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Copyright Act amendment violates rights

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There is currently a proposal before Parliament to amend the Copyright and Neighbouring Rights Act.

The proposed amendment is included in the General Laws Amendment Bill, HB 8/2010 gazetted on 22nd October 2010.

A general laws amendment usually seeks to bring amendments to various pieces of legislation. The one under consideration amends over 10 statutes.

While most of the amendments are mundane, it is important to provide some insights into Clause 16 that seeks to amend the Copyright and Neighbouring Rights Act.

When a Bill is gazetted, it is automatically referred to the relevant portfolio committee of Parliament. The relevant committee in this case is that of Justice, Legal and Parliamentary Affairs.

The committee is already examining the proposed amendments.

Copyright refers to the exclusive rights granted to an author or owner of copyrightable work.

It confers on the owner certain proprietary rights over the protected works, meaning that no one can reproduce that work without the permission of the holder of title over that property.

Section 10(6) of the Act provides that there shall be no copyright in respect of the following:

(a) Official texts of enactments;

(b) Official texts of Bills prepared for presentation in Parliament;

(c) Official records of judicial proceedings and decisions;

(d) Notices, advertisements and other material published in the Gazette;

(e) Applications, specifications and other matters published in the Patent and Trade Marks Journal referred to in Section 95 of the Patents Act [Chapter 26:03];

(f) Official texts of international conventions, treaties and agreements to which Zimbabwe is a party;

(g) Entries in, and documents that form part of any register which is kept in terms of an enactment and is open to public inspection; and

(h) Such other documents of a public nature as may be prescribed

What is apparent from the above is that the existing law allows for the free flow of information and the dissemination of material relating to the listed documents. What the Bill therefore proposes is a radical paradigm shift and seeks to privatise public documents.

The proposal is to amend Section 10 of the principal Act by the insertion of words that will give copyright in official texts of enactments; official records of judicial proceedings and decisions; notices, advertisements and other material published in the Gazette; as well as entries in documents that form part of any register which is kept in terms of an enactment and is open to public inspection. The current text of the Act does not create a copyright in these documents.

It is not clear from a perusal of the proposed provisions what the problem the authorities seek to address is. What has brought this on? Is government being prejudiced of revenue by players in the publishing industry?

And is the proposed changeover consistent with the letter and spirit of the Access to Information and Protection of Privacy Act, that seeks to facilitate rather than limit the availability of public information? The proposed amendment is retrogressive to the extent that it will prevent the free flow of information.

The United States Copyright Office considers edicts of government such as judicial opinions, administrative rulings, legislative enactments, public ordinances and similar official legal documents, not copyrightable for reasons of public policy.

This applies to such works whether they are Federal, State or local as well as to those of foreign governments. Closer to home, Zambia, South Africa and Botswana do not protect copyright on legislation and judgements: The proposed amendment violates Section 20 (1) of the Constitution. Section 20 (1) provides as follows:

Except with his own consent or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, which means freedom to hold opinions and to receive and impart ideas and information without interference. . .

The only exceptions recognised by the constitutions to the provisions of Section 20(1) are legislative provisions put in place:

In the interests of defence, public safety, public order, the economic interests of the state, public morality or public health.

For the protection of reputations, rights and freedoms of other persons and privacy of litigants.

For the prevention of the disclosure of confidential information.

For the maintenance of the independence of the courts and Parliament.

For the regulation of the technical administration of communications.

For the prevention of the unlawful dispatch of correspondence with other matter.

Laws are made for the people, so they must freely access these laws and understand them.

Preventing the availability of legislation can hardly be justified on the basis of state security.

The Justice Committee of Parliament should conduct public hearings on the proposed amendments and promote public debate on the issue.

If the majority say no to the amendments, then they should not be passed by Parliament.

We cannot continue to make bad laws in contravention of the spirit of the Global Political Agreement.

John Makamure is the executive director of the
Southern African Parliamentary Support Trust.

Feedback:

john.makamure@gmail.com

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