The Durationator® Files:
Commentary and Supplemental Primary Documents Related to Copyright Law Around the World
(last updated 2019)
I. History of the Country
A. Political History
Afghanistan was under British rule until 1919, after the Ango-Afghan War, lasting between May and August 1919. Beginning after the British withdrawl from neighboring India in 1947, Afghanistan has been in war-torn turmoil, in particular in the 1970s, 1990s, and 2000s-present.
B. Copyright History
Afghanistan adopted its first copyright law in 2008. Afghan may have been under British rule regarding copyright until 1919, but more research is needed to confirm. Between 1919 and 2008, it appears that only a 1950 Press Act was passed. According to World Copyright: An Encyclopedia, edited by H.L. Pinner, (A.W. Sijthoff, Leyden (Holland)(1958), no copyright law was found as of 1958: "The Mahommedan legal system does not recognize such rights and is completely wanting in this respect." Vol 1, p. 1. More research is needed regarding Afghanistan copyright law.
Research in progress before 2008.
C. Treaty Relations
Until March 1, 2018, in the United States, Afghanistan had no treaty relations with regard to copyright law, and no presidential proclamations. Therefore, according to 17 USC 104(b), published works of Afghanistan origin are not protected in the US. No works have been restored. Note, however, that unpublished works do not require treaty relations, and therefore all unpublished works of Afghanistan origin are protected in the U.S. by either 17 U.S.C 303(a) (for works created and not published before January 1, 1978) and 17 U.S.C. 302 (for works created on or after January 1, 1978).
On March 1, 2018, Afghanistan joined the Berne Convention.
A. Current Laws
Law Supporting the Rights of Authors, Composers, Artists and Researchers (Copyright Law) (2008) (available at WIPO Lex)
B. Previous Laws
none; before 1919, works may have been protected by UK copyright law.
III. Additional Commentary and Notes
The Ministry of Information and Culture implements the copyright law for Afghanistan. Article 4, The law of support the right of Authors, Composers, Artists and Researchers (Copy Right Law) 2008 (Afghanistan)
Afghanistan has a fixation requirement in a "tangible medium of expression that is known now or means that will be developed later, which are perceived, reproduced or communicated in a different way either directly or with the aid of a device." Article 5,The law of support the right of Authors, Composers, Artists and Researchers (Copy Right Law) 2008 (Afghanistan). Sound familiar? Like Section 102(a) of the 1976 Copyright Act? We know from article The Clean Slate (see below) that the US was involved in the drafting, and that US influences can be found in the law. Here is one very identifiable example.
What is not protected is the vaguest statement we have seen so far: "The provisions of this Law shall not protect works which are in contradiction with the provisions of this Law." Article 8, The law of support the right of Authors, Composers, Artists and Researchers (Copy Right Law) 2008 (Afghanistan)
Another interesting element is contained under the basic term "life plus fifty," where the term includes the phrase, "unless the author has decided differently." Article 16, The law of support the right of Authors, Composers, Artists and Researchers (Copy Right Law) 2008 (Afghanistan). This reflects our time, likely with Creative Commons and other limiting licenses where authors are more aware of limiting their own term of copyright. It is also interesting that there is a distinction between works published during and after the lifetime of the author, including a right for the Minister of Information and Culture to allow for the publication or broadcast of the work. See Article 14,The law of support the right of Authors, Composers, Artists and Researchers (Copy Right Law) 2008 (Afghanistan)
No specific term for phonorecords (or sound recordings) is included, even though there is a definition. Photogaphy and paintings are given a special term under Article 16(1)(6), leaving one wondering if other types of works fall under the basic term? No specific term for phonorecords (or sound recordings) is included, even though there is a definition. Photogaphy and paintings are given a special term under Article 16(1)(6), leaving one wondering if other types of works fall under the basic term? Also, anonomous works are not directly included, but metaphorical (pseudonym) names are. See Article 16(1)(3), The law of support the right of Authors, Composers, Artists and Researchers (Copy Right Law) 2008 (Afghanistan). Also, broadcast is usually measured from the broadcast. In this law, broadcast is the right to reproduce the broadcast for publication, and therefore, the term is 20 yaers from publication, rather than from the broadcast itself. Article 19, The law of support the right of Authors, Composers, Artists and Researchers (Copy Right Law) 2008 (Afghanistan) There is also a very generous translation right in Article 44.
(1) Any Afghan citizen may obtain from the Ministry of Information and Culture a nonexclusive and nonassignable license for the translation of a foreign Work, published in a printed form or any other form, and for the Publication of this translation in a printed form or any other form, after three Years from the date of the first Publication of this Work and provided that no translation of this Work was previously published in the State by the owner of the translation right or with his or her consent or upon the depletion of the translated editions.
(2) Any Afghan citizen may obtain from the Ministry of Information and Culture a nonexclusive license to reproduce and publish any published Work according to the following conditions:
1 Broadcasted Work of poetry, theater, music or art book.
2 Lapse of seven Years from the first Publication of novel, or after five Years from the first Publication of all other Works
3 Copies of the Work were not distributed in the State to satisfy the needs of the public or for school or university education by the Owner of the Reproduction right by or with his or her consent and for a price similar to the prices of similar Works in the State, and
4 The published copy is sold according to the provisions of this paragraph for a price which is similar or less than the price provided for in Section (2) of this paragraph.
(3) The translation licenses provided for in paragraph (1) of this Article are granted for the purposes of school and university education or research, whereas Reproduction licenses, provide for in (2) paragraph of this Article are granted only for the use in school or university education.
(4) Where a translation or Reproduction license is granted, the Author of the original translated or reproduced Work shall be entitled to a fair compensation in conformity with the criteria of economic rights applied for voluntary licenses between Persons in the State and Persons in the Author's country.
(5) The conditions and procedure of grant of licenses, provided for in this Article, are regulated by the Ministry of Information and Culture in a separate regulation.
At this time, it appears that Afghanistan copyright only applies to works directly attached to Afghanistan. See Article 47, The law of support the right of Authors, Composers, Artists and Researchers (Copy Right Law) 2008 (Afghanistan). This is likely because Afghanistan is not part of Berne or the WTO. Article 47 does allow for protection if simultanteously published in Afghanistan within 30 days.
One odd element of the law is that it mentions that works are protected as long as the work had not "lapsed under a previous legislation." Article 47, The law of support the right of Authors, Composers, Artists and Researchers (Copy Right Law) 2008 (Afghanistan). Afghanistan has had numerous other laws related to cultural property and othe areas of culture. We are researching to see if there were any previous copyright laws, even though common sources indicate that 2008 was the first law.
For a particular good article retelling the creation of the first copyright act in Afghanistan, see Patricia Wick and Jacqueline Kloesk, The Clean Slate: Drafting Afghanistan's first copyright laws, Copyright World, November 2003, http://goodwinprocter.com/~/media/Files/Publications/Attorney%20Articles/2003/The_Clean_Slate_Drafting_Afghanistans_First_Copyright_Laws.ashx The authors were part of the Intellectual Property Working group of the Afghanistan Transitional Commercial Law Project, which was a joint intiative between the ABA and the Center for Management Education. The article describes the new law as based on the Qatar and UAE copyright laws, combined with some elements from the US copyright law. Copyright law came after trademark law was in place. Protection of folklore was included becasue of Afghanistan's rich folklore history. The current law also was intended to make it easy for Afghanistan to join the WTO at a later date, so that the country would be in compliance with TRIPs.
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Treaty relations with the US? Yes
104A applies? Yes, as of 2018
Basic system: Life+50
(Separate terms for paintings, photographs, posthumous and audiovisual)
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