A remedy in the form of statutory damage is in practice in India as well as in USA. In this statutory damage, the court may order against the infringing party without the need for the copyright owner to prove the loss s/he has suffered. Such a remedy supports the creators and copyright owners
Copyright Act, 2022 of Nepal has classified the rights of copyright owners as economic rights and moral rights. It has also defined and has made provisions for the protection of the rights of the creators and copyright owners.
With respect to the legislations regarding intellectual property laws here in Nepal, this Copyright Act is more recent than the other act, which is the Patent, Design and Trademark Act, 1965.
Therefore, this Copyright Act, 2002 is also in compliance with international agreements like TRIPS.
Also, Nepal ratified the Berne Convention for the Protection of Literary and Artistic Works in 2006, which is for the protection of the rights of the copyright owner.
This Copyright Act has provisions regarding infringement of such protected rights of the copyright owners and punishment for the same.
It has listed a number of activities that are said to infringe upon the protected rights of copyright owners.
Reproducing copies of the work of the creator and selling or renting it out, using the work for publicity or advertisement with the motive of taking advantage of the reputation gained by the work, making an attempt to take benefit by adapting any work directly or indirectly with the intention of making the viewer, listener or reader believe it to be another work and taking any sort of economic benefit from the original creation are some of them.
However, provisions for punishment for such infringing activities are very surficial and not mentioned in detail.
And the infringer, as per this act, is rather penalised through a fine or imprisonment, and the legislation does not seem much focussed on compensatory damage to the creators.
In a case of the Government of Nepal versus Netra Prasad Pokharel, on the infringement of the protected rights of author Shiva Khera and publisher Mc- Millian India Ltd. of the popular book You can Win, the court held the defendant liable, and the infringers were punished with a fine, but the compensation claimed by the plaintiff was not granted.
In another case of copyright infringement of the economic rights of the two by the defendant, Jigyasu Publications of Urlabari, Morang, the infringers were held liable and penalised with a fine, and the compensatory damage granted to the copyright owner was far less than what they had claimed.
Also, in another case of the Government of Nepal versus Bheshjung Baadal, the plaintiff filed a plaint claiming that the defendant had translated the book of the plaintiff with problematic translation of the title ‘The King versus The People’, besides carrying out unauthorised translation of the whole book.
The plaintiff also demanded compensation, claiming that the translated book had a price of $27 and at least 1,000 copies of it had been sold.
So, the plaintiff had demanded $27,000 in compensation.
On this, the court recognised that the economic rights of the author had been violated and made the defendant liable for payment of a fine of Rs 50,000 and compensation of Rs 700,000 to the plaintiff.
This amount was estimated by the court itself on the basis of the price of the book in Nepali rupees as well as US dollars and sold copies of the book, which was assumed to be 1,000 copies as claimed by the plaintiff.
So even though the claim of the plaintiff was pretty much clear, the court here had very critically analysed the damage claimed by the plaintiff, and a third of the compensation was granted.
Thus, where realising and proving the damages are very calculative and technical for the copyright owners and where statutory damages are lacking, such provisions seem deterrence -focussed, which means that the provisions are rather focussed on punishing the infringer by criminal sanction.
This type of criminal liability on the infringers can be effective as this may reduce the frequency and harm of such infringements, and this might benefit the creators and copyright owners, but in an indirect manner.
Even though punishing the infringer in any way benefits the creators, such indirect benefit might, however, not motivate the creators to engage in new creations in the future.
Also, in a developing state like ours, there are very few aspiring writers/ creators who see a career in creating creative works.
This is all due to lack of security and lack of recognition in the field.
On top of that, the only legislation protecting the creation and intellectual property of the creators has provisions focussed on deterring the infringers by punishing them rather than supporting the creators.
An incentive-oriented provision would help deter such infringement besides motivating the creators to keep on creating original works in different fields.
A remedy in the form of statutory damage is in practice in India as well as in USA. In this statutory damage, the court may order against the infringing party without the need for the copyright owner to prove the loss s/he has suffered.
Such a remedy supports the creators and copyright owners, as incentives in the form of remedy with less complexity might trigger the creators to further invest in creative works.
However, applying statutory damages is not that easy because it requires strong legislation and good judgment to fairly punish the infringers.
Sometimes there might be an infringement but no economic loss as such, and sometimes there might be only an intention to earn from such infringement.
So, distinguishing such commercial infringers from non-commercial ones, and punishing them accordingly would also help.
Thus, a balance in judgment is necessary and crucial for statutory damages because compensation to the copyright owners and punishment to the infringers somewhat depends upon the judge’s discretion.
Regmi is an associate at Apex Law Chamber
A version of this article appears in the print on February 9, 2021, of The Himalayan Times.