Failure copyrights registration does not invalidate the right to sue
S J Tubrazy
Mere failure to get the copyright registered does not invalidate or impair the copyright nor destroys the right to sue for copyright infringement. Register of Copyright and index is prima facie evidence of the particulars entered therein and only raises a presumption that the person whose name is entered in the Register is the author of the Copyright but such presumption is not conclusive.
A bare reading of section 39 of the Copyright Ordinance, 1962 shows that the use of expression “may” is permissive and does not make it obligatory for an author to get the copyright registered. One cannot infer from the language of section 39 any meaning making the registration compulsory or mandatory for the enforcement of the copyright. The natural and ordinary meaning of the word “may” would make the registration optional and not compulsory. The words “may” and “shall” in legal parlance are interchangeable, depending upon the context in which they are used but legislative intent is to be seen and given effect to.
Similarly the phrase used in section 42 says that the Register of Copyrights and indexes shall be the prima facie evidence of the particulars entered therein. It only raises a presumption that the person whose name is entered in the register is the author of the copyright. It certainly does not make the presumption conclusive.
It is discretionary with any author of any work to apply for the registration of copyrights and registration as such does not confer any rights. There is no other provision at all which confers rights on account of registration of a copyright. Therefore, copyrights exist whether the registration is done or not and the registration is merely a piece of evidence as to when a certain author started claiming copyrights in some artistic or some other work.
The mere failure to get the copyright registered does not invalidate or impair the copyright, nor destroy the right to sue for copyright infringement. Registration is not a condition precedent to the securing and preserving of a copyright. This leaves no scintilla of doubt that the registration of the copyright with the Registrar is not mandatory for bringing a suit for infringement of the same. (Ref 2003 C L D 1052).