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Zambia

Thu, 11/03/2010 - 07:13 — Jeremy Malcolm

Legal background

Scope and duration of copyright

Is the period of protection of each type of copyright work limited to the minimum duration mandated by the Berne Convention? YES
CPRA s.12
Must a work be fixed in some material form before copyright attaches? NO
Not explicitly required.
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power? NO
Competition law excludes "the entering into an agreement in so far as it contains a provision relating to the use, licence or assignment of rights under, or existing by virtue of, any copyright, patent or trade mark”.		 CFTA s.3
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? YES
The Constitution repeatedly guarantees freedom of “conscience, expression and association”, including specifically “Freedom of Expression”, including “freedom to impart and communicate ideas and information without interference, whether the communication be to the public generally or to any person or class of persons”. This could in appropriate cases prevail over copyright law.		 Constitution Article 20
Does the compilation of a database of non-original material fall outside the scope of copyright? NO
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them? YES
A non-compulsory Register of copyrighted works is maintained and the owner of copyright may specify “the type of copyright claimed and any limitations on the copyright held by that owner”.

Freedoms to access and use

By Home UsersIs there a general exception for the fair use of copyright material for any purpose that satisfies a set of balancing criteria? NO
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? YES
There is specific provision for 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 convenient to him.		 CPRA s.21
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? YES
CPRA s.21
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? YES
Mainly for educational and school use.		 CPRA s.21
Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy? NO
For EducationIs reproduction permitted for the purposes of research or study? YES
Provided that the reproduction is not made by means of an appliance capable of producing multiple copies.		 CPRA s.21
Does any such research and study provision cover distance and online education? NO
May translations of works be made for educational purposes? NO
May works be reproduced and published by educational institutions in connection with systematic instructional activities? NO
OnlineIs hyperlinking to a Web site allowed without permission of the site's owner? YES
Are temporary or transient copies, incidental to a lawful use, excepted from copyright? NO
Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances? NO
There is no specific provision on ISP liability.
Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material? YES
Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs? LIMITED
As in other countries with common law legal systems, it is likely that customer information could be procured by subpoena.
By content creatorsCan copyright works be non-commercially remixed or mashed up into new works? NO
May computer software be reverse engineered for the purpose of creating interoperable software? NO
Is the incidental inclusion of a work in other material permitted? LIMITED
Only as a citation.
Is there are copyright exception for parody or satire? NO
Do creators who license their work retain the moral right of attribution? YES
By the pressIs there a copyright exception for the news of the day? YES
CPRA s.21
May copyright material be reproduced for the purposes of review and criticism? YES
Provided there is sufficient acknowledgement.		 CPRA s.21
May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose? NO
May quotations be used for any purpose? NO
Only for educational or scientific purposes.
By LibrariesMay libraries copy works that cannot reasonably be obtained commercially? NO
May libraries copy works for users for the purpose of research or study? NO
Are libraries allowed to make preservation or archive copies of materials in their collections? YES
CPRA s.21
In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)? NO
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? NO
In public affairsAre laws excluded from copyright? YES
Are other governmental works excluded from copyright? YES
Judicial Acts, for example.
Is there a copyright exception for use of material in judicial proceedings? YES
CPRA s.21
Are the results of publicly funded research required to be published under an open access license? NO

Freedoms to share and transfer

May copyright works be freely offered for commercial rental? LIMITED
Must comply with any restrictions placed on and registered the item by the copyright owner
Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment? YES
Are orphaned works treated differently in the law to other copyright works, for example by allowing them to be compulsorily licenced, limiting remedies, or by releasing them into the public domain? NO
Is parallel importation permitted? YES
Are there incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy? NO
Are there incentives for the use, production and dissemination of open access material (e.g. textbooks) within copyright law or elsewhere in national law / policy? NO
Are there specifications or incentives in national law/policy for the use of open document formats? NO

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? One hundred thousand penalty units; or twenty penalty unit; for each infringing copy; whichever is greater, or to imprisonment for a term not exceeding ten years, or to both. CPRA s.28
What is the maximum penalty for copyright infringement for a corporation? As above. CPRA s.28
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge? NO
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for purposes that would not infringe copyright? NO
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright? NO
Does national copyright or consumer protection law require disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material? NO
Are the operations of copyright collectives subject to public oversight? YES
Are ISPs independent of copyright owners, to the extent that no law or industry code of conduct requires them to notify their users who are alleged to have committed a copyright infringement online? YES
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? NO
Are damages for copyright infringement based on the loss sustained, rather than by a pre-established or statutory damages award? NO
A preestablished formula of penalties for copyright infringement exists.
Is there provision to penalise the wrongful allegation of copyright infringement? NO

Conclusions

The Zambian copyrighti system is closely based on the Copyright and Performance Rights Act of 1994, which follows Berne closely. Given its age, the Act does not provide guidance on most of the issues arising in the digital environment (at least for consumers; trafficking in circumvention devices, however, is prohibited).

A significant component of the Act covers the role of collecting societies. ZAMCOPS, which currently represents musicians authors, publishers and composers of various forms of artistic works, came into existence on the back of the new Act in 1994 and started operations in 1996.

The Zambian legislation is not the worst, but certainly not the best to be found in Africa, and should be reviewed to improve its suitability for modern consumers.

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