while protecting authors’ interests. It allows flexibility in licensing and assigning rights while mandating certain safeguards like written agreements and registration of transfers.

Infringement of Copyrights in Nepal

The Copyright Act defines various acts that constitute infringement of copyright. Section 25 outlines the following as infringement:

1. Unauthorized reproduction, distribution, public performance or communication of copyrighted works
2. Using another’s work for commercial advantage by copying its reputation
3. Creating derivative works without permission
4. Importing, producing or renting equipment designed to circumvent copy-protection measures
5. Importing or selling devices that facilitate unauthorized reception of encrypted broadcasts
6. Knowingly selling, distributing or importing infringing copies of works
7. Removing or altering electronic rights management information

Conditions for Infringement of Copyrights

• Both direct infringement and contributory infringement are prohibited
• Infringement can occur even without actual economic loss to the copyright owner
• Innocent infringement may still be liable, but affects remedies available
• Fair use and other exceptions provide defenses against infringement claims
• Civil and criminal penalties are prescribed for infringement

Remedies for Copyright Infringement in Nepal

• Injunctions to stop infringing activities
• Seizure and destruction of infringing copies
• Damages to compensate the copyright owner
• Account of profits made from infringement
• Criminal penalties including fines and imprisonment

Punishment for Infringement of Copyrights

The Copyright Act prescribes both civil and criminal penalties for copyright infringement. Section 27 outlines the following punishments:

For first-time offenders:

• Fine of NPR 10,000 to 100,000
• Imprisonment up to 6 months
• Or both fine and imprisonment

For repeat offenders:

• Fine of NPR 20,000 to 200,000
• Imprisonment up to 1 year
• Or both fine and imprisonment

Additional penalties:

• Seizure and destruction of infringing copies and equipment used
• Payment of compensation to the copyright owner for losses incurred

The Act allows courts to impose higher penalties for more severe cases of infringement. Factors considered in determining punishment include:

• Scale and commercial nature of infringement
• Economic harm caused to the copyright owner
• Intentional or repeated nature of violation

Corporate liability is also prescribed, with company directors/officers potentially liable for infringements by the company.

The Act aims to create strong deterrents against copyright violations through these punitive measures. However, it also provides for compounding of offenses in certain cases to encourage settlement between parties.

Punishment for Unauthorized Copy

The Copyright Act provides specific penalties for dealing in unauthorized copies of protected works. Section 28 outlines punishments for importing or selling infringing copies:

• Fine of NPR 10,000 to 100,000 based on the gravity of the offense
• Seizure and destruction of infringing copies
• Payment of compensation to the copyright owner for losses incurred

The Act aims to curb the market for pirated and counterfeit goods by targeting the distribution channels. It recognizes that unauthorized copying often involves organized commercial operations.

These penalties are in addition to punishments for the act of making infringing copies. They target the economic incentives driving the trade in pirated works.

The provision allows rights holders to take action against dealers and importers, even if the actual manufacturer is unknown or outside jurisdiction.

Read More:

• Trademark Registration in Nepal
• Intellectual Property Law in Nepal
• Trademark Law in Nepal
• Patent Law in Nepal
• Industrial Design Law in Nepal
• IP Licensing, Enforcement & Investigation in Nepal
• Highlights of Patent, Design & Trademark Act, 1965
• Copyright Law in Nepal

Also Read: Copyright Act, 2002 Patent, Design and Trademark Act, 1965

Conclusion

The Copyright Act, 2059 (2002) provides a comprehensive legal framework for copyright protection in Nepal. It aligns the country’s copyright regime with international standards while addressing local needs.

• Automatic protection without formalities
• Recognition of both economic and moral rights
• Protection for a wide range of works including digital content
• Rights for performers, producers and broadcasters
• Reasonable exceptions balancing owner and user interests
• Provisions for collective management of rights

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Disclaimer: This material is presented solely for informational purposes, without constituting legal advice, counsel, or solicitation, and no liability shall arise from any actions, omissions, or reliance on its contents, directly or indirectly, in any manner whatsoever, irrespective of the jurisdiction or specific circumstances.