Section 26 of the Copyright and Neighbouring Rights Act 2000 is the first-response provision: what a Court can order before the merits are decided.
Section 26(1) — the measures
(a) to grant injunctions to prohibit the committing, or continuation of committing, of an infringement of any right protected under this Act; or
(b) to order the impounding of copies of works or sound recordings suspected of being made or imported without the authorization of the owner of any right protected under this Act, where the making or importation is subject to such authorisation; or
(c) to order the impounding or packaging of the implements that could be used for the making of copies of works and sound recordings, and the documents, accounts or business papers relating to such copies.
“The Court” is the National Court — defined in section 2.
“Under its civil and criminal jurisdiction” — these orders are available in either. That matters because section 28(2) allows the Court to apply the measures and remedies in criminal proceedings, provided no decision has yet been taken on them in a civil proceeding.
“Any right protected under this Act” — not only copyright. The measures are available for infringement of moral rights, of performers’, producers’ and broadcasters’ rights, and — through section 29(2) — for the circumvention and rights-management wrongs assimilated to infringement.
Paragraph (a) — injunctions
Paragraph (a) reaches both a threatened infringement — prohibiting the committing of it — and an infringement under way, prohibiting its continuation.
The injunction is the primary remedy in most copyright disputes, because damages rarely repair the harm of an unauthorised release, broadcast or publication. Note that the section adds “on such terms as it may deem reasonable”, which allows the Court to impose conditions — undertakings as to damages, time limits, and terms about the custody of impounded material.
A separate power appears in section 27(7): where it appears to the Court that there is a likelihood of an act of infringement continuing, it may order that the act cease to be continued — and under section 27(8), a person who carries on infringing in contravention of such an order is liable on conviction to a fine not exceeding K100,000, in addition to any other penalty.
Paragraphs (b) and (c) — impounding
| Paragraph | What may be impounded | Threshold |
|---|---|---|
| (b) | Copies of works or sound recordings | Suspected of being made or imported without authorisation |
| (c) | The implements that could be used for making copies | Could be used — no proof of actual use required |
| (c) | The documents, accounts or business papers relating to such copies | Relating to the copies |
Paragraph (b) requires only that the copies be suspected of being unauthorised — not proved. Paragraph (c) requires only that the implements could be used for making copies.
That is the nature of a conservatory measure: it preserves the position and the evidence until the merits can be tried. The safeguard is the opening words — the Court acts on such terms as it may deem reasonable.
Paragraph (c) is the more powerful in practice. Impounding the documents, accounts and business papers secures the evidence of the scale of infringement — which then feeds directly into section 27(2), under which damages are fixed taking into account the importance of the infringer’s profits attributable to the infringement.
Section 26(2) — the Criminal Code provisions
The provisions of the Criminal Code Act (Chapter 262) dealing with search and seizure shall apply to infringement of rights under this Act.
This is why section 1(2)(a) of the Act declares that, to the extent the Act regulates or restricts the right to freedom from arbitrary search and entry conferred by section 44 of the Constitution, it is a law made for the purpose of giving effect to the public interest in public welfare.
Search and entry is a qualified right under Subdivision III.3.C of the Constitution. A statute that authorises search in aid of private rights must satisfy the constitutional test, and section 1 is the Act’s declaration that it does. Section 1(2) makes the same declaration for freedom of expression (s 46), freedom of employment (s 48) and privacy (s 49).
Section 26(3) — the customs provisions
The provisions of the Customs Act (Chapter 101) dealing with illegal goods shall apply to articles and implements used in relation to infringements of rights protected under this Act.
Infringing copies and the implements used to make them are treated as illegal goods at the border. This is what makes the importation rights in section 6(1)(f) and section 22(1)(b) enforceable in practice — and note that section 26(3) covers implements as well as articles, so equipment imported for making infringing copies is caught.
Using section 26 in practice
- Establish the right. There is no register, so ownership is proved through section 19 — the name on the work, or the publisher’s presumed representation of an anonymous author — together with any written assignment or licence under section 20.
- Identify the act. Which of the section 6 rights, or which neighbouring right, has been infringed — and check the free uses in sections 8 to 16 and the limits in section 25.
- Seek the injunction and impounding orders together. Paragraph (c) preserves the evidence that will quantify the claim.
- Consider the destruction orders available at judgment under section 27(4) and (6) — noting the protection in section 27(5) for copies acquired by a third party in good faith.
- Consider whether the conduct is criminal — section 28 requires infringement done wilfully or by gross negligence and for profit-making purposes, and carries up to ten years’ imprisonment or K100,000, or both.
Sources
- Copyright and Neighbouring Rights Act 2000 — ss 1, 2, 6, 8–16, 19–29
- Criminal Code Act (Chapter 262)
The Customs Act (Chapter 101), referred to in section 26(3), is cited without a link as it is not currently available on PacLII.
Before relying on anything here, read the current text of the Copyright and Neighbouring Rights Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.