Copyright Infringement in Nepal

Copyright infringement is a serious issue in Nepal, as it is in many countries around the world. Understanding the legal framework surrounding copyright infringement is crucial for both rights holders seeking to protect their works and users of copyrighted material. This article explores various aspects of copyright infringement under Nepali law.

What Constitutes Copyright Infringement

Copyright infringement in Nepal generally occurs when someone uses, reproduces, distributes, performs, or otherwise exploits a copyrighted work without the permission of the copyright owner. Specifically, infringement may include:

1. Unauthorized reproduction of copyrighted works
2. Public performance or display without permission
3. Distribution of copies without authorization
4. Creation of derivative works without consent
5. Importation of infringing copies
6. Removal or alteration of copyright management information

It’s important to note that infringement can occur even if the entire work is not copied – substantial copying of protected elements can be sufficient for infringement.

Who Can File a Copyright Infringement Lawsuit

The following parties have legal standing to file a copyright infringement lawsuit in Nepal:

1. The copyright owner
2. Exclusive licensees, within the scope of their license
3. Collective management organizations, on behalf of their members
4. In some cases, non-exclusive licensees with specific contractual rights

To maintain a lawsuit, the plaintiff must demonstrate ownership of a valid copyright and unauthorized use by the defendant. Foreign copyright owners can also file infringement lawsuits, as Nepal provides national treatment to works protected under international treaties.

Remedies Available for Copyright Infringement

Nepali law provides various remedies for copyright infringement:

Civil Remedies

1. Injunctions to stop infringing activities
2. Damages to compensate for actual losses
3. Account of profits earned by the infringer
4. Delivery up or destruction of infringing copies
5. Seizure of equipment used for making infringing copies

Administrative Remedies

1. Customs seizures of imported infringing goods
2. Fines imposed by the Copyright Registrar’s Office

Criminal Penalties

1. Fines up to NPR 100,000 for first-time offenders
2. Imprisonment up to 6 months for repeat offenders
3. Both fines and imprisonment in serious cases

The choice of remedy often depends on the nature and scale of infringement, as well as the evidence available.

Fair Use Doctrine in Nepal

Nepal’s copyright law includes provisions similar to the fair use doctrine, although it is not explicitly called “fair use.” These exceptions allow limited use of copyrighted works without permission for purposes such as:

1. Private study, research, and criticism
2. News reporting and current affairs
3. Teaching and educational purposes
4. Parody and satire
5. Library and archival uses

When determining whether a use falls under these exceptions, factors considered include:

• Purpose and character of the use
• Nature of the copyrighted work
• Amount and substantiality of the portion used
• Effect on the potential market for the work

These exceptions aim to balance the rights of copyright owners with the public interest in access to information and knowledge.

Criminal Penalties for Copyright Infringement

Copyright infringement can lead to criminal penalties in Nepal, especially for large-scale or commercial infringement. Criminal sanctions include:

1. Fines ranging from NPR 10,000 to NPR 100,000 for first-time offenders
2. Imprisonment for up to 6 months for repeat offenders
3. Both fines and imprisonment for serious cases

Criminal cases are typically initiated by the state upon complaint from the copyright owner. The Copyright Registrar’s Office and police have the authority to investigate criminal copyright infringement.

Statute of Limitations for Infringement Claims

The statute of limitations for copyright infringement claims in Nepal is generally three years from the date the infringement was discovered or reasonably should have been discovered. However, for ongoing or continuous infringement, each instance may be considered a new cause of action, effectively extending the limitation period.

It’s important to note that:

• The limitation period may be suspended in cases of fraudulent concealment of infringement
• Criminal proceedings may have different limitation periods
• Courts have some discretion in applying limitation periods in exceptional circumstances

Rights holders should act promptly upon discovering infringement to preserve their legal rights and remedies.

Read More: 1. Documents for Trademark Registration in Nepal 2. Company Trademark Registration in Nepal 3. Copyright Act, 2002

Addressing Online Copyright Infringement

Nepal’s copyright law has been evolving to address the challenges of online infringement. Key aspects include:

1. Recognition of copyright in digital works and online transmissions
2. Prohibition of circumvention of technological protection measures
3. Protection against removal or alteration of rights management information

However, specific provisions for notice-and-takedown procedures or safe harbors for internet service providers are not yet well-developed in Nepali law. Rights holders often rely on general infringement provisions to address online violations.

Liability of Internet Service Providers

The liability of Internet Service Providers (ISPs) for user infringement is not explicitly addressed in Nepal’s current copyright legislation. In practice:

1. ISPs may be held liable for direct infringement if they actively participate in infringing activities
2. Secondary liability (contributory or vicarious) may be possible but is less clear under current law
3. There are no formal “safe harbor” provisions protecting ISPs who comply with takedown notices

As online infringement becomes more prevalent, there is ongoing discussion about the need for clearer legal frameworks addressing ISP liability and responsibilities.

Defenses Against Infringement Claims

Defendants in copyright infringement cases in Nepal can raise several possible defenses:

1. Fair use or other statutory exceptions
2. Lack of originality in the allegedly infringed work
3. Expiration of copyright term
4. Independent creation (without copying)
5. License or authorization from the copyright owner
6. First sale doctrine (for distribution of lawfully made copies)
7. Statute of limitations has expired

The success of these defenses depends on the specific facts of each case and the supporting evidence presented.

Registration Requirements for Infringement Lawsuits

Copyright registration is not mandatory in Nepal for a work to be protected or for the owner to file an infringement lawsuit. However, registration provides several advantages:

1. Creates a public record of the copyright claim
2. Provides prima facie evidence of ownership
3. May be required for certain remedies, such as statutory damages (if introduced in future legal reforms)

While not strictly necessary, registration is generally recommended as it can strengthen the copyright owner’s position in enforcement actions.

Calculation of Damages in Infringement Cases

Damages in copyright infringement cases in Nepal are typically calculated based on either:

1. Actual damages suffered by the copyright owner, or
2. Profits earned by the infringer attributable to the infringement

Factors considered in damage calculations may include:

• Lost sales or licensing fees
• Reputational harm to the copyright owner
• Scope and duration of the infringement
• Intentional or willful nature of the infringement

Expert testimony and financial records often play crucial roles in establishing damage amounts. Courts have discretion in determining appropriate damages based on the evidence presented.

Availability of Statutory Damages

Currently, Nepal’s copyright law does not provide for statutory damages in infringement cases. Damages are generally based on actual losses proven by the plaintiff or profits earned by the defendant.

The lack of statutory damages means that:

1. Plaintiffs must provide evidence of actual harm or defendant’s profits
2. It may be challenging to recover significant damages in cases where actual losses are difficult to quantify
3. There is less predictability in potential damage awards

There have been discussions about introducing statutory damages in future copyright law reforms to enhance deterrence and simplify some aspects of infringement litigation.

In conclusion, while Nepal’s legal framework provides various tools for addressing copyright infringement, it continues to evolve in response to technological changes and international norms. Rights holders, users, and intermediaries should stay informed about these developments to effectively navigate the copyright landscape in Nepal.

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