Updated: Wednesday July 03, 2013/AlArbia'a
Sha'ban 25, 1434/Budhavara
Asadha 12, 1935, at 08:15:27 PM
The Protection of Software Ordinance, 2000
WHEREAS it is expedient to effectively protect and
enforce the rights of the authors software, ensuring fair use software and to
provide for matters connected therewith and incidental thereto:
AND WHEREAS the National Assembly is not in session and
the President is satisfied that circumstances exist which make it necessary to
take immediate action;
NOW, THEREFORE, in pursuance of the powers granted to him
by Article 89(1) of the Constitution of the Islamic Republic of Pakistan, the
President is pleased to make and promulgate this Ordinance.
1. Short title, extent, and commencement
This
Ordinance may be called the Protection of Software Ordinance, 2000.
It
extends to the whole of
It
shall come into force at once.
2. Definitions
In
this Ordinance, unless there is anything repugnant in the subject or context:-
“Copyright
Ordinance” means the Copyright Ordinance, 1962 (Ordinance XXXIV of 1962),
as amended from time to time;
“commercial
rental arrangement”, in relation to a software, means an arrangement that
has the following features:
it
is in substance an arrangement under which a copy of the software is made
available by a person on terms that it will or may be returned to the person;
the
arrangement is made in the course of the conduct of a business;
the
arrangement provides for the copy to be made available:---
for
payment in money or money’s worth; or
as
part of the provision of a service for which payment in money or money’s worth
is to be made.
“intellectual
property rights” in relation to a registered software means the rights granted
by section 5 and protected by section 8;
“owner”
in relation to a software means the person who created the software and the successor
in interest of the intellectual property rights thereof; Provided that:
Any
software that is the unitary result of collaboration between two or more
persons shall, unless agreed between the parties, be their joint property, and
shall belong to all of them in proportions determined by them;
Where
a salaried worker creates a software in the course of duties entrusted to him
or on instructions from his employer, the ownership of the intellectual
property rights in the software so created, including both the source program
and the object program, shall belong exclusively to the employer, unless
otherwise agreed.
“prescribed”
means as prescribed by the rules;
“registrar”
means the registrar of software to be appointed by the Federal Government as per
the rules to be prescribed.
“registered
software” means a software in respect of which a valid registration
certificate issued under this Ordinance subsists;
“reproduction”
means the reproduction of a software by fixing into a tangible medium of expression
without adding creativity.
“rules”
means the rules to be framed by the Federal Government after consultation with
the representatives of software developing, marketing and distribution
companies, for giving effect to the provisions of this Ordinance.
“software”
means the expression of a computer programme, whatever may be the mode or form
of such expression.
3. Appointment of the Registrar
As
soon as may be but not later than ninety (90) days after the commencement of
this Ordinance, the Federal Government shall, by notification in the official
Gazette, appoint a registrar for the registration of software.
The
Registrar shall perform all such functions as may be delegated to him by the
Federal Government from time to time by notification in the official Gazette.
The
Registrar shall levy and collect fees and other charges in respect of any of
its functions at such rates and in such a manner as may be determined, from
time to time, by the Federal Government.
4. Registration of software
The
owner of a software may apply to the registrar for the registration of the
software within a period of 90 days from the date of its first release in
Along
with an application for registration the owner would be required to deposit
with the registrar the name/title of the software, a description in English
language of the characteristics of the software and if he so chooses the source
code of the software in a secure medium.
The
registrar shall comply with the requirements of the rules relating to the
registration of software and upon the satisfactory compliance by the applicant
of the prescribed requirements, the registrar shall issue a registration
certificate in respect of such software.
The
registrar may register any form of software but standard concepts and
techniques which underlie any element of a computer programme, including those
which underlie its interfaces, shall not be capable of being registered as
software.
On
receipt of the registration certificate as provided under sub-section (3), a
notice shall be published by the owner of such software in at least two
national newspapers detailing the features of the software, the date of
registration thereof and the address of the authorised dealers from whom such
software can be purchased.
Every
registration certificate granted under this Ordinance shall be valid for a
period of fifteen years from the date of its issue.
5. The intellectual property rights in
registered software
For
the purposes of this Ordinance intellectual property rights in relation to a registered
software shall include the exclusive right:
to
reproduce the software in any form permanently or temporarily, by any means, in
whole or in part;
to
publish the software;
to
broadcast the software;
to
make any alteration in the software and to reproduce the results thereof;
to
make any form of distribution of the software to the public, or within an
establishment, including rental, of the original software or copies thereof;
to
cause the software to be transmitted to subscribers to a diffusion service;
to
make translation, adaptation, arrangement or any other alteration of the
software and the reproduction of the results thereof;
to do, in relation to a software that is an adaptation of the first-mentioned
software, any of the acts specified in relation to the first-mentioned software
in subparagraphs (i) to (vii), inclusive; and
to
enter into a commercial rental arrangement in respect of the software.
6.
Transfer of intellectual property rights
The
owner of intellectual property rights in a software registered under this
Ordinance may transfer his intellectual property rights or any one or more of
them on such conditions and subject to such restrictions as he may deem
expedient. Every transfer of registered software shall require registration in
the manner prescribed.
7.
Grace period to obtain authorisation
All
persons owning, possessing, using or otherwise undertaking any act listed in
Section 4 above in respect of a registered software without the due
authorisation or license from the owner of the intellectual property rights
thereof, as on the commencement date of this Ordinance, shall for a period of
six months from the commencement date hereof, be deemed not to be in breach of
any provision of this Ordinance.
Notwithstanding
anything contained in this Ordinance, any law for the time being in force or
any contract, no department or organisation or entity owned, controlled or
funded, in whole or in part, by the Federal or any Provincial Government shall
incur any liability of any kind whether for damages, accounts or otherwise for
the infringement of any intellectual property rights in respect of any
registered software, whether under the provisions of this Ordinance or
otherwise, for the period terminating on the first anniversary of the commencement
date of this Ordinance.
8.
Infringement of intellectual property rights
Any
act referred to in Section 5, unless authorized by the owner of the relevant registered
software, shall be an infringement of the intellectual property rights of such
owner.
The
intellectual property rights of an owner of a registered software shall also be
infringed by,-
permanent
or temporary reproduction of the software by any means and in any form, in part
or in whole; or
translation,
adaption, reverse engineering, arrangement and any alteration of the software;
or
reproduction
of the results of the software; or
any
unauthorized publication, including rental of the software or copies thereof;
or
making
a reproduction of the software, or of an adaption of the software:---
from
an infringing copy of the software; or
contrary
to the express direction by or on behalf of the owner of the software.
Notwithstanding
the provisions of sub-sections (1) and (2) above, no infringement of any
intellectual property right of an owner of a registered software shall be
deemed to have been perpetrated if it is used for the purposes of any trial in
any court or tribunal established by any Federal or Provincial Government or in
a Research and Development Organization or in homes for purely non-commercial
use.
Any
presence of a registered software on foreign vessels, aircraft, spacecraft or
land vehicles, temporarily or accidentally entering the waters, airspace or
9.
Punishment for infringement of intellectual property rights in a registered
software
Whoever
commits an act which amounts to an infringement of the intellectual property
rights of the owner of a registered software shall be guilty of an offence
punishable with fine which may extend to three hundred thousand rupees, or ten
times the cost of obtaining the license for such registered software from its
owner, which ever is the greater.
When
any person is convicted of an offence under this Ordinance and a court imposes
a fine, the Court shall, when passing judgment, order that fifty per cent of
the fine so recovered shall be paid to the owner of the registered software in
respect of which the offence was committed.
No
court shall take cognisance of an offence under this Section except on a
complaint in writing of the owner of a registered software supported by a
certified copy of the certificate of registration issued by the registrar under
Section 4(3) above and an affidavit setting out the particulars of the offence
alleged to have been committed.
10.
Divulgence of unauthorised information
Any
employee or officer of the registrar or any other person dealing with the
registration of computer programme who discloses or reproduces any computer
programme or unauthorisedly divulges any information in respect of a registered
computer programme shall be punishable with imprisonment which may extend to
three years, or with fine which may extend to one million rupees, or with both.
11.
Evidence of Infringement
For
the purposes of this Ordinance use, possession, reproduction or distribution of
a registered software without proper authorisation or license from its owner,
shall, without any further evidence, be sufficient to establish willful
infringement of the intellectual property rights of such owner.
12.
Application of other laws and relief
This
ordinance shall not preclude, in respect of the protection of registered
software, the application of any other laws.
To
the extent that the provisions of this Ordinance conflict with the provisions
of the Copyright Ordinance 1962 (XXXIV of 1962), the provisions of this
Ordinance shall prevail.
Where
any of the author's right in relation to any registered software have been, or
are likely to be, infringed, he shall be entitled to an injunction restraining
the infringement of his rights.
13.
Rules
The
Federal Government may, by a notification in the official Gazette, make, amend,
modify or omit rules for carrying out the purposes of this Ordinance.
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