Nepali digital artists, along with Designers’ Community Nepal,
a public Facebook page for graphic designers in
“Some of the companies
admitted their mistake and deleted their posts,” said Diwas. “However, one of
the businesses responded rudely and instead became confrontational. They
finally deleted the image only when they received huge social media backlash.”
Diwas says that he
didn’t pursue legal action against the infringers because he didn’t have enough
knowledge about the copyright protection acts in
“I only wanted a
proper apology and credit for my artworks,” he said.
The issue of copyright
infringement of digital artwork gains traction on social media time and time
again when notable businesses use artworks without permission from the artists.
In a recent case,
Sunil Garbuja received a private message from his friend on January 1, 2022,
informing him that apparently one of his artworks had been used
without his permission. In the days that followed, he received even more
messages from his friends that multiple different businesses were using his
artwork without his knowledge.
Garbuja, an
illustrator and graphic designer based in
However, on December
30, 2021, eSewa posted an almost
identical artwork to the ‘Kauda’ artwork on the occasion of
Tamu Lhosar without any attribution to Garbuja. When Garbuja messaged the
official Facebook page of eSewa, he says that eSewa replied, “fairly quickly
but carelessly.”
“They didn’t read the
issue I was addressing, and responded with a cookie-cutter, copy/paste response
related to payment transaction issue,” he said. “The next day, they took down
the offending post, and then apologised via DM.”
While Garbuja is happy
that eSewa at least acknowledged their mistake and took down their posts, he is
unsure if that is enough reparation.
“While the post was
up, hundreds, if not thousands, of people saw my artwork without knowing that I
had made it. The damage had already been done,” said Garbuja.
In
The digital artists
the Post spoke to also say that they feel that the legal provision for
copyright protection is too complex and that they would rather not pursue legal
action against copyright infringement. Nepal Copyright Registrar Office in
Bhimsengola of Kathmandu is the authority tasked with handling all
copyright-related issues.
Registering an artwork requires submitting an application to the
Registrar Office by the author along with proof of ownership and an application
fee of Rs 100. After the application, the author of the work needs to convince
the registrar and concerned officials of the originality, creativity, and
authorship of the work. The whole process of registration can take anywhere
between one week to one month.
According to the
statistics given by the Nepal Copyright Registrar Office, from July/August 2016
to June/July 2021, 17 works under ‘Art/Painting’ have been registered. Whereas
from July/August 2021 to November/December 2021, only one work under
‘Art/Painting’ has been registered. In total, from July/August 2004 to
November/December 2021, only 2,166 copyright registrations have been
successful.
While Section 5 of the
Copyright Act states that “registration of a work, sound recording, performance
or broadcasting shall not be required to acquire the right under this Act,”
artists are advised to register their work for copyright protection if they
intend to pursue legal action against copyright infringement.
Kumar Silwal, an
associate at Sinha Verma Law Concern, says, “In theory, all works are given
copyright protection without registration as stated by Section 5 of the
Copyright Act. However, we still advise authors to register their artwork to
make their infringement cases strong when they go to court.”
But registering
digital artwork can be easier said than done. Section 2(a) of the Act defines
the word ‘work’ as “any work presented originally and intellectually in the
field of literature, art and science.” However, it does not specify digital art
in the definition of ‘work’, so digital artists have difficulty registering
their digital artwork for copyright protection.
Bigyan Prajapati, a
graphic designer and digital artist, says that the process of registering
digital artwork is unfeasible. He created the iconic characters of Baucha O Maicha,
two fictional Newa characters. Since other third parties started using his
characters as t-shirt designs without his permission, he attempted to register
his artwork for copyright protection.
“When I went to the
Registrar Office to copyright my characters, I was told that I couldn’t
register the characters themselves but only specific artworks,” said Prajapati.
“And as I had created almost 200 different artworks featuring Baucha O Maicha,
registering all of them was not financially feasible.”
As an alternative,
Prajapati was advised to trademark his characters. However, since trademarks
are only given to businesses, he had to establish a business and then only was
he able to trademark his ‘Baucha O Maicha’ characters.
Copyright infringement
has also been classified as a criminal offence instead of a civil offence which
means that the copyright infringement cases are offences against the state and
carry imprisonment punishment.
Section 27 of the Act
states that in cases where any person infringes protected rights, “such a
person shall be punished with a fine of a sum from ten thousand to one hundred
thousand rupees or with imprisonment for a term not exceeding six months or
both [for the first offence].”
Priyanjana Bhattarai,
who founded Kala Legal, a law
firm specialising on IP (Intellectual Property) protection, says, “While
copyright infringement being a criminal offence creates fear among the
infringers since the punishment for infringement includes imprisonment, the
downside is that artists have to file an FIR and begin a lengthy court
procedure against the infringers.”
The lengthy process
for compensation and the fact that artists have to file an FIR has led to most
artists preferring not to take legal action and instead preferring to raise their
voice on social media against copyright infringers. In cases of copyright
infringement in
When businesses
receive backlash for using copyrighted artwork, most of them simply issue a
private apology and take down their social media posts. Artists rarely receive
financial compensation for the illegal use of their artworks.
Ananda Maharjan, a
graphic and type designer who is the creative head at Hamro Patro, has had some
instances where his typefaces, artworks, and photos were used without his
permission or knowledge. He would simply message the copyright infringers to
delete the copyrighted artworks and pictures, he said.
Recently, when one of
his typefaces was used without his permission, he received financial
compensation just because the business wanted to keep using the typeface, so he
reached an agreement with the business.
“Normally, these cases
of copyright infringement are done by junior designers or inexperienced digital
marketing agencies,” said Ananda. “Most businesses and even digital marketing
agencies are not aware of copyright protection and its legal provisions in
However, there are
positive changes around the corner as IP protection garners increased attention
in
The draft bill to amend the
Copyright Act, known as the First Amendment to the Copyright Act
2059, was announced in early 2020 but hasn’t been passed yet.
Bhattarai says that
while the bill may not be completely inclusive and is still a bit behind in
times, it is a step in the right direction.
“The bill has expanded
upon the definition of ‘work’ to include more creative works like translation,
any work in 3D, mobile apps, etc.,” says Bhattarai. “While the bill still does
not address the damage calculation aspect of financial compensation, the fine
provided by Section 27 has been proposed to be increased to Rs 20,000 to Rs
200,000 from Rs 10,000 to Rs 100,000 for the first offence.”
Shranup Tandukar
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