Transcript ZIMBABWE UNIVERSITY LIBRARIES CONSORTIUM 24 – 26 …

ZIMBABWE UNIVERSITY
LIBRARIES CONSORTIUM
24 – 26 April 2006
Greenfield K. Chilongo
ZIMCOPY
The Reproduction Rights organisation of Zimbabwe
COPYRIGHT LAW IN
ZIMBABWE
• 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 nonexclusively. (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
REMEDIES
The 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
[email protected]