Copyright Law in Zimbabwe

Intellectual property has become one of the most important contributors to the national economics of Zimbabwe by generating tax revenue, creating jobs and fostering innovation. There is therefore need for the protection of intellectual property rights. Zimbabwe is a member of the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’), the Berne Convention for the Protection of Literary and Artistic Works, the African Regionally Intellectual Property Organisation (‘ARIPO’) and the World Intellectual Property Organisation (‘WIPO’).

The Copyright and Neighbouring Rights Act [Chapter 26:05] is the principal legislation in Zimbabwe governing the law on copyright. The Intellectual Property Tribunal in Zimbabwe which is a specialised division of the High Court of Zimbabwe and established by the Intellectual Property Tribunal Act [Chapter 26:08] has jurisdiction to deal with all matters arising from the Copyright and Neighbouring Rights Act [Chapter 26:05].

Section 9(1) of the Copyright and Neighbouring Rights Act [Chapter 26:05] (‘the Act’) defines a copyright as real right which subsists in a work by virtue of the Act, and which entitles its owner exclusively to do in Zimbabwe and to authorise others to do in Zimbabwe the things which this Act designates in relation to that work.

In S v Chiadzwa 2004 (1) ZLR 211 (H) 214, the Harare High Court held that:

“Copyright must be understood, therefore, as a legal term which describes the rights given to creators for their artistic and literary works. Sculptures, as I have already mentioned, are artistic works. The creators of the original works are protected by copyright and they, or their assigns have the basis right to the exclusive use or authorization to others to use their works on agreed terms. The creator of a work can for instance prohibits or authorise its reproduction in various forms. It is important to be in mind that copyright law protects only the forms of expressions of ideas not the ideas themselves.”

In terms of section 128 of the Copyright and Neighbouring Rights Act [Chapter 26:05] no copyright or right in nature of copyright exists under common law in Zimbabwe. The Supreme Court in Sony Pictures Television UK Rights Ltd v C Media Africa (Pvt) Ltd & Another SC 129-21 at para 59 interpreted section 128 of the Copyright and Neighbouring Rights Act [Chapter 26:05] as follows:

“Clearly, therefore, the appellant’s right or claim must find its residence in an identified section of the Act or another statutory provision. The protection sought under cover of an audio-visual work cannot be substantiated under the Act because the “format” of Dragon’s Den does not fit into the Act’s definition of an audio-visual work. No other provision has been cited or invoked under which copyright should be accorded to the format. A format does not fit into the Act’s definition of an audio-visual work. Neither is format listed as a work eligible for copyright protection.”

The Copyright and Neighbouring Rights Act [Chapter 26:05] does not define the concept ‘neighbouring rights’. However, neighbouring rights or related rights are simply rights relating to performances, producers or sound recordings and broadcasting organisations.

Neighbouring rights are also known as entrepreneurial rights. They are secondary rights in nature to copyright as they are usually fixated in sound recording or audio-visual works. The South African Supreme Court of Appeal in South African Broadcasting Corporation v Pollecutt 1996 (1) SA 546 (SCA) at page 23 held that:

“The right of the performer can also not exist without the literary or artistic work. The same applies to the rights (copyright or otherwise) of the producer of a sound recording or phonogram. That is why the rights of the Rome Convention are sometimes called neighbouring or secondary rights. The rights of the producer of a phonogram are, similarly, dependant upon the rights of the performer because without the performance there can be no phonogram.”

In terms of section 10 of the Copyright and Neighbouring Rights Act [Chapter 26:05] the following works, if they are original, are eligible for copyright:

Artist works

Audio – visual works

Broadcasts

Literary works

Musical works

Programme-carrying signals

Published editions

Sound recordings.

Furthermore, a copyright exists in original artist work, literary and music works, and includes essays, drawings, films, manuals, paintings, poems, sculptures, stories, treatise and other such works. The Copyright and Neighbouring Rights Act [Chapter 26:05] does not define the concept of originality or lay out the test to be applied to determine the originality of the work. Such function of defining the concept of originality has been left to the courts. see, Kalamazoo Division (Pty) Ltd v Gay & Others 1978 (2) SA 184 (C) 190.

The Harare High Court in Kanyenga v Harare Institute of Technology & Others HH 115-21 at para 24 held that:

“Copyright protects original works that are fixed in some medium. It does not protect facts or figures, ideas, discoveries, concept systems of methods of operation. The ideas expressed by a work must be original for copyright to subsist in it. In copyright infringement case, the work allegedly copied or produced must be eligible for copyright in terms of the Copyright Act.”

In addition, work is eligible for copyright protection in terms of section 10 of the Copyright and Neighbouring Rights Act [Chapter 26:05] if, the author, or in the case of a work of joint authorship, any of the authors was: (a) a citizen of Zimbabwe or a designated country; (b) domiciled or ordinary resident in Zimbabwe or a designated country or (c) in the case of a body corporate, incorporated under the laws of Zimbabwe or a designated country.

In terms of section 17 of the Copyright and Neighbouring Rights Regulations, 2006 the following are designated countries:

Any member of the Berne Convention for the Protection of Copyright Works; and

Any member of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS Agreement).

The Harare High Court in Mbare Film Traders Association & Others v Zimbabwe Music Rights Association & Others HH 298-12 at page 3 held that:

“This is so because Zimbabwe is a member of the Berne Convention and a signatory to the TRIPS Agreement. In terms of s 11 of the Act, works that are eligible in terms of s 10 shall qualify for protection if at the material time, the work’s author or any one of its authors, in the case of joint authorship, was a citizen of Zimbabwe or a designated country. The designated countries are published in Statutory Instrument 256 of 2006. Cinema houses broadcasting stations who pay fees to copyright holders, as well as the authors of such works deserve protection afforded by the Act…”

Originality is a requirement of the law in Zimbabwe, as the law of copyright protects an author’s intellectual original and independent creation. For a work to be eligible for copyright, it must not be copied and must originate from the author’s own skill and labour which must not be trivial. see Waylite Diary CC v First National Bank Ltd 1995 (1) SA 645 (AD).

Copyright protects the expression of ideas in a work as a whole but not the ideas themselves. Section 10(5) of the Copyright and Neighbouring Rights Act [Chapter 26:05] as read with Article 9.2 of the TRIPS Agreement provides that copyright does not extend to ideas, procedures, methods of operation, mathematic concepts, principles, discoveries, facts or figures, event if they are explained, illustrated or embodied in a work. Copyright subsists in a work from the time when the work is created. There cannot be copyright infringement for example, in a work that is not original. This includes work that is reproduced or adapted, no case of infringement arises. see, Kanyenga v Harare Institute of Technology & Others SC 160-21.

The original authors of eligible work for copyright in Zimbabwe have basic rights. Authors for work hold the exclusive right to prohibit or authorize others to use their work on agreed terms in various forms. The following are some of the basic rights granted to copyright owners in Zimbabwe:

The creator of a work can for instance prohibits or authorise its reproduction in various forms:

Adaptation, Arrangement, Translation or other modification: The right to create imitative works or adaptations based on the original work. It can be done through translation into other languages, or its adaptation, such as a literary work of a novel into a screenplay.

Distribution: The right to broadcast the work to the public by radio, cable or satellite.

Moral rights: The right to be identified as the author and the right to object to any distortion, mutilation or modification of the work that may harm the author’s reputation.

Performance display: The right to perform, display, or show the work to the public as in a play or musical work.

Reproduction: The right to produce the work in various forms such as printed publication or sound recording.

Section 14 of the Copyright and Neighbouring Rights Act [Chapter 26:05] deals with ownership of copyright in Zimbabwe. The Harare High Court in Gramma Records (Pvt) Ltd & Another v Chimusoro 2007 (1) ZLR 85 (H) 90 held that:

“Ownership in the copyright vests in the person who commissions its making once one either pays or agrees to pay for such copyright. Ownership is not qualified and the applicants in casu fall squarely within the ambit of the section. They paid part of the fee charged and agreed to pay the balance. They have in fact tendered payment of the balance against delivery to them of the copyright. As a consequence, they own the copyright and the respondent in terms of the Act has no grounds to hold onto the copyright. Non-payment of an amount alleged due cannot be a bar to the applicants obtaining a right to delivery of the same.”

Section 15 of the Copyright and Neighbouring Rights Act [Chapter 26:05] provides for the duration of copyright in Zimbabwe. The duration of copyright in Zimbabwe is as follows:

Fifty (50) years in respect of an audio-visual work, a collective work, a photograph or a computer program;

Fifty (50) years in respect of a sounding recording,

Fifty (50) years in respect of a broadcast;

Fifty (50) years in respect of a programme-carrying signal;

The life time of the author in respect of any other literary, musical or artistic work, and fifty (50) years from the end of the year in which the work was first published.

The Harare High Court in S v Moyo & Another 2009 (1) ZLR 126 (H) held that copyright infringement is very rife in Zimbabwe, but its enforcement is extremely low.

Section 51 of the Copyright and Neighbouring Rights Act [Chapter 26:05] defines acts which amount to an infringement of copyright:

(1) Copyright is infringed by any person who is not the owner of the copyright and who, without the owner’s authority, does or causes any other person to do an act in Zimbabwe which the owner has the exclusive right to do or to authorise.

(2) Without derogation from subsection (1), the copyright in a work is infringed by any person who, without the authority of the owner of the copyright, does any of the following things in Zimbabwe –

in relation to an article which is an infringing copy and which the person knows or has reason to believe is an infringing copy -

makes it; or

otherwise than for his personal and private use, imports it into Zimbabwe or exports it from Zimbabwe; or

in the course of business, possesses it or exhibits it in public or distributes it; or

sells it or lets it for hire or offers or exposes it for sale or hire; or

otherwise than in the course of business, distributes it to such an extent that the owner of the copyright is prejudicially affected;

in relation to an article which is specifically designed or adapted for making copies of the work and which the person knows or has reason to believe is likely to be used for that purpose—

makes it; or

imports it into Zimbabwe or exports it from Zimbabwe; or

possesses it in the course of business; or

sells it or lets it for hire or offers or exposes it for sale or hire.

(3) Without derogation from subsection (1), the copyright in a work is infringed by a person who, without the authority of the owner of the copyright, transmits the work by means of a public computer network or telecommunication service, otherwise than by broadcasting or inclusion in a cable programme service, if the person knows or has reason to believe that infringing copies of the work are likely to be made by means of the reception of the transmission, whether in Zimbabwe or elsewhere.

(4) The copyright in a literary or musical work is infringed by any person who permits a place of public entertainment to be used for a performance of the work in public, where the performance constitutes an infringement of the copyright in the work:

Provided that this subsection shall not apply where that person was not aware and had no reasonable grounds for suspecting that the performance would be an infringement of the copyright.

(5) Where the copyright in a work is infringed by a public performance of the work, or by the playing or showing of the work in public, through an apparatus for –

playing sound recordings; or

showing audio-visual works; or

receiving visual images or sounds or other information conveyed by electronic means; the following persons shall be liable for the infringement, in addition to the person directly responsible for controlling and using the apparatus -

a person who supplied the apparatus or any substantial part of it, if when he supplied it he knew or had reason to believe that the apparatus was likely to be used so as to infringe copyright; and

an occupier of premises who gave permission for the apparatus to be brought on to the premises if, when he gave permission, he knew or had reason to believe that the apparatus was likely to be used so as to infringe copyright; and

a person who supplied a copy of the sound recording or audio-visual work if, when he supplied it, he knew or had reason to believe that he supplied, or a copy made directly or indirectly from it, was likely to be used so as to infringe copyright.

Section 52(2) of the Copyright and Neighbouring Acts [Chapter 26:05] lists the available remedies for infringement of copyright in Zimbabwe. In any proceedings for an infringement of copyright in Zimbabwe below are the available remedies in Zimbabwe:

Attachment;

Damages;

Delivering of infringing copies or articles used or intended to be used for making infringing copies or otherwise;

Interdict / Injunction; and

Rendering of account.