In recent times, there is a surge in the number of copyright infringement matters esp. involving photography. With the e-commerce portals mushrooming in Nepal lately, the likelihood of making a mistake in sourcing an image also increases. In few instances, one of a prominent e-commerce portals has blatantly used photographic works of another ecommerce portal and in few cases they are not courteous enough to remove the watermark of the original publisher from the copied images.
So, is it legal to do so?
No, it is not.
Legal Provisions in Nepal
The matters relating to copyright in Nepal is governed by Copyright Act, 2002 (“Copyright Act”).
Section 3 of the Copyright Act grants protection to any copyrightable work. The Act defines the “works” protected under copyright as work presented originally and intellectually in the field of literature, art, science and in any other field, which includes photographic works within the protection regime among others.
Section 6 and 7 of the Copyright Act vests the author or the creator of such work with the economic rights related to the work, thus in general allowing only the producer to make the commercial use; while Section 8 of the Copyright Act provides the author with a moral rights over the works meaning: right to get his name or pseudonym in copies of his work, maintain his goodwill and make amendments in the work.
So, does the use of photos and descriptions of a product in one’s ecommerce site taken from another ecommerce site lead to infringement?
Yes. Section 25 of the Copyright Act makes any act of publishing (publicly communicating) a work belonging to others without the authorization (permission) of the copyright owner, an act of infringement. The motive of deriving economic benefit or the purpose of use whether it be commercial or otherwise is immaterial.
Even if one one cites the source or the author, that may not infringe moral rights of the author but that will infringe the economic rights of the author guaranteed by Copyright Act.
Therefore, copying photos from another ecommerce site and displaying it in one’s ecommerce site definitely is an infringement of the copyright.
What to do if you notice such infringement?
Copyright infringement is a crime listed in annex 1 of the Criminal Procedure (Code) Act, 2017 of Nepal. So, in the case where someone infringes a protected right, the copyright owner shall file a FIR within 3 months from the date of knowing about such infringement at the nearest police station. To avoid procedural and bureaucratic hassles, it is better if FIR is filed at the nearest police station from the area of crime (copyright infringement) or the residential area of the one who infringed the copyright. Cases of copyright infringement will follow summary procedure and will be prosecuted by government attorneys.
What are the possible implications? FINE & JAIL?
Section 27 of the Copyright Act provides for a fine of Rs. 10,000 (Ten Thousand) to Rs. 100,000 (One Lakh) or imprisonment for 6 months or both for the first-time offender. For repeat offenders, the Copyright Act provides a penalty of Rs. 20,000 (Twenty Thousand) to Rs. 200,000 (Two Lakhs) or imprisonment for 1 year or both. The material so published, and the devices used to infringe any copyright shall be seized. Additionally, the infringing person shall be required to compensate for any loss (as may be determined) caused to the copyright owner.
As the intellectual property law in Nepal has always been questioned for its inefficiency, the Copyright Act seems lenient in regard to the punishment provisions and also the enforcement seems to be focussed on royalties and other aspects rather than strictly curbing the infringement. Intellectual property, recognized as the highest valued asset in the present era, needs a stringent law and even stricter implementation in order to address the evolving business scenario.