What is copyright?
Intellectual Property (“IP”) includes the set of properties that are created by the human intellect, that may be tangible or intangible. Similarly, IP law is the set of legal rules that are intended to protect the products or the result of human ingenuity.
Copyright is one of the forms of IP which is concerned with protecting literary and artistic works including writings, music, and works of the fine arts, such as paintings and sculptures, and technology-based works such as computer programs and electronic databases. The creator is entitled to have protection and exclusive economic and moral rights over their creation.
What is protected?
Copyright Act, 2059 (hereinafter referred to as the “Act”) provides protection to any creation as well as to any translation, arrangement, sequential arrangement of work or collection of works presented as original from viewpoint of presentation, collection or expression, data or database readable with or without support of machine, any proverb, folktale, folk song falling under folk expression or any other derivative works based on folk expression that are original in nature. Berne Convention for the Protection of Literary and Artistic Works, 1886, the first international law to provide protection to copyright, requires that works in general or any specified categories of works shall be protected once they are fixed in some material form.
Registration of Copyright
National Laws on registration of Work
The Act and Copyright Rules, 2061 (hereinafter referred to as the “Rules”) governs registration of the author work in Nepal.
How does the author of such his/her work obtain copyright for the work? Is the registration compulsory?
NO. Registration of the work for copyright protection in Nepal is optional. The author’s work is protected by fact rather than by Law. The work is protected from the moment of its creation. Section 5 of the Act provides that Registration of a work, sound recording, performance or broadcasting shall not be required to acquire the right.
However, if the author intends to get any work, sound recording, performance or broadcasting registered voluntarily, that person may make an application to the Registrar and get the same registered.
Procedure for registration
|Step 1||Submission of Application||The person desiring to register her/his work, sound recording, performance or broadcasting shall be required to submit an application to the Registrar in the format prescribed in schedule-1 of the Rules.|
|Step 2||Examination of Application||Upon the receipt of application, Registrar shall examine the application and if required, shall order the applicant to submit additional documents.|
|Step 3||Issuance of certificate /
Or submit the grounds of rejection
|If it is deemed reasonable to register such a work on the basis of document(s) received, the Registrar shall issue a certificate of registration of such work, within thirty-five days from the date of submission of the documents.
However, if it is deemed unreasonable to register such a work in applicant’s name, the Registrar shall inform the applicant specifying the grounds for rejection within 7 days.
|Step 4||Arrangement of registered book||The Registrar shall arrange a registered book for the purpose of registration of the original work.|
International Laws on registration of Work
Since the development of IP laws in Nepal is still in its infancy, international laws on IP are to be placed at a great significance in developing our own legislation(s). Berne Convention for the Protection of Literary and Artistic Works, 1886, to which Nepal is a party, also doesn’t pose any formalities of registration to get copyright protection. It provides that “the enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work.”
Therefore, there is no need to make any registration. However, the core requirement to acquire protection is that the work has to be fixed. Fixing the work implies getting it written down or recorded. To prevent infringement of the work of the author and to produce it as evidence in case of legal requirement, the fixation of the work is important. The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), and WIPO Copyright Treaty (WCT), also confirms that copyright is automatically acquired; it must not be subject to any formality (such as registration or deposit). Similarly, WIPO Performances and Phonograms Treaty (WPPT) (1996) states that the enjoyment and exercise of the rights provided in this Treaty shall not be subject to any formality. Along with national laws, international treaties and agreements provide that as long as the work is original and fixed, the copyright protection shall not be subject to any formality of registration.
Flexibility in registration system
From fiscal year 2061/63 till 2074/75, the total registration of works for copyright protection accounts to 1568 in Nepal. The non- requirement of registration of copyright under national and international laws allow authors to escape registration responsibilities. The moment one creates and fixes it in material form, it is automatically protected. This enables the creator to come up with more creativity with no burden of registration complications. With the change and expansion of scope of copyright in this digitalized era, it’s safe to be known that copyright doesn’t need registration. Copyright registration is not mandatory, but recommended as it helps the owner of copyright to circumvent future possible infringements and assist any legal proceedings in bringing it as evidence of validity. In 2019, clearing the doubts as to why registration is required even though it has automatic protection, the US Court found two copyright cases pronouncing the impact of registration. In the case of Fourth Estate Public Benefit Corporation v. Wall-Street.com, the court said that the copyright owners must obtain a registration from the United States Copyright Office prior to filing an infringement action. This is intended to avoid future infringement of the work and to protect the best interest of the copyright owner on economic and moral rights over the creation. With growing infringement over copyright around the globe with advancement of technology, the courts have started favoring for registration. However again, registration is not compulsory, it’s to enable oneself to sue for an infringement, prevent future evasion over exclusive right and loss of right.
 Article5(2) of Berne Convention, 1886
 Article 20 of WIPO Performances and Phonograms Treaty (WPPT) (1996),