Chronicle Editor
Aleck Ncube
COPYRIGHT is a branch of intellectual property that protects expression of ideas or information that is substantive and discrete. It is a legal concept, which is enacted by governments for the purposes of giving the creator of an original work of authorship exclusive rights to it. Copyright actually gives an exclusive right to exploit the expression-such as a book, recording, or film-of an idea rather than the idea itself.
The Zimbabwe Copyright and Neighbouring Rights Act (Chapter 26:08) defines copyright to mean the sole legal right to print, publish, perform film or record a literary of artistic or musical work. Copyright can thus be described to denote body of law that protects rights of authors such as creators of, inter alia, original artistic and literary works. In Zimbabwe, the concept of Copyright further extends and applies to the protection of expression of folklore, which includes folk tales, folk songs, folk dances and folk arts.
Generally, the notion of Copyright was meant to establish protection towards the economic rights of an author of a particular artistic work. However, such a notion has extended towards the protection of “moral rights”, which gives the creditor the right to prevent later distortion of his work as it aims to protect the author’s reputation and ensures that an author is always credited for the work. In Zimbabwe, the concept of protection of artistic works tends to be provided for under the Copyright and Neighbouring Rights Act, which actually protects for the economic and moral rights of the author by providing for such rights and also by elaborating on the preventing measures and protective mechanisms, which aim to combat the violation of an author’s right. Despite the enactment of the Copyright and Neighbouring Rights Act, there are still widespread acts of infringement.
Copyright and Neighbouring Rights Act (Chapter 26:08)
The Copyright and Neighbouring Rights Act enacted by the Parliament of Zimbabwe is the “Parental Law” that complies with the Berne Convention and the TRIPS Agreement of the World Trade Organisations. The Copyright and Neighbouring Rights Act provide for the following aims; to protect the moral and economic interests of authors (creators) relating to their works; to provide protection for expression of folklore; to protect interests of performing artists, producers of music and broadcasting organizations; and to provide for civil remedies and criminal sanctions against infringers and pirates.
Scope of copyright protection under the Copyright and Neighbouring Rights Act
Subject to the provision of Sections of the Act, Copyright means the sole legal right to print, publish, perform film or record a literally or artistic or musical work. The act asserts towards the protection of “Original literary and artistic works” and “Derivative Works,” as provided for under Section 5 and 6 of the Copyright and Neighbouring Rights Act consecutively.
Scope of copyright protection of artistic works in Zimbabwe
In Zimbabwe, the law provides that, Copyright shall be entitled towards original and literary artistic works where such protection shall be vested towards the authors, on the sole fact of the creation of original works, irrespective of their form of expression, their quality and the purpose for which they were created. Furthermore, it is asserted that, Copyright protection is extended towards derivate works such as translations, adaptations, arrangements and other transformation of literary and artistic works, works inspired by expression of folklore, creation of literary and artistic works, provided such that the latter (derivative works) does not prejudice the protection of any pre-existing work/ expression of folklore.
In context of the Copyright and Neighbouring Rights Act, it may be observed that copyright is entitled towards an artistic/ literary work, henceforth, this asserts that copyright is designed to protect the fixed expression/ manifestation of an idea rather than the fundamental idea itself. Copyright protection is entitled to the author of original artistic works, by the sole fact of the creation of such works, and such works shall be protected irrespective of their form of their expression, their quality and the purpose for which they were created. Copyright protection in Zimbabwe extends to registered and unregistered works. The essence of copyright protection vested towards authors of artistic works aims to protect the economic and moral rights of authors of such artistic works where such economic and moral rights shall be protected during the life of the author and for 50 years after his/her death.
International conventions on the protection of copyrights
Zimbabwe is a member in the international community and signatory to some of the international conventions at a global level, by which the protection of copyrights are provided for. It is from some of these agreements through which Zimbabwean legal instruments enacts their statutes to conform to its international obligations, for instance the recognition of right of performers; phonogram producers and broadcast organizations are provided and adhered from the Rome Convention.
Berne Convention
This is the major and first international convention in the area of copyright. It was promulgated and arrived at Berne in the year 1886 and caters for the protection of literary and artistic works. Under the Berne Convention, copyrights for creative works do not have to be asserted or declared, as they are automatically in force at creation: an author need not “register” or “apply for” a copyright in countries adhering to the Berne Convention. As the work is “fixed”, authors are automatically entitled to all copyrights in their works, and to any derivative works unless and until the author explicitly disclaims them, or until the copyright expires.
The Trade-Related Aspects of Intellectual Property Agreement (TRIPS)
The TRIPs Agreement is the culmination of the Marrakesh Agreement that led to the creation of the World Trade Organisations (WTO) in 1994 and hence TRIPs Agreement form Part 1C of the WTO Agreement, which came out of the series of Multilateral Trade Negotiations (MTNs). The TRIPs Agreement sets down minimum standards for many forms of protection of intellectual property (IP) regulation as applied to nationals of other WTO Members. Furthermore, the TRIPs Agreement has introduced intellectual property law into the international trading system for the first time and remains the most comprehensive international agreement on intellectual property to date.
The World Intellectual Property Organisation Copyright Treaty (WIPO Copyright Treaty)
This is an international treaty on copyright law adopted by the member states of the World Intellectual Property Organisation (WIPO) in 1996. The WIPO Copyright Treaty provides additional protections for copyright deemed necessary due to advances in information technology since the formation of previous copyright treaties before it, hence the WIPO treaty actually tends to supplement the Berne convention in the view of technological advancements that have taken place in the area of copyright.
The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisation (Rome Convention)
This convention, popularly known as the Rome Convention was signed at Rome in 1961, providing for international protection for record producers, performers and broadcasters. Producers are protected against unauthorised copying of their recordings and have a right to payment for the broadcast of their recordings, with exceptions.
In my next write up, I will focus deeper on the issue of the usage of the Copyright and Neighbouring Rights Act (Chapter 26:08) for the protection of literary and artistic works in Zimbabwe.
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