THE DEVELOPMENT OF MODERN COPYRIGHT LAWS IN THE …



THE DEVELOPMENT OF MODERN COPYRIGHT LAWS IN THE SADC REGION: THE CASE OF BOTSWANA

BY

John Kiggundu

LLB (Hons) (Makerere), LLM, PhD (London), Dip.L.P (LDC), FSALS

Associate Professor, Department of Law, University of Botswana

Research Fellow, University of South Africa

I. INTRODUCTION

Botswana is a landlocked country in Southern Africa lying between 17 and 27(S latitude and 20( and 30( E longitude. It is at an average altitude of 1, 000 metres. It is bordered by Namibia to the West and North, Zambia and Zimbabwe to the North and Northeast, and South Africa to the South and South East. It is a very large country with a surface area of 581,730 square kilometres but with a small population of 1,347,569. The Kalahari Desert covers a large part of the country especially in the West. The climate is hot and dry most of the year round and drought is a constant threat[1].

Botswana has a dual legal system. The received Roman-Dutch law prevails alongside the customary law of the various tribes. The court structure is also dual. The main courts administer the general law, while the customary courts administer customary law[2].

Botswana has four national principles: democracy; development; self-reliance; and unity. The principles are derived from the traditional culture of Botswana and, taken together are designed to promote social harmony. In planning national development the government is guided by form objectives: sustained development; rapid economic growth; economic independence; and social justice.

At the time of independence in 1966, Botswana was one of the poorest countries in Africa. An overwhelmingly rural population depended mainly on agriculture for a livelihood. Beef production was the mainstay of the economy in terms of output and export earnings. Apart from the railway line running through Botswana from South Africa to Zimbabwe, communications and infrastructure were barely developed. Prospects for rapid development of the economy seemed bleak, and the government was dependent on foreign aid not only for all its investment projects, but also to finance its recurrent expenditures. The last 40 years since independence have seen a remarkable economic transformation[3].

Since the 1970’s, Botswana’s mineral endowment has been central to the country’s rapid economic development. The mineral sector has underpinned Botswana’s rapid economic growth and development. The main mineral exports of the country are diamonds, copper, nickel, soda ash, salt, and small quantities of gold. Diamonds are the country’s major export. Botswana is one of the world’s leading diamond producers both in terms of quality and quantity. The country has a thriving tourist industry.

The overall goals of the Botswana government involve economic diversification, increased international competitiveness, promotion of non-traditional exports, sustainable development, and employment creation throughout the country. In order to achieve such goals, the government considers it essential to provide an enabling environment. The government achieves this through the provision of efficient support services, a sound social infrastructure and the maintenance of macro economic stability. To this end, the government is committed to increasing the private sector’s participation in the country’s economic growth. In support of a conducive policy environment, the government has pursued, as its strategy, disciplined fiscal and anti-inflationary monetary policies, a decreasing rate of corporate tax, a liberalised foreign exchange regime, and realistic interest and exchange rates politics, with a resultant strong balance of payment position[4]. Botswana is now one of the most economically prosperous countries in Africa. As part of its efforts to create a conducive business environment the government has embarked on a comprehensive programme of modernising the country’s laws especially those which directly impact on business and investment. Intellectual property law is one of those areas where the law has undergone tremendous reform.

Botswana is a member of the Southern African Development Community (SADC). This is a regional trade arrangement whose other members are Angola, the Democratic Republic of Congo, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Tanzania, Zambia and Zimbabwe.

The main objective of SADC is to achieve development and economic growth, alleviate poverty, enhance the standard and quality of life of the people of Southern Africa and support the socially disadvantaged through regional integration[5].

The laws within SADC are not homogeneous[6], but there are national as well as regional efforts to harmonise these laws. Countries such as Botswana and South Africa have made great strides to modernize their various laws especially in the commercial law area. This paper is an examination of the efforts that Botswana has made to modernize its copyright laws.

II. THE PROTECTION OF COPYRIGHT AND NEIGHBOURING RIGHTS

A. COPYRIGHT PROTECTION

The object of copyright is to protect creative individuals such as authors and artists from having their work copied or reproduced without their authorization[7]. Copyright is fundamentally different from a patent, a design or a mark in that legal protection is automatic. This means that a work protected by copyright does not have to be registered with a government agency in order to gain legal protection. Copyright law is concerned with the copying of actual words or other physical material, as opposed to reproduction of ideas. Copyright is a form of property which may be sold or licensed for use by others, typically by way of contract for the publication of the work[8].

The British Imperial Copyright Act 1911 was made operable in Botswana by Order in Council[9]. When Britain enacted the Copyright Act 1956 this too was made operable in Botswana in 1965 by Statutory Instrument[10]. When Botswana became independent in 1966, the British Copyright Act 1956 continued in force[11]. Although the concept of copyright existed in Botswana, the majority of the people never used the term “copyright” and did not even know what it meant. Most people did not even realize that Botswana had a Copyright Act[12].

The Botswana Copyright Act 1956 had numerous limitations and shortcomings. It was obscure, bulky, outdated and complicated. It was not suited to Botswana’s social and economic conditions and aspirations. Most importantly, it did not protect folkloric works, moral rights and neighboring rights. Botswana required a copyright law which would reflect its social and economic values and aspirations as well as national and international technological developments. By April 1998, Botswana had acceded to the TRIPS Agreement, the WIPO Convention 1970 and the Paris Convention 1883. In addition to these two Conventions, Botswana is a party to the Berne Convention for the Protection of Literary and Artistic Works 1886. Moreover, two other treaties were adopted in December 1996 under the auspices of WIPO, namely, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). Botswana has ratified both of them. Additionally, Botswana is a member of the African Regional Intellectual Property Organisation (ARIPO)[13]. The ratification of these Conventions and Agreements placed an obligation on Botswana to revise the laws providing for the protection and regulation of copyright so as to bring the levels of protection and type of works protected in line with international standards. These reforms were introduced by the Copyright and Neighboring Rights Act 2000[14]. This Act was recently amended by the Copyright and Neighbouring Rights (Amendment) Act 2005[15]. It is to these reforms that we now turn.

(i) Protected works

A literary[16] or artistic work[17] is not protected by copyright under the Act unless it is an original intellectual creation in the literary or artistic domain[18]. The types of literary and artistic works protected by the act include:

(a) books, pamphlets, articles, computer programmes and other writings;

(b) speeches, lectures, addresses, sermons and other oral works;

(c) dramatic, dramatic-musical works, pantomimes, choreographic works and other works created for stage productions;

(d) stage productions of works referred to in paragraph (a) and of expressions of folklore;

(e) musical works with or without accompanying words;

(f) audiovisual works;

(g) works of architecture;

(h) works of drawings, painting, sculpture, engraving, lithography, tapestry and other works of fine art;

i) photographic works;

(j) works of applied art; and

k) illustrations, maps, plans, sketches and three-dimensional works relative to geography, typography, architecture or science[19].

It can be seen that s.3 (2) is very inclusive.

Many musicians and playrights in Southern Africa have been ripped off for decades due to lack of copyright protection at home and abroad. Artists from abroad have come to Africa, listened to songs of local artists and then returned abroad and recorded modified versions of these songs passing them off as their own. Music producers have done the same. They come to Africa and take away with them recordings of songs by an African artists. When they return to the developed countries they reproduce the songs and make millions of dollars without paying royalties to the original composers of these songs in Africa. This is piracy. Such pirated works have raised much concern, particularly in the area of music recordings, as the authors or producers and other owners of the copyright applicable together with their nations have lost considerable amounts of revenue to pirates of copyright. The Copyright and Neighbouring Act 2000 solves this problem by expressly protecting oral works, dramatic, dramatic-musical works with or without accompanying words. Given the fact that Botswana is a party to the international Conventions referred to above, local copyright holders as well as foreign copyright holders from countries that are party to the conventions are able to enforce their copyright within Botswana, and local copyright holders are able to enforce their copyright in all other countries that are also party to the Conventions[20].

(ii) Basis of protection

A work is protected under the Act by the sole fact of its creation and irrespective of its mode or form of expression, as well as of its content, quality or purpose[21]. This means that much as the work must be an original intellectual creation, it does not have to be reduced to writing in permanent form – which is the traditional requirement for granting copyright protection. The law does not require high quality or permanent form. Oral works are therefore protected. Traditional song and dance is therefore clearly protected.

Section 6 (2) of the Act provides that copyright protection does not extend to any idea, procedure, system, method of operation, concept, principle, discovery or mere data, even if expressed, described, explained, illustrated or embodied in a work. This is a very important provision because it codifies the common law position[22].

(iii) Rights of the author

The owner of copyright in a protected work may use the work as he wishes, and may prevent others from using it without his authorization. The rights given to the author by the Act are exclusive rights. He can authorize others to use the work, subject to the legally recognized rights and interests of others[23]. There are two types of rights under copyright: economic rights[24], which allow the owner of rights to derive financial gain from the use of his work by others; and moral rights[25], which allow the author to take certain actions to preserve the personal link between himself and the work[26].

(iv) Duration of copyright

The duration of copyright has become a controversial issue in recent times. In Botswana, the period of copyright protection is the life of the author and a further fifty years after his death[27]. Where the work is a work of joint authorship, copyright subsists in the work during the life of the last surviving and for fifty years after his death[28]. Where the work is a collective work (other than a work of applied art) or an audiovisual work, copyright subsists for fifty years from the date on which the work was made, or first made available to the public, or first published, whichever date is the latest[29].

B. NEIGHBOURING RIGHTS

Neighbouring rights are the intellectual property rights provided for the protection of the legal interests of certain persons and legal entities who either contribute to making works available to the public or produce subject matter which does not qualify as “works” under the general understanding of copyright but who nevertheless express creativity or technical and organizational skill sufficient to justify recognition of their contribution as deserving protection[30]. It can therefore be seen that the protection of neighbouring rights is a crucial component in the protection of indigenous knowledge and rights since most of these ‘border’ on copyright and would not be protected in mainstream copyright law. Neighbouring rights include the rights of performers, producers of sound recordings and broadcasters. The rights of performers[31] are recognized because their creative intervention is necessary to give life, for example to musical works, dramatic and choreographic works and motion pictures, and because they have a justifiable interest in the legal protection of their individual interpretation[32]. The rights of producers[33] of recordings are recognized because their creative, financial and organization resources are necessary to make recorded sound available to the public in the form of commercial phonograms such as tapes, cassettes, CDs and Mini Discs. They also have a legitimate interest in having the legal resources necessary to take against unauthorized uses whether it be through the making and distribution of unauthorized copies (piracy) or in the form of unauthorized broadcasting or communication to the public of their phonograms. The rights of broadcasters[34] are recognized because of their role in making works available to the public, and in the light of their justified interest in controlling the transmission of their broadcasts[35].

III. THE PROVISION OF EFFECTIVE REMEDIES

One of the most fascinating aspects of intellectual property law is its ability to evolve with the times by developing new rights. Examples of rights that have been developed recently include: indigenous knowledge; plant variety protection; chip protection; and neighbouring rights. In addition to new rights intellectual property law has been able to develop new remedies and procedures to protect intellectual property rights. This is very significant because the development of new rights per se is not sufficient; it must be matched by the development and refinement of effective remedies to protect those rights. This section of the paper examines the remedies available for the protection of intellectual property rights in Botswana copyright law and their effectiveness.

The protection of intellectual property right has become more crucial than ever before. Professor Cornish has aptly summed up the position as follows[36]:

“Those who undertake scientific and technological research, those who create and interpret works of learning, culture, embarrassment and information, those who devise the marketing of products and services - all look to legal protection against competitors, as a way of sustaining the value of their skill and labour or their investment in what is distinctively theirs. In biotechnology, computing, telecommunications and many related courts, the scale of production of new individual material is such that their case has to be conceded; rights have to be created or enhanced”.

The precise value of a right must be measured in terms of the remedies that lie for its enforcement[37]. Due to economic globalisation and the spectacular developments in information technology, new intellectual property rights are evolving very rapidly. In order to ensure proper and effective protection of intellectual property rights, the law must be very clear and precise as to the intellectual property rights to be protected; the infringing acts in respect of each right; the remedies available in cases of infringement; and the procedures for the enforcement of those rights. The remedies in the Copyright and Neighbouring Rights Act 2000 can be divided into the following categories: conservatory or provisional measures; civil remedies; criminal sanctions; measures to be taken at the border; and measures, remedies and sanctions against abuses in respect of technical devices.

A. CONSERVATORY OR PROVISIONAL MEASURES[38]

These have two purposes: first, to prevent infringements from occurring, particularly to prevent the entry of infringing goods into the channels of commerce, including entry of imported goods after clearance by customs; and second, to preserve relevant evidence in regard to an alleged infringement. Thus, judicial authorities may have the authority to order that provisional measures be carried out without advance notice to the alleged infringer. In this way, the alleged infringer is prevented from relocating the suspected infringing materials to avoid detection. The most common provisional measure is a search of the premises of the alleged infringer and seizure of suspected infringing goods, the equipment used to manufacture them, and all relevant documents and other records of the alleged infringing business activities. This remedy known as the Anton Piller order, deserves a more detailed discussion here.

THE ANTON PILLER ORDER

This is one of the most exciting recent developments in intellectual property law. The remedy was developed in Anton Piller v Manufacturing Processes[39]. In this case, the English Court of Appeal approved a procedure that is of major practical importance to some owners of intellectual property rights. Under this procedure, the plaintiff applies to the High Court in camera without any notice to the defendant, for an order that the defendant permit him and his attorney to inspect the defendant's premises and to seize, copy or photograph material relevant to the alleged infringement[40]. The defendant may be required to deliver up infringing goods[41], keep infringing stock or incriminating papers[42], and even to give information, for example, about his sources of supply, or the destination of stock passing through his lands. An injunction against infringement may be part of the order[43].

(a) Criteria for grant

The Anton Piller Order will be granted where the plaintiff:

• provides an extremely strong prima facie case of infringement;

• shows that the damage, actual or potential, to him is very serious; and

• provides clear evidence that the defendant has in his possession incriminating documents or items and that there is a real possibility that this material will be destroyed before any application inter partes can be made[44].

This remedy is important to a plaintiff who wishes to secure evidence of infringement in order to strengthen his case. Its main strength lies in the element of surprise; the defendant has no notice of the plaintiff's application. The remedy is very popular and has increased the speed and effectiveness of civil process[45]. But the remedy has its dangers: these are summed up by Professor Cornish as follows[46]:

"The proceedings turn upon the plaintiff's evidence alone and they occur in camera. If a single judge is satisfied prima facie that there is infringement and a likelihood of serious injury, the plaintiff through his solicitor is empowered to launch his own attack on the defendant. Those executing the order are likely to believe that right is on their side and that they must put on a show of aggression if they are to secure what their client needs and deserves. In the tensions generated by the surprise service of the order, a defendant will need considerable temerity if he is to seek legal advice and challenge the basis on which the order was made. As a measure of "privatisation" the order is remarkable: a non-state agency is employed in a direct infraction of personal liberties, and, more than that, those executing the order act for the very person who can least be expected to preserve a measure of objectivity and sense of proportion".

(b) The safeguards

Because of the inherent dangers indicated above English law has developed the following safeguards:

• the plaintiff's attorney, who is an officer of the court, must attend, and so in most cases must a supervising attorney from another firm;

• the defendant must be given time to think and must be informed of his right to consult his own attorney and to apply to discharge the order;

• the plaintiff must give a cross-undertaking in damages[47].

Subject to these safeguards, the defendant's refusal to allow the inspection amounts to contempt of court and will be dealt with according to the circumstances[48].

Many common law countries have incorporated the Anton Piller order into their laws. In South Africa, the order was first granted by a South African court in Roamer Watch Co SA & Another v African Textile Distributors also t/a MK Patel Wholesale Merchants & Direct Importers[49]. But the Transvaal courts attempted to jettison it in Economic Data Processing (Pty) Ltd & Others v Pentreath[50] and in Cerebos Food Corporation Ltd v Diverse Food SA (Pty) Ltd & another[51]. The remedy was finally restored as part of South African law by the Appellate in Universal City Studios Inc & others v Network Video (Pty) Ltd[52].

Corbett JA said held that it was not beyond the inherent powers of the court to grant such an order in a case where the applicant can establish prima facie that he has a cause of action against the respondent which he intends to pursue, that the respondent has in his possession specific documents or things which constitute vital evidence in substantiation of the applicant’s cause of action but in respect of which the applicant can claim no real or personal right and that there is a real and well-founded apprehension that this evidence may be hidden or destroyed or in some manner spirited away by the time the case comes to trial and the applicant asks the court to make an order designed to preserve the evidence in some way[53] . The Anton Piller order is now well established in South African law[54].

(c) The Botswana statutory model

The Botswana Copyright and Neighbouring Rights Act 2000 has introduced a rather interesting statutory modification of the Anton Piller Order. Where a complaint of the contravention of the provisions of the Act is made and it is considered that a document, book or other object connected to any investigation in regard to the complaint is being concealed within specified premises, a police officer or any such other person appointed by the Minister (the investigating officer) may enter the premises to conduct a search and seize any item found within the premises[55]. The investigating officer cannot enter, conduct a search or seize any item unless he has obtained the consent in writing of the owner of the premises or a search warrant[56].

The court must grant the application for a search warrant if it appears on information given on oath or affirmation that there are reasonable grounds to suspect that there are works that infringe the rights protected under the Act in the premises; there is in the premises equipment or other device specifically designed or adapted to incumbent any device or means intended to prevent or restrict reproduction of a work or to impair the quality of copies made; or a document, book or other object which may afford evidence of such infringement is within those premises[57].

Where a Chief or Senior Magistrate is satisfied from the information given on oath or affirmation by the investigating officer that urgent action is required to obtain evidence pertaining to the contravention of the provisions of the Act, which evidence is likely to be concealed or destroyed, the Magistrate may dispense with any procedural requirements and grant a search warrant to the investigating officer at such time and place and under such conditions as the urgency of the matter may require[58]. A search warrant granted by the court authorises the investigating officer named in the warrant to enter the premises identified in the warrant to conduct searches, examinations, take extracts or copies, seize any item or to do any such other thing as may assist in the investigation[59]. The search warrant must be executed by day unless the court authorises its execution by night and it remains in force until it is executed or cancelled by the court, or for a period of one month from the date of its issue[60].

The investigating officer executing a search warrant must, before such execution or upon demand by any person whose rights might be affected, present his identification card and hand to such person a copy of the warrant[61]. He must not seize any item found within the premises being searched unless he has handed the person from whose possession or change the item is being seized, a receipt of the seizure in the prescribed form[62].

A person from whose possession or charge a document, book or other object has been seized must be allowed on request to make copies or to take extracts from the material at any reasonable time at his own expense and under the supervision of that investigating officer or other authorised person as long as the material is in the possession or charge of the investigating officer[63].

A person is not entitled to refuse to answer any question or to produce any document, book or other object on the ground that such answer, document, book or other object would incriminate him[64]. However, incriminating evidence arising out of any answer, document, book or other object a person may present to an investigating officer in an answer to an inquiry made by such officer shall not be admissible in any criminal trial against that person[65].

Any person who obstructs or hinders the investigating officer in the performance of his jurisdictions or knowingly makes a false statement or gives a false answer to any inquiry is guilty of an offence is liable upon conviction to a fine not exceeding P2 000 or to imprisonment for a term not exceeding 12 months or both[66].

This statutory model is modern and comprehensive and it effectively addresses most of the dangers inherent in the Anton Piller order at common law. But these statutory provisions raise several issues. First, the procedure excludes the plaintiff and his attorney. Policemen in Botswana – and indeed in many other parts of the world – are not generally conversant with intellectual property law. This is a complex and technical area of the law. The police officer therefore might not be able to appreciate what information exactly to extract from a document or what material to seize or copy. The plaintiff and his attorney are the people who intimately know the right that is being infringed, the infringing material and the equipment that is being used to infringe it. They should therefore be present to guide the police officer or other investigating officer in the right direction. In fact, even the defendant and his attorney should also be present to ensure transparency and to avoid all sorts of unwarranted accusations.

Second, it is not clear from the Act as to who is to foot the bill for the search and seizure. Is it the plaintiff? Is it the State? The bill could run into thousands of pula especially where the documents are voluminous. This matter needs clarification.

Third, the plaintiff is not required to give a cross-undertaking in damages in case he loses the main action. The procedure could disrupt the defendant’s business and could even cause him financial ruin. He therefore needs protection by way of safeguards.

Fourth, the procedure does not apply to other intellectual property rights. It is only provided for in the Copyright and Neighbouring Rights Act 2000. There is no corresponding procedure in the Industrial and Property Act 1996[67]. This means that those plaintiffs wishing to protect patents, utility models, designs and trade marks will have to use the Anton Piller order at common law. It is submitted that the Botswana Industrial and Intellectual Property Act 1996 should be amended to introduce the statutory model in relation to the intellectual property rights covered by that Act.

B. CIVIL REMEDIES[68]

These compensate the owner of rights for economic injury suffered because of the infringement, usually in the form of monetary damages, and create an effective deterrent to further infringement, often in the form of judicial order to destroy the infringing goods and the materials and implements which have been predominantly used for producing them; where there is a danger that infringing acts may be continued, the court may also issue injunctions against such acts, failure to comply with which would subject the infringer to payment of a fine.

Section 4 of the Copyright and Neighbouring Rights (Amendment) Act 2005 introduces two new civil remedies. First, the court may order the defendant to pay the damages suffered by the copyright owner as a result of the infringement, including any profits enjoyed by the defendant that are attributable to the infringement[69]. Second, the court may award exemplary damages where the moral rights of the copyright owner have been infringed[70].

C. CRIMINAL SANCTIONS[71]

These are intended to punish those who willfully commit acts of piracy of copyright and neighbouring rights on a commercial scale, and, as in the case of civil remedies, to deter further infringement. The purpose of punishment is served by the imposition of substantial fines, and by sentences of imprisonment consistent with the level of penalties applied for crimes of corresponding seriousness, particularly in cases of repeat offenses. The purpose of deterrence is served by orders for the seizure, forfeiture and destruction of infringing goods, as well as the materials and implements the predominant use of which has been to commit the offense.

D. MEASURES TO BE TAKEN AT THE BORDER[72]

These are different from the enforcement measures described so far, in that they involve action by the customs authorities rather than by the judicial authorities. Border measures allow the owner of rights to apply to customs authorities to suspend the release into circulation of goods which are suspected of infringing copyright. The purpose of the suspension into circulation is to provide the owner of rights a reasonable time to commence judicial proceedings against the suspected infringer, without the risk that the alleged infringing goods will disappear into circulation following customs clearance. The owner of rights must generally satisfy the customs authorities that there is prima facie evidence of infringement, must provide detailed description of the goods so that they may be recognized, and must provide a security to indemnify the importer, the owner of the goods, and the customs authorities in case the goods turn out to be non-infringing.

E. MEASURES, REMEDIES AND SANCTIONS AGAINST ABUSES IN RESPECT OF TECHNICAL MEANS[73]

The final category of enforcement provisions, which has achieved greater important in the advent of digital technology. In certain cases, the only practical means of preventing copying is through so-called “copy-protection” or “copy-management” systems, which contain technical devices that either prevent entirely the making of copies or make the quality of the copies so poor that they are unusable. Technical devises are also used to prevent the reception of encrypted commercial television programs except with use of decoders. However, it is technically possible to manufacture devices by means of which copy-protection and copy-management systems, as well as encryption systems, may be circumvented. The theory behind provisions against abuse of such devices is that their manufacture, importation and distribution should be considered infringements of copyright to be sanctioned in ways similar to other violations.

Section 6 of the Copyright and Neighbouring Right (Amendment) Act 2005 introduces new provisions[74] relating to security devices. Every sound and audio-visual recording made available to the public by sale, rental, lending or distribution in any other manner to the public for commercial purposes in Botswana must have a security device affixed to it[75]. The security device shall be issued by the Copyright office to any person who makes such works available to the public[76]. Such device shall only be issued to a person upon proof that he or she is authorised by the owner of the copyright to sell, rent, lend or otherwise distribute the work[77]. The security device shall be proof that the work to which it is affixed is not a pirated work[78]. Any person who contravenes the provisions of s.35A is guilty of an offence and is liable to a fine not exceeding P20,000 or to imprisonment for a term nor exceeding two years, or both[79]. Furthermore, any person who without the permission of the Copyright Office, is in possession of, or reproduces a security device or is in possession of any machine, instrument or contrivance intended to be used to produce or reproduce a security device is guilty of an offence and is liable to a fine not exceeding P50,000 or to imprisonment for a term not exceeding five years or both[80].

IV. NEW ADMINISTRATIVE MEASURES

The Copyright and Neighbouring Rights (Amendment) Act 2005 introduces new administrative measures intended to enhance the protection of copyright owners.

A. THE COPYRIGHT OFFICE

The Act provides for the establishment of Copyright office to be headed by a Copyright Administrator[81]. Such Administrator shall be a public officer who shall, subject to the direction of the Minister of Trade and Industry, perform such functions as may be conferred upon him by the Act or any other enactment[82]. The Copyright Office is responsible for all matters affecting copyright in Botswana and its other functions include the following[83]:

• supervision of the Copyright Society;

• advising the Government of Botswana and its agencies on all matters pertaining to copyright;

• monitoring Botswana’s position in relation to international Conventions relating to copyright and to advise the Government thereon;

• advising the Government on the negotiation, conclusion and implementation of bilateral and multilateral agreements on copyright between Botswana and other countries;

• organizing out-reach and awareness creation programmes to inform, educate and sensitise the public on matters relating to copyright; and

• maintaining an effective database on copyright matters and on authors and their works.

By creating a Copyright Office operating independently from the Registrar of Companies, Patents, Designs and Trademarks, and from the Attorney-General’s Chambers, the Government has clearly demonstrated the premium it attacks to the effective protection of copyright in Botswana.

A. THE COPYRIGHT ARBITRATION PANEL

There Act establishes Copyright Arbitration Panel to be appointed by the Minister of Trade and Industry[84]. The Panel shall consist of not less than three but not more than five persons[85]. One of the members of the Panel, who shall also be its Chairperson, shall be a person who is enrolled to practice as an attorney in the High Court of Botswana of not less than seven years standing[86]. Alternatively, he or she shall be a person who has held judicial office in Botswana[87]. The other members shall be persons knowledgeable in the filed of copyright[88].

The establishment of the Copyright Arbitration Panel is quite commendable mainly because it creates an alternative dispute settlement mechanism thereby widening the scope of remedies available to copyright owners.

C. THE COPYRIGHT SOCIETY OF BOTSWANA

The objective of the collecting society for the collective administration of rights is to provide a vehicle through which rights users can more easily clear permissions and rights holders more effectively get their remuneration. It is not always practicable for rights users to clear permissions one by one, and collecting societies for literary works, (also known as Reproduction Rights Organisations, or RROs), provide users with an acceptable means of copying extracts from copyright-protected published works for internal use when the whole work is not required, and provide rights owners with monetary compensation when extracts from their works are used. In addition, a collecting society can provide an important focus point for copyright issued, play a vital role in providing ease of access to information, provide research and policy information and generally play a development and educational role. Collecting societies are thus key players in the copyright environment. Licensing can be transactional, requiring a separate transaction for each clearance, or through a blanket license, which allows upfront comprehensive clearance for copying, within certain specified limitations, with reporting carried out retrospectively. The degree to which a country enforces statutory licensing depends upon national policy approaches, negotiated between government, rights holders and rights users, particularly educational institutions. The ownership of collecting societies is an important adjunct to their policy role: in general, collecting societies are owned by rights owners, an important factor in their credibility in the eyes of rights users. Authors and other content creators are important stakeholders involved in collecting societies and their ownership.

Money collected through collecting societies can make an important contribution to the advancement of copyright awareness, as well as general cultural development through projects like publication and awareness programmes projects funded from rights income.

Section 7 of the Copyright and Neighbouring Rights (Amendment) Act 2005 introduces a collective administrative body to be known as the Copyright Society of Botswana[89]. The Society shall be a non-profit making company limited by guaranteed and shall be responsible for the following:

(i) the negotiation and granting of licences in written agreement with the owners of copyright for the adaptation of works, performances and sound recordings, the insertion of works, performances or sound recordings in other scopes; and the use of works for publicity purposes;

(ii) the setting of rates for royalties in accordance with a acceptable international standards; and

(iii) the collection and distribution of royalties to appropriate copyright owners[90].

The Society shall represent the copyright owners in the various categories of protected works and put in place rules and regulations approved by the Copyright Office, which contain such provisions as are necessary to ensure the protection of the interests of its members[91].

V. CONCLUDING REMARKS

The laws of the SADC countries are not homogenous because of the disparate legal history of the region. It is hoped that they will be modernized and harmonized in order to reach acceptable international standards in a globalised world. Botswana has made great strides in modernizing its laws in general and intellectual property in particular. The Copyright and Neighbouring Rights Act 2000 as amended by the Copyright and Neighbouring Rights Act 2005 is a commendable statute. It meets Botswana’s social, cultural and economic aspirations and it implements Botswana’s obligations under international conventions. It is simple, accessible and avoids unnecessary detail.

It encompasses the entire spectrum of copyright and provides an adequate and effective remedies. It is currently the most up-to-date piece of copyright legislation in the SADC region and beyond and could serve as a model for the other SADC countries and other English-speaking African countries.

Unfortunately, the Act is not in force. The Act repealed the old law in the Copyright Act 1956. But after it was enacted it was realized that it did not have the requisite Rules and Regulations essential for its operation. It was therefore decided to keep the Act in abeyance until the Regulations have been drafted and enacted by Parliament. The Act therefore has not yet come into force. Botswana’s copyright law is in limbo. This state of affairs has caused numerous problems for copyright owners, academics, judges, legal practitioners, librarians, law students and all those involved in the practice and administration of copyright. Several people are under the mistaken belief that the Act is in force while in fact it is not. While the Act is very attractive on paper, the failure to bring it into operation within a reasonable time has proved a major drawback. The law is unable to protect copyright owners and might even be overtaken by national and international developments and become obsolete without ever coming into operation. This is very disappointing. Six years is surely too long a period to wait for Regulations to be put in place. It is hoped therefore that the Attorney-General’s Chambers will shortly conclude the drafting of the Copyright Regulations and that soon thereafter, they will be enacted by Parliament thereby making it possible for the Act to come into operation.

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[1] See further Kiggundu, J., Legal Aspects of Doing Business in Botswana in: Campbell, D (Ed) Legal Aspects of Doing Business in Africa (Kluwer Law International, The Hague 1997) p.1.

[2] Ibid., pp.1-2.

[3] Republic of Botswana, National Development Plan 8 (Government Printer, Gaborone, 1999) p.17.

[4] See Botswana Review of Commerce and Industry (15th edn) p.5.

[5] See Article 5 (1) (a) of the SADC Treaty (2001).

[6] This is mainly because the various countries within SADC were ruled by different colonial powers. South Africa, Botswana, Swaziland, Zimbabwe, Lesotho, Malawi and Zambia were ruled by Britain. Namibia was ruled by Germany and South Africa. The Democratic Republic of Congo was ruled by Belgium. The Seychelles and Mauritius were ruled by both the French and the British, while Angola and Mozambique were Portuguese colonies.

[7] See A. Briscoe and J. Kiggundu, A Guide to Intellectual Property Law in Botswana (Morula Press, Gaborone 2001) p.16.

[8] Briscoe and Kiggundu op cit (note 7) loc cit.

[9] No. 35 of 1912.

[10] The Copyright (Bechuanaland) Order 1965 (S.I 1965/2009).

[11] See the Botswana Independence Act 1966 (Cap 23) and the Botswana Independence Order (S.I 1966/117). This is an example of dependent legislation continuing in force in a country after it has gained independence. See further, Segopolo, S.M.A. ‘Development and Current Status of Copyright Protection in Botswana’ (WIPO/CNR/GBE/97/2) page 3.

[12] Segopolo, S.M.A. ‘Development and Current Status of Copyright Protection in Botswana’ (WIPO/CNR/GBE/97/2) page 3.

[13] This organization was established by the Lusaka Agreement 1976. One of its aims is to promote the harmonization and development of the Industrial property laws and matters related thereto, appropriate to the needs of its members and of the region as a whole particularly English-speaking Africa.

[14] Now Chapter 68:01, Laws of Botswana (LRO 1/2002).

[15] Act No. 6 of 2006.

[16] ‘Literary work’ means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes a table of compilation and a computer programme. See Copyright and Neighbouring Rights Act 2000, s.2.

[17] ‘Artistic work’ means: (a) a graphic work, photograph, sculpture or collage, irrespective of its artistic quality; (b) a work of architecture being a building or a model of a building irrespective of its artistic quality; and (c) a work of artistic craftsmanship not falling within paragraph (a) or (b) irrespective of its artistic quality: see Copyright and Neighbouring Rights Act 2000, s.2.

[18] Copyright and Neighbouring Rights Act 2000, s.3 (1).

[19] Copyright and Neighbouring Rights Act, s.3 (2). The Minister of Trade and Industry may by Orders add to or otherwise vary this list of works: s.3 (3). Moreover, under s.4 of the same Act derivative works are also given copyright protection. These are: translations, adaptations, arrangements and other transformations or modifications of works; and collections of works, collections of mere data (databases) whether in machine readable or other form, and collections of expression of folklore, provided that such collections are original by reason of the selection, co-ordination or arrangement of their contents.

[20] See further, Kiggundu, J., ‘Intellectual Property Law and the Protection of Indigenous Knowledge’ in: Mazonde, I. and Thomas, P., Issues in Intellectual Property in the Twenty-First Century (Codesria, Dakar, 2006) Chapter 3.

[21] Copyright and Neighbouring Rights Act 2000, s.6 (i).

[22] See University of London Press v University Tutorial Press [1916] 2 Ch 601; Ladbroke (Football) v William Hill [1964] 1 All ER 465; Cramp v Smythson [1944] AC 329; Exxon Corp v Exxon Insurance Consultants (1982) RPC 69; Express Newspapers v Liverpool Daily Post [1985] FSR 306; Green v Broadcasting Corp of New Zealand [1989] RPC. 8700.

[23] Briscoe and Kiggundu, op cit (note 8) p.17.

[24] See Copyright and Neighbouring Rights Act 2000, s.7. The author or other owner of copyright has the exclusive right to carry out or authorize any of the following acts in relation to the work:

• Reproduction of the work;

• Translation of the work;

• Adaptation, arrangement or other transformation of the work;

• The first public distribution of the original and each copy of an audiovisual work, a work embodied in sound recording, a computer programme, a database or a musical work in the form of notation, irrespective of the ownership of the original or copy concerned;

• Importation of copies of the work, even where the imported copies were made with the authorization of the author or other owner of copyright;

• Public display of the original or a copy of the work;

• Public performance of the work;

• Broadcasting of the work;

Other communication to the public of work (this covers cable and internet distribution). See further Briscoe and Kiggundu op cit (note 23) pp.18-19.

[25] Ibid., s.8.

[26] Briscoe and Kiggundu, op cit (note 23) p.17.

[27] Copyright and Neighbouring Rights Act, 2000, s.10 (1).

[28] Ibid, s.10 (2).

[29] Ibid, s.10 (3). See further s.10 (4)-(6).

[30] Briscoe and Kiggundu, op cit (note 26) p.20.

[31] See Copyright and Neighbouring Rights Act 2000, s.24.

[32] Briscoe and Kiggundu, op cit (note 30) loc cit.

[33] See Copyright and Neighbouring Rights Act 2000, s.25.

[34] See Copyright and Neighbouring Rights Act 2000, s.27.

[35] Briscoe and Kiggundu, op cit (note 32) loc cit. See also Kiggundu, op cit (note 20) pp. 35-36.

[36] Cornish, W.R. Intellectual Property (3 ed, Sweet & Maxwell, 1996) at vii.

[37] Ibid, para 2-27.

[38] Copyright and Neighbouring Rights Act, s.29.

[39] [1976] Ch. 55; [1976] RPC 719.

[40] See Cornish, op cit para 2-47. See further, S.Gee, Mareva Injunctions and Anton Piller Relief (2nd ed, 1990); M Dockray, Anton Piller Orders (1992); RN Ough and W. Fenley, The Mareva Injunction and Anton Piller Order (2nd ed 1993).

[41] See Universal City Studios v Mukhtar & Sons [1976] FSR 252.

[42] See EMI v Sarwar [1977] FSR 146.

[43] Cornish, op cit loc cit note 40 above.

[44] See Anton Piller v Manufacturing Processes [1976] RPC 719 at 724 and 726.

[45] Cornish, op cit, 2-48.

[46] Id.

[47] See further Cornish, op cit 2-47.

[48] Id.

[49] 1980 (2) SA 254 (W).

[50] 1984 (2) SA 605 (W).

[51] 1984 (4) SA 149 (T).

[52] 1986 (2) SA 734 (A).

[53] 1986 (2) SA 734 at 755 A-C.

[54] See Shoba v Officer Commanding, Temporary Police Camp, Wagendrift Dam & another, Mpulanga v Officer Commanding SA Police Murder & Robbery Unit, Pietermaritzburg & others 1995 (4) SA 1 (A); Janit & another v Motor Industry Fund Administrators (Pty) Ltd & another 1995 (4) SA 293 (A). See further, Van Winsen et al, Herbstein and Van Winsen: The Civil Practice of the Supreme Court of South Africa (4 ed, Juta, 1997) Chapter 45. See also, CB Prest, Interlocutory Interdicts (Juta, 1993); H.J Erasmus “Anton Piller Orders in South African Practice” (1984) 101 SALJ 324; by the same author. ‘The Anton Piller Muddle’ (1991) 108 SALJ 379.

[55] Copyright and Neighbouring Rights Act 2000 s.29 (1).

[56] Ibid, s.29 (2) (a) and (b). It is imperative to emphasise that an Anton Piller order is not, stricto sensu, a search warrant.

[57] Copyright and Neighbouring Rights Act 2000, s.29 (3).

[58] Ibid, s.29 (4).

[59] Ibid, s.29 (5) (a).

[60] Ibid, s.29 (5) (b) and (c).

[61] Ibid, s.29 (6) (a) and (b).

[62] Ibid, s.29 (7).

[63] Ibid, s.29 (8).

[64] Ibid, s.29 (9). The position is the same in relation to the Anton Piller order in English law. See further Cornish, op cit para 2-53.

[65] Copyright and Neighbouring Rights Act 2000, s.29 (10).

[66] Ibid, s.29 (11).

[67] Cap ---- as amended by the Industrial Property (Amendment) Act 1997 (No. 19 of 1997).

[68] See Copyright and Neighbouring Rights Act 2000, s.30.

[69] Copyright and Neighbouring Rights Act 2000, s.30 (1) (c) as introduced by s.4 of the Copyright and Neighbouring Rights (Amendment) Act 2005.

[70] Copyright and Neighbouring Rights Act 2000, s.30 (1) (d) as introduced by s.4 of the (Amendment) Act 2005.

[71] See Copyright and Neighbouring Rights Act 2000, s.31.

[72] Ibid, s.32.

[73] See Copyright and Neighbouring Rights Act 2000, s.33.

[74] See Copyright and Neighbouring Rights Act, ss. 35A, 35BC, 35D, 35E, 35F and 35G as introduced by s.6 of the Copyright and Neighbouring Rights (Amendment) Act 2005.

[75] Copyright and Neighbouring Rights Act 2000, s.35A (1).

[76] Ibid, s.35A (2).

[77] Ibid, s.35A (3).

[78] Ibid, s.35A (3).

[79] Ibid, s.35A (5).

[80] Ibid, s.35A (6).

[81] Copyright and Neighbouring Rights Act 2000, s.22A (1) and (2).

[82] Id.

[83] Copyright and Neighbouring Rights Act 2000, s.22B.

[84] Copyright and Neighbouring Rights Act 2000, s.33A (1).

[85] Ibid, s.33A (2).

[86] Ibid, s.22A (2) and (3).

[87] Ibid, s.33A (2).

[88] Ibid, s.33A (4).

[89] Copyright and Neighbouring Rights Act 2000, s.36A (1).

[90] Copyright and Neighbouring Rights Act 2000, s.36A (2).

[91] Ibid, s.36A (3).

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