UNIVERSITY OF LUSAKA

SCHOOL OF LAW

COMPUTER NUMBER: LLB 0121029

COURSE CODE: L340
COURSE: Intellectual Property Law
DUE DATE: 10/11/2014
LECTURER: Mr Kanja

INTRODUCTION
Copyright is a form of intellectual property (as patents, trademarks and trade secrets are),
applicable to any expressible form of an idea or information.1 Copyright is defined as a right
granted for the protection of literary, dramatic, musical and artistic works and other works
resulting from the authors own intellectual creation. Copyright is a legal right that is created by
the law of a country. It entitles the owner of a creation the exclusive right to use the work as
he/she wishes. It is usually given for a limited time, with the intention of enabling the creator
(e.g. the photographer of a photograph or the author of a book) to receive compensation for their
intellectual effort.
Copyright like any other legal right can be infringed, and thus his paper seeks to discuss how
copyright infringement is addressed or dealt with in Zambia and around the world.

COPYRIGHT INFRINGEMENT
The owner of copyright in a work is given exclusive rights to use the work as he wishes or
perform certain acts in relation to the work and prevent others from using the work without his
authorization.2 Copyright infringement occurs when an individual other than the copyright holder
violates one or more of the copyright holders exclusive rights to a work. Those rights are the
right to reproduce the copyrighted work, to make derivative works of the copyrighted work, to
distribute the copyrighted work, to perform the copyrighted work, and to display the copyrighted
work. Again, if one or more of those exclusive rights is violated, the violator will have infringed
upon the copyright of the copyright holder.3 The act of piracy is a common copyright
infringement act, where the exclusive rights of the holder are infringed for commercial gain.4
1 World Intellectual Property Organization. "Understanding Copyright and Related
Rights" (PDF). WIPO. P. 67
2 Kanja, G. M. (2006) Intellectual Property Law, 1st Ed. P. 133
3 www.intellectual-property.legalhelp.org/copyrights/copyright-infringement/
(accessed on 6/10/14)
4 Kanja, G. M. (2006) Intellectual Property Law, 1st Ed. P. 134
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However a person will not infringe copyright in a work if the person performs an act that is not
restricted or controlled by the copyright owner. Furthermore, infringement is said not to have
occurred if an act is not prohibited by the statute e.g. recording a movie on your Personal Video
Recorder (PVR) decoder to watch later.
TYPES
There are two types of copyright infringement. These are discussed below:
1. Primary Infringement
For primary infringement to occur, there must have been a direct infringement by a person of an
exclusive right. This is an infringement of copyright done by any person without the consent of
the owner of the copyright, anything that by copyright law only the owner of the copyright has
the right to do.5 It arises where one performs any of the acts restricted or controlled by copyright
such as copying or reproducing the work.6
2. Secondary Infringement
Secondary infringement will arise where one deals commercially in infringed copies of copyright
works such as selling pirated musical cassettes, compact discs (CDs) or videos or DVD, without
the consent of the copyright owner. Copyright can also be infringed vicariously.7 This means a
person can be held liable for the infringing acts committed by another if he/she had the ability to
control the infringing activities and had a direct interest in such activities.8

ADDRESSING COPYWRIGHT INFRINGMENT

1) ZAMBIA
5 Hugues G. Richard, PRIMARY AND SECONDARY COPYRIGHT INFRINGEMENT, LEGER
ROBIC RICHARD, L.L.P, www.robic.ca
6 Kanja, G. M. (2006) Intellectual Property Law, 1st Ed. P. 136
7 A&M Records v. Napster Inc. 239 F.3d 1004 (US Court of Appeal 9th Circuit, 2001)
8 www.law.cornell.edu (accessed 7/11/2014)
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Section 17 of the Copyright and Performance Rights Act provides that the owner of a work
where copyright subsist shall have exclusive right to do or to authorise others to do the following
acts or controlled acts: (i) to copy or reproduce the work; (ii) to publish or issue copies to the
public; (iii) to perform, show or play the work in public, (iv) to broadcast the work or include it
in a cable programme; (v) to make an adaptation of the work or do any of the above in relation to
an adaptation.9 In Zambia this is the legal framework that has been put in place in order for
society to address the issue of copyright infringement. This legal framework has prescribed the
manner through which copyright infringement maybe dealt with.
Therefore, if anyone does or allows another to do any of the listed restricted by copyright law
without the permission, contractual or otherwise, by the copyright owner will infringe copyright
subsisting in a work. Part 3 of the Copyright and Performance Rights Act enforces copyright. In
order to enforce copyright the Copyright and Performance Rights Act categorises the means
though which enforcement maybe undertaken namely: (i) Conservatory or provisional measures
(ii) civil remedies (iii) criminal sanction and Measures to be taken at the border.10
i.

Conservatory or provisional measures

Section 2711 Copyright and Performance Rights act states:

The owner of the copyright in a literary or musical work, compilation, audio-visual work or sound recording, may,
if the work has been published, give notice in writing to the Controller of Customs that he is the owner of the
copyright in the work; and that he requests the Controller to treat as prohibited goods, during the period specified
in the notice, copies of the work which are infringing copies.

The courts are given the discretion to order that provisional measures be carried out without
advance notice of the infringer. Obtaining and preserving evidence is very crucial if a copyright
owner is to prove infringement of their work. In most cases the person who infringes another
work upon the realisation that they might be sued for infringement, the infringer resorts to
destroying the copyright work so that they may not be incriminated. It is therefore the copyright

9 Kanja, G. M. (2006) Intellectual Property Law, 1st Ed. P. 187

10 Kanja, G. M. (2006) Intellectual Property Law, 1st Ed. P. 187
11 Section 27 Copyright and Performance Rights Act.
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owners right to apply for a search order from the court if a copyright owner believes his works
are being infringed.
The case of Anton Piller AG v. Manufacturing Process Limited12 further illustrates this measure
where the appellants were about to launch a new product and feared that details of it might get
into the hands of competitors if the respondents were forewarned that the appellants were aware
of the respondents breaches of confidence. Anton Piller commenced ex parte proceedings
seeking an injunction to restrain copyright infringement as well as a court order to permit entry
to the respondent's premises to search and remove all confidential information owned by the
appellants. The injunction was granted but the order for inspection and removal was refused. The
appellants appealed the denial of the latter order. In the Court of Appeal the order was granted.
From this initial order has grown the jurisprudence on Anton Piller orders, commonly known as
civil search warrants.
ii.

Civil remedies

Section 25 of the Copyright and Performances Rights Act provides that copyright infringement is
actionable in the court at the suit of the owner of the copyright. The section goes further and lists
the remedies as being damages, injunctions, accounts of profits and right to delivery up. It is
worth stating that in an action for copyright infringement, proof of actual damage shall not be
required. Besides, the plaintiff shall not be entitled to damages if the defendant shows that he
reasonably believed that no copyright subsisted in the work.13 In addition, no injunction shall be
issued which requires a completed or partly built building to be demolished or which prevents
the completion of a partly built building.14 In cases of copyright infringement the plaintiff is
entitled to cumulative remedies as was established in the case of Sutherland Publishing Company
Limited v. Caxton Publishing Company Limited15.
a) Damages
12 [1976] 1 Ch. 55
13 Section 25 (4) Copyright and Performance Rights Act.
14 Section 25 (5) Copyright and Performance Rights Act.
15 [1936] 1 All ER 186
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Damages are similar to those given in the law of tort. Normally a Claimant in a copyright
infringement case will seek damages (compensation) from the Defendant.
In Claydon Architectural Metalwork Limited v. DJ Higgins and Sons16, secondary damages
associated with cash flow problems caused to the claimant by the defendants acts were held to
be too remote. The damages allocated for copyright infringement should be allocated on the basis
of the profits that the copyright owner would have derived from the sales lost as a result of the
infringement. Courts may at times grant ordinary damages plus further damages to punish the
infringer. Punitive or exemplary damages for copyright infringement aim to punish for flagrant,
scandalous or deceitful conduct and to deter future infringement.
b) Injunction
An injunction is a Court order requiring a person to do an act or prohibiting them from doing an
act. Normally in a copyright infringement claim the copyright owner will seek an injunction
restraining any further copyright infringement.17 In addition to an injunction, the court would
grant damages.
In cases of urgency or where there is a likelihood that the Defendant will hide or destroy
evidence of the copyright infringement the Court may grant an interim injunction without the
Defendant having notice of the application.18
An injunction against infringing items may be granted, even where the plaintiff would suffer no
loss from a continuing infringement. This was established in the case of The Queen v. James
Lorimer and Company Limited19 where the learned trial judge granted an injunction and stated
that in exercising his discretion to refuse the injunctive relief, the learned trial judge found
persuasive the facts that the infringement had not adversely affected the revenue deriving from
16 [1997] FRS 475
17 www.inbrief.co.uk/intellectual-property/copyright-infringement-remedies.htm
(Accessed on 8/11/14)
18 www.inbrief.co.uk/intellectual-property/copyright-infringement-remedies.htm
(Accessed on 8/11/14)
19 (1984) 77 CPR 2d 262
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its sales as well as the unusual character of the appellant as a plaintiff. It should further be
noted that an injunction is a discretionary remedy.
c) Acts of Profit
Section 2620 of the Copyright and Performance Rights Act allows the court to allow successive
claimants, usually as an alternative to damages, to recover the net profits or account of profits
that the infringer made from the copyright infringement. The purpose of the accounts of profit is
to prevent the infringers from enriching themselves at the expense of the copyright owner. This
was illustrated in the case of Sheldon v. Metro-Goldwyn Pictures Corporation21.

d) Seizure
Where infringing material is being sold or hired out the copyright owner has the right to seize the
infringing material or authorise another person to seize it on his behalf.
The right to seize infringing material includes right to enter premises to which the public has
access but anything in the possession, custody or control of a person at a permanent or regular
place of business of his cannot be seized and there is no right to use any force. Section 33 (1)22 of
the Copyright and Performance Rights Act provides for issuance of search warrants and Seize of
Infringed Copies or Articles. Warrants are issues by the Magistrate court to authorise police
officers to enter and search any house or premises and seize any suspected infringing copies or
articles. The Act requires any police officer who conducts a search and seizes anything to
produce the same before the Magistrate within forty-eight hours after the seizure.23
e) Border Measures
The Copyright and Performance Rights Act entitles a copyright owner to request the controller of
customs to prohibit the importation of copies that infringe his copyright in the work. Section
20 Section 26 Copyright and Performance Rights Act.
21 106 F. 2d 45 (US Court of Appeals, 2nd Circuit, 1939)
22 Section 33(1) Copyright and Performance Rights Act.
23 Section 33 (2), Copyright and Performance Rights Act.
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2724 of the Act provides that the owner of the copyright in a literary or musical work, compilation,
audio-visual work or sound recording, may, if the work has been published, give notice in writing to the
Controller of Customs that he is the owner of the copyright in the work, and that he requests the
Controller of Customs to treat as prohibited goods, copies of the work which are infringing copies, during
a period of five years or the remainder of the duration of the copyright, whichever is less. The

Controller of Customs in most instances might require the copyright owner to produce evidence
to support such a notice as prescribed by section 27 (3) of the act. Section 27 (4) of the Act states
that where the Controller of Customs is satisfied that there is a reasonable probability that
attempts may be made to import infringing copies of the work, and that it is in the public interest
that the copies be made prohibited imports, he shall issue a notice in the gazette to the effect
that, during the period specified in the application infringing copies of the work concerned shall
be prohibited imports. During the specified period a person shall not import infringing copies of
the work concerned, otherwise than for domestic and private use, and any infringing copies so
imported shall be subject to forfeiture.
f) Criminal Offences
Section 28 (1)25 of the Copyright and Performances Rights Act lists down acts that are to
constitute criminal offences in relation copyright infringement. These acts include:
-

making for sale or hire infringing copies

distributing infringing copies
by way of trade, exhibiting in public any infringing copy
making or having in possession any article used or intended to be used for the purpose of

making infringing copies

importing into Zambia, otherwise than for private and domestic use

Any person shall, unless he satisfies the court that he acted in good faith and had no reasonable
grounds for supposing that the copyright would or might thereby be infringed, be guilty of an
offence and shall be liable on the first conviction.
Section 28 (2)26 of the Copyright and Performances Rights Act criminalises acts relating to
articles specifically designed or adapted to make copies. The section provides that a person who
24 Section 27, Copyright and Performance Rights Act.

25 Section 28(1) Copyright and Performance Rights Act.

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makes or imports for sale or hire any article specifically designed or adapted to circumvent the
operation of a device or system designed or adapted to prevent or control the reproduction of a
recording of a work shall be guilty. The receiving of illegal programme included in a broadcast
or programme service is illegalised by Section 28(3)27 of the Act.
2) INTERNATIONALLY
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an
international agreement under the World Trade Organization that handles matters of intellectual
property. Part 3 of the Agreement of this agreement effectively prescribes means on how member
states ought to address the issue of copyright infringement.
Article 41 (1) of TRIPS provides that Members shall ensure that enforcement procedures as
specified in this Part are available under their law so as to permit effective action against any
act of infringement of intellectual property rights covered by this Agreement, including
expeditious remedies to prevent infringements and remedies which constitute a deterrent to
further infringements. These procedures shall be applied in such a manner as to avoid the
creation of barriers to legitimate trade and to provide for safeguards against their abuse. Part 3
Section 2 of TRIPS prescribes civil and administrative procedures and remedies while Part 3
Section 3 of TRIPS relates to use of provisional measures.
Other international instruments that address the issue of infringement include the Berne
Convention for the Protection of Literary and Artistic Works (Berne Convention), the Universal
Copyright Convention (UCC), the International Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organizations (Rome Convention), the WIPO
Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).

CONCLUSION
This paper has shown that copyright infringement is best addressed by enforcement undertaken
through Conservatory or provisional measures, civil remedies, seizures, criminal sanction and
26 Section 28(2) Copyright and Performance Rights Act.
27 Section 28(3) Copyright and Performance Rights Act.
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Measures taken at the border. It has also discussed how copyright infringement is addressed
internationally. This paper has clearly demonstrated that copyright infringement in any
jurisdiction like Zambia is best addressed in a countries domestic legislation where international
instruments such as the Agreement on Trade Related Aspects of Intellectual Property Rights
(TRIPS) set a minimal threshold for enforcement procedures to laid down I domestic legislation.
Enforcement of copyright infringement is very similar in most jurisdictions.

BIBLIOGRAPHY
Books
Kanja, G. M. (2006) Intellectual Property Law, 1st Ed: University of Zambia Press
World Intellectual Property Organisation (2004) WIPO: Intellectual Property Handbook Policy
Law and Use, 1st Ed: WIPO Publishers
Cases
A&M Records v. Napster Inc. 239 F.3d 1004 (US Court of Appeal 9th Circuit, 2001)
Anton Piller AG v. Manufacturing Process Limited [1976] 1 Ch. 55.
Claydon Architectural Metalwork Limited v. DJ Higgins and Sons [1997] FRS 475
Sheldon v. Metro-Goldwyn Pictures Corporation 106 F. 2d 45 (US Court of Appeals, 2nd Circuit,
1939).
Sutherland Publishing Company Limited v. Caxton Publishing Company Limited 1936] 1 All ER
186
The Queen v. James Lorimer and Company Limited (1984) 77 CPR 2d 262

Statutes
Copyright and Performance Rights Act Cap 406 of The Laws of The Republic of Zambia
Websites
www.inbrief.co.uk/intellectual-property/copyright-infringement-remedies.htm (Accessed on
8/11/14)
www.intellectual-property.legalhelp.org/copyrights/copyright-infringement/ (accessed on
6/10/14)
www.law.cornell.edu (accessed 7/11/2014)

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