The Copyright and Neighbouring Rights Act 2000 creates no register and no certificate. A claimant must build ownership and infringement from first principles.
Who may bring the claim
The owner of any right protected under this Act whose right has been infringed is entitled to payment of damages.
| Claimant | Basis |
|---|---|
| The author | First owner of the economic rights — s 18(1); and holder of the moral rights — s 7 |
| Co-authors, or the author of a separately usable part | s 18(2) |
| The person or entity behind a collective work | s 18(3) |
| An employer, for work made in the course of employment | s 18(4) — unless a written agreement says otherwise |
| The producer of an audiovisual work | s 18(5)(a); and contributing authors keep separately exploitable contributions — s 18(5)(b) |
| An assignee or licensee | s 20 — in writing, signed by both parties, and only for rights explicitly referred to |
| The publisher named on an anonymous or pseudonymous work | s 19(3) — presumed to represent the author, and entitled to exercise and enforce the moral and economic rights |
| A performer, a producer of a sound recording, a broadcasting organisation | ss 21, 22, 24 — each an owner of a right protected under the Act |
| The competent authority for expressions of folklore | ss 30(4), 31 — the user is liable to the competent authority for damages, injunctions and other remedies |
Section 20(3) is decisive: an assignment or licence does not include any right not explicitly referred to in it. A licensee can only complain of infringement of the rights actually granted to it, and only if the grant complies with section 20(2) — in writing signed by both parties.
An exclusive licensee whose document names the reproduction right cannot sue over a communication to the public. The remedy is careful drafting: list the section 6 rights granted, the territory, the term, the media and the exclusivity.
What must be proved
- That the subject matter is protected. A work under section 4 — an original intellectual creation — or a protected performance, sound recording or broadcast. And that it is not excluded by section 5 as an idea, system, method, mere data or an official text of a legislative, administrative or legal nature.
- That the Act applies to it. Section 3 — authorship or residence, first publication here or within 30 days, a producer headquartered here, architecture erected here; or eligibility under an international treaty.
- That the claimant owns the right. Section 18, plus any written assignment; and the section 19 presumptions.
- That the term has not expired. Section 17 — life plus 50, or 50 years from making, availability or publication, or 25 years for a work of applied art; 50 calendar years for the neighbouring rights.
- That the defendant did an act within the exclusive rights. One of the ten in section 6(1), or the neighbouring right — noting that both carrying out and authorizing are caught.
- That no exception applies. The free uses in sections 8 to 16, and the limits in section 25.
Under section 19(1), a person whose name is indicated as the author is presumed to be the author in the absence of proof to the contrary — and under section 19(2) the same applies to a pseudonym where identity is not in doubt.
That reverses the practical burden. The claimant produces the work with the name on it; the defendant must displace the presumption.
There is no corresponding presumption for performers, producers or broadcasters. Those claimants prove their status directly — for a producer, by showing they undertook the initiative and responsibility for the recording, which is the section 2 definition.
What to seek
| Remedy | Provision |
|---|---|
| Injunction to prohibit the committing or continuation of the infringement | s 26(1)(a) |
| Impounding of suspected infringing copies | s 26(1)(b) |
| Impounding of implements, and of documents, accounts and business papers | s 26(1)(c) |
| Damages for prejudice, including expenses directly caused | s 27(1) |
| Assessment by reference to importance of the material, moral prejudice, and the infringer’s profits | s 27(2) |
| Destruction of infringing copies — mandatory, subject to good faith purchasers | s 27(4), (5) |
| Destruction or surrender of implements where repetition is a danger | s 27(6) |
| Cease order, backed by a fine up to K100,000 for contravention | s 27(7), (8) |
| Prosecution — up to 10 years or K100,000, or both | s 28 |
Defending a claim
Not protected subject matter — section 5. Taking the idea, system, method or data is not infringement, and official legal texts are outside copyright entirely.
A free use — s 8, s 9, s 10, s 11, s 12, s 13, s 14, s 15, s 16 — or s 25.
Expiry of the term — section 17, and note the short 25-year term for works of applied art.
Exhaustion — section 6(1)(d) applies only to copies not already subject to an authorised distribution. But the importation right in s 6(1)(f) and the rental and lending right in s 6(1)(e) are not exhausted.
Innocence — not a defence, but under section 27(3) the Court may limit damages to the infringer’s profits where the infringer did not and had no justifiable reason to know. And good faith purchasers of copies are protected from destruction orders by section 27(5).
Consent — but remember section 20(2): a licence must be in writing signed by both parties. An informal permission is not a licence under this Act.
Finally, note the constitutional dimension. Section 1(2) declares the Act to be one made for the purpose of giving effect to the public interest in public welfare so far as it restricts the qualified rights of freedom from arbitrary search and entry, freedom of expression, freedom of employment and privacy. Copyright claims restrain speech and conduct, and the Act is explicit that it does so.
Sources
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.