Copyright and Performance Rights Act, 1994

3. Works or unknown aulhorship and joint aulhorship

6. This Act binds the Republic PART II COPYRIGIIT NATt;RE OF COPYRIGHT

8. Categories of work in which copyright subsists ] >-

11. Transfer of copyright Dt:RATlO's OF CorYRIGIIT

12. Literary, musical and ani. Lie.: works

13. Audiovisual works and sound recordings

16. Typographical arrangements l�r-Rl:-;GE\1E>.'T or, COPYRIGIIT

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

19. Copyright is infringed by imponation. etc. of infringing copies Su1gi,: c,,p:,•.- ofthi� ,\rt ,nny be obtauwdfrom 111.tJ Go,·erfll1U!1U Printer, PO Box 30/Jf,, /0!{)() Lu,,;).J Prir, ;..·1 ,1100.(J() .. ____ -· 684 No. 44 of 1994) Copyright and Performance Rights

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

21. Acts which do not constitute infringements CoU.ECTING Socnmr,s

22. Collecting societies may be authorised lo represent copyright owners

23. Disputes with registered collecting societies MoRALRJGIITS

24. Moral rights PARTJII ENFORCEMEl','T OF COPYRIGIIT

25. Infringement actionable by copyright owner

26. Right to delivery up of infringing copies

27. Restriction on importation of infringing copies

29. Presumption as to possession of copies

30. Presumptions as to existence of copyright

31. Presumptions as to authorship and date of publication

33. Issue of warrants to enter, search and seize

37. Articles in containers-need only to examine sample

38. Obstruction to search PARTIV REGISTER OF COPYRIGIITS

40. Registration and issue or certificate

43. Issue of new certificate PARTY RIGJITS IN PERFORMANCES

45. Conrcnnent of perfonner's right and recording right • .. . ' .. Copyright and Performance [No. 44 of 1994 685 Rights

50. Acts which do not constitute Infringements

51. Infringement ofpcrfonner's right is actionable

52. Offence of infringing pcrfonner's or recording right

53. False representation of authority to give consent PART VI MISCT!lLANEOUS

7. Copyright is a property· right which shall subsist in accor­ dance wilh this Act in the products of creativity specified in section eight. c• t ' ,i j !i I I i Copyright and Performance [No. 44 of 1994 693 Rights Categories of works in which copyright subsists "' Qualifying conditions

8. (1) The products of creativity in which copyright may subsist under this Act arc the following categories of works: ( a) original- (i) literary works; (ii) musical works; (iii) artistic works; or (iv) computer programs; _ (b) compilations; (c) audiovisual works; ( d) sound recordings; ( e) broadcasts; (fJ cable programs; (g) typographical arrangements of published editions ofliter­ ary works. (2) Copyright shall not subsist in a Bill introduced into Parlia­ ment or in an Act of Parliament. (3) Copyright shall not subsist in a literary or musical work or in a computer program unless and until it is recorded in writing or in soine other form, and a reference in this Act to the time of making of such a work is a reference to the time at which it is so recorded. ( 4) Copyright shall subsist in a work within one of the categories specified in subsection (1) only if the qualifying conditions speci­ fied in section nine in respect of that category arc fulfilled.

9. (1) Copyright shall subsist in- ( a) a work of any category specified in section eight, other than a typographical arrangement of a published edition, if, at the time of completion of the work, the authorofthc work was- (i) a citizen of, or habitually resident in, Zambia or a convention country; or (ii) a body corporate incorporated in Zambia or a Convention country; (b) a literary, musical or artistic work, a compilation, a computer progr:im, an audiovisual work or a typo­ graphical arrangement of a published edition, which is made or first published in Zambia or a Convention country; (c) a sound recording which is made or first published in Zambia or a Convention country; (d) a broadcast which is first transmitted from a place in Zambia or a Convention country; or ' ,, ... . , .... . , .. ... , . , ....... � ..... , ... � .... ,,. ..... . ,_694 No. 44 of 1994] Copyright and Performance Rights (e) a cable program service which is first transmilled from a place in Zambia or a Convention country, (2) In the case of a work of joint authorship-- (aJ the reference in paragraph ()) (a) to the author shall be reatl as a reference to any of the authors; and (b) where the work qualifies for copyright protection only under that paragraph, only those of the authors who satisfy the requirements of that paragraph shall be taken into account for the purposes of- (i) section ten (first ownership of copyright); (ii) section twelve to fifteen (duration of copyright); and (iii) subsection (3) of section twenty-one (acts which do not constitute infringements),

10. (I) The first ownership of copyright under this section shall be subject to any agreement under subsection (3) of section eleven to assign the ownership of a copyright expected to arise in the future, (2) Subject to this section, the author of a work shall be the first owner of the copyright which subsists under this Act in the work, (3) Where a work, other than a broadcast or a cable program, is- (a) made by the author in the course of his cmploymenr; or (b) made by the author on the commission of some other person; the employer or the person who commissioned the work shall be the first owner of the copyright I ( 4) Where a work was completed in a convention country other than Zambia, the law of that country in relation to first ownership of copyright shall apply, ' 11. (I) Copyrigh;;hall be transferable by assignment, by testa­ mentary disposition or by operation of law, (2) An assignment of copyrightmaybelimitcd by reference 10- ( a) one or more particular acts which the copyright owner has the exclusive right to authorise under this Act: (b) a part of the period for which the copyright subsists under this Act; or (c) a s�ci/ied country or geographic area, (3) Copyrigl)t which is expected to arise in the future may be assigned, First owcrship of copyright Transfer of copyright t t J Copyright and Performance [No. 44 of 1994 695 Rights 0 (4) An assignment of copyright shall be in writing signed by or on behalf of the assignor. DURATION OF COPYRJGIIT

12. (I) Subject to this section, copyright in a literary, musical or anistic work or compilation shall expire at the end of the period of fifty years from the end ofthccalcndar year in which the authordies. (2) Ifthc work is produced by a public officeror employce of the Government of Zambia or of a Convention country in the course of his employment, and the Government concerned is the first owner of the copyright in the work, the copyright in the work shall expire at the end of the period of fifty years from the end of the calendar year in which the work is made. (3) If the work is of unknown authorship, the copyright in the work shall expire at the end of the period of fifty years from the end of the calendar year in which the work is first published, unless the identity of the author of the work becomes known before that date. (4) In the case of a work of joint authorship- (aJ the reference in subscciion (I) to the death of the author shall be read as a refcrrnc:c to the death of the last to die of the authors whose identity is known; and (b) the reference in subsection (3) to the identity·ofthc author becoming known shall be read as a reference 'to the identity of any of the authors becoming known.

13. Copyright in an audiovisual work or sound recording shall expire- (a) at the end of the period of fifty years from the end of the calendar year in whicli it is made; or (b) at the end of the riod of lift . calendar year in w JC cars from the end of the JI is published within the period referred to in paragraph ( a).

14. Copyright in a broadcast or cable program shall expire at the end of the period oflifty years from the end of the calendar year in which the broadcast or cable program was first transmilled. it is first publishc , J

15. Copyright in a computer program shall expire at the end of the period of fifty years from the end of the calendar year in which the program was first published. .. Literary, Musical and artistic works I Audiovisual works and sound recordings Broadcasts and cable programs Computer programs

16. Copyright in the typographical arrangement of a published edition shall expire at the end of the period of twenty-five years from the end of the calendar year in which the edition was first published . Typographi­ cal arrange­ ments ., ········• .. ··--·-,- -...... ,, .. ........ . . ·-------··--· - - -- --- 696 No. 44 of 1 994J Copyright and Performance Rights Acts controlled by copyright INFRINGEMENT OF CorYRIGIIT

17. (I) The owner of the copyright in a work shall have, in accordance with this Act, the exclusive right to do, or to authorise . other to do, in Zambia or on any ship or aircraft registered in Zambia, the acts (in this Act called "controlled acts") specified in this seclion in relation to each category of work. (2) The controlled acts in relation to a literary or musical work or to a compilation or computer program arc- ( a) the publication; (b) the reproduction in any material form; (c) the broadcasting or inclusion in a cable program service; (d) the communication to the public by any other means; (e) the importation into Zambia of copies; and (f) the adaptation; of the work, together with any of the controlled acts in paragraphs (a) to (e) in relation to an adaptation of the work. (3) the controlled acts in relation to an artistic work are­ (a)_ the reproduction in any material form; (b) the publication; (c) the broadcasting or inclusion in a cable program service; (d) the communication to the public by any other means; and (e) the importation into Zambia of copies; of the work. (4) The controlled acts in relation to an audiovisual work or sound recording arc-- ( a) the adaptalion; (b) the reproduction; (c) the publication; ( d) the broadcasting or inclusion in a cable program; ( e) the communication to the public by any other means; and (f) the'importation into Zambia of copies; of the audiovisual work or sound recording, together with any of the controlled acts in paragraphs (b) to (e) in relation to an adaptation of the audiovisual work or sound recording. ,(5) the Controlled acts in relation to a broadcast or cable pro­ gram arc-- Copyright and Performance [No. 44 of 1994 697 Rights (a) the reproduction; (b) in the case of a broadcast­ (i) the re-broadca�ting; or (ii) the inclusion in a cable program; ( c) in the case of a cable program- (i) the broadca�ting; or (ii) the inclusion in another cable program; and (d) the communication lo the public by any other means; 0 of the broadcast or cable program. (6) The controlled acts in relation to the typographical arrange­ ment of a published edition arc- ( a) the reproduction; and (b) the importation into Zmnbia of copies; of the arrangement. (7) The doing of an act_controlled by the copyright in a work that act in relation to a substantial part of the i includes the d work. t::

18. Subj ct to section twenty-one, copyright in a work is infringed by a person who, without the consent of the owner of the copyright, docs , or authorises another person to do, a controlled act in relation to the work.

19. Subject to section twenty-one, copyright in a work is also infringed by a person who, without the consent of the copyright owner- (a) imports into Zambia otherwise than- (i) for his private and domestic use; and (ii) as items accompanying him on his entry into Copyright is inf ringL•d hy the doing of a contrnllL-d act Copyriglu is infringed hy impnrlatiu11. etc. of infringing copies \ Zambia; (b) possesses in _the course of trade or business; (c) sells or lets for hire, or offers or exposes for sale or hire; (d) exhibits in public or distributes, in the course of trade or business; or (e) distributes, otherwise than in the course of trade or busi­ ness, to such an extent as to affect prejudicially the owner of the copyright; articles which are infringing copies of the work, unless he satisfies the court that he did not know and had no rea�onable grounds for knowing that the articles were infringing copies of the work. i I ' ' I I I . I J 698 No. 44 of 1994] Copyright and Performance Rights Copyright is inrringcd by making or trading in articles for makin� infringing copies, or transmission for the PU"P;OSCO( making infringing copies Acts which do not constitute infringe­ ments

20. ( l ) Subject to section twenty-one, copyright in a work is also infringed by a person who, without the consent of the owner of the copyright- ( a) makes or causes to be made; (b) imports into Zambia; or (c) sens or Ices for hire, or offers or exposes for sale or hire; an article specilicallydesigned or adapted for making copies of that particular work, unless he satisfies the court that he did not know and had no reasonable grounds for knowing that the article would be used for making such infringing copies. (2) Copyright in a work is infringed by a person who, without the licence of the copyright owner, transmits the work by electronic means (otherwise than by broadcasting or hy means of a cable transmission service) knowing or having reason to believe that inf ringing copies of the work win be made by means of the reception of the transmission in Zambia or elsewhere.

21. (I) Subject to subsection (2), the following acts shall not constitute infringement of copyright: (a) fair dealing with a work for private study or for the purposes of research done by an individual for his personal purposes, otherwise than for profit; (b) fair dealing with a work for the purposes of criticism or review, whether of that work or any other work, pro­ vided there is a sufficient acknowledgement; (c) fair dealing with a work for the purposes of reporting current evcnts--- (i) in a newspaper, magazine or similar periodical, provided there is a sufficient acknowledgement; or (ii) by broadcasting orby inclusion in a cable program service or by its use in an audiovisual work; t--. (d) the reproduction qf a work for the purposes of judicial proceedings, or of any other proceedings before a tri bu­ nal established by law, or for the purposes of a report of judicial proceedings or any other such proceedings; ( e) the reading or recitation in public cif any reasonable extract from a published literary work, provided there is a sufficient acknowledgement; (fJ the reproduction of a work for the purposes of the education system of Zambia- Copyright and Performance [No. 44 of 1994 699 Rights (i) by a teacher or pupil in the course of instruction, provided that the reproduction is not made by means of an appliance capable of producing multiple copies; or (ii) as pall of the questions to be answered in an examination; or (iii) in answer to such questions; (g) the performance of a dramatic work by the staff and students of a school or other educational institution for the purposes of the education system of Zambia in the course of the activities of the school or institution, if the audience is composed exclusively of.- (i) the staff and students of the school or institution; or (ii) the parents and guardians of the students; or (iii) other persons directly connected with the activi­ ·ties of the school or institution; (h) the incidental inclusion of a work in an anistic work, audiovisual work, sound recording, proadca�t or cable program; (i) the publishing, broadcasting, inclusion in a cable program service, or the communication to the public by any other means of anything whose making was, by vinuc of paragraph (h), not an infringement of the copyright; UJ the reproduction of a work by a library or archive desig­ nated for the purposes of this paragraph by the Minister for the purpose of making a copy of any item in the permanent collection_ of the library or archivc- (i) in orderto preserve or replace that item by placing the copy in permanent collection either in addi­ tion to or in place of the item; or (ii) in order to replace in the permanent collection of another designated library or archive an item which has been lost, destroyed or damaged: provided that it is not reasonably practicable to pur­ chase a copy of the item in question; (k) the reproduction ofa computer program made from a copy of the program by the ownerof that copy for the purpose of being used in place of that copy in the event that it is lost, destroyed or corrupted; 0 l I I I ,' 700 No. 44 of 1 994] Copyright and Performance Rights (/) the recording of a broadcast or cable program by an individual for the purpose of allowing the individual to listen to or view the broadcast or program at a time more � convient to him. (2) An act which- ( a) conflicts with the nonnal commercial exploitation of a work; or (b) unreasonably prejudices the legitimate commercial interests of the owner of the copyright in a work; shall not, for the purposes of subsection (I)-- (i) be treated as fair dealing with the work; or (ii) be treated as an act to which paragraph (I) of subsection (!) applies. (3) Copyright in a literary, musical or artistic work is not infringed by an act done at a time when, or in pursuance of arrangements made at a time when- ( a) the work is of unknown authorship; and (b) it is rea.�onable to assumc- (i) that copyright has expired; or (ii) that the author died fifty years or more before the beginning of the calendar year in which the act is done or the arrangements arc made. (4) For the purposes of this section, "sufficient acknowledgement'' means an acknowledgment identifying the work in question by its title or other dcsctjption and, unless the work is anonymous or the author has previously agreed or requirec!.that no acknowledgement of his name should be made, also identifying the author. CoLLECTING Socnrrms

22. (I) For the purposes of this Act- "collecting society" means an association, partnership or body corporate whose principal purpose, or one of whose principal purposes, is the representation of copyright own­ ers in the negotiation and administration of colleclive copyright agreements; "collective copyright agreement" means an agreement between a group of owners of copyrights and anolhcr person licensing the person to use material subject to :my of the copyrights. Collc<:ting societies may be authorised to represent copyright owners Copyright and Performance [No. 44 of 1994 701 Rights .. (2) A collecting society may apply to the Registrar for registra­ tion and, if the Registrar is satisfied that it qualifies under subsection (I), he shall register it as such. (3) The owner of a copyright may authorise a collecting society (whether or not registered) to negotiate and administer collective copyright licence agreements on behalf of the owner and other copyright owners. (4) Subsection (3) shall not have the effect oflimiting any other right of an owner of a copyright under this Act. (

23. {l) Where a dispute arises between a registered collecting society and a person who requires a licence from the collecting society regarding- ( a) the decision of the collecting society whether or not to Disputes with registered collecting societies grant such a licence; or (b) the terms and conditions on which the collecting society is prepared to grant the licence; either party may refer the dispute to the Registrar for arbitration. (2) Where a dispute has been referred to the Registrar under this section, the Registrar shall, in accordance with such procedure (if any) as may be prescribed- ( a) give both parties an opportunity to present their respx:ctive cases, either in person or through representatives, both orally and in writing; and (b) after hearing both parties, make such written orders as he considers �easonable. (3) An order by the Registrar under this section shall be binding on the parties. MORAL R1mrrs

24. (!) This section applies in relation to---- Moral rights (a) the author of a literary, musical or artistic work, other than a computer-generated work; or (b) the director of an audiovisual work; other than a work to which subsection (3) of section ten applied. (2) Notwithstanding the transfcr ofthe copyright, or any part of it, the author or director shall have the right- (a) to be identified as the author or director ofthe works; and (b) to object to any distortion, mutilation orothermodi fication or derogatory action in relation to the work that would be prejudicial to his honour or reputation. 702 No. 44 of 1994] Copyright and Performance Rights I / Infringement actionable by copyright owner (3) The right� provided by this section shall expire on the death of the author or director. (4) Where there is a dispute regarding the exercise by the authqr or director of his rights under this section, and the dispute is not resolved by negotiation between the parties, the dispute may be referred by any of the parties to the Registrar. (5) After giving the parties to the dispute an opportunity of submitting representations, the Registrar shall give, in writing, such directions for setlling the dispute as, in the circumstances, he considers reasonable, and the directions shall be binding on all parties to the dispute. (6) The Court may, at the suit of the author or director, and subject to the provisions of the State Proc·eedings Act, grant an injunetion- ( a) pending a settlement of dispute by the Registrar, in terms- (i) prohibiting the doing of any disputed act in relation to the work concerned; or (ii) prohibiting the doing of any disputed act in relation to the work concerned unless a di sci aimer is mad�. in such terms and in such manner as the Court may approve, dissociating the author from the treatment of the work; or (b) enforcing a settlement by the Registrar. PART III ENFORCEMENT OF COPYRIGHT

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

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

57. Regulations 5 8. Transition al provisions

59. Repeal of Cap. 701 I.' 688 No. 44 of 1994] Copyright and Performance Rights ;;, ,n relation to a computer program, a version of the program in which it is t·Jnvertcd from one computer langt•age or code into another; w "artistic works" includes works of artistic craft�manship, including designs for fabrics, carpets and tapestry, and, irrespective of artistic quality- (a) paintings, drawings, etchings, lithographs, wood Cl!ts, ungi:avings and prints; (b) maps, plans, charts, diagrams, illustrations and sketches; ( c) works of sculpture; ( d) works of architecture in the form of either buildings or models; and ( e) photographs; "audiovisual work" means the aggregate of a series of related visual images, together with accompanying sounds, if any, which is capable of being shown as a moving picture by means of a mechanical, electronic or other device and irrespective of the nature of the material support on which the visual images and sounds arc carried, but docs not include a broadcast; "author" means- ( a) in relation to an audiovisual work or sound recording, the person who causes the audiovisual work or re­ cording to be made; (b) in relation to a broadcast, the person who is respon­ sible for the content� of Lhe broadca�t and for arrang­ ing for its transmission; (c) in relation to a cable program, the person who is responsible for including it in the cable program service by which it is transmitted; ( d) in relation to the typographical arrangement of a published edition, the publisher of the edition; and ( e) in relation to any other work, the individual who created the work; "broadcast"- ( a) used as a noun, means the aggregate of sounds, orof sounds and visual images, or other information, em­ bodied in a program as transmitted by broadcasting; and 0 Copyright and Performance [No. 44 of 1994 689 Rights (b) used as a verb, means to transmit, by the emission of electro-magnetic energy otheiwise than over a path that is provided by a material substance, for reception by members of the public, visual images or sounds, or both, capable of being received b;• :ncmbers of the public in possession of suitable apparatus, regardless ofwhcthcr- (i) the apparatus includes special decoding de­ vices; (ii) the members of the public arc in Zambia or elsewhere; (iii) the electromagnetic energy is carried, after the initial transmission but before it is received by members of the public, on a path provided by a material substance; or (iv) any member ofthe public actually receives the images or sc;>Unds; "cable program" means the aggregate of sounds, or of sounds and visual images, or other information, embodied in a program as transmitted t-:,. a cable program service; "cable program service" means a service that transmits, by the emission of electro-magnetic energy over a path that is provided by a material substance, for reception by mem­ bers of the public, visual images or sounds, or both, capable of being received by members of the public in possession of suitable apparatus, regardless of whether- (aJ the apparatus includes special decoding devices; (b) the members of the public arc in Zambia or else­ where; or (c) any member of the public actually receives the images or sounds; "collecting society" means a collecting society as defined in section twenty-two; "communication to the public" ofa work includes the perfor­ mance, playing or showing of the work in public; "compilation" means a collection or assembly of works or other material or data which by reason of selection or arrangement of the contents of the collection or a�scmbly constitutes a product of creativity; "computer program" means · a set of instructions, whether expressed in words or in schematic or othcr form, which is capable, when incorporated in a machine readable medium,of causing an electronic or other device having ---·••,--·•····••.··--··· 690 No. 44 of 1994] Copyright and Performance Rights infonnation-processing capabilities to indicate, pcrfolll) or achieve a panicular function, task or result; "controlled act" means an act referred to in section seventeen in relation to a work subject to copyright; "convention" means the Berne Convention forthe Protection of Literary and Anistic Works of 9th September, J 886, completed at Paris on 4th May, 1896, revised at Berlin on 13th November, 1908, completed at Bern on 20th March 1914, revised at Rome on 2nd June, 1928, at Brussels on 26th June, 1948, at Stockholm on 14th July, 1967 and at Paris on 24th July, 1971 and amended on 28th September, 1979; "Convention country" means a country prescribed in regula- tions made for the pullJOses of this definition, being a member of the Union established by the Convei:ition; "copy" means a reproduction of a work or of an adaptation of a work, whatever the medium in which the reproduction is made or stored; "coun" means the High Coun for Zambia; "dramatic work" includes a work of dance or mime, whether recorded in writing or other notation, or in an audiovisual wo�; "first published" has the meaning given by section/our; "infringing copy" means a copy of a work in which copyright subsists- (a) the making ef which constituted an infringement under this Act of the copyright in the work; (b) the making of which would have constituted an infringement under this Act of the copyright in the work, if the copy had been made in Zambia; or (c) the making of which would have constituted a breach of an exclusive licensing agreement, if the copy had been made in Zambia; "joint authorship" has the meaning given by section three; "literary work"includcs a dramatic work oran arrangemenl of infonnation in tabular fonn; "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 docs not include a pan of an audiovisual work; "publish" has the meaning given tiy' section/our; "registered collecting society" means a collecting socicly registered by the Registrar under section twenty-two; "Registrar" means the RegistrarofCopyright appointed under section fifty-four; ¢ 'JI ) Copyright and Performance [No. 44 of 1994 691 Rights .. Works of unknown authorship and joint authorship "sound recording" means-- ( a) a recording of sounds, from which the sounds may be reproduced; or (b) a recording of the whole or any part of a literary or musical work, from which sounds reproducing the work may be produced; regardless of the medium on which the recording is made or the method by which the sounds arc reproduced or produced; "substantial part"includes any partofa work which on its own can be identified as a part of the work by someone who is familiar with ihc work; "unknown authorship" has the meaning given by section three; "work" means a product of creativity in a category referred to in section eight. J. (I) For the purposes of this Act- ( a) a work is of unknown authorship if the identity of none of the authors is known; (b) subject to paragraph (c), the identity ofan author shall be regarded as unknown ifit is not possible for a person to ascertain his identity by reasonable inquiry; and ( c) the identity of an author that has once been known shall not subsequently be regarded as unknown. (2) For the purposes of this Act, a work is of joint authorship if its is produced by the collaboration of two or more authors and the contribution of each author is not distinct from that of the other author or authors. (3) Unless the context requires otherwise, a reference in this Act to the author ofwork shail, in relation to a work of joint authorship, be read as a reference to all the authors of the work.

4. (I) For the purposes of this Act, a work, other than a broadcast or cable program, is published when copies of the work arc made available to the public, whether for gain or not. Puhli<.-ation and first puhlic:atinn (2) For the purposes of this Act, the first publication of a work, other than a broadcast or cable program, is-- ( a) the earliest publication of the work made with the authority of the copyright owner; or ' • I I ! I 692 No. 44 of 1 994] Copyright and Performance Rights (b) any publication of a work made with the authority of the copyright owner within thirty days after the earliest such publication. (3) For the purposes of this section, any distribution or circula­ tion of a work by way of sale or rental constitutes making copies of the work available to the public. (4) The following shall not constitute publication for the pur­ poses of this Act: (a) in the case of a literary or musical work­ (i) Jhe performance of the work; or (ii) the broadcasting of lhc work or its inclusion in a cable program service (otherwise than for the purposes of an electronic retrieval system); (b) in Jhc case of an artistic work- (i) Jhc exhibition of lhe work; (ii) the making available to the public of a graphic work representing, orof photographs of, a work of architec1urc in the form of a building, or model for a building, a sculpture or a work of artistic craftsmanship; (iii) the making available to the public of a film including Jhe work; or (iv) the broadcasting of the work or its inclusion in a cable program service (01herwise than for the purposes of an electronic retrieval system); (c) in relation to an audiovisual work or sound recording­ (i) Jhe showing or playing of the work in public; or (ii) the broadcasting of the work or its inclusion in a cable program service (otherwise than for the purpose of an electronic retrieval system).

5. Subject to section fifty-eight, this Act shall apply in relation to works whclhcr created before or after Jhc commencement of this Act.

6. This Act shall bind Jhc Republic. PART II COPYRIGHT NATIJRE or- CoPYRimrr Application to all existing works This Act binds the Republic Copyright a form of properly

54. (I) There shall be a Registrar of Copyr"ght, who shall be a Registrar of public officer appointed under the Service Commissions Act, 1991. copyright (2) The duties and functions of the Registrar shall be- (a) to monitor the activities of collecting societies; · (b) to encourage and facilitate the development of collecting societies; ( c) at the request of copyright owners or collecting societies, to examine cases of alleged copyright infringement and, where appropriate, to advise the Director of Public Prosecutions; ( d) to provide information and advice on copyright matters to the Minister; and (e) to perform such other duties or functions as are provided for under this or any other Act. (3) The Registrar shall be assisted by a staff of persons appointed under the Service Commissions Act, 1991. Act 24 of 1991

55. (I) The Registrar may, subject to Articles II, III and IV of the Appendix to the Convention (reproduction in the Schedule), grant licences under this section for persons to translate or reproduce certain works. Registrar may authorise translation and reproduction of works in certain cases J ) 716 No. 44 of 1994] Copyright and Pe,formance Rights (2) Where- (a) a work in printed or analogous fonn; or (b) an audiovisual work produced solely for the purp(ises of systematic instruction; i-s the subject of, or contains material the subject of, copyright under this Act and, at a time more than three years after its first publication, .no translation has been made into a language in general use in Zambia, the Registrar may, on the application of a Zambian citizen or company incorporated in Zambia, grant that person the right to translate tlle work and reproduce the translation. (3) The Registrar may on the application of a Zambian citizen or a company incorporated in Zambia grant tlle person the right to translate for the purposes of broadcasting, and to broadcast- ( a) a liierary work subject to copyright; or (b) any material subject to copyright contained in an audiovisual work proc!uced solely for the purposes of systematic instruction. (4) Where copies of a work- ( a) in printed or analogous fonn; or (b) in audiovisual fonn; have not been made available to tlle public in Zambia for a period of.- (i) three years, in the case of works of the natu.ral and physical sciences, matllematics or technology; (ii) seven years, in the case of works of fiction, poetry, drama r · Application of Act to works, etc. originating in other countries Regulations or music or an books; or (iii) five years, in any other case; the Registrar may, on the application of a Zambian citizen or a company incorporated in Zambia, grant the person the right to reproduce and distribute in Zambia copies of tlle work.

56. The regulations may extend the provisions of this Act, or specified provisions thereof, to works originating, or perfonnances given, in another country provided that that country is a pany to a relevant convention or treaty relating to copyright or other rights established by this Act to which Zambia is also a pany.

57. (!) The Minister may, by statutory instrument, make regula­ tions for or with respect to any matter that by this Act is required or pennitted to be prescribed, or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) Without limiting the generality of subsection ( ! ), such regu­ lations may be made on- Copyright and Pe,formance [No. 44 of 1994 717 Rights ( a) the administration of moral rights; - five; (b) the administration of authorisations under section .fifty- ( c) the form and content of any application orother document required for the purposes of this Act; and ( d) the payment of fees and charges in respect ofany matteror anything done or supplied under this Act.

58. (1) No act done before the commencement of this Act shall constitute an infringement of copyright conferred by this Act or an offence against this Act. Transitional provisions (2) No act done before the commencement of this Act shall constitute an infringement of the rights conferred by section twenty­ four (moral rights). (3) Performer's right and recording right shall not subsist in any performance that took place before the commencement of this Act. (4) Where before the commencement of this Act any person has incurred any expenditure or liability in connection with or in contemplation of, the doing of an act in relation to a protected work ora performance in respect of which rights are conferred by this Act, being an act which prior to that date would have been lawful, nothing in this Act shall diminish or prejudice any rights or interests of that person which, in relation to that work or performance, are subsisting and valuable on the commencement of this Act, unless the person who, under this Act, is the owner of the copyright or the person having rights in the performance, agrees to pay such com­ pensation as, in default of agreement, may be fixed by the Registrar. (5) Where an act done before the commencement of this Act was then an infringement of copyright, proceedings in respect of that act may be taken as if this Act had not been passed.

59. The Copyright Act is hereby repealed. J ) Repeal of Cap. 701 718 No. 44 of 1994] Copyright and Pe,formance Rights SCHEDULE (Section54) APPENDIX TO 1118 BERNE CONVENTION FOR 1118 PROTECTION OF LITERARY AND ARTISTIC WORKS (SPECIAL PROVISIONS REOARDING DEVPl.oPINO CoUNTIUES) A1rna.e l (Facult.:s Open to De11e/op;ng Countries: 1. Availability of certain facu]ties; declaration;

2S. (I) An infringement of copyright shall be actionable in the Court at !he suit of the owner of the copyright. (2) Subject to this section, in an action for infringement of copyright, all such relief by way of damages, injunctions, accounts or otherwise shall be available to the plaintiff as is available in respect of !he infringement of any other property right. (3) In an action under this section, proof of actual damage shall not be required. (4) In an a�tion under !his section, the pl�intiff shall not be entitled to damages if the defendant shows that he reasonably believed that no copyright subsisted in the work. (5) No injunction shall be issued ·under subsection (2) which requires a completed or partly built building-to be demolished or which prevents the completion of a partly built building. 704 No. 44 of1994] Copyright and Performance Rights "- / Offences A ---

28. (I) Any person who during the subsistence of copyrighUn a work- (a) makes for sale or hire any infringing copy; (b) sells, lcL� for hire or by way of trade, exposes or offers for sale or hire any infringing copy; ( c) distributes infringing copies; (d) possesses, otherwise than for his private and domestic use, any infringing copy; (e) by way of trade, exhibits in public any infringing copy; (f) imports into Zambia, otherwise than- (i) for his private and domestic use; and (ii) as items accompanying him cin his entry into Zambia; ' f:l an infringing copy; or ( g) makes or has in his possession any article used or intended to be used for the purpose of making infringing copies; shall, unless he satisfies the Court that he had acted in good faith and had no reasonable grounds for supposing that copyright would or might thereby be infringed, be guilty of an offence and shall be liable- (i) on a first conviction, to a line not excceding­ (aJ fifty thousand penalty units; or (b) ten penalty units for each infringing copy; Y whichever is greater,_or to imprisonment for a term not exceeding live years, or to both;·or \/ t"i {1i) on a subsequent conviction, to a fine not exceeding­ (aJ one hundred thousand penalty units; or (b) twenty penalty units for each infringing copy; whichever is greater, or to imprisonment for a term not exceeding ten years, or to both. (2) A person who makes or imports for sale or hire any article specifically designed or adapted to circumvent the operation of a device or system designed or adapted to prevent or control the reproduction of a recording of a work shall be guilty ofan offence and shall be liable on conviction to a line not exceeding fifty thousand penalty units or to imprisonment for a term not exceeding five years, or to both. (3) A person who dishonestly receives a program included in a broadcast or in a cable program service provided from a place in Zambia with intent to avoid payment of any charge applicable to the reception of the program shall be guilty of an offence and shall be liable to a fine not exceeding fifty thousand penalty units or to imprisonment for a term not exceeding live years or to both. Copyright and Performance [No. 44 of 1994 705 Rights (4) Wt ere a person is charged with an offence against this section, t"1c courtmay, whethcrornothc is convicted of the offence, order Iha I any article in his possession which appears to the court to be an· inf ringi-1g copy, or to be an article used or intended to be used for making infringing copies or for the commission of an offence against this sr.ction, shall be destroyed or delivered up to tlfc owner of the copy1 1ght in question or otherwise dealt with as the court thinks f,t.

29. In any proceedings brought under this Act, a person who has in I is possession, custody or control live or more infringing copies ol a work in the same form shall be presumed to be in possession of, or to have imported, the copies otherwise than for private or domestic use.

30. (1) This section shall apply in proceedings for an infringe­ ment of the copyright in a work. (2) Copyright shall be presumed to subsist in the work if the defendant does not put in issue the question whether copyright subsists therein. (3) Where the subsistence of the copyright is proved or admitted or is presumed in accl•rdance with subsection (2), the plaintiff shall be presumed to be the 1wner of the copyright, ifhe claims to be the owner of the copyright and the defendant does not put in issue the question of his ownership thereof. (4) If the question arises whether an article is an infringing copy of a work and it is sho\ln- ( a) that the article is a copy of the work; and (b) that copyright subsists in the work or has subsisted at any ,. . time; i t shall be presumed that the ·article was made at a time when copyright subsisted in the work.

31. (I) This section shall apply in proceedings for an infringe­ ment of the copyright in a work other than a broadcast or cable program. (2) Where a published work, in its published form, states, or carries a label or other mark that states- ( a) that a named person was the author or the work; (b) in the case of an audiovisual work, that a named person was the director or producer of the audiovisual work; (c) that a named person was the owner of the copyright at a specified time, being a time not later than the time of publication; or Preswnption as to possession of copies Presump­ tions as to existence of copyright Presump­ tions as to authorship and date of publication 706 No. 44 of 1994] Copyright and Performance Rights ( d) that the work was first published in a specified year or in a specified country; the statement shall be admissible as evidence of the fact stated and shall be presumed to be correct. (3) Where an audiovisual work, whether published or not, is shown in public, broadcast or included in a cable program service and the work as so shown, broadca�t or included in the cable program service states- ( a) that a named person was the director or producer of the work; (b) that a named person was the owner of the copyright at a specified time, being a time not later than the time of showing, broadcast or inclusion in the program; or (c) that the work was first published in a specified year or in specified country; the statement shall be admissible as evidence of the fact stated and shall be presumed to be correct. (4) Where an original artistic work carries a name purporting to be the name of the author, that person shall be presumed to be the author of the work. (5) In the case of a work alleged to be a work of joint authorship, subsections (I), (2) and (3) shall apply in relation to each person alleged to be one of the authors of the work. a� if references in those subsections to the author were references to one of the authors. (6) Where, in an action for infringement in respect of a literary, musical or artistic work, a compilation or a computer program, subsection (I) does n11t apply, but- ( a) the work qualifies for copyright protectjon by virtue of the . country of its first publication; and (b) a name purporting to be that of the publisher appeared on copies of the work as first published; then, subject to subsection (1), the person whose name so appeared shall be presumed to have been the owner of that copyright at the time of the publication. (7) Where, in an action for infringement in respect of a literary, musical or artistic work, a compilation or a computer program, it is established that the author of the work is dead- ( a) the work shall be presumed to be an original work; and (b) if it is alleged by the plaintiff that a publication on a specified date in a specified country was the first publi­ cation of the work, that publication shall be presumed to Copyright and Perfomiance [No. 44 of 1994 707 Rights .. Affidavit admissible in evidence have been the first publication of the work and to have taken place in that country and on that date.

32. (1) Subject to this section, an affidavit or statutory declaration by any person claiming to be the owner of the copyright in any work eligible for copyright under this Act or by his agent, stating that­ ( a) at a time specified therein copyright subsisted in the work; (b) the person is the owner of the copyright; and ( c) a copy of the work annexed thereto is a true copy thereof; shall be admissible in any proceedings under this Act as primafacie evidence of the facts contained therein. (2) Where the affidavit or declaration is made by an agent of the person claiming to be the copyright owner, the document setting forth the agent's authority to act in the matter shall be annexed to the affidavit or declaratiori. (3) If the ownership of the copyright is claimed by a body of persons (whether corporate or unincorporated), the affidavit or declaration shall be made by a responsible officer of the body. (4) Where the affidavit or declaration is made outside Zambia, the signature of the person before whom it is made shall be authenticated in accordance with the Authentication of Documents Cap. 85 Act.

33. (!) Where information is given on oath to a Magistrate that there is reasonable cause for suspecting that there is in any house or premises any infringing copy or any article used or'intended to be used for making infringing copies, or any other article, l?<>ok or document by means of or in relation to which an offence against section twenty-eight has been committed, the Magistrate may issue a warrant under his hand by virtue of which any police officer, of or above the rarik oflnspector, named or referred to in the warrant may enter the house or premises at any reasonable time by day or night and search for and seize any such copy, contrivance, article, book or document. (2) A police officer who seizes anything under this sectiorrshall, within forty-eight hours after the seizure, produce the same before a Magistrate, and upon the production the Magistrate shall direct the same to be k_ept in the custody of the officer in charge of the police for the purpose of any investigation or prosecution under this Act.

34. ( I ) Any police officerof or above the rank oflnspector may, · in.the exercise of powers conferred by or under section thirty-three, if it is necessary. so to do- Issue of warrants to enter, search and seize Power to use force, detain persons 'i I 708 No. 44 of 1994] Copyright and Performance Rights ( a) break open any outer .or inner doorof a dwelling house or any other premises; (b) forcibly enter any part of the premises; (c) remove by force any obstruction to entry, search, seizure or removal; and ( d) detain every person found on the premises until the premises have been searched. (2) Where a forcible entry is made under this section, the police officer concerned shall make arrangements to ensure that the premises are left as secure as they were before the entry.

35. (1) Where it appears to a police officer exercising powers under this Part that it is not practical to seize and remove from where they are found any thing or document that he is entitled to seize in the exercise of his powers, by reason of theirnature, size or amount, he may by any means seal the things or documents in the premises or container in which they are found. (2) A person who, without lawful authority, breaks, tampers with or damages such a seal or removes things or documents so sealed shall be guilty ofan offence, and shall be liable on conviction to a fine not exceeding twenty thousand penalty units or imprison­ ment for a term not exceeding two years, or to both.

36. (!) A police officer seizing or sealing any infringing copy, contrivance, article, book or document under this Part shall prepare a list of the things seized or sealed and forthwith deliver a copy signed by him to the occupier, or his agents or servants present in the premises. (2) If the premises are unoccupied, the police officer shall, wherever possible, affix a list of the things seized or sealed on a surface of the premises.

37. For the purposes of this Act, including any proceedings for infringement or for an offence under this Act, where a package, container or other receptacle containing articles alleged to be infringing copies or to be otherwise subject to seizure, has been seized, it shall be sufficient to examine a sample consisting of one percent of tljie articles, or five articles, whichever is the smaller number; and if it is established that all the articles in the sample are identical with each other, it shall be presumed that the remainder of the articles in the package, container or receptacle are identical with the articles in the sample.

38. Any person who- ( a) refuses a police officer access to any place when the officer is seeking to exercise his powers under this Act; Sealing of things List of things seized or sealed Articles in containers need only to examine sample Obstruction to search (0 (b) assaults, obstructs, hinders or delays a police officer in effecting any entry which the officer is entitled to effect under this Act, or in the execution of any duty imposed or power conferred on him by this Act; ( c) refuses to give to a police officer any information relating to an offence or suspected offence under this Act or any other information which may reasonably be required of him and which he has in his knowlc;dge orpowerto give; or (d) knowingly gives false information to a police officer seeking to exercise his powers under this Act; shall be guilty of an offence and shall be liable on conviction to a fine not exceeding ten thousand penalty units or to imprisonment for a term not exceeding twelve months, or to both. PART IV REGISTER OF COPYRIGIITS

39. (I) For the purposes of this Part, where the copyright in a work is owned by more than one person (otherwise than as joint owners) the rights held by each of those persons shall be regarded as a separate copyright. (2) The Registrar shall keep a register of copyrights in works other than broadcasts or cable programs. (3) The register, and copies of the works concerned, shall be made available for inspection by members of the public on payment of a fee of not more than twenty fee units, or such larger amount as may be prescribed in the regulations. (4) The existence and enforceability of a copyright shall be in.dependent of whether or not it is registered under this Part. The register of copyrights

40. (1) If the owner of a copyright in a work wishes to register it, he shall lodge with the Registrar- ( a) a claim for registration, in a form approved by the Regis­ Rcgistralion and issue of certificate trar; (b) a copy of the work in which copyright is claimed; ( c) particulars of- (i) the owner of the copyright; (ii) the type of copyright claimed and any limitations on the copyright held by that owner; (iii) the date on which the copyright arose; (iv) the person from whom the copyright was acquired, if the ownerofthe copyright is not the first owner of ttie copyright; and ) 710 No. 44 of 1994) Copyrigm ana rerJormance Rights (v) any other matters required by the approved form; and ( d) a statutory declaration that he is the ownerof the copyright described. (2) Where a claim is for copyright in relation to a work already on the register, the Registrar may waive the requirement that a copy of the work be lodged with the application. (3) On receiving a claim in accordance with this section, the Registrar shall register the copyright, assign it an identifying number and issue a certificate of registration stating- ( a) that on the date specified in the certificate, the person named in the certificate claimed the copyright in the work; (b) the type of copyright claimed and any limitations; (c) the date on which the copyright arose; and (d) that a copy of the work may be inspected at the office of the Registrar. (4) Where any particulars in relation to a registered copyright change, the ownerofthe copyright shall lodge details of the changed particulars with the Registrar.

41. Where a copyright is registered under this Part in the name of a person, the Registrar shall not transfer the registration to the name of another person except- ( a) on lodgement with the Registrar of an instrument, in a form approved by the Registrar, evidencing the assignment of the copyright to the other person and executed by both the assignor and assignee or by persons duly authorised on behalf of the assignor or assignee; or (b) on presentation to the Registrarof such evidence as he may reasonably require that ownership of the copyright has devolved on the other person by reason of his being the legal personal representative, receiverortrustee in bank­ ruptcy of the first person, or otherwise by operation of law. •• ,_· Transfer of registration Rectification of register

42. Where a copyright is registered under this Part in the name of a person, and the court, on the application of another person, is satisfied that the other person is the ownerof the copyright, the court may order that the Registrar rectify the register in the manner specified in the order. Rights

43. W 1ere- ( a) registration is transferred; (b. the register is ordered to be rectified under this Part; (c) part iculars relating to a registered copyright are varied so th. the certificate is no longer accurate; or (d) the Registrar is satisfied that a certificate has been lost or c.estroyed; the Rei istrar shall issue a new certificate of registration worded to meet tt e circumstances of the case. Issue of new certificate Interpreta­ tion PART V R1mrrs IN PERFORMANCF.S In this Part, unless the context otherwise requires--­ . C

44. "performer's right " means the right of a performer conferred by section forty-five in relation to a performance; " performance " means- ( a) a performance of drama, dance or mime; (b) a mi.sical performance; (c) a rea�ing or recitation of a literary work; or ( d) a perfo mance of a variety act or any similar presen­ tation; insofar as it is a live performance given by one or more individuals; " recording right " mewis the right of a performance recorder conferred by sectionforty-five in relation to a performance; " qualifying person " means a person who is- ( a) a citizen or habitual resident of; or (b) a body corporateincorporated in; Zambia or another country to which the provisions of this Part have been applied under sectionfift:Y-six; " qualifying performance " means a performance- ( a) given by a person who is a citizen of, or habitual resident in; or (b) which talces place in; : !. (l Zambia or another country to which the provisi,ms of this Part have been applied under sectionfifty-six.

45. (1) A performer shall have, in accordance with this Part, the right, in this Act called the " performer's right ", to exploit a qualifying performance by him by means of the recording, broad­ cast or inclusion in a cable program service of the performance. Confcrmcnl of pcrformcr'i1 right and recording right 712 No. 44 of1994] Copyright and Performance Rights (2) A qualifying person who- (a) has the benefit of an exclusive recording contract in relation to a performance; or (b) has been licensed by a person who- (i) has the benefit of an exclusive recording contract in relation to the performance; and (ii) is not a qualifying person; to make recordings of the performance with a view to their being sold, let for hire or shown or played to the public; whether or not the performance is a qualifying performance, shall have a right, in this Act called the "recording right ", to exploit the qualifying performance by him by means of the recording, broad- cast or inclusion in a cable program service of the performance, in accordance with this Part and the exclusive recording contract. (3) For the purposes of this section, a person has an " exclusive recording contract " with a performer if the person is entitled under the contract to the exclusion of all other persons (including the performer) to make recordings of one or more of his performances with a view to the recordings being sold or let for hire, or shown or played in public.

46. (1) Performer's right shall be a property right, but shall not be assignable or transferable except on death by testamentary disposition or by the operation of law. (2) Recording right shall not be assignable orotherwise transfer­ able. (3) Nothing in this section shall affect the creation of recording rights by the operation of subsection (2) of section Jorry-five on licensing agreements.

47. Performer's right and recording right in relation to a perf or­ mance shall subsist for fifty years from the end of the calendar year in which the performance takes place.

48. (1) �erformer's right in relation to a performance is inf ringed by a person who, without the consent of the performer-- ( a) makes, otherwise than for his private and domestic use, a recording of the whole or any substantial part of a qualifying performance; or (b) broadcasts live, or includes live in a cable program service, the whole or any substantial part of a qualifying perfor­ mance. Transfer of rights Duration of rights in perfor­ mances Infringement of performer's rights � ......... _..,,. -�� -:__ ______ ---·· · Copyright and Performance ll�U. '¥+ UI J.77... I ... ., Rights (2) Pc farmer's right in relation to a performance is infringed by a person who, without the consent of the performer- ( a; shows or plays in public; or (b) bro· .dcasts or includes in a cable program service; the whole or:. 1y substantial part of the performance by means of a recording wl jch was, and which that person knows or has reason to believe was. made without the consent of the performer. (3) l 'erbrmer's right in relation to a'l)(lrformance is infringed by a perso 1 who, without the consent of the ·performer- ((.) imports into Zambia otherwise than for his private and domestic use; or / (b) in Lhe course of business possesses, sells or lets for hire, offers or exposes for sale or hire, or distributes; a recording or a qualifying performance which was, and which that person knows or has reason to believe was, made without the consent of the performer.

49. (1) Recording-right in relation to a performance is infringed by a person who, \\ithout the consent of either the performer or the holderof the recording rights, makes, otherwise than for his private and domestic use, a ccording of the whole or any substantial part of the performance. (2) Recording righ. in relation to a performance is infringed by a person who-- ( a) without the consent of the holder for the time being of the recording rights; and (b) in the case of a qualifying performance, without the , consent of the performer; shows or plays in •public, or broadcasts or includes in a cable program service, the whole or any substantial part of the perfor­ mance by means of a recording which was, and which that person knows or has reasonto believe was, made without the consent of one of those persons. (3) Recording right in relation to a performance is infringed by a person who-- ( a) without the consent of the holder for the time being of the recording rights; and (b) in the case of a qualifying performance, without the consent of the performer; imports into Zambia otherwise than for his private and domestic use, or in the course of business possesses, sells or lets for hire, offers or exposes for sale or hire, or disttibutcs a recording of the performance which was, and which that person knows or has reason to believe was, made without the consent of one of those persons. I J.J Infringement of recording rights '--- , - .,,., ' ::,.-:··· .. . ' ., . .. .. .,,.., --- . 714 No. 44 of 1994] Copyright and Performance Rights Acts which do not constitute infringe� ments

50. (1) Subject to subsection (2), the following acts shall not constitute infringement of perfonner's right or recording right- ( a) fair dealing with a perfonnance or recording for p�vatc study or for the purposes of research done by an indi­ vidual for his personal purposes, otherwise than for profit; (b) fair dealing with a perfonnance or recording for the purposes of criticism or review, whether of that perfor­ mance or any other perfonnance, provided there is a sufficient acknowledgement; (c) fair dealing with a perfonnance or recording for the purposes of reporting current events by broadcasting or by inclusion in a cable program service or by its use in an audiovisual work; ( d) the recording of a perfonnance or reproduction of a recording for the purposes of judicial proceedings, or of any other proceedings before a tribunal established by law, or for the purposes of a report of judicial proceed­ ings or any other such proceedings; (e) the incidental inclusion of a recording in an audiovisual work, sound recording, broadcast or cable program; (f) the publishing, broadcasting, inclusion in a cable program service, or the communication to the public by any other means of anything the making of which was, under paragraph (e), not an infringement of performer's right or recording righL � (2) An act which- ( a) conflicts with the nonnal commercial exploitation of a performance; or (b) unreasonably prejudices the legitimate commercial inter- ests of I.he performer or holder of recording right in a work; shall not, for the purposes of subsection (!), be treated as fair dealing. (3) For the purposes of this section, " sufficient acknowledge­ ment " means an acknowledgement identifying the perfonner.

51. (1) An infringement of performer's right shall be actionable in the court at the suit of the perfonner or his successor in title. (2) An infringement of recording right shall be actionable in the court at the suit of the holder of the recording right. Infringement of performer's right is actionable Copyright and Performance [No. 44 of 1994 715 Rights (3) In an action under this section, all such relief by way of damages, injunctions, accounts or otherwise shall be available to the plaintiff as is available in respect of the infringement of any other property right.

52. A person who does an act which constitutes an infringement of performer's right or recording right in relation to a performance, knowing or having reason to believe that the act would constitute such an infringement shall be guilty of an offence, and shall be liable on conviction to a fine not exceeding twenty thousand penalty units or to imprisonment for a term not exceeding two years, or to both.

53. (I) A person who represents falsely that he is authorised by a person to give consent for the purposes of this Part in relation to a performance shall be guilty of an offence, and shall be punishable on conviction to a fine not exceeding ten thousand penalty units or to imprisonment for a term not exceeding one year, or to both. (2) It shall be a defence to a charge under subsection (!) if the defendant proves that he believed on reasonable grounds that he had the represented authority. Offence of infringing performer's or recording right False representa­ tion of authority to give consent PART VI M!SCF.l.LANEOUS

2. Dura•ion of effect of declaration; 3. Cessation of developing colllltry status; 4. Existing stoc11.,. of copies; 5. Declaration concerning certain territories: 6. Llmits of reciprocity) (1) Any country regarded as a d!!veloping country in confonnity with the established practice of the General Assembly of the United Nations which ratifies or accedes to this Act, of which this Appendix forms an integral part, and which, )laving regard to its economic situation and its social or cultural needs, docs not consider itself immediately in a position to make provision for the protection of all the rights as provided for in this Act, may, by a notification deposited with the Director General at the time of depositing its instrument of ratification or accession or, subject to Article V (1) (c), at any time thereafter, declare that it will avail itself of the faculty provided for in Article II, or of the faculty provided for in Anicle ill, or of both those faculties. It may, instead of availing itself of the faculty provided for in Article II, make a declaration according to Article V (1) (a). (2) ( a) Any dccl aration under paragraph (1) notified before the expiration of the period of ten years from the entry intu force of Articles l to 21 and this Appendix according to Article 28 (2) shall be effective until the expiration of the said period. Any such declaration may be renewed in whole or in part for pericids of ten years each by a notification deposited with the Director.General not more than fifteen months and not less than three months before the expiration of the ten year period then rnnning. (b) Any declaration under paragraph (1) notified after the expiration of the period of ten years from the entry into force of Articles l to 21 and this Appendix according to Article 28 (2) shall be effective until the expiration of the ten-year period then running. Any such declaration may be renewed as provided for in the second sentence of subparagraph (a). (3) Any country of the Union which has ceased to be regarded as :: developing country as referred to in paragraph (1) shall no longer be entitled to renew its declaration as provided in paragraph (2), and, whether or not it Connally withdraws its declaration, such country shall be precluded from availing itself of the faculties referred to in paragraph (1) from expiration of the ten-year period then running or from the expiration of a period of three years after it has ceased to be regarded as a developing country, whichever period expires later. (4) Where, at the time when the declaration made under paragraph (I) or (2) ceases to be effective, there are copies in stock which were made under a licence granted by virtue of this Appendix, such copies may continue to be distributed until their stock is exhausted. (5) Any country which is bound by the provisions of this Act and which has deposited a declaration or a notification in accordance with Article 31 (1) with respect to the application of this Act to a particular territory. the situation of which can be regarded as analogous to that of the countries referred to in paragraph (I), may, in respect of such territory, make the declaration referred to in paragraph (1) and the notification of renewal referred to in paragraph (2). As long as such declaration or notification remains in effect, the provisions of this Appendix shall be applicable to the territory in respect of which it was made. ' II I I I' I I I I , I , I Copyright and Performance [No. 44 of 1 994 719 Rights (6) ( a) The fact that a count,y avails itself of any of the faculties referred to in paragraph (1) docs not permit another country to give less protection to works of which the cotmtry of origin is the fonncr country than it is obliged to grant under Articles 1 to 20. (b) The right to apply reciprocal treatment provided for in Article 30 (2) (b), second sentence, shall not. until the date on which the period applicable under Article I (3) expires, be exercised in respect of works the country of origin of which is a country which has made a declaration according to Article V (1) (a). AR11CUJ Il (Limitations on the Righi a/Translation: 1. Licences granted by competent authority; 2. to

4. Conditions allowing the grant of such licences; 5. Purposes for which licences may be granted; 6. Tennination of licences; 7. Works composed mainly of illustrations: 8. Works withdrawn from circulation; 9. Licenses for broadcasting organisations) (1) Any count,y which has declared that it will avail itself or the faculty provided for in this Article shall be entitled, so far as works published in printed or analogous forms of reproduction are concerned, to substitute for the exclusive right of translation provided for in Article 8 a system of non-exclusive and non­ transferable licences, granted by the competent authority 1.U1der the following conditions and subject to Article IV. (2) (a) Subject to paragraph (3), if, a[terthe expiration of aperjodofthree years, or of any longer p:riod determined by the national legislation of the said country, commencing on the date of the first publication of the work, a translatiofl of such work has not been published ·in a language in general use in that country by the owner of the right of translation, or witt his authorisation. any national of such country may obtain a licence to make a translation of the work in the said language and publish the translation in printed or analogous fonns of reproduction. {b) A licence under the conditions provided for in this Anicle may also be granted if all the editions of the translation published in the language concerned are out of print. .. (3) (a) In the case of translation into a language which is not in general use in one or more developed co\llltries whicP, are members of the Union, a period of one year shall be substituted for the period of three years referred to in paragraph (2) (a). (b) Any country referred to in paragraph (1) may, with the unanimous agreement of the developed countries which arc members of the Union and in which the same language is in general use, substitute, in the case of translations into that language, [or the period of three years referred to in paragraph (2)(aJ a shorter period as detennincd by such agreement but not less than one year. However, the provisions of the foregoing sentence shall not apply where the language in question is English, French or Spanish. The Director General shall be notified of any such agreement by the Governments which have concluded iL (4) ( a) No licence obtainable after three years shall be granted under this Article until a further period of six months has elapsed. and no licence �btainable after one year shall be granted under this Article until a further period of nine months has elapsed- (i) from the date on which the applicant complies with the requirements mentioned in Article IV (1 ), or (ii) where the identity or the address of the owner of the right of translation is unknown. from the date on which the applicant sends, as provided for in Article {V (2), copies of his application submitted to the authority competent to grant the licence. 720 No. 44 of 1994) Copyright and Performance Rights (b) If, during the said period of six or nine months, a translation in the language in respect of which the application was made is published by the owner of the right of translation or with his authorisation, no licence \Dldcr this Article shall he granted, (5) Any licence under this Article shall be granted only for the purpose uf teaching, scholarship or research. (6) l f a translation of a work is published by the owner of the right of translation or with his authorisation at a' price reasonably related to that normally chargc<l in the country for comparable works, any licence granted under this Article shall terminate if such translation is in the same language and with substantially the same conten� as the translation published under the licence. Any copies already mac.le before the licence terminates may continue to be distributed unti! their stock is exhausted. (7) For works which arc composed mainly of illustrations, a licence to make an<l publish a translation of the text and to reproduce and publish the illustrations may be granted only if the conditions of Article III are also fulfilled. (8) No licence shall be granted under this Article when the author has withdrawn from circulation all copies of his work. (9) ( a) A licence to make a translation of a work which has been published in printed or analogous forms of reproduction may also be granted to any broadcast­ ing organisation having its headquarters in a country referred to in paragraph (1), upon an application made to the competent authority of that country by the said organisation, provided that all of the following conditions are met: (i) the translation is made from a copy made and acquired in accordance with the laws of the said country; (ii) the translation is only for use in broadcasts intended exclusively for teaching or for the dissemination of the results of specialised techni­ cal or scientific research to experts in a particular profession; (iii) the translation is used exclusively for the purposes referred to in condition (ii) through broadcasts made lawfully and intended for recipients on the territory of the said country, including broadcasts made through the medium of sound or visual recordings lawfully and exclusively made for the purpose of such broadcasts; (iv) all uses made of the translation are without any commercial purpose. (b) Sound or visual recordings of a translation which was made by broadcasting organisation under a licence granted by virtue of this paragraph may, for the purposes and subject to the conditions referred to in subparagraph (a) and with the agreementof thatorganisation, also be used by any other broadcasting organisation having its headquarters in the country whose competent authority granted the licence in question. (c) Provided that all of the criteria and conditions set out in subparagraph (a) are met, a licence may also be granted to a broadcasting organisation to translate any text incorporated in an audio-visual fixation where such fixation was itself prepared and published for the sole purpose of being used in connection with systematic instructional activities. /d) Subject to subparagraphs /a) to (c), the provisions of the preceding paragraphs shall apply to the grant and exercise of any licence granted under this paragraph. • r Copyright and Performance [No. 44 of 1994 721 Rights AlmCU! m (Limitation on tlu Righi o/Rt!production: 1. Licences grantable by competent authority; 2. to 5. Conditions allowing ,the grant of such licences; 6, Termination of Licences; 7. Works to which this Article applies) (]) Any country which has declared that it will avail itself of the faculty provided for in this Article shall be entitled to substitute for the exclusive right of reproduction provided for in Anicle 9 a system of non-exclusive and non� transferable licences, granted by the competent authority 1mdcr the following conditions and subject to Article IV. (2) / a) If, in relation to a work to which this Article applies by vinue of paragraph (7), after the expiration of- (i) the relevant period specified in paragraph (3), commencing on the date of first publication of a particular edition of the work, or \ \ .' (ii) any longer pcrjod determined by national legislation of the country referred to in paragraph (1 ), commencing on the same date, • copies of such edition have not been distributed in that cmmtry to the general public or in connection with systematic instructional activities, by the owner of the right of reproduction or with his authorisation, at a price reasonably related to that nonnally charged in the country for comparable works, any national of such country may obtain a licence to reproduce and publish such e.dition at that or a lower price for use in connection with systematic instructional activities. (b) A licence to reproduce and publish an edition which has been distributed as described in subparagraph (a) may alw t� granted under the conditions provided for in this Article if, after the expiration of the applicable period, no authorised copies of that edition have been on sale for a period of six months in the country concerned to the general public or in connection with systematic instructional activities at a price reasonably related to that nonnally charged in the country for comparable works. (3) The period referred to in paragraph (2) /a) (i) shall be five years, except that- (i) for works of the natural and physical sciences, including mathematics, and of technology, the period shall be three years; (ii) for works of fiction, poetry. drama and music, and for art books, the period shall be seven years., (4) ( a) No licence obtainable after three years shall be granted under this Article until a period of six months has elapscd- (i) from the date on which the applicant complies with the requirements mentioned in Article IV (1 ), or (ii) where the identify or the address of the owner of the right of reproduction is unknown. from the date on which the applicant sends, as provided for in article IV (2), copies of his app�ication submiued to the authority competent to grant the licence. /b) Where licences are obtainable after other periods and Aniclc IV (2) is applicable, no licence shall be granted until a period of three months has elapsed from the date of the dispatch of the copies of the application, (c) If, during the period of six or three months referred to in subparagraphs (a) and (b), a distribution as described in pagraph (2) (a) has taken place, no licence shall be granted under this Article. I I i • 722 No. 44 of 1994] Copyright and Performance Rights ( d) No licence shall be granted if the author has withdrawn from circulation 'all copies of the edition for the reproduction and publication of which the licence has been applied for. (5) A licence to reproduce and publish a translation of a work shall not be granted und�r this Article in the following cases: (i) where the translation was _not publiShed by the owner of t.'le right of translation or with his authorjsation, or (ii) where the translation is not in a language in general use in the country in which the licence is applied for. (6) If copies of an edition of a work are distributed in the country referred to in paragraph (1) to the general public or in connection with systematic instructional activities, by the owner of the right of reproduction or with his authorisation, at a price reasonably related to that norma11y charged in the country for comparable works, any licence gr3:I1ted under this Article shall terminate if such edition is in the same language and with substantially the same content as the edition which was published under the said licence. Any copies already made before the licence terminate may continue to be distributed lllltil their stock is exhausted. (7) ( a) Subject to subparagraph (b ), the works to which this Article applies shall be limited to works published in printed or analogous forms of reproduction. (b) This Article shall also apply to the reproduction in audio-visual form of lawfully made audio-visual fixations including any protected works incorporated therein and to the translation of an}! incorporated text into a language in general use in the country in which the licence is applied for. always provided that the audio­ visual fixations in question were prepared and published for the sole purpose of being used in connection with systematic instructional activities. ARTICLE IV (Provisions Common lo Licences Under Articles JI and /II: l. and 2. Procedure; 3. hldic:ation of author and title of work; 4. Exportation of copies; 5. Notice; 6. Compensation) (1) A licence under Article II or Article ill may be granted only if the applicant, in accordance with the procedure of the country concerned, establishes either that he has requested, and has been denied, authorisation b the owner of the right to make and publish the trans · nor to re oduce and publi$h the ed1uon. as e case • or at, a tc!' ue diligence on his part, he was unable to find the owner of may the right. At the same time as making the request, the applicant shalI inform any national or international information centre referred to in paragraph (2). (2) If the owner of the right cannot be found, the applicant for a licence shall send, by registered airmail, copies of his application, submitted to the authority competent to grant the licence, to the publisher whose name appears on the work and to any national or international information centre which may have been designated. in a notification to that effect deposited with the Director General, by the Government of the country in which the publisher is believed to have his principal place of business. (3) The name of the author shall be indicated on all copies of the translation or reproduction published under a licence granted under Article II or Article Ill The title of the work shall appear on all such copies. In the ca�e of a translation, the original title of the woi-k shall appear in any case on all the said copies. (4) (a) No licence gtanted tlllder Article II or Article Ill shall extend to the export of copies, and any such licence shall be valid only for publication of the translation orof the reproduction. as the case may be, in the territory of the country in which it has been applied for. .. I I ! Copyright and Performance Rights [No. 44 of 1994 723 (b) For the pcrpose of subparagraph / a), the notion of export shall include the sending of copies from any territory to the country which, in respect of that territoi)', has made a declaration under Article 1 (5). ( c) Where a governmental or other public entity of a country which has granted a licence to make a translation under Article II into a language other than English, French or Spanish sends copies of a translation published under such licence to another country, such sending of copies shall not, for the purposes of subparagraph ( a), be considered to constitute export i f all of the following condilions are met: (i) the recipients arc individuals who are nationals of the country whose competent authority has· granted the licence, or organisations group­ ing such individuals; (ii) the copies are to be used only for the purpose of teaching, scholarship or research; (iii) the sending of the copies and their subsequent distribution to r�ipients is without any commercial purpose; and (iv) the country to which the copies have been sent has agreed with the country whose competent authority has granted the licence to aUow the receipt. or distribution, or both, and the Director General has been notified of the agreement by the Government of the country in which the licence has been granted. ( (5) All copies published under a license granted by virtue of Artieleil or Article Ill shall bear a notice in the appropriate language stating that the copies are available for distribution only in the country or territory to which the said licence applies. (6) (a) Due provision shall be made at the national level to ensure- • l (i) that the licence provides. in favour of the owneroftherightoftranslation or of reproduction. as the case may be, for just compensation that is consistent with standards of royalties normally operating on licences freely negotiated between persons in the two countries concerned; and (ii) payment and transmittal of the compensation: should national current reguJations intervene. the competent authority shall make all efforts, by the use of international machinery, to ensure transmittal in internationally convertible currency or its equivalent ( b) Due provision shall be made by national legislation to ensure a correct translation of the work, or an accurate reproduction of the particular edition, as the case may be. ARTICLE V (Alternalive Possibility for Limilalion of the Right of Translation: t. Regime provided for under the 1886 and 1896 Acts; 2. No possibility of change to regime under Article Il; 3. Tune limit for choosing the alternative possibility) (l) (a) Any counuy entitled to make a declaration that it will avail itselfof the faculty provided for in Article Il may, instead, at the time of ratifying or acceding to this Act: (i) if it is counuy to which Article 30 (2) ( a) applies, make a declaration under that provision as far as the right of translation is concerned;· (ii) if it is a country to which Article 30 (2)(a) <loes not apply, and even if it is nolcountry outside the Union, make a declaration as provided for in Article 30 (2) /b), first sentence . • "l'' I I i I ' 724 No. 44 of 1 994) Copyright and Performance Rights � (b) In the case of a country which ceases to be regarded as a developing country as referred to in Article I (1), a declaration made according to this paragraph shall be effective until the date on which the period applicable under Article I (3) expires, ( c) Any country which has made a declaration according to this paragraph may not subsequently avail itself of the faculty provided for in Article Il even if it withdraws the said declaration. (2) Subjecl IOparagraph (3), any country which has availed itself of the faculty provided for in Article II may not subsequently make a declaration according to paragraph (I). (3) Any country which has ceased to be regarded as a developing country as referred to in Article I (1) may, not later than two years prior to the expiration of the period app1icable under Article I (3 ), make a declaration to the effect provided for in Anicle 30 (2) (b), first sentence, notwithstanding the fact that it is not a Country outside the Union. Such decl.aration shall take effect at the date on which the J)\'riod applicable under Article I (3) expires. ARTICLE VI (Possibi/i1iesof applying, or admiJting the application of. cerlainpro\lisions of the Appendix before becoming bound by il: t. Declaration; 2. Depository and effective date of declaration) (1) Any country of the Union may declare, as from the d.ite to this Act, and at any time before becoming bound by Articles I to 21 and this Appendix: (i) if it is a country which, were it bound by Aiticlcs l to 21 and this Appendix, would be entitled to avail itself of the faculties referred to in Article 1 (1 ), that it will apply the provisions of Article II or of· Article Ill or of both to works whose country of origin is a country which, pursuant to (ii) below, admits the application of those Articles to such works, or which is bound by Articles I to 21 and this Appendix; such declaration may, instead of referring to Article IJ, refer to Article V; (ii) that it admits the application of this Appendix to works of which it is the country of origin by countries which have made a declaration under (i) above or a notification under Article I. (2) Any declaration made under paragraph (I) shall be in writing and shall be deposited with the Director General. The declaration shall become effective from the date of its deposit.