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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 Pakistan.

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 Pakistan or the date of promulgation of this Ordinance, which ever is the later.

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 land of Pakistan and any use of a registered software during such entry shall not be considered in infringement of the rights of owners of such registered software under this Ordinance.

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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