Copyright In Literary Works: A Study On Its Relationship With Authorship And Book Publishing With Reference To Nepal A Dissertation Submitted to the Faculty of Humanities and Social Sciences of Tribhuvan University in Fulfillment of the Requirements for the Degree of DOCTOR OF PHILOSOPHY In ENGLISH By Pustun Pradhan Tribhuvan University Kathmandu September, 2008 LETTER OF RECOMMENDATION We hereby recommend that this dissertation entitled “COPYRIGHT IN LITERARY WORKS: A STUDY ON ITS RELATIONSHIP WITH AUTHORSHIP AND BOOK PUBLISHING WITH REFERENCE TO NEPAL” prepared by Pustun Pradhan under our supervision be accepted by the Research Committee for the final examination in the fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY in ENGLISH. Dissertation Committee ------------------------------------------ Prof. Dr. Abhi Narayan Subedi Supervisor ---------------------------------------- Prof. Dr. Sangita Rayamajhi Expert Date: June, 2009 ii APPROVAL LETTER This dissertation entitled COPYRIGHT IN LITERARY WORKS: A STUDY ON ITS RELATIONSHIP WITH AUTHORSHIP AND BOOK PUBLISHING WITH REFERENCE TO NEPAL was submitted by PUSTUN PRADHAN for final evaluation by the Research Committee of the Faculty of Humanities and Social Sciences, Tribhuvan University, in fulfillments of the requirements for the Degree of DOCTOR OF PHILOSOPHY in ENGLISH. I hereby certify that the research committee of the Faculty has found the dissertation satisfactory in scope and quality and has therefore accepted in for the sought degree. Prof.Nav Raj Kanel, Ph.D Dean Chairman, Research Committee Faculty of Humanities and Social Sciences Tribhuvan University, Nepal Date: iii ACKNOWLEDGMENT I consider myself fortunate to work under the guidance of a person who is no other than himself a prolific writer and a distinguished literary figure – Prof. Dr. Abhi Narayan Subedi. It was his suggestion that I should explore the link between literary theories and the fundamental concepts underlying copyright. I wish to express my deep gratitude to Prof. Subedi without whose support and inspiration this thesis could never have seen the light of day. His investment was immeasurable. As an expert, Prof. Dr. Sangita Rayamajhi generously supported me with valuable comments and advice. I extend her my deep gratitude. I am deeply indebted to Prof. Dr. Pushker Bajracharya, then Executive Director of CEDA, who first gave me an opportunity to study in the field of copyright. I owe my gratitude to Bharat Pokharel, the incumbent Executive Director of CEDA, for his generous support to me. I am grateful to my wife, Jebin, for her forbearance and releasing me from the bulk of my household obligations. My son, Paribesh, did an excellent secretarial job for me saving much of my time and effort. My daughter-in-law, Shailee, has been gentle and generous in extending any support she could contribute. My love and thanks to both of them. iv I am keenly aware of the many institutional and personal debts I have incurred in writing this thesis. The list goes long. I simply wish to thank them all. My parents to whom I owe the deepest gratitude have always encouraged me to tread on the path of academic pursuits. Their love and support is my precious asset. To them I dedicate this thesis. Pustun Pradhan v ABSTRACT Copyright is an outgrowth of technology. The advent of printing press revolutionized the book trade but it also provided the means by which piracy became profitable. Copyright arose to control this piracy. Historically, it was publishers’ invention to maintain order and control in the book trade. In its origin, copyright has nothing to do with authorship and the promotion of creativity. It has been shaped much by the economics of publishing than by the economics of authorship. It was only much later copyright was introduced as a law of authorship and as a means of ‘encouraging learning’. By the Statute of Anne enacted in 1709 authorship came to be legally established as the source of copyright. Copyright subsists only in original works of authorship. The notion of originality in copyright is derived from the Romantic formulation of authorship and the creative process. All that originality means is that work should originate with the author –it should be an independent creation, not copied from someone else’s work. Copyright involves the adjustment of two equally competing interests with each limiting the other: the private interests of copyright owners, that is authors and those engaged in the production and dissemination of creative works, to earn profit from the market exploitation of their works and the interest of the public to benefit from the free use and sharing of creative works. Thus, the major tension in copyright is to balance these two interests in a way both can be optimized. Copyright seeks to reconcile these twin objectives by securing incentives to the authors through the grant of exclusive rights in exchange for the creation and dissemination of works vi Copyright in Nepal is a recent phenomenon. Despite a legal history of over 42 years behind it, copyright came to be implemented as late as 2002 when the new act replacing the 1965 act was enacted. This belated implementation of copyright, as the history of its development demonstrates, is primarily due to the non-existence of the condition precedent for the development of copyright. And this condition is the existence of market for books and other copyrightable products. A sound copyright regime is needed to promote the development of national creativity and culture and to sustain the national cultural industries. Unfortunately, copyright in Nepal is yet to receive any priority in the national agenda. And, given the ongoing political transition in the country, it is most unlikely that any serious attention will be given in the foreseeable future to entrench the regime of copyright. As this transition prolongs, it is the local authors and culture that would sustain an irreparable casualty in want of adequate protection. This study concludes that need for copyright protection arises with the growth and expansion of market for works of local authorship. It is critical to the promotion of local authors and local publishing industry. In short, it is an essential regulatory framework on which are based the whole edifice of modern literary and other cultural productions and their trade. The institution of copyright is therefore deeply rooted in modern economic system. vii TABLE OF CONTENTS Page TITLE PAGE i LETTER OF RECOMMENDATION ii APPROVAL LETTER iii ACKNOWLEDGEMENTS iv-v ABSTRACT vi-vii CHAPTER 1 INTRODUCTION 1-3 1.1 Promotion of Creativity and Learning 3-5 1.2 Economic Rationale of Copyright Protection 5-9 1.3 Subject Matter of Copyright Protection 9-14 1.4 Market Incentive 14-18 1.5 Public versus Private Interest 18-22 1.6 Technological Protection and Free Use of Copyright 22-26 1.7 Compulsory Licenses and Copyright Balancing 26-30 1.8 Chafee’s Six Ideals of Copyright 30-34 1.9 Commodification of Copyright 34-38 1.10 Need of the Study 39-42 1.11 Objectives 42-43 1.12 Methodology 43-47 1.13 Limitation 47-47 1.14 Organization of the Study 47-51 CHAPTER 2 AN OVERVIEW OF COPYRIGHT 52-52 2.1 The Battle of the Booksellers 52-52 2.1.1 Millar v. Taylor 53-57 2.1.2 Donaldson v. Becket 58-65 2.2 Publishers’ Right 65-68 2.3 Ownership of the Work 68-75 2.4 Fundamental Aspects of Copyright 75-81 2.5 The Principles of Copyright 81-82 viii 2.6 Authors and Copyright 83-88 2.7 Privileges and Stationers’ Copyright 88-90 2.8 Copyright and Censorship 91-93 2.9 Technology and Copyright 94-98 2.10 Author’s Exclusive Rights 98-98 2.10.1 The Economic Rights 98-99 2.10.1.1 The Reproduction Right 99-100 2.10.1.2 The Adaptation Right 100-101 2.10.1.3 The Distribution Right 102-102 2.10.1.4 The Public Performance Right 103-103 2.10.1.5 The Broadcasting Right 103-105 2.10.1.6 The Cablecasting Right 105-106 2.10.1.7 The Rental Right 107-107 2.10.1.8 The Public Lending Right 107-108 2.10.1.9 The Droit de Suite 109-110 2.10.2 The Moral Rights 110-111 2.10.2.1 The Right of Publication 111-111 2.10.2.2 The Right of Paternity 111-112 2.10.2.3 The Right of Integrity 112-112 2.11 Moral Right Under the Berne Convention 112-114 2.12 The Dualistic and the Monistic Theories 114-117 2.13 Limitations on Copyright 117-122 2.13.1 Free Use 122-123 2.13.2 Quotation 123-124 2.13.3 Teaching Purposes 124-126 2.13.4 Exceptions for the Use by the Press 126-129 2.13.5 General Exceptions to Reproduction Right 129-132 2.14 Non-Voluntary Licensing System 132-134 2.15 Implied Exceptions 134-135 2.16 Collective Management Society 135-137 2.16.1 Reprographic Reproduction Organisation 137-138 ix 2.17 International Protection 138-139 2.17.1 The Multilateral Conventions 139-141 2.17.2 The Basic Principles of the Berne Convention 141-141 2.17.2.1 The Principle of National Treatment 142-143 2.17.2.2 The Minimum Protection 143-144 2.17.2.3 The Principle of Formality-free Protection 144-145 2.17.2.4 The Principle of Independence of Protection 145-146 2.18 From the Berne to the TRIPS Agreement 146-150 2.18.1 Enforcement Provisions 150-150 2.18.2 Criminal Proceedings 151-151 2.18.3 Border Enforcement Measures 151-152 2.18.4 Dispute Settlement 152-153 2.19 WIPO Copyright Treaty and WIPO Performances and Phonogram Treaty 153-154 CHAPTER 3 PROPERTY IN LITERARY CREATIONS AND THE BASIC NOTIONS OF COPYRIGHT 155-155 3.1 Property in Literary Creations 155-158 3.2 Literary Property Debate 159-168 3.3 Debate on the Extension of Copyright Duration 168-171 3.4 Author as a Source of Literary Property 172-176 3.5 The Rise of an Individualistic Author: The Romantic Literary Criticism 176-181 3.6 The Basic Notions of Copyright 181-181 3.6.1 The Author 181-190 3.6.2 The Work 191-198 3.6.3 The Originality 198-208 3.7 The Death of the Author; The Post-Modern Literary Criticism 208-212 3.8 Modern Creative Process: Collective, Collaborative and Corporate 212-219 x 3.9 From Creativity to the Protection of Media 219-221 CHAPTER 4 DEVELOPMENT OF AUTHORSHIP AND COPYRIGHT IN NEPAL 222-222 4.1 Status of Authors in Nepal 222-231 4.2 The Early Copyright 232-237 4.3 Copyright Act, 1965 237-242 4.3.1 The Music Nepal v.