The labyrinth of copyright litigation

All too often, the burden of evidence falls on the victim of the intellectual property theft

Crime: Producer of animation film Ap Bokto, Karma Dhendup, is hunting for evidence to register a case with the police after the film, popular with children, was leaked about a month ago.

It is getting late for the producer. “The damage is already done, as the movie was made available on USB drive four months after its release,” he said.  But without concrete evidence of infringing copyright, he couldn’t register the case last week.

While the source of the leakage is suspected to be from his office, the producer suspects the film had gone viral after it was loaded in the servers of two organisations in Thimphu.  He refused to name the organisations.

While Karma Dhendup is busy gathering evidence, he is not alone in the battle against copyright infringement, which those in the creative industry said was rampant.  Copyright infringement cases, especially related to the entertainment industry, are rampant since the industry started to grow.

Motion Pictures Association Bhutan’s (MPAB) executive director Yeshi Dorji said copyright infringement is a major issue for the industry.“ It happens during the post production period and when films are screened,” Yeshi Dorji said.

While MPAB hasn’t heard from the producer of Ap Bokto, the association dealt with two cases last year.  One was solved internally, while the other case was filed with the court.  Although copyright infringement issue is quite rampant, filmmakers and producers said it was a hassle to report it to enforcement agencies, owing to their incompetency to solve the cases.

Ap Bokto’s producer said he was asked to produce concrete evidence, after which police would help him forward the case to the court.

On the other hand, police officials said people hardly come forward to complain.  Police chief, Brigadier Kipchu Namgyel said when people registered complaints, police investigated the case in line with the existing laws.

“I can’t comment whether or not we’re competent enough to handle copyright infringement cases, but we act as per the due process of law,” Brigadier Kipchu Namgyel said. “From what was reported to us, it’s usually one of the staffs who leaks it.”

Officials of the intellectual property division (IPD) of the economic affairs ministry said that only a few infringement cases were reported to them in the past, which they attribute to producers not being responsible enough.

“The cases of “leak” can be categorised as an infringement of copyright, when a person without the consent of the owner of copyright circulates the work and affects the economic and moral benefits of the owner,” an official said.

When cases are reported, IPD facilitates by providing prima facie evidence for those works, which have been voluntarily deposited and registered with the division.  Until today, more than 60 voluntary copyright works have been registered with IPD in the field of literary, artistic and dramatic works.

As per intellectual property legislation, copyright piracy or infringement cases are handled by owners of the intellectual property and enforcement agencies, like the customs, police and judiciary.

MPAB’s former general secretary, Sherub Gyeltshen, said copyright didn’t mean the right to copy, which people should be mindful of.  Piracy and copyright infringement issue, Sherub Gyelsthen said, was expected to increase as the industry grows.

“Although intellectual property laws are in place, people don’t respect them,” he said. “It also becomes the producer’s responsibility to protect their work from getting leaked or pirated.”

During his tenure as the MPAB secretary general, Sherub Gyeltshen said cases were dealt with in two ways.  If the complainant had concrete evidence, the case was forwarded to police as a criminal case, and if based on suspicion, it was registered as a civil case in the court.

However, it was not without issues.

“There were times when the case couldn’t be registered either with police or court,” he said. “Running from pillar to post, the complainant would often lose all evidences and the will to fight the case.”

While it’s the duty of the law to protect copyright infringement or ownership issues, High Court justice Lungten Dubgyur said protection of one’s work is also the owner’s primary responsibility.

When a copyright infringement occurs, Lungten Dubgyur said sources, intermediaries and end users who benefitted from it would be held accountable.  After a court case, the only remedy is to recall the CDs or the copies shared.

“The owner can claim the losses, compensation and damages, as they can be deprived of their right to earn out of his own work owing to the infringement issue,” Lungten Dubgyur said.

In the age of digital technology, where sharing of leaked movies and songs have become a lot easier, police and judiciary officials said, once it crosses the national jurisdiction, it was beyond their means.  Aided with technology, officials said infringement issues could continue to rise for which awareness and public education was a must.

Justice Lungten Dubgyur said people must take moral responsibility not to get involved in distribution of works over which they don’t have legal ownership.

IPD officials said digital technology and networks have a profound effect on how copyrighted works are delivered to the public.

“The tools available today have changed the nature of what creators are able to produce and how they share their works with public, and the ways the public can access the content,” an official said.

By Kinga Dema

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