Copyright and Neighbouring Rights Protection Act _6 of 1994

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GOVERNMENT GAZETTE

OF THE

REPUBLIC OF NAMIBIA

N3$5,80 WINDHOEK — 5 MAY 1994 No. 845

CONTENTS

Page

GOVERNMENT NOTICE

No. 70 Promulgation of Copyright and Neighbouring Rights P Protection Act, 1994

(Act 6 of 1994) of the Parliament ..

Government Notice

OFFICE OF THE PRIME MINISTER

No. 70 1994

PROMULGATION OF ACT

OF PARLIAMENT

The following Act which has been passed by the Parliament and signed by the

President in terms oof the Namibian Constitution is hereby published in terms of

Article 56 of that Constitution.

No. 6 of 1994: Copyright and Neighbouring Rights Protection Act, 1994.

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2 Government Gazette 5 May 1994 No. 845

Act No. 6, 1994 COPYRIGHT AND NEIGHBOURING

RIGHTS PROTECTION ACT, 1994

ACT

To provide for the protection of copyright and per-

formers’ rights, and to provide for matters inciden-

tal thereto.

(Signed by the President on 14 April 1994)

ARRANGEMENT OF SECTIONS

INTRODUCTORY PROVISIONS

1. Interpretation,

PART I

PROTECTION OF COPYRIGHT

CHAPTER |

2. Works eligible for copyright.

3. Copyright by virtue of nationality, domicile or residence.

4. Copyright by reference to country of origin.

5. Copyright in relation to the State and certain international organisations.

6. Duration of protection of copyright.

7. Nature of copyright in literary or musical works.

8. Nature of copyright in artistic works.

9. Nature of copyright in cinematograph films.

10. Nature of copyright in sound recordings.

11. Nature of copyright in broadcasts.

12, Nature of copyright in programme-carrying signals.

13. Nature of copyright in published editions.

14. Nature of copyright in computer programs.

15. General exceptions regarding protection of literary and musical works.

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No. 845 Government Gazette 5 May 1994 3

Act No. 6, 1994 COPYRIGHT AND NEIGHBOURING

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. Kffect of orders of Tribunal, and supplementary provisions relating

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. Regulations relating to proceedings before, and appeals against orders or

RIGHTS PROTECTION ACT, 1994

General exceptions in respect of reproduction of works.

Special exception in respect of records of musical works.

General exceptions regarding protection of artistic works.

General exceptions regarding protection of cinematograph films.

General exceptions regarding protection of sound recordings.

General exceptions regarding protection of broadcasts.

General exceptions regarding protection of programme-carrying signals,

General exceptions regarding protection of published editions.

General exceptions regarding protection of computer programs.

Moral rights.

Ownership of copyright.

Ownership of copyright in works of employed authors.

Assignment and licences in respect of copyright.

CHAPTER 2

INFRINGEMENTS OF COPYRIGHT AND REMEDIES

Infringement.

Action by owner of copyright for infringement.

Rights of action and remedies of exclusive licensee and sub-license.

Onus of proof.

Offences and penalties, and proceedings in respect of dealings which

infringe copyright.

Provision for restricting importation of copies.

CHAPTER 3

Establishment and jurisdiction of Copyright Tribunal.

Reference of licence schemes to Tribunal.

Further reference of licence schemes to Tribunal.

Applications to Tribunal.

Diffusion service.

thereto.

Costs and expenses in respect of proceedings before Tribunal.

Proof of orders of Tribunal.

Appeals against orders or decisions of Tribunal.

decisions of, Tribunal.

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Government Gazette 5 May 1994 No. 845

Act No, 6, 1994 COPYRIGHT AND NEIGHBOURING

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RIGHTS PROTECTION ACT, 1994

PART II

PROTECTION OF PERFORMERS’ RIGHTS

Relation to copyright protection.

Protection of performers’ rights in respect of performances in Namibia

and convention countries.

Restrictions on use of performances.

Collective performances.

Duration of protection of performers’ rights.

Exceptions from prohibition against use of performance without consent

of performer.

Offences and penalties.

Damages or interdict for infringement of performers’ rights.

Power of court in respect of fixations, reproductions and plates made

in contravention of this Part.

Consent on behalf of performers and criminal liability of unauthorised

agent.

PART Il

Definition of copyright owners’ collecting society.

Recognition of organisation or association as copyright owners’ collect-

ing society.

Keeping of accounts and auditing.

Withdrawal of recognition.

Offence and penalties.

PART IV

GENERAL AND MISCELLANEOUS PROVISIONS

Regulations.

Advisory committee.

Application of Act to other countries.

Application of Act in relation to works or performances made before

commencement of Act.

Time when a work is made.

Act binds State.

Repeal of laws.

Short title and commencement.

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No. 845 Government Gazette _5 May 1994 5

Act No. 6, 1994 COPYRIGHT AND NEIGHBOURING

RIGHTS PROTECTION ACT, 1994

BE IT ENACTED by the Parliament of the Republic of Namibia, as

follows:-

INTRODUCTORY PROVISIONS

Interpretation. 1. (J) In this Act, unless the context otherwise in-

dicates -

“adaptation”, in relation to -

(a) a literary work, includes -

(i) in the case of anon-dramatic work, a version

of the work in which it is converted into a

dramatic work;

(ii) in the case of a dramatic work, a version of

the work in which it is converted into a non-

dramatic work;

(iii) a translation of the work; or

(iv) a version of the work in which the story or

action is conveyed wholly or mainly by

means of pictures in a form suitable for

reproduction in a book or in a newspaper,

magazine or similar periodical;

(b) a musical work, includes an arrangement or

transcription of the work, if such arrangement or

transcription has an original creative character;

work in such a manner that the original or

substantial features thereof remain recognisable;

(d) a computer program, includes -

(i) a version of the program in a programming

language, code or notation different from

that of the program; or

(ii) a fixation of the program in or on a medium

different from the medium of fixation of the

program;

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Government Gazette 5 May 1994 No. 845

Act No. 6, 1994

RIGHTS PROTECTION ACT, 1994

“artistic work” means, irrespective of its artistic

quality -

(a) a painting, sculpture, drawing, engraving or

photograph;

(b) a work of architecture, being either a building or

a model of a building; or

(©) awork of craftsmanship not falling within either

a model of a building; or

“author”, in relation to -

(a) a literary or musical work, or an artistic work

other than a photograph, which is not computer-

generated, means the person who first makes or

creates the work, or in the case of such a work,

which is computer-generated, means the person

by whom the arrangements necessary for the

creation of the work were undertaken;

(b) photograph, means the person who is responsible

for the composition of the photograph;

arrangements for the making of the sound -re-

cording were made;

(d) acinematograph film, means the person by whom

the arrangements for the making of the film were

made;

(ce) a broadcast, means the first broadcaster;

(f) a programme-carrying signal, means the first

person emitting the signal to a satellite;

(g) a published edition, means the publisher of the

edition;

(h) a computer program, which is not computer-

generated, the person who exercised control over

the making of the program, or in the case of a

computer program, which is computer-gene-

rated, means the person by whom the arrange-

ments necessary for the creation of the program

were undertaken;

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No. 845

Government Gazette 5 May 1994 ih

Act No. 6, 1994

RIGHTS PROTECTION ACT, 1994

“broadcast”, when used as a noun, means a broad-

casting service as defined in section | of the Namibian

Communications Commission Act, 1992 (Act 4 of

1992), and includes the emitting of programme-

carrying signals to a satellite; and, when used as a

yerb, shall be construed accordingly;

“broadcaster” means a person who undertakes a

broadcasting service as defined in section 1 of the

Namibian Communications Commission Act, 1992

(Act 4 of 1992);

“broadcasting organisation” means the Namibian

Broadcasting Corporation established by section 2 of

the Namibian Broadcasting Act, 1991 (Act 9 of 1991)

or any other broadcasting organisation licensed

under the Namibian Communications Commission

Act, 1992 (Act 4 of 1992) or any other law;

“pbuilding” includes any structure;

“cinematograph film” means the fixation by any

means on film or any other material of a sequence of

images capable, when used in conjunction with a

mechanical, electronic or other device, of being seen

as a moving picture and of being reproduced, and

includes the sounds embodied in a soundtrack asso-

ciated with the film, but shall not include a computer

program;

“computer program” means a set of instructions fixed

or stored in any manner and which, when used di-

rectly or indirectly in a computer, directs its operation

to bring about a result;

“copy” means a reproduction of a work, and, in the

case of a literary, musical or artistic work, a cinema-

tograph film or a computer program, also an adapta-

tion thereof, but an object shall not be taken to be a

copy of a work of architecture unless the object is a

building or a model of a building;

“copyright” means copyright under this Act;

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8 Government Gazette 5 May 1994 No. 845

‘Act No. 6, 1994 COPYRIGHT AND NEIGHBOURING

RIGHTS PROTECTION ACT, 1994

“country” includes a colony, protectorate or territory

subject to the authority or under the suzerainty of any

other country, and a territory over which trusteeship

is exercised;

“derived signal” means a signal obtained by modify-

ing the technical characteristics of any signal which

goes to a satellite, whether or not there have been one

or more intervening fixations;

“diffusion service” means a telecommunication ser-

vice of transmissions consisting of sounds, images,

signs or signals, which takes place over wires or other

paths provided by material substance and intended

for reception by specific members of the public; and

diffusion shall not be deemed to constitute a per-

formance or a broadcast or as causing sounds,

images, signs or signals to be seen or heard; and where

sounds, images, signs or signals are displayed or

emitted by a receiving apparatus to which they are

conveyed by diffusion in such manner as to constitute

a performance or a causing of sounds, images, signs or

signals to be seen or heard in public, this shall be

deemed to be effected by the operation of the re-

ceiving apparatus;

“distribution”, in relation to a programme-carrying

signal, means an operation by which a distributor

transmits a derived signal to the public;

“distributor”, in relation to a programme-carrying

signal, means the person who decides that the trans-

mission of the derived signal to the public shall take

place;

“dramatic work” includes a choreographic work or

entertainment in dumb show, if reduced to the

material form in which the work or entertainment is

to be presented, but does not include acinematograph

film as distinct from a scenario or script for a cine-

matograph film;

“drawing” includes a drawing of a technical nature or

any diagram, map, chart or plan;

“engraving” includes any etching, lithograph,

woodcut, print or similar work, but does not include a

photograph;

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No. 845

Government Gazette 5 May 1994 9

Act No. 6, 1994

RIGHTS PROTECTION ACT, 1994

“exclusive licence” means a licence authorising a

licensee, to the exclusion of all other persons, inclu-

ding the grantor of the licence, to exercise a right

which by virtue of this Act would, apart from the

licence, be exercisable exclusively by the owner of the

accordingly;

“infringing copy”, in relation to -

(a) aliterary, musical or artistic work, or a published

edition, means a copy thereof;

(b) a sound recording, means a record embodying

that recording;

a still photograph made therefrom,

a broadcast, means a cinematograph film of it ora

copy of such a cinematograph film or a sound

recording of it or a record embodying such a

sound recording or a still photograph made

therefrom; and

(ec) a computer program, means a copy of such

computer program,

being, in any such case, an article the making of which

constituted an infringement of the copyright in that

work, recording, film, broadcast or program or, in the

case of an imported article, would have constituted

such an infringement if the article had been made in

Namibia;

“judicial proceedings” means proceedings before a

court, tribunal or person having by law power to hear,

receive and examine evidence on oath or affirmation;

“licence scheme”, in relation to licences of any

description, means a scheme prepared by one or more

licensing bodies, setting out the classes of cases in

which they are willing, or the person on whose behalf

they act is willing, to grant licences of that description,

and the charges, if any, and terms and conditions

subject to which licences may be granted in those

classes of cases, and includes anything in the nature of

such a scheme, whether described as a scheme or as a

tariff or by any other name;

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10 Government Gazette 5 May 1994 No. 845

RIGHTS PROTECTION ACT, 1994

“literary work” includes, irrespective of literary qua-

lity and in whatever mode or form expressed -

(a) novels, stories and poetical works;

(b) dramatic works, stage directions, cinematograph

film scenarios and broadcasting scripts;

and articles;

(d) encyclopedias and dictionaries;

(e) letters, reports and memoranda;

(f) lectures, speeches and sermons; and

(g) tables and compilations,

but does not include a computer program;

“Minister” means the Minister of Information and

Broadcasting;

“musical work” means a work consisting of music,

exclusive of any words or action intended to be sung,

spoken or performed with the music;

“performance” includes a mode of visual or acoustic

presentation of a work, including such a presentation

by the operation of a loudspeaker, a radio, television

or diffusion receiver or by the exhibition of a cine-

matograph film or by the use of a record or by any

other means, and in relation to lectures, speeches and

sermons, includes delivery thereof; and references to

“perform” in relation to a work shall be construed

accordingly, but shall not include broadcasting or

rebroadcasting or transmitting a work in a diffusion

service;

“performer” means an actor, singer, musician,

dancer or other person who acts, sings, delivers,

declaims, plays in or otherwise performs, a literary or

musical work;

“photograph” means a product of photography or of

~a process analogous to photography, but does not

include any part of a cinematograph film;

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No. 845 Government Gazette 5 May 1994 ll

RIGHTS PROTECTION ACT, 1994

“plate” includes any stereotype, stone, block, mould,

matrix, transfer, negative, record, disc, storage

medium or any version of a work of any nature used

to make copies;

“prescribed” means prescribed by regulation made

under section 61;

“programme”, in relation to a programme-carrying

signal, means a body of live or recorded material

consisting of images or sounds or both, embodied ina

signal;

“programme-carrying signal” means a signal em-

bodying a programme which is emitted and passes

through a satellite;

“published edition” means the first print by whatever

process of a particular typographical arrangement of

a literary or musical work;

“qualified person” means -

(a) a natural person who is a Namibian citizen or is

domiciled or resident in Namibia; or

(b) a body incorporated under the laws of Namibia;

“rebroadcasting” means the simultaneous or sub-

sequent broadcasting by one broadcasting organi-

sation of the broadcast of another broadcasting or-

ganisation;

“record” means a disc, tape, perforated roll or other

device in or on which sounds are embodied so as to be

capable of being automatically reproduced therefrom

or performed;

“reproduction”, in relation to -

(a) aliterary or musical work ora broadcast, includes

a reproduction in the form of a record or a cine-

matograph film;

(b)

an artistic work, includes a version produced by

converting the work into a three-dimensional

form or, if itis in three dimensions, by converting

it into a two-dimensional form;

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12 Government Gazette 5 May 1994 No, 845

RIGHTS PROTECTION ACT, 1994

reproduction of that work;

(d) a performance, means a copy made of a fixation

of a performance,

and references to “reproduce” and “reproducing”

shall be construed accordingly;

“satellite” means a device in extraterrestrial space

capable of transmitting signals;

“sculpture” includes a cast or model made for pur-

poses of sculpture;

“signal” means an electronically generated carrier

capable of transmitting programmes;

“sound recording” means a fixation of sounds capable

of being reproduced, but does not include a sound-

track associated with a cinematograph film;

“this Act” includes the regulations made and in force

under section 61;

“Tribunal” means the Copyright Tribunal established

by section 35;

“work” means a work of any description mentioned in

section 2;

“work of joint authorship” means a work produced by

the collaboration of two or more authors in which the

contribution of each author is not separable from the

contribution of the other author or authors; and

“writing” includes a form of notation, whether by

hand or by printing, typewriting or a similar process.

(2) Areference in this Act to a sound-track associated

with a cinematograph film shall be construed as a reference

to a record of sounds which is incorporated in a print,

negative, tape or other article on which the film or part of

it, in so far as it consists of visual images, is recorded or

which is issued by the author of the film for use in

conjunction with such a print, negative, tape or other

article.