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Protecton of Intellecatual Properties  for the Prosperity of Literary Heritage in Nepal

February 13, 2022 by Pen Center in Industry News

Ram Kumar Panday, President, PEN Nepal

Intellectual properties (IP) have contributed  people living  around the world to enrich  intangible heritage of the mental works, creativity and culture. The cultural things enrich  the heart and head  of mankind.

IP right is one of the  major aspects of human rights. Rights of authors, illustrators, photographers and others creative works all are intellectual properties. Copyright as such  is a vital aspect to promote their activities. Legal  framework is essential to provide security of their works within and outside  the country.

With the development of IT, piracy of IP is growing . IP also became international  political priorities. We lack  even basic  concept and knowledge of copyright. Obviusly, personal creativity helps to enrich  cultural heritage as well as economic  prosperity for  which all should  show  concern  not only to  protect IP but also to promote for the cultural  contribution.

The Universal Declaration of Human Rights in the matter of Copyright in Nepal is not so  effective  due to lack of awareness and legal position. Though the copyright in Nepal is not so  effective due to  lack of awareness  and legal position. Though the Copyright  Act came for the first time  in 30 Sept 1965 (2022\5\14 B.S.), it was revised in 2002 (2059 B.S.) and came out  with  additional  rules in 2061 B.S. This was only  for offficial  use. This has got royal assent and published in  15 Aug. 2002 (30 Sawann 2059 B.S.)

There is difference between   cultural works  and technological  invention. For the technological  and mechanical  inventions,  there is Patents Right. Trademark Rights are to  protect product. Brands and Logos as such are related to companies . Also Designers Right protecting  designs of the product. All the given ‘industrial property rights’ referred as Intellectal Property Rights (IPR)

Literature is all forms of cultural works related to heart and head. Poetry, essay, novels like scripts and AV expression is the cultural  works  which is related to human thoughts  and feelings. Artistic expression moves  our feelings through minds and hearts.

Man needs nourishment not only  for the physical body but also for the heart and head. Cultural works  are food  for human emotions  and intellect impulse to activate  creativity. The oriental philosophy  as such  noted down that the man without  literature, art and music  is like  beast without horn and tail. As such  precious heritage  of intellectual outcome  and creation  has to be preserved  to enrich human  history.  Cultural heritage  of a tribe, a community and country is precious  achievement for all mankind. The concept of copyright  as such is  to protect such works  and creators socially and economically. This ultimately aimed to  preserve  originality and enrichment  of cultural heritage. Creation of cultural works are  the property of the world.

Copyright has long  history arund  the world . In Nepal, there was tradition of  handwritten  manuscript. Mostly , they were translated  works of copying of religious  and  few other types  of handwritten books.  With the development of printing  and explosion of creative works,   copyright has been  taken as an essential part to mention  before  the publication.  Some of the writer either  left or sold  to publisher while many kept copyright and all rights reserved by themselves.With the increasing  awareness , copyright  became a matter of concern mostly to the musical  world. Piracy as well as over use and misuse  caused debate and disaster to the cretor of the works. In the case of publication copying of even textbook and using  of creations without consent of the writer increased. All these gave birth to the act of intellectual property and thereby registrar office.The government for the first time  brought  Copyright  act  1965 (2022 B.S.) It was released in 2022\5\14 Gadget of the Government. This act has defined creation as article  and creation  of different genres of literature including pamphlet  and book. Similarly, drama, cinema and acting  have been incorporated . Picture, photo art etc and voice  script and record  also  included. Literature, music and art all sorts of creations have been pronounced . In 1989 (2046 B.S.),  there came rules based on  the given Act. In 2002 (2059) Act more eleboration was made  with the additional rules of 2004 (2061). It has defined much in musical  sector. Literature has been neglected.

In the global context, USA has iancorporated intellectual property  right in the constitution. Nepal has not defined much but later on different parties has tried to cover  in their manifesto. Till the new millennium there have beena many treaties in international level. 

International Conventions and Treaties

Though IP right depends on governmental and cultural policies of a country, globalization has resulted new problems with the increasing  trend of pirate music CDs and computer  software. Domestic  laws  compeld  to change. But  due to  its low level of  effect international authorities have initiated various solutions.

1. Berne Convention

The Berne Convention for the protection of literary and artistic works was established in  1886 as an older copyright treaty. This was revised in 1928 in Rome, in 1948 in Brussels and in 1975 in Paris. The United States joined  only in 1989. More than 155 States have contracted the treaty. Berne convention has protected all works including  those which were made  before  treaty except public property.

2. Universal Copyright Convention

This Universal  Copyright Convention  was established  in 1952 with the intermediation of  UNESCO. This has 98 member states.

3. Rome Convention

International convention for  the Protection of Performers, Producers of Phonograms and Broadcasting  Organization has 77 contracting states.

4. Phonogram Protection Treaty

Treaty for the  Protection of  Phonogram Producers also unauthorized.  Reproduction of Phonogram was established  in  1971 by UNESCO and WIPO. This aims to prevent  pirate phonograms. There are 73  member nations.

5. WTO Agreement

Uruguay  and the WTO Agreement which was held in 1986.

6. TRIPS

Agreemennt on Trade-related aspects of Intellectual Property rights has 147 countries. Intellectual property rights like copyright, trademarks, geographical indications, industrial designs, patents, layout design of integrated circuits, undisclosed information etc.

7. WIPO

World Intellectual Property Rights Organization  was established  in 1970.  It  has contents of protection of computer programs, compilations of data and database, transfer of rights for all works, commercial rights in computer programs, cinema autographic  works and  phonograms, right of communication to the public, protection for photograph, copy protection etc. It has 47 countries.

WIPO Performers and Phonograms treaty has 43 countries in contact.

Table:1. Each Country has Copyright  Law with Natural and Reasonable Rates

No Asian countries,  except Japan,  have agreed all Iternational Treaties. Philippines and Korea are other countries in Asia to accept most  of the international treaties. The countries  like Bhutan and Vietnam have not  agreed  any Iternational Treaties in Copyright. Even  Laos and Thailand  have low profile  till 2004.

In the EU area,  most of the countries agreed  International Treaties of various nature. In  Oceania,  Australia have high performances. Even America and Canada have not  completed all.

Works:

1. Literary: poetry, essay, novels, scripts.
2. Musical: musical pieces, lyrics etc.
3. Dance, pantomime works: choreography for dance such as ballet or modern dance  and for  pantomime etc.
4. Artistic Works: paintings, prints, sculptures, comics, calligraphy, stage sets, arts or crafts etc.
5. Architectural works: architectural designs and buildings.
6. Maps and diagrams: Maps, blueprints, diagrams, design drawings, figures, models etc.
7. Cinematography: movies for theaters, TV programs, video-game softwares etc.
8. Photographs: photographs, photogravures etc.
9. Programs: computer programs etc.
10. Derivative works: adaptation from an original work which includes translation, arrangement, modification or adopting  an original  work  and also edited  Encyclopedia, poetry collection, magazines and newspapers compilations etc lie in this section.

The rights of the Author

It consists of Copyright (property rights), moral and reign boning rights. A Copyright is  the right  of ownership which is  transferable. This property right  can be  converted  into  money. It is right to  copy or reproduce. It is more than  the property value  of the work.

Property right  to the work is Copyright. There are many types  of property rights.

1. Right of reproduction
2. Right of performance
3. Right of presentation
4. Right of public transmission
5. Right of recitation
6. Right of exhibition
7. Right of distribution, transfer and ownership and lending
8. Right of translation and arrangement, transportation and adaptation
9. Rights in the exploitation of a derivatives work.

When reproduce a recordd one must get permission from the performer, record producer (neighbouring rights) and  compose and lyric writing.

The protection depends on the types of work and author status. It is 50-70 years after the  death of the author. A work also  protected  for a specific  period which  determined by the  law.  Protection in general  resists 50  years after death of the author.

Various international  treaties have protected the exploitation of works which has crossed  national boundaries.

In Nepal, King Mahendra brought  Copyright  Act for the first time in 2022 B.S. Though it  has covered basic aspects, it was almost inactive for long time.

Main intention  of Copyright is intended  to encourage creativity.

There is the  Berne Convention and the Universal Copyright Convention, the World Trade Organization started in 1994 and came into effect in 1995. This has the agreement on  Trade-related  Aspects of Intellectual Property Rights (TRIPS). In 1996 the world Intellectual Property Organizaton (WIPO) established  the Copylright Treaty for the protection of digital networks in global level.

In exploiting  a work,  it needs  a contact which  grants permission. The ultimate objective is  to protect the profits. Permission must be  obtained from the copyright owner to exploit a  work. But there is  no need  such permission for quoting. Unpublished works can not be quoted.

Protection of intellectual property is  applied in both domestic and international level as signed in the laws and treaties within and between nations. A serious crime  is the stealing  of others property. Infringe act such as unauthorised use of registration by someone and  stealing all are crimes. CDs, DVDs, software’s, tapes and vedios selling in a low price in the street are most practiced astringents. They reproduced secretly without  permission and without any payment to copyright owner. This criminal offense is against the law.

Technological advancement has greater impact on communication infrastructure in 21st century. Digital technology  such as internet, e-mail and data communications became  vital subjects which facilitated simplicity in composition and reproduction. There are  creators and criminals. Hackers troubled  computer  networks. Civilized world must  respect copyright. This is ot only the common cultural  heritage but also the social legacy of mankind. Digitalization has made easier alternation and quality copying.

In Nepal, the state and status  of IP right is poor. Law is loose and creators as well as criminals are not  aware of their  works. The patents, design and  trademarks Act 1965, the Copyright Act of 2004 is not working  properly. Nepal became  the member of the WTO in 2004 and voic rising  to join  international community still lacks  public interest. Nepal lacks publicity. Still there are lots of loop holders which  provide  criminals benefit. Definition is not clear. It should be standardized to meet global level.

Nepal needs  the following  aspects to be cared while  revising  copyright act:

1. Sstandardization of royalty and remmuneration (in the rate, payment and price of the book).
2. Registration of agreement and collection of royalties to honour creators, control crimes of intellectual property.
3. Follow-up department in listing complains and complications.
4. Amendment of Intellectual Property Act should be done  by seeking suggestions and international practices.
5. Manuscript protection. Before publication, it became necessary to protect creation. After submitting article  in newspaper and\or during printing  process secrecy and originality may come out  from different channels. This hampers the  right of real creator.
6. Use of name and article without  permission in the wave.

The Copyright Act 2002 has defined ‘work’ literature, art and science and folowing fields as presented  originally  and intellectually.

1. Book, pamphlet, article, thesis.
2. Drama, dramatic-music, dumb show and a work prepared to perform in such manner.
3. Musical notation with or without
4. Audio visual works.
5. Architectural design.
6. Photography, painting, work of sculpture, work of wood carving, lithography and other work relating to arhitecture.
7. Photographic work.
8. Work of applied art.
9. Illustration, map, plan, three-dimensional work relating to geography and scientific article and work.
10. Computer program.

Still there lacks modulle, theory and method as well as propagation of new  sub-field of  studies  like Altitude geography as sub fields  of geography and   Journalism geography as a new field  of studies.

Protection of innovative ideas, inventions both tangible and intangible should be incorporated  in the Copyright Act. The new field of studies and its design also intellectual property.

The Copyright Act, 2002 has tried to forward some of the rules in 2004 (2061 B.S.) In the annex the application form  and the module of registration certificate is not specific to the field.

To regularise royalty, the provision of the collection committee  should be materialised even in the case of book publication. It should be added in the office of the Copyright Register’s Office.

In Nepal, writers are neglected by the publisher. Publisher pay in advance to the paper and  press while  writer, under whose creation, all  press and publication business evolves, even linger long time  in getting royalty. There is no rules and regulation to forward  selling  report to the author. As such a pool of manuscript should be created to  facilitate publisher within  pre-pared terms  and condition. Publisher should prepare  terms and condition to make  agreement which  should be controlled by the Register’s Office. Protection of  IP Right  means prosperity of tthe culture to enrich human civilization of a country like Nepal.

Trend and Directions

Nepali writers and creators do not  know  much about their right and duties. There is  different expression of creations recognized as a work. Nepali writers producing  different ‘works’ have been soaked by publisher, educationist and even government who  are using  freely  in publication, curriculum and textbooks. Website contins other’s work without informing  to the creator and writer. It is equivalent to the use of photos in  magazine. There are websites of publisher and distributors as well as agencies and individuals where important works have  been  used  without  taking any consent of the  creators. They use the author’s work without permission. In the case of  a joint work agreement is needed. Similarly, joint works of illustrators regarded artistic and the text as a literay work. In this case both will have their own independent copyright. There is no clarity in using this type of works.

In the case of folk tales, a local story teller can be protected legally. If some one heard and wrote it is not a new work. But if more new plots created to support gist of a story as a base it becomes a new work. There are  many  works of such nature in which the author has been  regarded as a writer.

Publisher must make a contact even to publish for the translion. Traslation right is protected. Film stories  have been distorted  without  taking  any consent of the author.

In the existing  rules of copyright,  no details have been mentioned to clarify writers work and creator’s copyright. The defination of ‘creation’ is limited to literature, art, knowledge-science and other fields where original and academic  creation of work has  been mentioned in the Copyright Act.  A ‘work’ is an original  and creative  expression of  thoughts or contents, not just a form of expression (ACCU, 2004, p. 50). There is no  definition of IP and IP rights.

Nepal should find out original system along with universal practices. The Act and Rules should be formulated  with the need assessment of individual field. We never came to know who has  prepared Act and rules for us. As such, better to recommend  several gatherings to discuss in different fields. Only then one can trace-out the real condition and needs of the nation.

Recommendations for the Promotion of copyright in Literature

Literature has been mentioned in the Copyright Act of 1965 (2022 B.S.) In defining the creation first mentioned was made on literature. In the Copyright Act of 2002 (2059 B.S.).  There are 10 types of work on which  book, pamphlet, article and thesis have been mentioned in the  beginning. But in the case of  creative  writing  no clear-cut mention has been made like  sound recording and broadcasting in the given Act. Audio-visual work has been  much  emphasized. As such, it will be better to recommend that  there should  be separate  Chapter of each types of work as mentioned  in the definitions. Because each  work has different  types of  problems  and constraints. Writer’s problems should be explored, explained and exposed to formulate  and\or revise act. Only lawyer can not  cover  actual  problems of the  literature. So existing  act  and rules  are not sufficent  to protect rights of the writer. To  improve  the situation following recommendations must be incorporated in the act and  rules of the rights.

1. In changing price, author should be informed. So that he\she could have reasonable royalty of the creation. There are many cases of price change by the publisher and also book seller. In the case of  Yeti Tells published by Sajha, the other agency has  changed the price. In their advertisement it is 5 times higher.
2. Author’s consent must be taken to include article in the curriculum, textbooks and or in the wave pages. So that he\she could claim royalty. Writers agreement is needed  to include  in any sorts of collection and use.
3. Permission of publication should not be given without  signing  contact paper and  royalty must be fixed  in a standard manner. Publisher should send report of selling annually.
4. A royalty cell should be established under Register’s office. It should be  collected through  bank by the royalty cell.
5. In the case of performance of any sorts the creator  get at least 50% royalty  and remaining  should be distributed  to other.
6. The Copyright Act 2059 (2002) and Copyright Rules 2061 (2004) should be revised to clarify different  aspects  of works.
7. The works published in a book under certain contact should not be used by other  publisher to translate and publish  without  author’s consent. Second part also should  manage  royalty according  to the rules  of own country. Because they pay  for all press process but  why not  to the writer? ACCU publication are translated in different languages but the publisher is not paying to the author.
8. Indian publication like Delhi, Nirala has not given  royalty  to the Nepalese author. And also selling  globally in different proices.
9. Register’s Office should have complained cell so that Nepalese  creator could  be saved  from different  Without the protection  from exploiter there is no meaning  of the copyright and intellectual property right.
10. Little Angel’s School used  article from different  writers in school textbook but there  were many complains letters printed in the daily newspaper showing dissatisfaction on royalty.
11. Writers are great asset of national heritage. The government should provide social security and national honor not only in the appointment of appropriate  field but also gurantee writers  freedom  OF expression. Government should  act actively in the  promotion of  publication by opening  libraries, subsidizing publication and developing  network of the distribution of publications. Coordination between GO, NGO, and INGO for the library  activities support  to enrich intellectual 
12. Srtandardization and regularization of copyright  of intellectual property needs to reform existing act and rules.
13. Government of Nepal has managed some budget to buy books for the school. But some of the publications monoploised in the selection of book for the school library.
14. Remuneration of article printed in the magazine and paper also differs one media house to other and within publisher organizations. It can be standardized. Media house paper hardly print literary materials and each of them have their own rules in remuneration distribution.
15. There is no any organization in raising voice of royalty and remuneration. Even Academies are creating humilation by not recognising senior writer in promoting their literary works. In fact, Government has no any clear criteria even in selecting academic members to serve national academies.

With all the given studies, Nepal needs strong Copyright Act to protect intellectual property of the literary creation. It can be achieved  through revising  act and rules. Similarly, Register’s Office can be reformed  to activate  for the acheievement  of IP rights. To achieve the goal  first  of all writers should be aware  of their own creation and IP rights. Still except room meeting  as a pach work  no any  national seminar has been  organised to discuss on the constraints, possibilities and prosperity of intellectual properties in Nepal. Governmennt agency  must work together with senior author, publisher as well as related persons and organizations to achieve the goal.

rkp@ntc.net.np