ZIMBABWE UNIVERSITYLIBRARIES CONSORTIUM

24 – 26 April 2006

Greenfield K. ChilongoZIMCOPY

The Reproduction Rights organisation of Zimbabwe

COPYRIGHT LAW INZIMBABWE

• COPYRIGHT ACT {Chapter 26:01}• Came into operation in 1967• Overtaken by technological developments: - photocopiers, scanners, computers - audio & video recoders• International developments - 1971 revision of the Berne convention - TRIPS Agreement (Trade Related

Aspects of Intelectual Property Rights)

NEW COPYRIGHT ACT {Chapter 26:05} CAME INTO OPERATION

IN 2000• INTERPRETATION: Works covered under the Act

are:- • Literary works, including computer programmes• Musical Works• Artistic works (drawings, photos, sculptures,

buildings & structures)• Audio- visual Works• Sound recordings • Broadcasts• Programme carrying signals• Published editions – collections of literary works

What is “Publication” in the context of Copyright?

• Publication involves a work available to the public.

NOTE

• Copyright subsists when a work is published

BUT• Publication of a work infringes Copyright if it

is done without the consent of the rightsholder

DEFINITION

• A work will be eligible for Copyright protection if it is original, has been reduced to writing or other material form

BUT EXCLUDES• Folklore• News items, political or speehes official

documents i.e. Acts of Parliament, Bills and Judicial decisions.

ELIGIBILITY FOR PROTECTION UNDER THE ACT

• If author is a citizen or a resident of Zimbabwe

• If work was first published in Zimbabwe

• If work was made under the direction of the state or an International Organisation based in Zimbabwe

DURATION OF PROTECTION

• Generally the creators life time PLUS

• 50 YEARS after his or her death

PERMITED USES WITHOUT NEED FOR A LICENCE

• Fair dealing for research or private study BUT not production of multiple copies

• Educational use: - illustrative purposes in teaching- setting examination questions- plays may be performed by education

institutions, audio works shown, or records played for purposes of instruction

- public performances or showings may not be given

WORKS MAY BE REPRODUCED FOR EDUCATION PURPOSES PROVIDED THERE IS NO LICENSING SCHEME AVAILABLE AUTHORISING SUCH COPYING

LIBRARIES & ARCHIVES

Permitted to copy works to replace or repair damaged copies in their collections, so long as it is not reasonably practical for them to buy another copy of the work concerned.

OTHER PERMITED USES

• Parliamentary proceedings

• Legal proceedings

• Commissions of inquiry or similar statutory inquiries

• Criticism, review or news reporting

• Articles of topical interest or public speeches for the purpose of public information

Other continued…….

• Quotations provided source is acknowledged and it is compatible with FAIR PRACTICE

• Reconstructing a damaged or destroyed building does not infringe copyright in the original building

• Use of art pictures for promoting the sale of the pictures

• Use of copyright material for demonstrating wares i.e. radios, computers etc

Other permited uses continued…

• Reproduce a computer programme for back – up purposes. Such copies to be destroyed when person who made them ceases to own the programme

• Copy musical works and sound recordings for private use by the copier and his / her family

Other permitted uses …..

• Minister may through regulations permit reasonable use of copyright material provided it does not unreasonably prejudice the interests of rightsholders and is in conformity with Zimbabwe’s international obligations

TRANSFER OF COPYRIGHT

• By assignment to another party in writing• By a bequest in an unpublished work• By operation of law i.e. at the death of a

rightsholder copyright will vest in the Trustee or executor of the estate.

• By mandate authorising other people to use or deal in the works exclusively or non-exclusively. (Common facility used by Collecting Societies)

INFRINGEMENT

• What is it?

Constitute doing any thing which the Act reserves exclusively to the copyright holder i.e.

Making, importing, exporting or dealing in an article that reproduces a copyright protected work;

Transmitting the work over a public computer network such as the internet or performing a literary or musical work in public

REMEDIESThe rightsholder is entitled to:

• Damages

• An interdict (order stopping the infringement)

• Profits arising from the infringement

• Handing over of the infringing copies and any instrument used to produce the infringing copies

JURISDICTION

• The Intellectual Property Tribunal (But does not have criminal jurisdiction)

• The High Court

• The Magistrates court

• Controller of Copyright (As empowered by the regulations)

Damages

• May be based on royalties / income lost

• Awarded on a punitive basis

• No damages for innocent infringement

POWER OF THE COURT

• Neither the Tribunal or the Court is permitted to issue an interdict to preventing the completion of a half-constructed building or the demolition of a completed building.

• Tribunal or Court can issue “Anton Pillar” orders which are granted without notice to prevent the destruction or hiding of evidence to defeat an infringement claim

Power of the court…….

• Copyright infringement can be a criminal offence in certain cases i.e. PIRACY

• Rightsholder can request the Director of Customs & Excise to stop the import into or export from Zimbabwe of infringing copies of up to ten days pending an order from the Intellectual Property Tribunal.

MORAL RIGHTS

• Part VI of the Act deals with Moral Rights• These are rights which relate to the use of the work

but are distinct from copyright• The creator of a work has a right to be identified with

their work whenever it is published, performed or shown in public

• Authors have the right to object to the derogatory treatment of their work i.e. the right to object to any alteration, distortion or mutilation of the work which may prejudice their reputation.

• Moral rights are enforceable in the same way as copyright.

PERFORMERS RIGHTS

Part VII of the Act deals with the right of performers to prevent the recording of their performances and the rights of persons who have the exclusive rights to record performances

FOLKLORE

Part VIII deals with the mechanisms for exploiting folklore since by its nature no individual can be identified as its author

CONTROLLER OF COPYRIGHT

• Part IX has now been replaced by an amendment to the main Act. It now provides for the creation of a Statutory Collecting Society which replaces the administrative functions of the office of the Controller of Copyright as provided in the original Act.

• There are differences of opinion in the legal fraternity on the appropriateness and workability of the amendment. The general view is that the amendment makes the main Act inoperable

• The advent of the amendment has delayed the production of regulations which are necessary to implement the Act

COLLECTING SOCIETIES

• Parts X & XI outlines the rules and procedures for the registration and operation of Collecting Societies

ADMINISTRATIVE ISSUES

• Parts XII – IX deal with administrative matters procedures for appeals to the Tribunal against the decisions of the Controller

• Evidence and presumptions in civil of criminal proceedings

• That copyright is essentially a statutory right and does not subsist in any way under Common Law.

REPRODUCTION RIGHTS ORGANISATIONS (RROs) and

OPEN ACCESS• RROs generally acknowledge the

growing interest and concerns of authors, creators and publishers in the Open Access initiatives

• Open Acces is understood to describe different concepts aiming to increase the dissemination of literary and scientific works

• At the core of them are two tenets:

RROs and OPEN Access……

• That works published under open Access should be universally and freely accessible via Internet

• That copyright owners irrevocably give up some or all rights in their work, in advance and in perpetuity, or within a specified limit of time to use, reproduce or disseminate the article in its entirety or in part in any form or medium

RROs and OA…..

• Recognising that there is a cost to be born in producing, archiving reviewing, authenticating and disseminating articles, many Open Access journals have shifted the burden of those costs from the subscriber or user of the articles the authors / creators.

• The cost to the author for getting “published” under Open Access are substantial especially where there is no possibility of future rights to claim compensation for the use of the articles including compensation under reprographic remuneration schemes

RROs and OA…..

• It is noted that not all Open Access initiatives involve charging content providers. Some models exist simply to encourage the permanent waiver of some or all rights to control a work so that it can be freely disseminated and used by others.

• It is critical that Open Access models are transparent, understandable and sustainable

RROs and OA……

• Those soliciting for articles for use under Open Access initiatives have the responsibility to adequately inform rightsholders of what rights they are giving up, in order for the authors to make informed choices.

• RROs recognize the right of authors and publishers to chose freely between different contract models it is equally important that Open Access contracts are not imposed on them.

THANK YOU

Greenfield K. Chilongo

ZIMCOPY

zimcopy@africaonline.co.zw