CHAPTER 406
COPYRIGHT AND PERFORMANCE RIGHTS ACT

Arrangement of Sections

   Section

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

   3.   Works of unknown authorship and joint authorship

   4.   Publication and first publication

   5.   Application to all existing works

   6.   This Act binds the Republic

PART II
COPYRIGHT

NATURE OF COPYRIGHT

   7.   Copyright a form of property

   8.   Categories of works in which copyright subsists

   9.   Qualifying conditions

   10.   First ownership of copyright

   11.   Transfer of copyright

DURATION OF COPYRIGHT

   12.   Literary, musical and artistic works

   13.   Audiovisual works and sound recordings

   14.   Broadcasts and cable programmes

   15.   Computer programmes

   16.   Typographical arrangements

INFRINGEMENT OF COPYRIGHT

   17.   Acts controlled by copyright

   18.   Copyright is infringed by the doing of a controlled act

   19.   Copyright is infringed by importation, etc. of infringing copies

   20.   Copyright is infringed by making or trading in articles for making infringing copies, or transmission for the purpose of making infringing copies

   21.   Acts which do not constitute infringements

COLLECTING SOCIETIES

   22.   Collecting societies may be authorised to represent copyright owners

   23.   Disputes with registered collecting societies

MORAL RIGHTS

   24.   Moral rights

PART III
ENFORCEMENT OF COPYRIGHT

   25.   Infringement actionable by copyright owner

   26.   Right to deliver up of infringing copies

   27.   Restriction on importation of infringing copies

   28.   Offences

   29.   Presumption as to possession of copies

   30.   Presumptions as to existence of copyright

   31.   Presumptions as to authorship and date of publication

   32.   Affidavit admissible in evidence

   33.   Issue of warrants to enter search and seize

   34.   Power to use force, detain persons

   35.   Sealing of things

   36.   List of things seized or sealed

   37.   Articles in containers—need only to examine sample

   38.   Obstruction to search

   38A.   Security holograms

   38B.   Affixation of hologram

   38C.   Accreditation of producer

   38D.   Accreditation of importer

   38E.   Technical Implementation Committee

   38F.   Keeping of books and returns

PART IV
REGISTER OF COPYRIGHT

   39.   The register of copyrights

   40.   Registration and issue of certificate

   41.   Transfer of registration

   42.   Rectification of register

   43.   Issue of new certificate

PART V
RIGHTS IN PERFORMANCES

   44.   Interpretation

   45.   Conferment of performer’s right and recording right

   46.   Transfer of rights

   47.   Duration of rights in performances

   48.   Infringement of performer’s rights

   49.   Infringement of recording rights

   50.   Acts which do not constitute infringements

   51.   Infringement of performer’s right is actionable

   52.   Offence of infringing performer’s or recording right

   53.   False representation of authority to give consent

PART VI
MISCELLANEOUS

   54.   Registrar of Copyright

   55.   Registrar may authorise translation and reproduction of works in certain cases

   56.   Application of Act to works, etc. originating in other countries

   57.   Regulations

   58.   Transitional provisions

   59.   Repeal of Cap. 701

      SCHEDULE

AN ACT

to provide for copyright in literary, musical and artistic works, computer programmes, audiovisual works, sound recordings, broadcasts and cable programmes; to provide for rights in performances; to repeal the Copyright Act; and to provide for matters incidental to or connected with the foregoing.

[31st December, 1994]

Act 44 of 1994,

Act 13 of 1994,

Act 25 of 2010.

PART I
PRELIMINARY

1.   Short title

This Act may be cited as the Copyright and Performance Rights Act.

2.   Interpretation

In this Act, unless the context otherwise requires—

“adaptation” includes—

      (a)   in relation to any literary work—

      (i)   a translation of the work; or

      (ii)   a version of the work in which the story or action is conveyed solely or principally by means of pictures;

      (b)   in relation to a literary work in a non-dramatic form, a version of the work (whether in its original language or in a different language) in a dramatic form;

      (c)   in relation to a literary work in a dramatic form, a version of the work (whether in its original language or in a different language) in a non-dramatic form;

      (d)   in relation to a musical work, an arrangement or transcription of the work;

      (e)   in relation to an artistic work in two dimensions, the reproduction of that work in an object in three dimensions; and in relation to a computer programme, a version of the programme in which it is converted from one computer language or code into another.

“artistic works” includes works of artistic craftsmanship, including designs for fabrics, carpets and tapestry, and, irrespective of artistic quality—

      (a)   paintings, drawings, etchings, lithographs, wood cuts, engravings and prints;

      (b)   maps, plans, charts, diagrams, illustrations and sketches;

      (c)   works of sculpture;

      (d)   works of architecture in the form of either buildings or models; and

      (e)   photographs;

“audiovisual work” means the aggregate of a series of related visual images, together with accompanying sounds, if any, which is capable of being shown as a moving picture by means of a mechanical, electronic or other device and irrespective of the nature of the material support on which the visual images and sounds are carried, but does not include a broadcast;

“author” means—

      (a)   in relation to an audiovisual work or sound recording, the person who causes the audiovisual work or recording to be made;

      (b)   in relation to a broadcast, the person who is responsible for the contents of the broadcast and for arranging for its transmission;

      (c)   in relation to a cable programme, the person who is responsible for including it in the cable programme service by which it is transmitted;

      (d)   in relation to the typographical arrangement of a published edition, the publisher of the edition; and

      (e)   in relation to any other work, the individual who created the work;

“broadcast”

      (a)   used as a noun, means the aggregate of sounds, or of sounds and visual images, or other information, embodied in a programme as transmitted by broadcasting; and

      (b)   used as a verb, means to transmit, by the emission of electro-magnetic energy otherwise than over a path that is provided by a material substance, for reception by members of the public, visual images or sounds, or both, capable of being received by members of the public in possession of suitable apparatus, regardless of whether—

      (i)   the apparatus includes special decoding devices;

      (ii)   the members of the public are in Zambia or elsewhere;

      (iii)   the electro-magnetic energy is carried, after the initial transmission but before it is received by members of the public, on a path provided by a material substance; or

      (iv)   any member of the public actually receives the images or sounds;

“cable programme” means the aggregate of sounds, or of sounds and visual images, or other information, embodied in a programme as transmitted by a cable programme service;

“cable programme service” means a service that transmits, by the emission of electro-magnetic energy over a path that is provided by a material substance, for reception by members of the public, visual images or sounds, or both, capable of being received by members of the public in possession of suitable apparatus, regardless of whether—

      (a)   the apparatus includes special decoding devices;

      (b)   the members of the public are in Zambia or elsewhere; or

      (c)   any member of the public actually receives the images or sounds;

“collecting society” means a collecting society as defined in section 22;

“Committee” means the Technical Implementation Committee;

[Ins by s 2(b) of Act 25 of 2010.]

“communication to the public” of a work includes the performance, playing or showing of the work in public;

“compilation” means a collection or assembly of works or other material or data which by reason of selection or arrangement of the contents of the collection or assembly constitutes a product of creativity;

“computer programme” means a set of instructions, whether expressed in words or in schematic or other form, which is capable, when incorporated in a machine readable medium, of causing an electronic or other device having information-processing capabilities to indicate, perform or achieve a particular function, task or result;

“controlled act” means an act referred to in section 17 in relation to a work subject to copyright;

“convention” means the Berne Convention for the Protection of Literary and Artistic Works of 9th September, 1886, completed at Paris on 4th May, 1896, revised at Berlin on 13th November, 1908, completed at Berne on 20th March 1914, revised at Rome on 2nd June, 1928, at Brussels on 26th June, 1948, at Stockholm on 14th July, 1967 and at Paris on 24th July, 1971 and amended on 28th September, 1979;

“Convention country” means a country prescribed in regulations made for the purposes of this definition, being a member of the Union established by the Convention;

“copy” means a reproduction of a work or of an adaptation of a work, whatever the medium in which the reproduction is made or stored;

“court” means the High Court or a subordinate court;

[Subs by s 2(a) of Act 25 of 2010.]

“dramatic work” includes a work of dance or mime, whether recorded in writing or other notation, or in an audiovisual work;

“first published” has the meaning given by section 4;

“infringing copy” means a copy of a work in which copyright subsists—

      (a)   the making of which constituted an infringement under this Act of the copyright in the work;

      (b)   the making of which would have constituted an infringement under this Act of the copyright in the work, if the copy had been made in Zambia; or

      (c)   the making of which would have constituted a breach of an exclusive licensing agreement, if the copy had been made in Zambia;

“joint authorship” has the meaning given by section 3;

“literary work” includes a dramatic work or an arrangement of information in tabular form;

“photograph” means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, but does not include a part of an audiovisual work;

“publish” has the meaning given by section 4;

“registered collecting society” means a collecting society registered by the Registrar under section 22;

“Registrar” means the Registrar of Copyright appointed under section 54;

“sound recording” means—

      (a)   a recording of sounds, from which the sounds may be reproduced; or

      (b)   a recording of the whole or any part of a literary or musical work, from which sounds reproducing the work may be produced; regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced;

“substantial part” includes any part of a work which on its own can be identified as a part of the work by someone who is familiar with the work;

“synchronise” means the application of an audio or audiovisual compilation in which copyright subsists to an audio or audiovisual compilation without the license of the copyright holder;

[Ins by s 2(b) of Act 25 of 2010.]

“unknown authorship” has the meaning given by section 3;

“work” means a product of creativity in a category referred to in section 8.

3.   Works of unknown authorship and joint authorship

   (1) For the purposes of this Act—

      (a)   a work is of unknown authorship if the identity of none of the authors is known;

      (b)   subject to paragraph (c), the identity of an author shall be regarded as unknown if it is not possible for a person to ascertain his identity by reasonable inquiry; and

      (c)   the identity of an author that has once been known shall not subsequently be regarded as unknown.

   (2) For the purposes of this Act, a work is of joint authorship if it is produced by the collaboration of two or more authors and the contribution of each author is not distinct from that of the other author or authors.

   (3) Unless the context requires otherwise, a reference in this Act to the author of work shall, in relation to a work of joint authorship, be read as a reference to all the authors of the work.

4.   Publication and first publication

   (1) For the purposes of this Act, a work, other than a broadcast or cable programme, is published when copies of the work are made available to the public, whether for gain or not.

   (2) For the purposes of this Act, the first publication of a work, other than a broadcast or cable programme, is—

      (a)   the earliest publication of the work made with the authority of the copyright owner; or

      (b)   any publication of a work made with the authority of the copyright owner within thirty days after the earliest such publication.

   (3) For the purposes of this section, any distribution or circulation of a work by way of sale or rental constitutes making copies of the work available to the public.

   (4) The following shall not constitute publication for the purposes of this Act:

      (a)   in the case of a literary or musical work—

      (i)   the performance of the work; or

      (ii)   the broadcasting of the work or its inclusion in a cable programme service (otherwise than for the purposes of an electronic retrieval system);

      (b)   in the case of an artistic work—

      (i)   the exhibition of the work;

      (ii)   the making available to the public of a graphic work representing, or of photographs of, a work of architecture in the form of a building, or model for a building, a sculpture or a work of artistic craftsmanship;

      (iii)   the making available to the public of a film including the work; or

      (iv)   the broadcasting of the work or its inclusion in a cable programme service (otherwise than for the purposes of an electronic retrieval system);

      (c)   in relation to an audiovisual work or sound recording—

      (i)   the showing or playing of the work in public; or

      (ii)   the broadcasting of the work or its inclusion in a cable programme service (otherwise than for the purpose of an electronic retrieval system).

5.   Application to all existing works

Subject to section 58, this Act shall apply in relation to works whether created before or after the commencement of this Act.

6.   This Act binds the Republic

This Act shall bind the Republic.

PART II
COPYRIGHT

NATURE OF COPYRIGHT

7.   Copyright a form of property

Copyright is a property right which shall subsist in accordance with this Act in the products of creativity specified in section 8.

8.   Categories of works in which copyright subsists

   (1) The products of creativity in which copyright may subsist under this Act are the following categories of works:

      (a)   original—

      (i)   literary works;

      (ii)   musical works;

      (iii)   artistic works; or

      (iv)   computer programmes;

      (b)   compilations;

      (c)   audiovisual works;

      (d)   sound recordings;

      (e)   broadcasts;

      (f)   cable programmes;

      (g)   typographical arrangements of published editions of literary works.

   (2) Copyright shall not subsist in a Bill introduced into Parliament or in an Act of Parliament.

   (3) Copyright shall not subsist in a literary or musical work or in a computer programme unless and until it is recorded in writing or in some other form, and a reference in this Act to the time of making of such a work is a reference to the time at which it is so recorded.

   (4) Copyright shall subsist in a work within one of the categories specified in sub-section (1) only if the qualifying conditions specified in section 9 in respect of that category are fulfilled.

9.   Qualifying conditions

   (1) Copyright shall subsist in—

      (a)   a work of any category specified in section 8 other than a typographical arrangement of a published edition, if, at the time of completion of the work, the author of the work was—

      (i)   a citizen of, or habitually resident in Zambia or a convention country; or

      (ii)   a body corporate incorporated in Zambia or a Convention country;

      (b)   a literary, musical or artistic work, a compilation, a computer programme, an audiovisual work or a typographical arrangement of a published edition, which is made or first published in Zambia or a Convention country;

      (c)   a sound recording which is made or first published in Zambia or a Convention country;

      (d)   a broadcast which is first transmitted from a place in Zambia or a Convention country; or

      (e)   a cable programme service which is first transmitted from a place in Zambia or a Convention country.

   (2) In the case of a work of joint authorship—

      (a)   the reference in paragraph (1) (a) to the author shall be read as a reference to any of the authors; and

      (b)   where the work qualifies for copyright protection only under that paragraph, only those of the authors who satisfy the requirements of that paragraph shall be taken into account for the purposes of—

      (i)   section 10 (first ownership of copyright);

      (ii)   section 12 to 15 (duration of copyright); and

      (iii)   sub-section (3) of section 21 (acts which do not constitute infringements).

10.   First ownership of copyright

   (1) The first ownership of copyright under this section shall be subject to any agreement under sub-section (3) of section 11 to assign the ownership of a copyright expected to arise in the future.

   (2) Subject to this section, the author of a work shall be the first owner of the copyright which subsists under this Act.

   (3) Where a work, other than a broadcast or a cable programme, is—

      (a)   made by the author in the course of his employment; or

      (b)   made by the author on the commission of some other person;

the employer or the person who commissioned the work shall be the first owner of the copyright.

   (4) Where a work was completed in a convention country other than Zambia, the law of that country in relation to first ownership of copyright shall apply.

11.   Transfer of copyright

   (1) Copyright shall be transferable by assignment, by testamentary disposition or by operation of law.

   (2) An assignment of copyright may be limited by reference to—

      (a)   one or more particular acts which the copyright owner has the exclusive right to authorise under this Act;

      (b)   a part of the period for which the copyright subsists under this Act; or

      (c)   a specified country or geographic area.

   (3) Copyright which is expected to arise in the future may be assigned.

   (4) An assignment of copyright shall be in writing signed by or on behalf of the assignor.

DURATION OF COPYRIGHT

12.   Literary, musical and artistic works

   (1) Subject to this section, copyright in a literary, musical or artistic work or compilation shall expire at the end of the period of fifty years from the end of the calendar year in which the author dies.

   (2) If the work is produced by a public officer or employee of the Government of Zambia or of a Convention country in the course of his employment, and the Government concerned is the first owner of the copyright in the work, the copyright in the work shall expire at the end of the period of fifty years from the end of the calendar year in which the work is made.

   (3) If the work is of unknown authorship, the copyright in the work shall expire at the end of the period of fifty years from the end of the calendar year in which the work is first published, unless the identity of the author of the work becomes known before that date.

   (4) In the case of a work of joint authorship—

      (a)   the reference in sub-section (1) to the death of the author shall be read as a reference to the death of the last to die of the authors whose identity is known; and

      (b)   the reference in sub-section (3) to the identity of the author becoming known shall be read as a reference to the identity of any of the authors becoming known.

13.   Audiovisual works and sound recordings

Copyright in an audiovisual work or sound recording shall expire—

      (a)   at the end of the period of fifty years from the end of the calendar year in which it is made; or

      (b)   at the end of the period of fifty years from the end of the calendar year in which it is first published, if it is published within the period referred to in paragraph (a).

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