Draft Copyright and Related Rights Protection Bill 2024

Type: Act or regulation
Category: Legal documents

Download Draft-Copyright-Bill-Feb-2024.pdf

The form is always available to download and submit on paper.

Draft Bill as @ February 2024

BILL

To provide for the protection of Copyright and Related Rights; to provide for the

administration of Copyright and Related Rights; to provide for the nature and

extent of copyright; to provide for exceptions and limitations to copyright

protection; to foster the creation of intellectual products suitable for public benefit;

to provide for easily accessible educational material; to provide for rights of

performers, producers of sound recordings and audio-visual fixations and

broadcasting organisations; to provide for expressions of folklore; to provide for

transfer of ownership of copyright; to provide remedies for infringement of

to provide for collective management of Copyright and Related Rights; to provide

for the establishment of a Copyright and Related Rights tribunal; to provide for

the voluntary registration of copyright works; to repeal the Copyright and

Neighbouring Rights Protection Act, 1994; and to provide for incidental matters.

(Introduced by the Minister of Industrialisation and Trade)

PART 1

INTRODUCTORY PROVISIONS

1. Definitions, interpretation and application

PART 2

ADMINISTRATION

2. Functions of BIPA in relation to this Act

3. Copyright and Related Rights Inspectors

4. Powers of Copyright and Related Rights Inspectors

5. Access to Accounts

6. Limitation of liability

7. Obligation of copyright users

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

PART 3

8. Scope of application

9. Eligibility

10. Derivative works

11. Subject matter not eligible for copyright

12. Economic rights

13. Resale royalty

15. Moral rights of authors

16. Authorship

17. Copyright ownership

18. Presumptions relating to authorship and ownership

19. Duration of copyright

20. Public domain

PART 4

EXCEPTIONS AND LIMITATIONS

21. General exceptions and limitations

22. Temporary reproduction

23. Educational purposes

24. Libraries, archives and museums

25. Broadcasting and other communication to the public

26. Computer Programmes

27. Data processing

28. Ephemeral recordings

29. Importation for personal use

30. Display of works

31. Caricature, parody and pastiche

32. Reporting on judicial and administrative proceedings

33. Persons with disabilities

34. Authorised entities

35. Special exception in respect of musical works

36. Exceptions relating to artistic works

37. Exception relating to programme-carrying signals

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

38. Contractual provisions contravening Act unenforceable

PART 5

RIGHTS OF PERFORMERS, PRODUCERS SOUND RECORDINGS AND AUDIO-

VISUAL FIXATIONS AND BROADCASTING ORGANISATIONS

39. Scope of application

40. Rights of performers, producers and publishers not to affect copyright

41. Exclusive rights of performers

42. Moral rights of performers and directors

43. Collective performances

44. Exclusives rights of producers of sound recordings and audio-visual fixations

45. Remuneration for performers and producers of sound recordings and audio-visual

fixations

46. Remuneration for producers of audio-visual fixations

47. Remuneration for performers of audio-visual fixations

48. Exclusives rights of broadcasting organisations

49. Exceptions and limitations

PART 6

EXPRESSIONS OF FOLKLORE

50. Expressions of folklore

PART 7

TRANSFER OF OWNERSHIP

51. Transfer of ownership in copyright

52. Mechanical License for cover versions

53. Mechanical License for broadcasting of literary and musical works and sound recording

PART 8

INFRINGEMENT AND REMEDIES

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

54. Infringement of Copyright and Related Rights

55. Secondary infringement

56. Technological protection measures

57. Rights management information

58. Liability of Internet Service Providers

59. Take-down notice

60. Duties of service providers

61. Application for interdict

62. Interim measures

63. Civil remedies

64. Restrictions on importation of copies and powers of customs officials

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

65. Offences and penalties

66. Onus of proof

PART 9

67. Copyright and Related Rights Fund

68. Objects and utilisation of Fund

69. Finances of Fund

70. Levy on storage devices

71. Levy on copy shops

72. Obligation to pay levies

73. Determination of levies

74. Exemption from payment of levies

75. Access to accounts

76. Books and other records of account

77. Financial year of Fund

PART 10

COLLECTIVE MANAGEMENT OF COPYRIGHT AND RELATED RIGHTS

78. Recognition of collective management organisations

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

79. Submission of reports

80. Composition of the collective management organisation board

81. Legal status of collective management organisations

82. Accounts and auditing

83. Withdrawal of recognition

84. Collective management organisation regulations

PART 11

85. Copyright and Related Rights Tribunal

86. . Oath of Office

87. . Assessors

88. Secretary of Tribunal

89. Seat and Jurisdiction of Tribunal

90. References to Tribunal by Registrar

91. General powers of Tribunal

92. Proceedings of Tribunal

93. Summoning of witnesses

93. Costs

94. Contempt of Tribunal

95. Rules of Tribunal

96. Appeals to Court

97. Expenses of Tribunal

PART 12

GENERAL PROVISIONS

98. Voluntary registration of rights and organisations

99. Regulations

100. Repeal of laws

101. Savings and transitional provisions

102. Act binds State

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

103. Short title and commencement

PART 1

PRELIMINARY MATTERS

1. Definitions and interpretation

In this Act, unless the context otherwise indicates -

“accessible format copy” means a copy of a work or related subject matter -

(a) in an alternative manner or form which gives a person with a disability access to the work

and which permits such a person to have access as feasibly and comfortably as a person

without a disability; and

(b) that meets the requirement set out in section 33(3);

“adaptation”, in relation to -

(a) a dramatic work, includes conversion of the work from -

(i) non-dramatic form into dramatic form;

(ii) dramatic form into non-dramatic form;

whether the work is in its original language or not;

(b) a literary work, whether in a non-dramatic form or in a dramatic form, includes -

(i) a translation of the work;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(ii) a version of the work in which the story or action is conveyed solely or mainly by

means of pictures in a form suitable for reproduction in a book or in a newspaper,

magazine or similar periodical;

arrangement or transcription has an original creative character;

(d) an artistic work, includes a transformation of the work in such a manner that the original

or substantial features thereof remain recognisable;

(e) a computer programme, includes -

(i) a version of the programme in which it is converted into or out of a computer language

or code into a different computer language or code;

(ii) a re-arrangement or altered version of the original programme; and

(iii) a fixation of the programme in or on a medium different from the medium of fixation

of the programme; and

(f) a compilation of data, includes a rearrangement or altered version of the original

compilation;

“artistic work”, irrespective of artistic quality or form, includes -

(a) engravings, etchings, drawings, lithographs, paintings, woodcuts, products of

photographs and prints, cloth designs;

(b) photographs, not part of audio-visual works;

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

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(e) illustrations, maps, plans, charts, diagrams and three-dimensional works relative to

geography, topography, architecture or science;

(f) works of applied art;

“audio-visual fixation” means the embodiment of moving images, whether or not accompanied

by sounds or by representations of sound, in a material form from which they can be perceived,

reproduced or communicated through a device;

“audio-visual work” means any record of a sequence of related images with or without

accompanied sound, irrespective of length, which is intended to be made visible as a moving

image through the use of devices, regardless of the medium of initial or subsequent fixation

and for which there is an expectation for public exhibition and includes films and video

recordings, animation, and documentary productions, for exploitation on any form of

distribution currently existing or future invented;

“author” means an author as described in section 15;

“authorised entity” means an entity that is recognised and authorised as such under section 33;

“beneficiary person” means a person who –

(a) is blind;

(b) has a visual impairment or a perceptual or reading disability which cannot be improved to

give visual function substantially equivalent to that of a person who has no such impairment or

disability and so is unable to read printed works to substantially the same degree as a person

without an impairment or disability; or

move the eyes to the extent that would be normally acceptable for reading, regardless of any

other disabilities.

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

“BIPA” means the Business and Intellectual Property Authority established by section 3 of the

BIPA Act;

“BIPA Act” means the Business and Intellectual Property Authority Act, 2016 (Act No. 8 of

2016);

“Board” means the Board of BIPA constituted under section 8 of the BIPA Act;

“broadcast” means the transmission by wireless means of sounds or images, or both, or of

representations the sounds or images, over a distance, for direct reception by the public and

includes the -

(a) transmission of encrypted signals where the means of decrypting are provided to the

public by the broadcasting organisation or with its consent; and

(b) emission of programme-carrying signals to a satellite;

"broadcasting" means the transmitting for reception by the general public over a distance by

means of radio, television, electromagnetic emissions, light beams, wire, cable or other

means;

“broadcaster” means any legal or natural person who provides a broadcasting service consisting

of television or radio programmes for reception by the public or sections of the public or

subscribers to such a service, irrespective of technology used;

“broadcasting organisation” means the Namibian Broadcasting Corporation established by

section 2 of the Namibian Broadcasting Act, 1991 (Act No. 9 of 1991) or any other

broadcasting organisation that holds a broadcasting licence issued under the Communications

Act, 2009 (Act No. 8 of 2009) or any other law;

“building” means any permanent structure that has a roof and walls, and that is designed or

intended for support, enclosure, shelter or protection of person, animals or property;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

“choreographic work” means a dance composition or design by a dance composer of dance

patterns;

“collective management organisation” means any organisation, association or company

recognised under section 76;

“communication to the public”, in relation to an artistic work, a performance, sound recording,

an audio-visual fixation or a broadcast, means the transmission to the public by any means, in

such a way that it can be perceived by persons outside the normal circle of a family and its

closest social acquaintances at a place or places so distant from the place where the

transmission originates and that, without the transmission, the work, performance, sound

recording, audio-visual fixation or broadcast would not be perceivable and, in the case of -

(a) a sound recording, includes making the sounds or representations of sounds fixed in the

sound recording audible to the public;

(b) an audio-visual fixation, includes making a performance fixed in the audio-visual

fixation audible or visible or both audible and visible to the public;

“commissioned work” means a work created in pursuance of a written, signed contract between

the author or authors and a party commissioning the work at issue;

“computer” means an electronic or similar device having information-processing capabilities;

“computer programme” means a set of instructions whether expressed in words, codes,

schemes or in any other form, which is capable, when incorporated in a medium that a computer

can read, of causing a computer to perform or achieve a particular task or result;

“commercially available” means, in relation to a work or other subject-matter,

(a) available on the Namibian market within a reasonable time and for a reasonable price and

may be located with reasonable effort, or

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(b) for which a licence to reproduce, perform in public or communicate to the public by

telecommunication is available from a collective management organisation within a

reasonable time and for a reasonable price and may be located with reasonable effort;

“cover version” means a sound recording made in accordance with section 51;

“copy” means a reproduction of a work and, in the case of a literary, musical or an artistic

work, an audio-visual work or a computer programme, also an adaptation thereof, but an object

may 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;

“Copyright and Related Rights inspector” means an inspector designated or appointed under

section 3;

“derivative work” means a work based upon one or more pre-existing works such as a

translation, musical arrangement, dramatisation, fictionalisation, audio-visual work version,

sound recording, art reproduction, abridgment, condensation, or any other form in which a

work may be recast, transformed, or adapted.

“derived signal” means a signal obtained by modifying 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 service 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, but diffusion may not

be considered -

(a) to constitute a performance or a broadcast; or

(b) as causing sounds, images, signs or signals to be seen or heard,

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

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, they must be

considered to be affected by the operation of the receiving apparatus;

“distribution”, in relation to -

(a) a work, means the putting into circulation of the tangible original copies of the work, in

any form through sale or other transfer of ownership, including importing for the purpose

of such putting into circulation and public offering for sale and other transfer of

ownership; and

(b) a programme-carrying signal, means an operation by which a distributor transmits a

derived signal to the public via satellite or wireless;

“distributor”, in relation to a programme-carrying signal, means the person who decides that

the transmission of the derived signal to the public takes place;

“digital distribution” is the delivery or distribution of digital media content such as audio,

video, e-books, video games, and other software;

“dramatic work” includes -

(a) a choreographic work or entertainment in dumb show, if reduced to the material form in

which the work or entertainment is to be presented; and

(b) a scenario or script from an audio-visual work,

but does not include an audio-visual work;

“engraving” means the art of producing on hard material incised or raised patterns, lines or

similar images, from which an impression or print is taken and includes any etching, lithograph,

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

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

“exclusive licence” means a license authorising a licensee, to the exclusion of all other persons,

including 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 copyright or related right;

“exploit” shall mean, as the context requires, to use, make, have made, sell, offer for sale,

import, copy, distribute, create derivative works of, develop or otherwise commercialise any

“expressions of folklore” means any expression whether tangible or intangible, involving

traditional, customary, cultural dimensions and knowledge and are expressed, manifested,

developed or preserved by the traditional communities of Namibia or by unidentified

individuals of Namibia, and includes the following forms of expressions or combinations

thereof:

(a) verbal expressions, such as but not limited to stories, epics, legends, poetry, riddles and

other narratives, words, signs, names, and symbols;

(b) musical expressions, such as but not limited to songs and instrumental music;

performances, whether or not reduced to a material or tangible form;

(d) tangible expressions including productions of art, in particular, drawings, designs,

paintings, including body-painting, carvings, sculptures, pottery, terracotta, mosaic,

woodwork, metal ware, jewellery, basketry, needlework, textiles, glassware, carpets,

costumes and handicrafts;

(e) traditional musical instruments; and

(f) traditional architectural works;

“fixation” means the embodiment of sounds, images or both, or of the representations of the

sounds or images, in a material form sufficiently permanent and stable so as to enable the

sounds or images to be perceived, reproduced or communicated through a machine or device;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

“Fund” means the Copyright and Related Rights Fund established under section 67;

“implement” includes any machine, equipment, plate, stereotype, stone, block, mould, matrix,

transfer, negative, record, disc, storage medium or any other device that may be used to make

copies of a work or related subject matter;

“information systems” means a system of generating, sending, receiving, storing, displaying or

otherwise processing data, including over digital networks and the internet;

“information system service” includes the provision of connections, the operation of facilities

for information systems, the provision of access information systems, the transmission or

routing of data between or among points specified by a user and the processing and storage of

data, at individual request of the recipient of the service;

“infringing copy” means a copy of a work or related subject matter produced by any process

and in any form, the making of which involves infringement of copyright in the work or a

related right;

“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 collective management organisations recognised under section 77;

“literary works, irrespective of literary quality or form, without limitation, includes -

(a) novels, stories, or poetry works;

(b) plays, stage directions, film scenarios or broadcasting scripts;

(d) letters, reports or memoranda;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(e) lectures, addresses or speeches or similar works; and

(f) computer programmes;

“make available to the public” means the making available to the public of a work or related

subject matter by wire or wireless means in any form including an electronic database or a

digital form, in such a way that members of the public may access them from a place and at a

time individually chosen by them;

“mechanical right” means a right to record, reproduce and distribute to the public a copyrighted

musical composition (which includes audiotapes, compact discs and any other material object

in which sounds are fixed, except those accompanying motion pictures and other audio-visual

works). The licenses granted to the user to exploit the mechanical rights are called mechanical

licenses.

“Minister” means the Minister responsible for Industrialisation and Trade;

“musical work” means a work consisting of music, inclusive of any words or action intended

to be sung, spoken or performed with the music and any graphical notation of such work;

“orphan work” means a work whose right holders cannot be identified, and even if they are

identified, none is located despite a diligent search for the right holders have been carried out.

“performance” means the presentation of a work, a related subject matter or an expression of

folklore by such action as dancing, playing, reciting, singing, delivering, declaiming or

projecting to listeners or spectators, live or by any means whatsoever;

“performer” means an actor, a singer, musician, dancer or other person who acts, sings,

delivers, declaims, plays in, interprets or otherwise performs a work or expression of folklore

and includes the conductor of a performance of any such work or expression of folklore;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

“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 any

part of an audio-visual work;

“prescribed” means prescribed by regulation made under section 87;

“producer of an audio-visual fixation” means the natural person or legal entity that undertakes

the initiative and responsibility for making the first fixation of an audio-visual work;

“producer of a sound recording” means the natural person or legal entity that undertakes the

initiative and responsibility for the first fixation of the sounds of a performance or other sounds

or the representations of sounds;

“programme”, in relation to a programme-carrying signal, means a body of live or recorded

material consisting of images or sounds, or both, embodied in a signal;

“programme-carrying signal” means a signal embodying a programme which is emitted and

passes through a satellite;

“protected rights” means any of the rights whose violation would constitute an infringement as

contemplated in sections 52-55;

“public display” means the showing of the original or a copy of a work or related subject matter

(a) directly;

(b) by means of a film, slide, television image or otherwise on screen;

(d) in the case of an audio-visual work, the showing of individual images non-sequentially,

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

at a place or places where persons outside the normal circle of a family and its closest social

acquaintance are or can be present;

“moral rights” means the rights described in section 14;

“public lending” means the transfer of the possession of the original or a copy of a work or a

sound recording for a limited period of time for non-profit making purposes, by an institution,

the services of which are available to the public, such as a public library, archive or museum;

“public performance” means a performance with a reach beyond the normal circle of the family

and closest social acquaintances of the person initiating the performance, and -

(a) in the case of a work other than an audio-visual work, includes the recitation, playing,

dancing, acting or otherwise performing the work, either directly or by means of any

device or process;

(b) in the case of an audio-visual work, includes the showing of images in sequence and the

making of accompanying sounds audible, either separately or in combination;

fixed in a sound recording audible; and

(d) in the case of works of expressions of folklore, includes dance, plays, acting, recitals,

songs, declaiming or projection to an audience live or by any other means;

“publication” means -

(a) availing copies of the work or related subject matter available to the public for sale, rent,

public lending or for other transfer of ownership or possession of the copies such

quantities as to satisfy the reasonable requirements of the public having regard to the

nature of the work or related subject matter; and

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(b) available to the public of the work or related subject matter that took place with the

consent of the author or other owner of copyright or related rights, but publication does

not include -

(i) performance of a musical work, dramatic work or an audio-visual work or a sound

recording;

(ii) public delivery of a literary work; and

(iii) transmission in a diffusion service;

(iv) broadcasting of a work;

(v) exhibition of a work of art; or

(vi) construction of a work of architecture;

“public domain” comprises the works specified in section 18; works in the public domain may

be used freely without the permission of the former copyright owner;

“published edition” means the first print by whatever process of a particular typographical

arrangement of a literary or musical work;

“rebroadcasting” means the simultaneous or subsequent broadcasting in part or in whole by

one broadcasting organisation of the broadcast of another broadcasting organisation;

“record” means a disc, tape, plate, perforated roll or other device in or on which sounds are

embodied so as to be capable of being automatically reproduced therefrom or performed;

“related rights” includes the rights granted to a performer, broadcasting organisation, producer

of sound recordings or audio-visual fixations, and includes rights relating to expressions of

folklore;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

“related subject matter” includes expressions of folklore, performances, sound recordings,

audio-visual fixations, broadcasts, typographical arrangements and fixations of any work or

subject matter that may be subject to protection under this Act;

“rental” means the transfer of the possession or making available for use of the original or a

copy of a work, sound recording or an audio-visual work for a limited period of time for direct

or indirect commercial purposes;

“reproduction” means the making of one or more copies by any means, of a work or related

subject matter, in whole or in part, and includes -

(a) making a fixation from a performance or communication;

(b) permanent or temporary storage in electronic form;

record or an audio-visual fixation;

(d) in the case of an artistic work, converting a work into a three-dimensional form or, if

existing in a three-dimensional form, converting it into a two-dimensional form; and

(f) in the case of a sound recording, making, directly or indirectly, a record embodying the

recording;

“reprography” means the making of copies of a work, by photocopying or similar means;

“rights management information” means any information that identifies -

(a) an author;

(b) a work;

(d) place of production;

(e) an expression of folklore;

(f) a performer;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(g) the performance of a performer;

(h) the producer of a sound recording or an audio-visual fixation;

(i) a sound recording or an audio-visual fixation;

(j) a broadcast;

(k) a broadcasting organisation;

(l) a broadcaster;

(m) owner of any right protected under this Act;

(n) terms and conditions of use of a work, expression of folklore, performance, sound

recording, audio-visual fixation, broadcast or typographical arrangement, and any

numbers or codes that represent that information,

when any of these pieces of information -

(i) is attached to a copy of a work, an expression of folklore, a fixed performance,

sound recording, an audio-visual fixation, a broadcast or typographical

arrangement; or

(ii) appears in connection with the broadcasting, communication to the public or

making available to the public or performance of a work, an expression of folklore,

a fixed performance, sound recording, an audio-visual fixation, a broadcast or a

typographical arrangement;

“satellite” means a device in extra-terrestrial space capable of transmitting signals;

“sculpture” includes a cast or model made for the purposes of sculpture;

“service provider” means any person or entity providing an information system service or

access software provider that provides or enables computer services and other digital networks

access by multiple users to a computer server or digital system including connections for, the

transmission or routing of data;

“signal” means an electronically generated carrier capable of transmitting programmes;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

“sound recordings” means -

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

(b) a fixation of the whole or any part of a literary, dramatic or musical work, from which

the sounds are reproducing the work or part of it may be produced,

regardless of the medium on which the recording is made or the method by which the sounds

are reproduced, but does not include a fixation incorporated in an audio-visual work as an

integral part of the audio-visual work;

“State” means the Government of Namibia;

“tangible copy or form” means a fixed copy or form such that the copy or fixation can be put

into circulation as a tangible object;

“technological protection measure” means any technology, product, device or component that,

in the normal course of operation, is designed to -

(a) prevent or restrict access to; or

(b) prevent or restrict the doing of any acts or activities,

in respect of works or related subject matter, which access and acts or activities are not

authorised by the right holder;

“this Act”, includes the regulations made under section 98;

“Tribunal” means the Copyright and Related Rights Tribunal established by section 84;

“work”, includes a literary, dramatic, musical, artistic, audio-visual or a derivative work, in the

form of text notation or related illustrations whether published or otherwise made publicly

available in any media;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

“works of applied art” means an artistic work applied to objects for practical use whether

handicraft or works produced on an industrial scale;

“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 any form of notation, whether by hand or by printing, typewriting or a

similar process.

(2) A reference in this Act to the doing of an act in relation to a work or related subject matter,

must, unless the context otherwise indicates, be construed as a reference also to the doing of

that act in relation to a substantial part of that work or subject matter.

(3) This Act, with reference to an act or omission outside the territorial limits of Namibia by

or on a ship or aircraft registered under a law in Namibia, applies in the same manner as it

applies with reference to acts or omissions within the territorial limits of Namibia.

PART 2

ADMINISTRATION

2. Functions of BIPA in relation to this Act

Without derogating from the functions and powers of BIPA conferred by section 5 of the

BIPA Act, the functions of BIPA under this Act are to -

(a) direct, co-ordinate and oversee the implementation of this Act and international

conventions and agreements to which Namibia is party which relate to copyright and

related rights;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(b) advise the Minister and other governmental agencies and institutions on the negotiation,

conclusion and implementation of bilateral and multilateral conventions and agreements

on copyright and related rights;

advise the Minister on any matter referred to it by the Minister;

(d) administer and enforce all matters of copyright and related rights as provided for under

this Act and to deal with ancillary matters connected with its functions under this Act;

(e) administer voluntary registration of Copyright and Related Rights

(f) recognise and register collective management organisations as provided for under this

Act;

(g) cooperate with other institutions and bodies at national, regional and international

forums on matters related to copyright and related rights;

(h) maintain the registers referred to in section 96 (2) and enter into that register the matters

specified in that section;

(i) oversee and supervise the activities of collective management organisations as provided

for under this Act;

(j) develop and facilitate training programmes on copyright and related rights;

(k) educate and inform the public on matters relating to copyright and related rights;

(l) maintain an effective database on authors and their works and holders of other related

rights and their rights; and

(m) perform such other functions that BIPA is required to perform under this Act and as may

be prescribed.

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

3. Copyright and Related Rights Inspectors

(1) BIPA may, for the purposes of enforcing the provisions of this Act appoint Copyright

and Related Rights Inspectors as may be necessary and must issue to them, in writing or

in such form as may be prescribed, certificates of authority to act as such Inspectors.

(2) Despite anything to the contrary in this Act or in any law, a member of the Namibian

Police referred in section 2 (1) of the Police Act, 1990 (Act No. 19 of 1990) may, subject

to such changes as may be necessary, perform the functions or exercise the powers of a

and Related Rights Inspector.

(3) A person appointed as a Copyright and Related Rights Inspector holds office subject to

such conditions as the BIPA may determine.

4. Powers of Copyright and Related Rights Inspectors

(1) A Copyright and Related Rights Inspector may, subject to Article 13 of the Namibian

Constitution, at any reasonable time and on production of his or her certificate of

authority, enter any premises, ship, aircraft or vehicle for the purpose of search to

ascertain whether there is or has been, on or in connection with such premises, ship,

aircraft or vehicle any contravention of this Act.

(2) For the purpose of ascertaining whether there is or has been a contravention of this Act,

a Copyright and Related Rights Inspector may inspect -

(a) any substance or implement appearing to him or her to be a work or related subject

matter or thing subject to protection under this Act;

(b) any container or package used or intended to be used to contain any work or related

subject matter or thing subject to protection under this Act;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

connection with the production, reproduction or otherwise manufacture of a work-

related subject matter or thing subject to protection under this Act; or

(d) any personal computer or devices that can store or carry data in relation to which or

by means of which he or she has reasonable cause to believe that an offence under

this Act has been or is being committed.

(3) A Copyright and Related Rights Inspector may search for and seize -

(a) any substance or implement which he or she has reasonable cause to believe to be an

infringing copy of a work or related subject matter;

(b) any substance or implement in relation to which or by means of which he or she has

reasonable cause to believe that an offence under this Act has been or is being

committed; or

may be required as evidence in proceedings under this Act.

(4) Where a Copyright and Related Rights Inspector seizes any work, related subject matter

or thing, he or she must in writing notify the person from whom it is seized the fact of

that seizure and must in that notification specify any item seized.

(5) A person who -

(a) wilfully obstructs a Copyright and Related Rights Inspector or other authorised law

enforcement agent in the discharge of their duties;

(b) wilfully fails to comply with any lawful directive made to him or her by a Copyright

and Related Rights Inspector or other authorised law enforcement agent;

Inspector or other authorised law enforcement agent any assistance or information

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

which they may reasonably require of that person for the purpose of the performance

of the Inspector’s duties under this Act; or

(d) in giving any such information as is mentioned in paragraph (c), makes any statement

which he or she knows or reasonably ought to know is false or does not believe to be

true,

commits an offence and is liable to a fine not exceeding N$10,000 or to imprisonment

for a period not exceeding 12 months or to both such fine and imprisonment.

(6) In so far as this section provides for a limitation on the fundamental rights contemplated

in Sub-Article (1) of Article 13 of the Namibian Constitution, in that it authorises

interference with the privacy of a person’s home, correspondence or communication, that

limitation is enacted upon the authority of Sub-Article (2) of that Article.

5. Access to accounts by Copyright and Related Rights Inspectors

(1) The Chief Executive Officer or a person designated in writing by BIPA as a Copyright

and Related Rights Inspector must, on request in writing, be granted access to the

accounts of -

(a) manufacturers or importers of devices for digital storage placed on the market for

consumers;

(b) sellers of artistic works; and

in order to determine whether they are complying with the provisions in this Act, and this right

to access is limited to the accounts of the last three years before the year in which the request

for access is made .

(2) Information gathered by reason of access to the accounts may not be exploited for other

purposes, and the Chief Executive Officer or a person designated in writing by BIPA

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

as inspector, must observe strict confidentiality with respect to this information except

as is necessary in order to enforce the levy schemes pursuant to section 69.

6. Limitation of liability

The Minister, a member of the Board, the Registrar, a Copyright and Related Rights Inspector

or any other staff member of BIPA is not liable in respect of anything done or omitted to be

done in good faith in the exercise of any power or the performance of any duty under or in

furtherance of the objects of this Act.

7. Obligation of copyright users

(1) Anyone who exploits a work created by others shall, except where no permission is

required in accordance with the provisions of this Act, conclude a prior written contract

with, or otherwise obtain permission from, the copyright owner.

(2) A contract shall include the following basic clauses –

(a) the manner of exploitation of the work covered by the license;

(b) the exclusive or nonexclusive nature of the right to exploit the work covered by the

license;

(d) the amount of remuneration and the method of its payment;

(e) the liability for breach of contract; and

(f) any other matter which the contracting parties consider necessary.

(3) Without permission from the copyright owner, the other party to the contract shall not

exercise the right which the copyright owner has not explicitly licensed in the contract.

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(4) The term of validity of a contract shall not exceed ten years. The contract may be

renewed on expiration of that term.

(5) The tariffs of remuneration for the exploitation of works shall be determined and

prescribed by BIPA after consultation with collective management organisations.

Where otherwise agreed to in a contract remuneration may be paid in accordance with

the terms of the said contract, if it is more favourable then that prescribed.

(6) Publishers, performers, producers of sound recordings and audio-visual recordings,

radio stations, television stations and other entities who or which have, pursuant to this

Act, obtained the right of exploitation included in the copyright of others, shall not

prejudice such authors’ rights of authorship, alteration, integrity and their right to

remuneration.

PART 3

8. Scope of application

(1) Copyright protection under this Act must be extended to -

(a) works of an author who is a citizen, permanent resident and other lawful permit holders

of Namibia or has his or her habitual residence in Namibia;

(b) works first published in Namibia;

of the first publication, irrespective of the nationality or residence of the author;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(d) audio-visual works, the maker or producer of which has his or her or a registered place

of business or habitual residence in Namibia; and

(e) works of architecture erected in Namibia and other artistic works incorporated in a

building or another structure located in Namibia.

(2) The provisions of this Act also apply to works that are eligible for protection in any other

country by virtue of, and in accordance with any international convention or other

international agreement relating to copyright or related rights which is binding on

Namibia.

9. Eligibility for copyright

(1) Subject to the provisions of this Act, copyright protection subsists in original works of

authorship, now known or later developed, from which they can be perceived,

reproduced, or otherwise communicated, either directly or with the aid of a machine,

device or technology . Works of authorship include but are not limited to the following

categories:

(a) literary works;

(b) dramatic works;

(d) artistic works;

(e) audio-visual works;

(f) sound recordings;

(g) broadcasts; and

(h) published editions;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(i) programme-carrying signals.

(2) A work is entitled to protection under this Act irrespective of its content, quality and

purpose.

(3) A work is eligible for copyright where -

(a) it is in original character; or

(b) a derivative work.

(4) A work, other than a broadcast or programme-carrying signal, is not, subject to Part 5,

eligible for copyright unless it has been written down, recorded, represented in digital

data or signals or otherwise reduced to material or tangible form.

(5) A broadcast or a programme-carrying signal is not eligible for copyright until -

(a) in the case of a broadcast, the broadcast has been made; or

(b) in the case of a programme-carrying signal, such signal has been transmitted by

satellite.

(6) A work is original if it is the product of the independent effort of the author.

10. Derivative works

(1) The following derivative works, in so far as they constitute independent creations, are

also eligible for protection under this Act -

(a) translations, adaptations, arrangements and other transformations or

modifications of works;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(b) collections of works including encyclopaedias, dictionaries, directories or

anthologies, whether in machine readable format or other form or eligible for

protection under this Act or not, which, by reason of the selection or arrangement

of the contents, constitute intellectual creations;

other form, which, by reason of the selection or arrangement of the contents,

constitute intellectual creations; and

(d) collections of works derived from expressions of folklore.

(2) The protection of any work referred to in subsection (1) does not extend to the work or

data concerned, and is without prejudice to any protection of a pre-existing work or

expression of folklore incorporated in or utilised for the making of such a work.

11. Subject matter not eligible for copyright

(a) any idea, procedure, system, method of operation, concept, principle, discovery or mere

data;

(b) any written laws and decisions of courts and administrative bodies, as well as any

official translation thereof;

(d) political speeches delivered, and speeches delivered during the course of legal

proceedings within the scope of work of Namibian Government officials, provided that

the author of the speech is not precluded from making a collection of the speeches which

is eligible for protection as derivative work under this Act;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

12. Economic rights

(1) Subject to the exceptions and limitations under this Act, the author or other owner of

following acts in relation to the work -

(a) reproduction of the work in any material form including electronic and digital

copies;

(b) publishing the work if it was hitherto unpublished;

(d) distribution of the original or a copy of the work by way of sale or other transfer of

property;

(e) public performance of the work;

(f) broadcasting and rebroadcasting of the work;

(g) public display of the work;

(h) communication to the public of the work;

(i) making available of the work to the public;

(j) importation of the work;

(k) rental of the original or copy of an audio-visual work, a computer programme or a

work embodied in a sound recording;

(l) make a derivative work out of the original work;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(m) cause the work or a television or other programme, which includes the work, to be

transmitted in a diffusion service, unless such service transmits a lawful television

broadcast, including the work, and is operated by the original broadcaster;

(n) in the case of a programme-carrying signal, the direct or indirect distribution of

such signals by a distributor to the public in Namibia, or from Namibia;

(o) any of the actions in paragraphs (a) to (k) in relation to a derivative of the work;

and

(p) translation and adaptation of a work.

(2) The right of distribution under subsection (1)(d) does not apply to the original or a copy

of the work that has already been subject to a sale or other transfer of ownership in

Namibia authorised by the owner of copyright or related right protected under this Act.

(3) The right of rental under subsection (1)(k) does not apply to the rental of computer

programmes where the programme itself is not the essential part of the rental.

13. Resale royalty

(1) Despite any assignment or sale of the original work, the author of an original artistic work

or a manuscript of a work retains an inalienable right to a share of the proceeds of any

sale or subsequent sale of the original artistic work or manuscript through a public

auction, or through a dealer, whatever method used by the dealer to carry out the

operation, after the first transfer of ownership.

(2) Subsection (1) does not apply to the subsequent sale of –

(a) an artistic work or manuscript for a sale price of less than N$50,000 or such amount as

prescribed; or

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(b) architectural work or a work of applied art.

(3) The resale royalty shall be payable at the rate of ten percent (10%) of the net sale price on

the commercial resale of an artwork and the seller, the art market professional, the seller's

agent and the buyer shall be jointly and severally liable to pay the resale royalty.

(4) The conditions for the exercise of the right conferred by this section, including the payable

remuneration, are as prescribed.

(5) If a mark or name purporting to identify a person as an artist of an artwork appears on the

artwork, it must be presumed in the absence of any other mark or evidence, that the person

is the artist thereof.

(6) Authors who are nationals of other countries and their successors in title enjoy the resale

right in accordance with this Act.

(7) The term of protection of the resale right last for as long as the work enjoys copyright

protection under this Act.

14. Moral rights of authors

(1) Independently of the author’s economic rights, and even after the transfer of such

rights, the author has the exclusive right -

(a) to claim authorship of his or her work, and to demand that his or her name or

pseudonym be mentioned when any of the acts referred to in section 11(1) are done

in relation to the work; and

(b) to object to, and seek relief, in connection with, any distortion, mutilation or other

modification of, or derogatory action in relation to, his or her work, where such

action would be prejudicial to his or her honour or reputation.

(2) The author may waive the exercise of any of the moral rights mentioned in subsection

(1), provided that such waiver is in writing and for specific uses.

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(3) The waiver referred to in subsection section (2) is -

(a) in the case of a work of joint authorship, required from each author; and

(b) in the case of death of the author, exercisable by his or her successors in title.

(4) The rights referred to in subsection (1) are not transferable during the life of the author,

but are transferable by testamentary disposition or by operation of law following the

death of the author.

15. Authorship

(1) An author in relation to -

(a) a literary, musical or artistic work, means the person who first makes or creates the

work;

(b) a photograph, means the person who is responsible for the composition of the

photograph;

the sound recording were made;

(d) an audio-visual work, means the person by whom the arrangements for the making

of the work were made;

(e) a broadcast, means -

(i) the first person making the broadcast; or

(ii) in the case of a broadcast which relays another broadcast by reception and

immediate retransmission, the person making that other broadcast;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(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 programme, means the person who created the source code.

(2) For the purposes of this Act, a work is of “unknown authorship” where the identity of the

author is unknown or, in the case of a work of joint authorship, where the identity of none

of the authors is known.

(3) For the purposes of this Act, the identity of an author must be regarded as unknown if it

is not possible for a person to ascertain the author’s identity through prescribed inquiries,

but once the author’s identity is known, it may not subsequently be regarded as unknown.

(4) References in this Act to the author of a work must, except as otherwise provided, be

construed in relation to a work of joint authorship as references to all the authors of the

work.

16. Copyright ownership

(1) The original ownership in copyright vests in the author, subject to subsections (2)-(5).

(2) In case of works of joint authorship, original ownership of the copyright vests in the co-

authors in equal proportions, but if a work of joint authorship consists of parts that can

be used separately, and the author of each part can be identified, original ownership of

the copyright vests in the author of each part that he or she has created.

(3) The copyright in a commissioned work shall be owned by the party commissioning the

work if and unless the creation of the work, the parties so agree in a signed contract. In

such a case, the person creating the work remains the author.

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(4) Where -

(a) a literary, musical or an artistic work is made by an employee or independent contractor

in the course of his or her service with the proprietor of a newspaper, magazine or

similar periodical under a contract of service or apprenticeship; and

(b) the work referred to in paragraph (a) is made for the purpose of publication in a

newspaper, magazine or similar periodical,

the ownership of the copyright in the work with respect to publication of the work in a

newspaper, magazine or similar periodical or reproduction of the work for the purpose of such

publication, vests in that proprietor, but in all other respects ownership of the copyright

subsisting in the work vests in the employee who retains the right to be publicly recognised as

the author of the work and has the right to supplement and improve the work.

(5) Unless otherwise provided for in a contract, original ownership of copyright -

(a) in an audio-visual work, vests in the producer (s), but the -

(i) co-authors of the audio-visual work; and

(ii) author of the pre-existing works included in or adapted for the making of the

audio-visual work,

maintain their copyright in their respective contributions or pre-existing works, to the extent

that those contributions or pre-existing works can be subject of acts covered by their rights

separately from the audio-visual work;

(b) in a sound recording, vests or is deemed to vest in the producer of the sound

recording.

(6) A party who has been unable – through documented, reasonably diligent, good-faith

efforts – to identify either the owner of the copyright in a particular work or an entity

authorised to grant a license to use the work –

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(a) may use that work in any of the ways specified in section 11, provided, however,

that upon receipt of actual notice from the owner or an authorised licensor, the party

expeditiously ceases the activity in question;

(b) and subsequently has adapted the work or integrated it into a new work, may

continue to reproduce, distribute, display, and perform the adaptation or new work,

even after the receipt of actual notice from the owner or an authorised licensor, provided

that the party pays a reasonable fee for such continued use, as determined by the

Tribunal. In addition, the party shall retain copyright in the original aspects of the

adaptation or new work.

17. Presumptions relating to authorship and ownership

(1) The person whose name is indicated as the author on a work is, in the absence of proof

to the contrary, presumed to be the author and also owner of the work.

(2) Subsection (1) applies even if the name indicated on the work is a pseudonym, as long

as the pseudonym leaves no doubt as to the identity of the author.

(3) The person whose name appears on a work in as required by proper usage or as

prescribed is, in the absence of proof to the contrary, presumed to be the producer of the

work.

(4) In the case of anonymous or pseudonymous works, subject to the provision of subsection

(1), the publisher -

(a) whose name appears on the work is, in the absence of proof to the contrary,

presumed to represent the author; and

(b) in his or her representative capacity as contemplated in paragraph (a), is entitled to

exercise and enforce the moral and economic rights of the author,

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

but the presumption of representation ceases to apply when the author reveals his or her

identity.

(5) In the case of sound recordings, where copies of the recording as issued, communicated

or made available to the public, bear a label, mark or other accompanying data stating

that -

(a) a named person was the owner of the related rights in the recording at the date of

issue, communication or making available to the public, or

(b) the recording was first published in a specified year or in a specified country,

the label, mark or other data is admissible as evidence of the facts stated and is presumed to

be correct until the contrary is proved.

(6) The co-authors of an audio-visual work are the original owners of the moral and

economic rights in the audio-visual work who, in the absence of proof to the contrary,

are presumed to be the producer, the author of the scenario, the author of the dialogue

and the composer of the music specifically created for the audio-visual work.

(7) The author of a pre-existing work or related subject matter that has been included in, or

adapted for, the making of an audio-visual work must the regarded as one of the co-

authors of the audio-visual work as contemplated in subsection (6).

(8) Where a performer has consented to fixation of the performance in an audio-visual

fixation, the producer of the audio-visual fixation is, subject to any contract to the

contrary between him or her and the performer, presumed to be the owner of the exclusive

rights of authorisation provided for in section 39, and is entitled to exercise those rights.

18. Duration of copyright

(1) Unless otherwise expressly stated in this Act, copyright protected under this Act endures

for the following periods -

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(a) in the case of a literary, musical, or artistic work, other than a photograph, during

the life of the author, the remainder of the calendar year in which the author dies

and a period of 50 years from the end of that calendar year;

(b) in the case of a joint authorship of the works referred to in paragraph (a), during

the life of the last surviving author, the remainder of the calendar year in which the

last surviving author dies and a period of 50 years from the end of that calendar

year;

(i) the end of the year in which the photograph was first made available to the

public with the consent of the owner of the copyright; or

(ii) if such photograph was not so made available to the public within 50 years

of its making, the end of the year in which the photograph was made;

(d) in the case of an audio-visual work or a sound recording, for a period of 50 years

from the end of the year in which the work or recording is first published;

(e) in the case of a broadcast, for a period of 50 years from the end of the year in which

the broadcast was made;

(f) in the case of a programme-carrying signal, for a period of 50 years from the end

of the year in which the signal was emitted to a satellite;

(g) in the case of a work of applied art, for a period of 50 years from the end of the

year in which the work was created.

(2) In the case of anonymous or pseudonymous works, copyright endures for 50 years from-

(a) the date on which the work was -

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(i) made;

(ii) first made available to the public; or

(ii) first published; or

(b) the end of the year in which it is reasonable to presume that the author died,

whichever, expires first.

(3) Where the identity of the author of a work referred to in subsection (2) becomes known

before the expiration of the period referred to in that subsection, the term of the copyright

in such work must be calculated in accordance with subsection (1).

(4) The date of the creation of a work shall be determined as follows -

(a) a work, other than a broadcast or programme-carrying signal, is presumed, in the

absence of evidence to the contrary, to be made at the time when it is first reduced

to writing, recorded or otherwise reduced to material form;

(b) a broadcast is considered to be made at the time when it is first broadcast;

transmitted.

19. Public domain

(1) The public domain comprises -

(a) works whose terms of protection have expired;

(b) works in respect of which authors have renounced their rights; and

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

treaties and agreements binding on Namibia.

(2) For the purpose of subsection (1)(b), renunciation by an author or the author’s successor

in title of the author’s rights must be in writing and made public, but such renunciation

may not be contrary to any previous contractual obligation relating to the work.

(3) A valid renunciation by an author or the author’s successor in title of the author’s rights

is irrevocable.

PART 4

EXCEPTIONS AND LIMITATIONS

20. General provisions on exceptions and limitations

(1) Notwithstanding the provisions of Section 12, fair dealing for purposes such as research,

education criticism, satire or review does not infringe copyright under this Act. A court

determining whether an act done in relation to a work constitutes fair dealing shall consider all

factors which appear to be relevant, including –

(a) the nature of the work in question;

(b) the extent and substantiality of that part of the work affected by the act in relation to

the whole of the work;

(d) the effect of the act upon the potential market for, or the commercial value of, the work.

(2) Dealing with a work may be construed as fair dealing if -

(a) private use;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(b) research for non-commercial purposes;

performance, sound recording, audio visual work or broadcast;

(d) Educational and research for non-commercial purposes;

(d) quotations in the form of short excerpts of a performance, sound recording, audio-

visual work or broadcast, which are compatible with fair practice and are justified

by the informative purpose of those quotations; provided they are accompanied by

an acknowledgement of source and the name of the author, if the name appears in

the source from which the quotation is taken; or

(e) cases where, under permitted users of copyright in sections 19 to 35, inclusive, a

work can be used without the authorisation of the author or other owner of the

(3) The exception referred to in subsection (2)(a) does not extend to the reproduction-

(a) of a work of architecture in the form of buildings or other construction;

(b) in the form of reprography of the whole or of a substantial part of a musical

work in the form of a notation or a literary work other than a published article or

other short literary work; and

21. Temporary reproduction

The temporary reproduction of work which is transient or incidental is permissible when the

reproduction is an integral and essential part of a technological process and whose sole purpose

is to enable -

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(a) digital transmission of the work or an act of making a digitally stored work

perceptible;

(b) transmission or making the work perceptible;

(d) transmission that occurs during the normal operation of the equipment used and

that entails the automatic deletion of the copy without enabling the retrieval of the

work for any other purpose than those referred to in paragraphs (a) or (b),

is permitted, except that the reproduced copy may not have an independent economic

significance.

22. Educational purposes

(1) The use of a work is permitted where -

(a) the use is by way of illustration of published articles and other short works or short

extracts of works , broadcasts, sound recordings or audio-visual fixations for teaching

and educational purposes, provided the source name of the author, if the name appears

in the source from which the quote is taken, is acknowledged;

(b) it includes the making available of published articles and other short works or short

extracts of works, broadcasts, sound recordings or audio-visual fixations in digital

networks, provided that access to the works is only available to enrolled pupils or

students and their teachers and other educators; or

for teaching in educational institutions, and the activities do not serve direct or

indirect commercial gain, to the extent justified by the purpose, and the conditions

referred to in subsection (2) are fulfilled.

(2) The conditions referred to in subsection (1)(c) are fulfilled where –

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(a) the reproduction of any particular work is an isolated act occurring, if repeated, on

separate and unrelated occasions; and

(b) not more than a single copy for each pupil or student and the teacher is made.

23. Libraries, archives and museums

(1) The making of a copy of a work by a library, archive or museum whose activities do not

serve direct or indirect economic or commercial advantage for the maintenance or

preservation of its collection or the collection of another library, archive or museum

whose activities do not serve direct or indirect economic or commercial advantage is

permitted where the work was lawfully acquired by the library, archive or museum.

(2) It is permitted under subsection (1) to make a copy of a work to preserve and, if necessary,

replace a copy which has been lost, destroyed or rendered unusable provided that -

(a) it is not otherwise possible to obtain a copy of the work under reasonable conditions;

and

(b) the reproduction of any particular work is an isolated act occurring, if repeated, on

separate and unrelated occasions.

(3) A library, an archive or a museum whose activities do not serve direct or indirect

economic or commercial advantage is permitted to make a copy of a work that was

lawfully acquired by the library, archive or museum and provide it to any person

requesting to use the copy for research, private study, or educational purposes if -

(a) the work is or is contained in an article published in a newspaper or a scholarly,

scientific or technical periodical;

(b) the work is or is contained in an article published in a periodical, other than a

scholarly, scientific, or technical periodical, provided the periodical was published

more than one year before the copy is made; or

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

audio-visual fixation.

(4) A library, an archive or a museum whose activities do not serve direct or indirect

economic or commercial advantage is permitted to make a copy of an article contained

in a newspaper or a scholarly, scientific or technical periodical and provide it to any

person requesting to use the copy for purposes of text and data mining.

(5) It is permitted for a library, an archive or a museum whose activities do not serve direct

or indirect economic or commercial advantage to do anything on behalf of a person that

the person may do personally under sections 20 or 22.

(6) The exceptions provided by this section apply in full to libraries, archives and museums

that form part of an educational or academic institution, provided their activities do not

serve direct or indirect economic or commercial advantage.

24. Broadcasting and other communication to the public

(1) The following acts are permitted in respect of a work, subject to the obligation to

acknowledge the source and the name of the author -

(a) the reproduction in a newspaper or periodical or the broadcasting or other

communication to the public, of an article published in a newspaper or periodical on

current economic, political or religious topics or a broadcast work of the same

character;

(b) the reproduction and the broadcasting or other communication to the public, for the

purpose of reporting current events, of short excerpts of a work seen or heard in the

course of such events, to the extent justified by the purpose; and

communication to the public of a lecture, address or other work of a similar nature

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

delivered in public, to the extent justified by the purpose of providing current

information.

(2) Subsection (1) does not apply where the right to authorise reproduction, broadcasting or

other communication to the public is expressly reserved on the copies by the author or

other owner of copyright, or in connection with broadcasting or other communication to

the public of the work.

25. Computer programmes

(1) The reproduction of a copy or an adaption of a computer programme by the lawful owner

or person in lawful possession of a computer programme is permitted if the reproduction

or adaption is necessary -

(a) to make copies of the programme to the extent necessary to correct errors;

(b) to make a back-up copy;

use; and

(d) for any purpose that is not prohibited under any licence or agreement whereby the

person is permitted to use the programme.

(2) The consent or authorisation of the right holder of a computer programme is not required

to decompile the programme, convert the programme into a version expressed in different

programming language, code or notation for the purpose of obtaining information needed

to enable the programme to operate with other programmes.

(3) Any copy made pursuant to this section must be used only for the purpose for which it

was made and be destroyed when the person's possession of the computer programme

ceases to be lawful.

26. Data processing

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(1) The use of a work, including the reproduction of the work, for text and data mining or

other computational data processing is permitted, provided the work was lawfully

acquired by the person or entity engaging in the activity.

(2) The sharing of works reproduced for the purpose of an activity referred to in (1) is

permitted if the sharing is -

(a) for the purpose of verifying the results of the text and data mining or other

computational data processing activity; or

(b) to facilitate collaborative research or study relating to the text and data mining or

other computational data processing activity,

provided that efforts are made to ensure that the sharing occurs in a closed or controlled

group and a copy of the work is not made publicly available.

27. Ephemeral recordings

(1) The making, by a broadcasting organisation, of an ephemeral recording of any work

which it is authorised to broadcast, for the purpose of its own broadcasts and by means

of its own facilities is permitted if the reproduction is intended exclusively for lawful

broadcasts of such broadcasting organisation.

(2) A copy made pursuant to subsection (1) must not be -

(a) kept for longer than 30 days; and

(b) used more than three times for transmission.

28. Importation for personal use

The importation of a lawfully acquired copy of a work by any person for his or her own personal

use is permitted.

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

29. Display of works

The public display of originals or copies of works is permitted, provided that -

(a) the display is made other than by means of a film, slide, television image or otherwise

on screen or by means of any other device or process; and

(b) the work has been published or the original or the copy displayed has been sold, given

away or otherwise transferred to another person by the author or his or her successor

in title.

30. Caricature, parody and pastiche

The use of a work for parody, caricature or pastiche is permitted.

31. Reporting on judicial and administrative proceedings

The use of a work for the purpose of reporting of administrative, parliamentary or judicial

proceedings is permitted.

32. Reproduction for beneficiary persons

(1) It is not an infringement of copyright for a beneficiary person, for a person acting at the

request of a beneficiary person or for a non-profit organisation acting for the benefit of a

beneficiary person to -

(a) reproduce a literary, musical, artistic or dramatic work in a format specially designed

for beneficiary persons;

(b) fix a performer’s performance of a literary, musical, artistic or dramatic work in a

format specially designed for beneficiary persons;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

specially designed for persons with a perceptual disability;

(d) provide a beneficiary person with access to a work or other subject matter to which

subsection (a) or (b) applies, in a format specially designed for beneficiary persons,

and do any other act that is necessary for that purpose; or

(e) perform in public a literary or dramatic work in sign language, either live or in a

format specially designed for beneficiary persons.

(2) Subsection (1) does not apply if the work or other subject matter is commercially

available, in a format specially designed to meet the needs of the beneficiary person

referred to in that subsection.

(3) The provisions of subsection (1) are subject to the obligation to acknowledge the source

and the name of the author.

33. Authorised entities

(1) An “authorised entity” is an entity whose main objectives are to provide education,

institutional training, adaptive reading or information access needs to beneficiary persons

on a non-profit basis, including a non-profit organisation or governmental agency that

provides those services to beneficiary persons as one of its primary objectives or

functions.

(2) In relation only to works or subject matter protected under this Act that are in the form

of text, notation or related illustrations, whether published or otherwise made publicly

available in any media, and subject to the conditions in subsection (3) -

(a) an authorised entity is permitted, to make an accessible format copy of a work or

subject matter, obtain from another authorised entity an accessible format copy, and

supply that copy to a beneficiary person by any means, undertaking any intermediate

steps to achieve those objectives, subject to the following conditions -

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(i) the authorised entity has lawful access to a copy of the work or subject matter;

(ii) the work or subject matter is converted to an accessible format copy;

(iii) such accessible format copy is supplied exclusively to be used by a beneficiary

person; and

(iv) the activity is undertaken on a non-profit basis;

(b) a beneficiary person, or a person acting on behalf of a beneficiary person, is permitted

to make and use an accessible format copy of a work or subject matter for personal

use of the beneficiary person, provided the beneficiary person or the person acting on

his or her behalf has lawful access to a copy of the work or subject matter;

another authorised entity and directly to a beneficiary person or to someone acting on

behalf of the beneficiary person, subject to the following conditions:

(i) the authorised entity or beneficiary person is located in a country party to -

(aa) the Marrakesh Treaty to Facilitate Access to Published Works for Persons

Who Are Blind, Visually Impaired, or Otherwise Print Disabled of 27 June

2013; or

(bb) an international convention or agreement that regulates the right of access

by blind or visually impaired persons to works or subject matter protected

by this Act;

(ii) prior to exporting the accessible format copy the authorised entity did not know

or have reasonable grounds to know that the accessible format copy would be

used for anyone other than a beneficiary person; and

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(d) a beneficiary person, or someone acting on his or her behalf, or an authorised entity,

is permitted to import an accessible format copy for the benefit of the beneficiary

person.

(3) Acts pursuant to subsection (2) are subject to the following conditions -

(a) an accessible format copy must be used exclusively by beneficiary persons; and

(b) when creating and supplying an accessible format copy, the integrity of the

original work must be respected, taking due consideration of the changes needed

to make the work accessible for beneficiary persons.

34. Special exception in respect of musical works

(1) The copyright in a musical work is not infringed by a person (in this section referred to

as the “manufacturer”) who makes a record of a work or of an adaptation thereof in

Namibia, if -

(a) records embodying the work or a similar adaptation of the work were previously made

in or imported into Namibia for the purposes of retail sale and were so made or

imported by, or with the consent or authorisation of, the owner of the copyright in the

work;

(b) before making the record, the manufacturer gave the prescribed notice to the owner

of the copyright of his, her or its intention to make it and a license has been issued to

the applicant after an agreement was entered into;

resale by retail by another person or to use it for making other records to be so sold

or so supplied; and

(d) in the case of a record which is sold by retail or supplied for the purpose of resale by

retail, the manufacturer pays to the owner of the copyright the prescribed royalties in

the prescribed manner and at the prescribed time.

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(2) Where a record, whether with or without other material, comprises a performance of a

musical work or of an adaptation of a musical work in which words are sung or spoken

that are incidental to, or in association with, the music and no copyright subsists in that

work or, if copyright does subsist therein, the conditions specified in subsection (1) are

fulfilled in relation to such copyright, and -

(a) the words consist or form part of a literary work in which copyright subsists;

(b) the records referred to in subsection (1)(a) were made or imported by, or with the

consent or authorisation of, the owner of the copyright in the literary work; and

relation to the owner of that copyright,

the making of the record does not constitute an infringement of the copyright in the

literary work.

(3) For the purposes of this section, an adaptation of a work is deemed to be similar to an

adaptation thereof embodied in a previous record if the two adaptations do not differ

substantially in their treatment of the work, either in respect of style or, apart from a

difference in number, in respect of the performers required to perform them.

(4) A manufacturer may for the purposes of subsection (1)(a) make the prescribed enquiries

in order to ascertain whether the previous records referred to in that paragraph were

previously made or imported into Namibia, and if the owner of the copyright fails to reply

to any such enquiry within the prescribed period, the previous records must be taken to

have been made or imported with the consent or authorisation of the owner of the

(5) Subsections (1)-(4) apply also with reference to records of a part of a work or an

adaptation thereof, but subsection (1) does not apply with reference to -

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(a) a record of the whole of a work or an adaptation thereof unless the previous records

contemplated in paragraph (a) of subsection (1) were records of the whole of the work

or of a similar adaptation; or

(b) a record of a part of a work or an adaptation thereof unless the records previously

made in or imported into Namibia as contemplated in paragraph (a) of subsection (1)

were records of, or which included, that part of the work or records of a similar

adaptation.

(6) A manufacturer may, subject to the permission of a copyright holder and obtaining a

licence, reproduce the work in any material form, including the storing of it in any

medium by electronic means.

35. Exceptions relating to artistic works

(1) The copyright in an artistic work is not infringed by its inclusion in an audio-visual work

or television broadcast or its transmission in a diffusion service, if -

(a) such inclusion is merely by way of background to the principal matters represented

in the work, broadcast or transmission or incidental thereto; and

(b) such work is permanently situated in a street, square or a similar public place.

(2) The copyright in a work of architecture or in the relevant drawings of such work is not

infringed by the reconstruction of such work on the same site in the same style as the

original.

(3) The copyright in an artistic work of which multi-dimensional reproductions were made

available, whether inside or outside Namibia, to the public by or with the consent or

authorisation of the owner of the copyright (in this subsection referred to as “authorised

reproductions”), is not infringed if a person without the consent or authorisation of the

owner makes or makes available to the public -

(a) multi-dimensional reproductions; or

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(b) adaptations of the authorised reproductions,

provided the authorised reproductions primarily have a utilitarian purpose and are made

by an industrial process.

36. Exceptions relating to programme-carrying signals

(1) Subject to subsection (2), the copyright in a programme-carrying signal is not infringed

by the distribution of short excerpts of the programme so carried -

(a) that consist of a report of a current event; or

(b) as are compatible with fair use,

and to the extent justified by the informative purpose of such excerpt.

(2) Subsection (1) does not apply with reference to a programme carried by programme-

carrying signals representing a sporting event.

37. Contractual provisions contravening Act unenforceable

To the extent that a term of a contract purports to prevent or restrict the making of a copy or

the doing of any other act which, by virtue of this Act, would not infringe copyright or related

rights, that term is unenforceable.

PART 5

RIGHTS OF PERFORMERS, PRODUCERS OF SOUND RECORDINGS AND

AUDIO-VISUAL FIXATIONS, AND BROADCASTING ORGANISATIONS

38. Scope of application

(1) The provisions of this Act on the protection of performers apply to -

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(a) performers who are citizens or permanent residents of, or are habitually resident in,

Namibia; and

(b) performers who are not citizens or permanent residents of, or habitually resident in,

Namibia but whose performances -

(i) take place in the territory of Namibia;

(ii) are incorporated in sound recordings or audio-visual works that are protected

under this Act; or

(iii) are included in a broadcast qualifying for protection under this Act.

(2) The provisions of this Act on the protection of sound recordings and audio-visual

fixations apply to -

(a) sound recordings and audio-visual fixations whose producers are citizens or

permanent residents of, or are habitually resident in, Namibia or have an

establishment in Namibia in accordance with the laws of Namibia;

(b) sound recordings and audio-visual fixations first fixed in Namibia; and

(3) The provisions of this Act on the protection of broadcasts apply to -

(a) broadcasts by broadcasting organisations whose headquarters are situated in Namibia;

(b) broadcasts transmitted from transmitters situated in Namibia; and

whose headquarters are situated in Namibia.

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(4) The provisions of this Act also apply to -

(a) performers that are nationals of, or habitually resident in, a country that is a party to

any international convention or other agreement protecting the rights of performers;

(b) producers of sound recordings or audio-visual fixations and broadcasting

organisations whose headquarters are situated in a country that is a party to any

international convention or other agreement protecting the rights of producers of

sound recordings or audio-visual fixations and broadcasting organisations; and

eligible for protection by virtue of, and in accordance with, any international

convention or other international agreement,

to which Namibia is also party.

39. Rights of performers, producers and publishers not to affect copyright

The protection granted under this Part relating to -

(a) rights of performers, producers of sound recordings or audio-visual fixations, and

broadcasting organisations and publishers does not in any way affect copyright in a

work under this Act, and no provision in this Part may be construed so as to affect

(b) rights of one category of owners of rights does not affect the rights of another

category.

40. Exclusive rights of performers

(1) A performer has the exclusive right to do or to authorise another person to do any of the

following acts as regards his or her performance, including an audio-visual performance

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(a) the broadcasting or other communication to the public of the performance, except

where the broadcasting or other communication is -

(i) made from a fixation of the performance which the performer has authorised to

be made; or

(ii) a rebroadcasting made or authorised by the organisation initially broadcasting

the performance;

(b) the fixation in any manner or form of his or her unfixed performance;

manner or form, but any other person would infringe this right if that person makes a

fixation of a performance of such performer -

(i) where the original fixation was itself made without the consent or authorisation

of the performer;

(ii) where the reproduction is made for purposes other than those in respect of which

such performer gave his or her consent or authorisation to the making of the

original fixation or of a reproduction thereof; or

(iii) where the original fixation was permitted under section 47, and the reproduction

is made for purposes not covered by that section;

(d) the distribution of a fixation of his or her performance, or of copies thereof, to the

public;

(e) the rental to the public of a fixation of his or her performance, or copies thereof;

(f) the making available to the public of his or her fixed performance, by wire or wireless

means, in such a way that members of the public may access it from a place or at a

time individually chosen by them;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(g) public performance of a fixed form of the performance; and

(h) the reproduction of the work in any material form, including the storing of it in any

medium by electronic means.

(2) In the absence of an agreement to the contrary, a performer’s consent or authorisation to

the broadcasting of his or her performance is deemed to include his or her consent or

authorisation to -

(a) the rebroadcasting of such performance;

(b) the fixation of such performance for broadcasting purposes; and

(3) Once a performer has authorised the incorporation of his or her performance in a sound

recording or an audio-visual fixation, the performer is, in the absence of contractual

provisions to the contrary, deemed to have assigned the exclusive economic rights with

respect to that fixation to its producer.

(4) The right of distribution provided in subsection (1)(d) does not apply to a copy of a

fixation of the performance that has already been subject to a sale or other transfer of

ownership, authorised by the performer, in Namibia or in any country that is party to an

international convention or agreement that protects performers’ rights and which is

binding on Namibia.

(5) Nothing in this section may be construed as depriving a performer of the right to agree

by contract to terms and conditions that are more favourable to him or her in respect of

his or her performance.

(6) The rights under this section are protected until the end of 50 years from the end of the

calendar year in which the performance was fixed or -

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(a) if during that period the recording or audio-visual fixation is published, 50 years from

the end of the calendar year in which it is first published; or

(b) if during that period the recording or audio-visual fixation is not published but is made

available to the public by being played in public or communicated to the public, 50

years from the end of the calendar year in which it is first so made available,

but in determining whether a sound recording or an audio-visual fixation has been

published or made available to the public, account may not be taken of any unauthorised

act.

41. Moral rights of performers and directors

(1) Independently of a performer’s economic rights, and even after the transfer of those

rights, a performer has, as regards his or her live performance or a performance fixed in

a sound recording or audio-visual fixation, the right to -

(a) claim to be identified as the performer of the performance, except where an omission

is dictated by the manner of the use of the performance;

(b) to reproduce the work in any material form, including the storing of it in any medium

by electronic means; and

that would be prejudicial to his or her reputation.

(2) Independently of a director of an audio-visual fixation’s economic rights, and even after

the transfer of those rights, the director has, with regards to the audio-visual fixation, the

right to -

(a) claim to be identified as the director of the audio-visual fixation, except where an

omission is dictated by the manner of the use of the fixation; and

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(b) object to any distortion, mutilation or other modification of his or her work that would

be prejudicial to his or her reputation.

(3) The rights granted to a performer in accordance with subsection (1) or a director in

accordance with subsection (2) must, after the performer’s or director’s death, be

maintained at least until the expiry of the economic rights.

(4) The provisions of section 13(2)-(4) apply with necessary changes to the rights granted

under subsections (1)-(2).

42. Collective performances

(1) Where several performers take part as a group in the same performance, it suffices, for

the purposes of section 39, if consent or authorisation is given by the manager or other

authority in charge of the group or, in the absence of such a manager or authority, by the

leader of the group.

(2) In a case contemplated in subsection (1), and unless otherwise stipulated, payment for the

use of the performance shall be made by way of a single payment to the manager or other

authority in charge of the group or, in the absence of such a manager or an authority, to

the leader of the group.

(3) Any payment made in accordance with subsection (2) to a manager, an authority or leader

referred to in that subsection shall be distributed by him or her as agreed by the

performers, or failing such an agreement the right to remuneration of the respective

performers shall be determined -

(a) in accordance with the Arbitration Act, 1965 (Act 42 of 1965); or

(b) by the Tribunal, if the majority of the performers so elect.

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(4) If the performers are unable to reach an agreement or there is no consensus regarding the

quantum, the right to remuneration of the respective performers shall be determined –

(a) by an Arbitration Tribunal established under and in accordance with the provisions of the

Arbitration Act, 1965 (Act 42 of 1965); or

(b) by the Tribunal as agreed to in writing by the majority of the performers.

43. Exclusive rights of producers of sound recordings and audio-visual fixations

(1) Subject to the provisions of this Act, a producer of a sound recording or an audio-visual

fixation has the exclusive right to do, or to authorise another person to do, the following

acts -

(a) direct or indirect reproduction of the sound recording or audio-visual fixation in

whole or in part and in any manner or form;

(b) distribution of the original or copies of the sound recording or audio-visual fixation

to the public;

(d) broadcasting of the sound recording or audio-visual fixation;

(e) communication to the public of the sound recording or audio-visual fixation;

(f) public performance of the sound recording or audio-visual fixation;

(g) making available to the public of the sound recording, by wire or wireless means, in

such a way that members of the public may access it from a place and at a time

individually chosen by them;

(h) importation of copies of the sound recording or audio-visual fixation, even where the

imported copies were made with the consent or authorisation of the producer;

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(i) adaptation or other transformation of the sound recording or audio-visual fixation;

and

(j) to make any other sound recording embodying it, including storing it in any medium

by electronic or other means.

(2) The right of distribution under subsection (1)(b) does not apply to the original or the

tangible copies of the sound recording or audio-visual fixation that have already been

subject to a sale or other transfer of ownership, authorised by the producer, in Namibia

or in any country that is party to an international convention or agreement that protects

performers’ rights and to which Namibia is also party.

(3) The rights under subsection (1) are protected -

(a) from publication of the sound recording or audio-visual fixation until the end of 50

years following the year of publication; or

(b) if the sound recording or audio-visual fixation has not been published, from the

fixation of the sound recording or audio-visual fixation until the end of 50 years,

following the year of fixation.

44. Remuneration for performers and producers of sound recordings and audio-visual

fixations

(1) If a sound recording is published for commercial purposes, or a reproduction of such

sound recording -

(a) is used directly for broadcasting or other communication to the public; or

(b) is publicly performed,

the user of the sound recording must pay a single equitable remuneration for the

performer or performers and the producer of the sound recording to the producer.

Draft Copyright and Related Rights Protection Bill as @ February 2024 with AG Comments

(2) Unless otherwise agreed between the performers and the producer, the producer must pay

half of the amount received by the producer under subsection (1) to the performer or

performers. This right is unwaivable and non-transferable, except to a collective

management organisation for its enforcement or testamentary disposition.

(3) The provisions of section 41(3) apply with necessary changes to a disagreement between

a performer and a producer arising from the application of subsection (2).

(4) The right to an equitable remuneration under this section subsists from the date of

publication of the sound recording until the end of 50 years following the year of

publication, provided that the sound recording is still protected under this Act.

(5) For the purposes of this section, sound recordings that have been available to the public

by wire or wireless means in such a way that members of the public may access them

from a place and at a time individually chosen by them must be considered as if they have

been published for commercial purposes.

45. Remuneration for producers of audio-visual fixations

(1) If an audio-visual fixation is published for commercial purposes, or a reproduction of an

audio-visual fixation -

(a) is used directly for broadcasting or other communication to the public; or

(b) is publicly performed,

the user of the audio-visual fixation must pay a single equitable remuneration for the

performer or performers and the producer of the audio-visual fixation to the producer.