Damages for Copyright Infringement in Zimbabwe

Section 55 of the Copyright and Neighbouring Rights Act [Chapter 26:05] provides for damages for copyright infringement in Zimbabwe. The law on copyright and neighbouring rights in Zimbabwe entrenches that copyright does not extend to ideas, procedures, methods of operation or mathematical concepts. see, Tengende & Another v Telecel Zimbabwe (Pvt) Ltd HH 672-14.

In terms of section 10 of the Copyright and Neighbouring Rights Act [Chapter 26:05] works eligible for copyright include:

Artist works

Audio – visual works

Broadcasts

Literary works

Musical works

Programme-carrying signals

Published editions

Sound recordings.

In terms of section 52 of the Copyright and Neighbouring Rights Act [Chapter 26:05], an infringement of copyright is actionable at the suit of the owner of the copyright. Registered collecting societies can also bright a suit for damages on behalf of authors, composers and publishers of such work, and who have ceded their rights of copyright in their works and the right to collect royalties for the performance of the work to collecting societies. see, Performing Right Society Ltd v Berman & Another 1966 (2) SA 355 (R).

Claims for damages for copyright infringement in Zimbabwe should be instituted before the Intellectual Property Tribunal which is a specialised division of the High Court of Zimbabwe. In terms of section 3 of the Intellectual Property Tribunal Act [Chapter 26:08], the Intellectual Property Tribunal has jurisdiction to hear and determine, applications, appeals, references and other matters in respect the Copyright and Neighbouring Rights Act [Chapter 26:05].

In terms of section 55(1) of the Copyright and Neighbouring Rights Act [Chapter 26:05] damages for the infringement of copyright may, at the option of the person seeking them, be calculated on the basis of the amount of a reasonable ‘royalty’.

Unfortunately, the Zimbabwe Copyright and Neighbouring Rights Act [Chapter 26:05] unlike the South African Copyright Act 98 of 1978 does not define the term royalty. In terms of section 55(2) of the Copyright and Neighbouring Rights Act [Chapter [Chapter 26:05] in determining the reasonable amount of a reasonable royalty, the following factors should be taken into account, in addition, to all other material considerations:

The extent and nature of the copyright infringement;

The market value of the work concerned;

The amount which could be payable to the owner in respect of the exercise of copyright by some other person.

The Harare High Court in Zimbabwe Music Rights Association v Simbisa Brands Zimbabwe (Pvt) Ltd & Another HH 515-25 para 38 held that:

“In terms of s 52 of the Act as read with s 56, the owner of a copyright which has been infringed is entitled to bring an action for damages. The computation of such damages takes account of, among other things, the amount of the reasonable royalty which would have been payable under the circumstances, the extent and nature of the infringement, the market value of the work concerned, the flagrancy of the infringement, the need to deter persons from committing further infringements, and so on.”