The beauty of ideas, copyright law

Tichawana Nyahuma & Brenda Matanga
Intellectual property law is concerned with protection of creations of the mind.
Copyright law is a branch of intellectual property law and its primary objectives to protect the rights of creators of what are referred to as artistic expressions.

Through copyright, creators obtain a legal right to reproduce their work

Such expressions may range from the writing of a book, creating a song, a poem, a film, a photograph, a play and so on.
Through copyright, creators obtain a legal right to reproduce their work, to distribute copies, to perform the work, to present the work for public use, to translate and to adapt the work amongst other privileges that then flow from that right. With that right, creators are then able to prevent others from copying or distributing their work without their authority. If another person, without the authority of the owner of the copyright, copies or redistributes the work, he is liable to be sued for copyright infringement.
The legal protection provided by copyright stimulates the creativity in artists as they are then incentivised to create artistic works and more importantly, get rewarded for it. Artists derive financial benefits from their work which in itself inspires them to create more work and disseminate it for the general good of the public at large.
A key requirement for copyright protection to exist in a creation is originality. But then, what does it mean to be original? Originality does not mean that the copyrightable thing has to be the creative equivalent of the birth of the love child of an Einstein. No.
All it means is that the creator must have spent some labour, creativity, time and skill in creating that work.Of course, that does not mean you have the right to blatantly copy the work of another.
There has to be some noticeable degree of one’s own labour and skill that is applied to come up with a new work so that the new or subsequent product can be found to be worthy of copyright protection.
It is often mistaken that an idea can be protected by copyright. It cannot. An idea can only be protected when it is expressed. If one has an idea in his mind, the best way to protect such an idea is to keep it embedded in that mind because once it is expressed, it is exposed.
But then, if it is not expressed, the owner of the idea can never benefit from it. If, for example, Mr Oliver Mtukudzi had kept the thoughts of his song “Tozeza Baba” or any of his other hundreds of songs in his mind and had not written the songs down, performed or recorded the songs, he would not have earned copyright on his musical works.
The songs would have remained heaped safely in his mind, remaining unknown and uncelebrated. Furthermore, he would not have earned even a penny for it. The same would apply to books, films and even paintings. Consequently, therefore, copyright law seeks to give protection to the expressed artistic ideas.
The beauty of copyright is that, unlike the other forms of intellectual property such as patents and trademarks, copyright is not protected through registration. Protection of copyrights is automatic! Legally put, it is said to be inherent, which means that once the idea is expressed, that is enough for the author of the idea through that expression, to claim copyright in that work.
Prior to the advancement of technology, particularly before the advent of the 1990s, authors and publishers made fortunes from their works because during those days, it was virtually impossible to steal content or to disseminate information.
During those days, there were no colour photocopiers, let alone automatic ones that could reprint thousands of pages in only a few minutes. As such, the owners of the works were able to account for every penny made out of the sales of the works.
Musicians were equally comfortable. At that time, music was recorded on material called vinyl which came in “singles” and “LPs”. With that type of recording, it was not surprising to read reports to the effect that Mr Zexie Manatsa or Mr Lovemore Majaivana had sold so many several thousands of a particular ‘‘single” or “LP”.
This was because during those days, it was not possible to copy music out of the vinyl on a commercial scale as is now the case today.
Fast forward to the mid-1990s and all hell broke loose. Advanced technology that enabled the illegal reproduction of books was suddenly available. Textbooks began to be photocopied even in colour so that in many cases, you could not distinguish between the genuine original copy and the pirated or plagiarised one.
The result was that authors and publishers suffered great financial ruin brought about by the cheap copies that were now all over the place. You might have noticed that some of the once famous publishing houses of those days are now only a pale shadow of their former selves or they have completely folded up.
As with authors and publishers, musicians have not been spared. Modern technology that makes it possible to reproduce a song within only a few seconds is now available. The result is that the author of a song is now unable to account for the number of copies of his work that is sold let alone the money that is made.
In fact, musicians today no longer rely on the sales of their music but now make a living from performing to live audiences.
Having said all this, does copyright law still have the capacity to deal with this cancer? We think that it can, but the problem seems to be that of enforcement. There is a great need to strengthen the enforcement mechanisms provided by our law. It is shocking that clearly pirated music CDs and DVDs are freely available in all the major centres in Zimbabwe.
Equally available in their thousands in our streets are illegally photocopied books. One wonders why the authorities are not taking appropriate action against the law breakers because how, for example, does one explain the permanent presence of illegal book vendors at the corner of George Silundika Avenue and First Street in Harare when less than 10m from there, there is a police post?
In fact, when members of the police are seen at an illegal vending site, they will actually be promoting them by buying the illegal goods instead of enforcing the law.
Artists make a living from their works. It is time we respected their trade!