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Republic of Botswana
COPYRIGHT AND NEIGHBOURING RIGHTS ACT
ACT NO. 8 OF 2000
Price: P2,00
Printed by the Government Printer> Gaborone
2 COPYRIGHT AND NEIGHBOURING RIGHTS ACT, 2000
ARRANGEMENT OF SECTIONS
PART I-Preliminary SECTION
1. Short title and commencement 2. Interpretation
PART II-Copyright 3. Works protected 4. Derivative works 5. Provisions as to State and Government department 6. Protection to be for creation, and the kind of works not protected 7. Economic rights 8. Moral rights 9. Original ownership of economic rights
10. Duration of copyright 11. Presumption of authorship and of representation of author
PART Ill - Exceptions to Exclusive Right to Copyright
12. Exceptions to exclusive right to copyright 13. Private reproduction for personal purposes 14. Quotation 15. Reproduction for teaching 16. Reprographic reproduction by libraries and archives 17. Reproduction and adaptation of computer programmes 18. Reproduction broadcasting and other communication to the public 19. Temporary reproduction 20. Importation for personal purposes 21. Display of works 22. Assignment_ and license of authors' rights
PART IV - Protection ofNeighbouring Rights
23. Neighbouring rights 24. Acts requiring authorization of performers 25. Acts requiring authorization of producers of sound recordings 26. Equitable remuneration for use of sound recordings 27. Acts requiring authorization of broadcasting organizations 28. Limitations on protection
PART V - Enforcement ofRights
29. Conservatory measures to enforce rights 30. Civil remedies 31. Criminal sanctions 32. Powers of customs officials 33. Measures, remedies and sanctions against abuses in respect of
technical means of protection and rights management information .
of 2000
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Short title and commence- ment
Interpretation
PART VI - Ge!Jeral Provisions
34. Application of Act to works protected under Cap 68:01 35. Scope of application 36. Application of International Treaties 37. Regulations 38. Repeal of Cap 68:01 39. Savings
An Act to make provision for the regulation of copyright and to provide for matters connected to and incidental to the foregoing. Date ofAssent: 15.05.2000. Date ofCommencement: On Notice. ENACTED by the Parliament of Botswana.
PART I-Preliminmy
1. This Act may be cited as the Copyright and Neighbouring Rights Act, 2000 and shall come into operation on such day as the Minister may by order made by Statutory Instrument appoint.
2. In this Act unless the context otherwise requires - "adaptation'' includes, in relation to a -
(a) computer programme, a version of the programme in which it is converted into or out of a computer language or code, or into a different computer language or code otherwise than incidentally in the course of running the programme;
(b) literary work in a non-dramatic form, a version of the work, whether in its original language or in a different language, in a dramatic form;
(c) literary work in a dramatic form, a version of the work, whether in its original language or in a different language~ in a non- dramatic form;
(d'J literary work, whether in a non-dramatic form or in a dramatic form- (i) a translation of the work; or (ii) a version of the work in which the story or action is
conveyed solely or principally by means of pictures in a form suitable for reproduction in a book or in a newspaper, magazine or similar periodical; and
(e) musical work, an arrangement or transcription of the work; "artistic work" mearis -
(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;
(c) a work of artistic craftsmanship not falling within paragraph (a) or (b) of this definition, irrespective of its artistic quality;
"audiovisual work" means a work that consists of a series of related images which impart the impression of motion, with or without accompanying sounds, susceptible to being made visible, and where accompanied by sounds, susceptible to being made audible;
"author" means the person who has created a work, and shall include - (a) in relation to a literary-work, the author of the work; (b) in relation to a musical work~ the composer; (c) \;·ork other rhan a (d) ( £) \ ·,~)
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(j) in the case of a broadcast, the person making the broadcast or, in case ofbroadcast which relays another broadcast by reception and immediate re-transmission, the person making the other broadcast;
(g) in the case of a cable programme, the person providing the cable programme service in which the programme is included;
(h) in the case of a typographical arrangement of a published edition, the publisher;
(i) in the case of a literary, dramatic, musical or artistic work which is computer-generated, the person by whom the arrangements necessary for the creation of the work are undertaken;
"broadcasting" means the communication of a work, a perfom1ance or a sound recording to the public by wireless transmission, including transmission by satellite;
·'collective work" means a work created by two or more persons at the initiative and under the direction of another person, with the understanding that it will be disclosed by the latter person under his or its own name and that the identity of the contributing persons will not be indicated;
"communication to the public" means the transmission by wire or without wire of the images or sounds, or both, of a work, a performance, a sound recording or a broadcast in such a way that the images or sounds can be perceived by persons outside the normal circle of a family and its closest social acquaintance at a place or places so distant from the place where the transmission originates that, without the transmission, the images or sound would not be perceivable and, further, irrespective of whether the persons can receive the images or sounds at the same place and time, or at different places or times individually chosen by them;
"computer" means an electronic or similar device having information processing capabilities;
"computer programme" means a set of instructions expressed in words, codes, schemes or in any other form, which is capable~ when incorporated in a medium that the computer can read, of causing a computer to perform or achieve a particular task or result;
"'copyright" in relation to a work means the exclusive right, by virtue and subject to the provisions of this Act, to do, and authorise other persons to do, certain acts in relation to that work in Botswana or in any other country to which the relevant provisions of this act extends;
"dramatic work" includes a work of dance or mime; "distributionn means the distribution to the public, for commercial
purposes, of copies of a work by way of rental, lease, hire, loan or similar arrangement, and 'distributing' shall have a corresponding meaning;
"economic rights" means the rights derived as a consequence to the right to a copyright, the extent of which is provided for under section 7;
"expression of folklore'' means a group-oriented and tradition-based creation of groups or persons reflecting the expectation of the community as an adequate expression of its cultural and social identity, its standards and values as transmitted orally, by imitation or by other means including -
(i) folktales, folk poetry, and folk riddles; (ii) folk songs and instrumental folk music:
(iii) folk dances and folk plays; (iv) productions of folk arts in particular, drawings, paintings,
carvings, sculptures, pottery, terra-cotta, mosaic, woodwork, metal-ware, jewellery, handicrafts, costumes, and indigenous textiles;
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'•fixation'' means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through device;
"literary work' 1 means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes -
(a) a table of compilation; and (b) a computer programme;
"musical work" means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music;
"neighbouring rights'~ means the rights neighbouring on copyright as provided for under section 23;
"owner of copyrights'' means - (i) where the economic rights are vested in the author, the author,
(ii) where the economic rights are originally vested in a person other than the author, that person,
(iii) where the ownership of the economic rights has been transferred to another person, that person;
"performer" means a singer~ musician or other person who sing, deliver, declaim, play in, or otherwise perform literary and artistic works or expressions of folklore;
''performance" in relation to - (a) the rights conferred under Part IV, includes -
(i) a dramatic perfonnance which includes dance and mime; (ii) a musical performance;
(iii) a reading or recitation of a literary work; (iv) a perfonnance of a variety act or any similar presentation; that is, or to the extent that it is, a live performance, given by one or more persons; and
(b) a literary, dramatic or musical work includes - (i) delivery in the case of lectures, addresses, speeches and
sermons; and (ii) any mode of visual or acoustic presentation, including
presentation by means of sound recording, film~ broadcast or cable programme of the work;
"photographic work" means the recording of light or other radiation on any medium on which an image is produced or from which an image may be produced, irrespective of the technique, chemical, electronic or other, by which such recording is made; a still picture extracted from an audiovisual work shall not be considered a "photographic work" but a part of the audiovisual work concerned;
"producerH of an audiovisual work or a sound recording, means the person who undertakes the initiative and responsibility for the making of the audiovisual work or sound recording;
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'"public display" means the showing of the original or a copy of the work-
(i) directly (ii) by means of a film, slide, television image or otherwise on
screen, (iii) by means of any other device or process, or, (iv) in the case ofan audiovisual work, the showing of individual
images non-sequentially; at a place or places where persons outside the normal circle of a family and its closest social acquaintance are or can be present, irrespective ofwhether they are or can be present at the same place and time or at different places and times or at different places or times, and where the work can be displayed without communication to the public;
"public lending" means the transfer of the possession of the original or a copy of a work or a sound recording for a limited period of time for non-profit making purposes'} by an institution'} the services of which are available to the public, such as a public library or archive;
"public performance" means in the case of- (i) a work other than an audiovisual work, the recitation,
playing, dancing, acting or otherwise performing the work, either directly or by means of any device or process;
(ii) of an audiovisual work, the showing of images in sequence and the making of accompanying sounds audible; and
(iii) a sound recording, making the recording sounds audible at a place or at places where persons outside the normal circle of the family and its closest acquaintance are or can be present, irrespectiv~ of whether they are or can be present at the same place and time, or at different places and times, or different places or times, and where the performance can be perceived without the need for communication to the public;
'"published" in relation to a work or a sound recording means copies of which have been made available to the public in a reasonable quantity for sale, rental, public lending or for other transfer of the ownership or the possession of the copies;
"rental" means the transfer of the possession of the original or a copy of a work or sound recording for a limited period of time for profit- making purposes;
"reproduction" means the making of one or more copies of a work or sound recording in any material form~ including any permanent or temporary storage of the work or sound recording in electronic form;
'"sound recording" means any exclusively aural fixation of the sounds of a performance or of other sounds, regardless of the method by which the sounds are fixed or the medium in which the sounds are embodied; excluding a fixation of sounds and images, such as the sound track of an audiovisual work;
"work" means any literary or artistic work as provided for under sections 3 and 4(1 );
"work of applied art'' means an artistic creation with utilitarian functions or incorporated in a useful article, whether made by hand or produced on an industrial scale;
"work of joint authorship" means a work to the creation of which two or more authors have contributed, provided the work does not qualify as a "collective work".
7PART II - Copyright
Works protected 3. (1) A literary and artistic work shall not be considered as a work protected by copyright under this Act unless it is an original intellectual creation in the literary or artistic domain.
(2) Literary and artistic works under this Act include -
(a) books, pamphlets~ articles~ computer programmes and other writings; (b) speeches, lectures, addresses, sem1ons 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; (j) audiovisual works; (g) works of architecture; (h) works of drawing, painting, sculpture, engraving, lithography,
tapestry and other works of fine art; (i) photographic works; (J) works of applied art; and k) illustrationst maps, plans, sketches and three-dimensional works
relative to geography, topography, architecture or science. (3) The Minister may, by Order, add to or otherwise vary the works
included under subsection (2). 4. (1) The following derivative works shall be protected as works - (a) translations, adaptations, arrangements and other transforma6ons
or modifications of works; and (b) collections of works, collections of mere data (data bases),
whether in machine readable or other form, and collections of expression of folklore, provided that such collections are original by reason of the selection, coordination or arrangement of their contents.
(2) The protection of any work referred to in subsection (1) shall be without prejudice to any protection of a pre-existing work or expression of folklore incorporated in or utilized for the making of such a work. ·
5~ (1) In the case of any work made by or under the direction or control of the State or a Government department -
(a) if apart from this section copyright would not subsist in the work, copyright shall subsist therein by virtue of this section; and
(b) in any case, the State, subject to the provisions of this Part, be entitled to the copyright in the work.
(2) The State shall, subject to the provisions of subsection (3), be entitled to the copyright in every work first published in Botswana, if first published by or under the direction or control of the State or a Government department.
(3) The preceding provisions of this section shall have effect subject to any agreement made by or on behalf of the State or a Government department with the author of the work, whereby it is agreed that the copyright in the work, shall vest in the author or in another person designated in the agreement in that behalf.
(4) In this section /,'Government department" means any department of the Government of Botswana.
Derivative works
Provisions as to State and Government department.
8 Protection to be for creation, and the kind of works not protected.
Economic rights.
Moral rights
6. (1) A work shall be 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 and purpose.
(2) Notwithstanding the provisions of sections 3, 4 and 5 no protection shall extend under this Act to - .
(a) any idea, procedure, system, method ofoperation, concept, principle, discovery or mere data, even if expressed, described, explained, illustrated or embodied in a work;
(b) any official text of a legislative~ administrative or legal nature, as well as any official translation thereof;
(c) a broadcast which infringes, or to the extent that it infringes, the copyright in another broadcast or in a cable programme; or
(d) a sound recording or film which is, or to the extent that it is, a copy of a previous sound recording or film.
7. (1) Subject to the provisions of sections 13 and 21, the author or other owner of copyright shaH have the exclusive right to carry out or to authorize the following acts in re]ation to the work -
(a) reproduction of the work; (b) translation of the work; (c) adaptation, arrangement or other transformation of the work; (d) the first public distribution of the original and each copy of the
works by sale, rental or otherwise; (e) rental or public lending of the original or a copy of an audiovisual
work, a work embodied in a sound recording, a computer, a data base or a musical work in the form of notation, irrespective of the ownership of the original or copy concerned;
(f) importation ofcopies of the work, even where the imported copies were made with the authorization of the author or other owner of copyright;
(g) public display of the original or a copy of the work; (h) public perlormance of the work; (i) broadcasting of the work; (j) other communication to the public of the work. (2) The rights ofrental and lending under paragraph (e) do not apply
to rental or lending of computer programmes where the program itself is not the essential object of the rental or lending.
8. (1) The author of a work shall, independently of any economic rights he may be entitled to, and even where he is no longer the owner of the said rights, have the right to -
(a) have his name indicated prominently on the copies and in connection with any public use of his work, as far as practicable;
(b) not have his name indicated on the copies and in connection with any public use of his work, and the right to use a pseudonym;
(c) object to any distortion, mutilation or other modification of, or other derogatory action in relation to his work which would be prejudicial to his honour or reputation.
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(2) None of the rights mentioned in subsection (1) shall be transmissible during the life of the author, provided that the right to exercise any of those rights shall be transmissible by testamentary disposition or by operation of law following the death of the author.
(3) The author may waive any of the moral rights mentioned in subsection (1 ), provided that such a waiver is in writing and clearly specifies the right or rights waived and the circumstances in which the waiver applies and provided further, that any waiver of the right under item (c) of subsection (1) specifies the nature and extent of the modification or other action in respect of which the right is waived.
(4) Following the death of the author, the person or legal entity upon whom or which the moral rights have devolved shall have the right to waive the said rights.
9. (1) Subject to the other provisions of this Act, the original owner of economic rights is the author who has created the work.
(2) In respect of a work ofjoint authorship, the co-authors shall be the original owners of the economic rights, provided that where a work of joint authorship consists of parts that can be used separately and the author of each part can be identified, the author of each part shall be the original owner of the economic rights in the part that he has created.
(3) In respect of a collective work, the person at the initiative and under the direction of whom or which the work has been created shall be the original owner of the economic rights.
(4) In respect of an audiovisual work, the original owner of the economic rights shall be the producer, unless provided otherwise in a contract.
(5) The co-authors of the audiovisual work and the authors of the pre-existing works included in or adapted for the making of the audiovisual work shall, however, maintain their economic rights in their contributions or pre-existing works, respectively, to the extent that those contributions or pre-existing works, can be subject of acts covered by the economic rights separately from the audiovisual work.
10. ( l) Subject to the other provisions of this section, the economic and moral rights shall be protected during the life of the author and for fifty years after his death.
(2) In the case of a work of joint authorship, the economic and moral rights shall be protected during the life ofthe last surviving author and for fifty years after his death.
(3) In the case of a collective work, other than a work of applied art, and in the case of an audiovisual work, the economic and moral rights shall be protected for fifty years from the date on which the work was made, first made available to the public or first published, whichever date is the latest.
(4) In the case of a work published anonymously or under a pseudonym, the economic and moral rights shall be protected for fifty years from the date on which the work was made, first made available to the public or first published, whichever date is the latest, provided that where the author's identity is revealed or is no longer in doubt before the expiration of the said period, the provisions of subsection (1) or subsection (2) shall apply, as the case may be.
(5) In the case of a work of applied art, the economic and moral rights shall be protected for twenty five years from the making of the work.
(6) Every period provided for under the preceding subsections shall run to the end of the calendar year in which it would otherwise expire.
Original ownership of economic rights
Duration of copy right
10Presumption of authorship and representation of author
Exceptions to exclusive right to copyright
Private reproduction for personal purposes
11. (1) The person whose name is indicated as the author on a work in the usual manner shall, in the absence of proof to the contrary, be presumed to be the author of the work.
(2) Where a pseudonym used leaves no doubt as to the identity of the author, subsection (1) shall be applicable to the pseudonym.
(3) In the case of an anonymous or pseudonymous work, the publisher whose name appears on the work shall, in the absence ofproof to the contrary, be presumed to represent the author and in this capacity shall be entitled to exercise and enforce the moral and economic rights of the author:
Provided that such presumption shall cease to apply when the author reveals his identity.
PART III - Exceptions to Exclusive Right to Copyright
12. Notwithstanding the provisions of section 7, the following dealings with a work shall be permitted without the authorisation of the author or other owner of the copyright -
(i) private reproduction for personal purposes, subject to section 13;
(ii) quotations, subject to section 14; (iii) reproduction for teaching, subject to section 15; (iv) Rcpro-graphic reproduction by libraries and archives,
subject to section 16; (v) reproduction and adaptation of computer programmes,
subject to section 17; (vi) reproduction, broadcasting and other communications to
the public for informatory purposes, subject to section 18; (vii) temporary reproduction, subject to section 19; (viii) importation for personal purposes, subject to section 20; and (ix) display of works, subject to section 21.
13~ (1) Subject to subsection (2), the private reproduction of a published work in a single copy shall be permitted without the authorization of the author or owner of copyright~ where the reproduction is made by any person exclusively for his own personal purposes.
(2) The pen11ission granted under subsection (1) shall not extend to reproduction -
(a) of a work of architecture in the form of building or other construction;
(b) in the form of reprography of the whole or a substantial part of a book or of a musical work in the form of notation;
(c) of the whole or a substantial part of a data base; (d) of a computer , except as provided in section 17; and (e) of any work in cases where reproduction would conflict with a
normal exploitation of the work or would otherwise unreasonably prejudice the legitimate interests of the author or other owner of the copyright.
1114. ( l) The reproduction, in the form of quotation, of a short part of a published work shall be permitted without authorization of the author or other owner ofcopyright, provided that the reproduction is compatible with fair practice and does not exceed the extent justified by the purpose.
(2) Any quotation made in accordance with subsection (1) shall be accompanied by an indication of source and the name of the author, if his name appears in the work from which the quotation is taken.
15. (1) The following acts effected for purposes of teaching shall be permitted without authorization of the author, or other owner of copyright-
(a) the reproduction of a short part of a published work for teaching purposes by way of illustration, in writings or sound or visual recordings, provided that reproduction is compatible with fair practice and does not exceed the extent justified;
(b) the repro-graphic reproduction, for face-to-face teaching in education institutions the activities of which do not serve direct or indirect commercial gain, of published articles, other short works or short extracts of works, to the extent justified by the purpose, provided that - (i) the act of reproduction is an isolated one occurring, if
repeated, on separate and unrelated occasions, and (ii) there is no collective license _available, offered by a collective
admini"stration organization of which the educational institution is or should be aware, under which such reproduction can be made.
(2) The source of the work reproduced and the name of the author shall be indicated as far as practicable on all copies made under subsection (1 ).
160 Any library or archive whose activities do not serve direct or indirect gain may, without the authorization of the author or other owner of copyright, make a single copy of the work by repro-graphic reproduction -
(a) where the work reproduced is a published article, other short work or short extract of a work, and where the purpose of the reproduction is to satisfy the request of a person, provided that -
(i) the library or archive is satisfied that the copy will be used solely for the purposes of study, scholarship or private research;
(ii) the act of reproduction is an isolated case occurring~ if repeated, on separate and unrelated occasions; and
(iii) there is no collective license available, offered by a collective administration organization of which the library or archive is or 'should be aware, under which such copies can be made; or
(b) where the copy is made in order to preserve and, if necessary replace a copy, or to replace a copy which has been lost, destroyed or rendered unusable in the permanent collection of another similar library or archive, provided that it is impossible to obtain such a copy under reasonable conditions, and provided further that the act of repro-graphic reproduction is an isolated case occurring, if repeated, on separate and unrelated occasions.
Quotation
Reproduction for teaching
Reprographic reproduction by libraries and archives
12 Reproduction and adaptation of computer programmes
Reproduction broadcasting and other communication to the public
17. (1) The reproduction, in a single copy, or the adaptation of a computer by the lawful owner of a copy of that computer programme shall be permitted without the authorization of the author or other owner of copyright, provided that the copy or adaptation is necessary-
(a) for use of the computer programme with a computer for the purpose and extent for which the computer programme has been obtained; or
(b) for archival purposes and for the replacement of the lawfully owned copy of the computer in the event that the said copy of the computer is lost, destroyed or rendered unusable.
(2) No copy or adaptation of a computer programme shall be used for any purpose other than those specified in subsection (1), and any such copy or adaptation shall be destroyed in the event that continued possession of the copy of the computer ceases to be lawful.
18. The following acts shall be permitted in respect of a work without the authorisation of the author or other owner of copyright, subject to the obligation to indicate the source and the name of the author as far as practicable -
(a) the reproduction in a newspaper or other periodical, the broadcasting or other communication to the public, of an article published in a newspaper or periodical on current economic, political or religious topics or a broadcast work of the same character, provided that this permission shall not apply where the right to authorise reproduction, broadcasting or other communication to the public is expressly reserved on the copies by the author or other owner of copyright, or in connection with broadcasting or other communication to the public of the work;
(b) the reproduction and the broadcasting or other communication to the public, for th·e purpose of reporting current events, of short excerpts of a work seen or heard in the course of such events, to the extent justified by the purpose~ or
(c) the reproduction in a newspaper or periodical, the broadcasting or other communication to the public of a political speech, a lecture, address, sermon or other work of a similar nature delivered in public, or a speech delivered during legal proceedings, to the extend justified for the purpose of providing current information.
19. The temporary reproduction of a work shall be permitted if all of the following conditions are met -
(a) the reproduction is made in the process of a transmission of the work or an act of making a stored work perceptible;
(b) it is caused by a person or entity that, by virtue of authorisation by the owner of the copyright or of operation of law, is entitled to make that transmission or make the work perceptible; and
(c) it is an accessory to the transmission or making perceptible that occurs during the normal operation of the equipment used and entails the automatic deletion of the copy without enabling the retrieval of the work for any other purpose than those referred to in paragraphs (a) and (b).
20. The importation of a copy of a work by any person for his own personal purposes shall be permitted without the authorization of the author or other owner of copyright.
Temporary reproduction
Importation for personal purposes
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Neighbouring rights
Acts requiring authorization of performers
21.. The public display of originals or copies of w~rks shall be permitted without the authorization of t~e au~hor, pro:1?ed. that the display is made other than by means of a fllm, shde, ~elev1S1on 1mage or otherwise on screen or by means of any other device or process, and provided further that the work has been published or t?e original or the copy displayed has been sold, given away or. otl:erw1se transferred to another person by the author or his successor m ~1tle. .
22. (1) Economic rights shall be assignable m whole or m part. (2) Any assignment of an economic right, and any license t~ do an act
subject to authorization by the author or other o:wner of copyng~t, shall be in writing signed by the assignor and the assignee, or by the hcensor and the licensee.
(3) An assignment in whole or in part of any economic right, or a license to do an act subject to authorization by the author or other owner of copyright, shall not include or be deemed to include the_assignment or license of any other rights not explicitly referred to therem.
PART IV -Protection ofNeighbouring Rights
23$ In this Part "neighbouring rights" means 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, will not qualify as "works" under the general understanding of copyright, but who, nevertheless, express creativity or technical and organisational skill sufficient to justify recognition of their contribution as deserving of protection; and such rights include the rights of performers, producers of sound recordings and broadcasting.
24. (1) Subject to section 28, a performer shall have the exclusive right to carry out or to authorize any of the following acts -
(a) the broadcasting or other communication to the public of his performance, except where the broadcasting or the other communication - (i) is made from fixation of the performance, other than
fixation made under the terms of section 28; or (ii) is a re-broadcasting made or authorized by the organization
initially broadcasting the performance; (b) the fixation of his unfixed performance; (c) the reproduction of a fixation of his performance; (d) the first making available to the public of a fixation of his
performance, or copies thereof, through sale or other transfer or ownership;
(e) rental to the public or public lending of a fixation of his performance, or copies thereof irrespective of the ownership of the copy rented; or
if) the making available to the public ofhis fixed perlormance, by wire or wireless means, in such way that members of the public may access them from a place or at a time individually chosen by them.
(2) Once the performer ha_s authorized the incorporation of his performance in an audiovisual fixation, the provisions of subsection (1) shall have no further application.
Display of works
Assignment and license of authors' rights
14 (3) Independently of the performer's economic rights, and even after
the transfer of those rights, the performer shalt as regards his live aural performances or performances fixed in phonograms, have the right to claim to be identified as the performer ofhis performances, except where omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation.
(4) Nothing in this section shall be construed to deprive p~rformers of the right to agree by contracts on terms and conditions more favourable for them in respect of their performances.
(5) The provisions of subsections (2), (3) and (4) of section 8 apply rnutatis mutandis to the rights granted under subsection (3) of this section.
(6) The rights under this section shall be protected until the end of the fiftieth calendar year following the year in which the performance was fixed in a phonogram, or in the absence of such fixation~ from the end of the year in which the performance took place.
25. (1) Subject to the provisions of section 28, a producer of a sound recording shall have the exclusive right to carry out or to authorize any of the following acts -
(a) direct or indirect reproduction of the sound recording; (b) importatjon of copies of the sound recording, even where the
imported copies were made with the authorization of the producer:
(c) adaptation or other transfom1ation of the sound recording; (d) rental or public lending of a copy of the sound recording,
irrespective of the ownership of the copy rented or lent; (e) the first making available to the public by sale or other transfer of
ownership, of the original copies of the sound recording; (f) the making available sound recordings, by wire or wireless
means, to enable members of the public to access them from a place or at a time individually chosen by them.
(2) The rights under subsection (1) shall be protected from the publication of the sound recording until the end of the fiftieth calendar year following the year of publication or if the sound recording has not been published, from the fixation of the sound recording until the end of the fiftieth calendar year following the year of fixation.
26. (1) If a sound recording published for commercial purposes, or a reproduction of such sound recording, is used directly for broadcasting or other communication to the public, or is publicly performed, a single equitable remuneration for the performer or performers and the producer of the sound recording shall be paid by the user to the producer.
(2) Unless otherwise agreed between the pe1fonner or performers and the producer, half of the amount ·received by the producer under subsection (1) shall be paid by the producer to the performer or performers.
(3) The right to an equitable remuneration under this section shall subsist from the date of publication of the sound recording until the end of the fiftieth calendar year following the year of publication or, if the sound recording has been published, from the date of fixation of the sound recording until the end of the fiftieth calendar year following the year of fixation.
Acts requiring authorization of producers of sound recordings.
Equitable remuneration for use of sound recordings
15
Acts requiring authorization of broadcasting organizations
Limitations on protection
Conservatory measures to enforce rights
27. (1) Subject to section 28, a broadcasting organization shall have the exclusive right to carry out or to authorize any of the following acts -
(a) the re-broadcasting of its broadcast; (b) the communication to the public of its broadcast; (c) the fixation of its broadcast; or (d) the reproduction of a fixation of its broadcast. : (2) The rights under this section shall be protected from the moment
when the broadcasting takes place until the end of the fiftieth calendar year following the year in which the broadcast takes place.
28. Sections 24, 25, 26 and.27 shall not apply where the acts referred to in those sections are related to -
(a) the use by a person exclusively for his own personal purposes; (b) using short excerpts for reporting current events to the extent
justified for the purpose of providing current information; (c) use solely for the purpose of face-to-face teaching activities or for
scientific research; or (cf) cases where, under Part III, a work can be used without the
authorization of the author or other owner of copyright.
PART V - Enforcement of Rights
290 (1) Subject to subsection (2) where a complaint of the contravention of the provisions of this 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 such other person as the Minister may, by Order, appoint and grant investigating powers, shall enter the premises to conduct a search and seize any item found within the premises.
(2) The Police Officer or the person appointed by the Minister under subsection (1) (hereinafter both referred to as "the investigating officer") shall not enter, conduct a search or seize any item in terms of subsection (1) unless he has obtained -
(a) the consent in writing of the owner of the premises or the person in charge of the premises; or
(b) a search warrant. (3) The court shall 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 -
(a) there are works that infringe the rights protected under the Act in the premises;
(b) there is in the premises equipment or other device specifically designed or adapted to circumvent any device or means intended to prevent or restrict reproduction of a work or to impair the quality of copies made (the latter device or means hereinafter referred to as "copy-protection or copy-management device or means') or
(c) a document, book or other object which may afford evidence of such contravention of the provisions of this Act is within those premises.
16 (4) Where a Chief or Senior Magistrate is satisfied from 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 this 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.
(5) A search warrant granted by the court shall - (a) authorise the investigating officer mentioned in the warrant to
enter the premises identified in the wauant to conduct searches, examinations, take extracts or copies, seize any item or to do any other thing that may assist with the investigation~
(b) be executed by day, unless the court authorises its execution by night; and
(c) be in force until it is executed, cancelled by the court or a period ofone month from the date ofits issue expires, whicheveroccurs first
(6) The investigating officer executing a search warrant under this section shall, before such execution or upon demand by any person whose rights may be affected -
(a) present his identification card; and (b) hand to such person a copy of the warrant. (7) An investigating officer shall not seize any item found within the
premises being searched in accordance with the provisions ofthis section unless he has handed the person from whose possession or charge the item is being seized, a receipt of the seizure in the prescribed form.
(8) A person from whose possession or charge a document, book or other object has been seized shall, as long as it is in the possession or charge of the investigating officer concerned, be allowed on request .to make copies or to take extracts from it at any reasonable time at his own expense and under the supervision of that ir~vestigating officer or other authorised person in the service of the Office.
(9) A person shall not be 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.
( l 0) Subject to subsection (11) incriminating evidence, arising out of any answer, document, book or other object a person may present to an investigating officer in answer to an enquiry made by the investigating officer, shall not be admissible in any criminal trial against that person.
(1 I) Any person who - (a) obstructs or hinders the investigating officer in the performance
of his functions in terms of this section; or (b) knowingly makes a false statement or gives a false answer to any
enquiry; shall be guilty of an offence and shall be liable, upon conviction, to a fine not exceeding Pula 2 000 or to imprisonment for a term not exceeding 12 months, or to both.
17Civil remedies
Criminal sanctions
30. (1) The court shall, subject to any other Act ofParliament, and on such terms as it may deem reasonable, have the authority to -
(a) grant injunctions to prohibit the committing, or continued committal, of infringement of any right protected under this Act;
(b) 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 of copies is subject to such authorization, as well as the impounding of the packaging of, the implements that could be used for the making of, and the documents, accounts or business papers referring to, such copies.
(2) In addition to any civil remedy that may be ordered by the court against any person who has infringed any right protected under this Act, the court shall have the authority to order the destruction or other reasonable disposition of infringing copies, where they exist. and their packaging outside the channels of commerce in such a manner as to avoid harm to the holder of the right , unless the owner of the right requests otherwise;
Provided that copies and their packaging which were acquired by a third party in good faith shall not be so destroyed.
(3) Where there is a danger that implements may be used to commit or continue to commit acts of infringement~ the court shall, whenever and to the extent that it is reasonable, order their destruction or other reasonable disposition outside the channels of commerce in such a manner as to minimize the risks of further infringements.
(4) Any person who in contravention of the provisions of subsections (2) and (3), fails to carry out the order of the court for the destruction or other reasonable disposition of the infringing copies or implements, shall be guilty of an offence and upon conviction shall be liable to a fine not exceeding P 10,000 or to imprisonment for a term not exceeding five years or to both.
31. (1) Any person who contravenes the provisions of this Act so as to infringe a right protected under this Act for profit~ shall be guilty of an offence and upon conviction shall be liable to a fine not exceeding P20,000 or to imprisonment for a term not exceeding ten years or to both.
(2) Any person convicted of a second or subsequent offence shall be fined a minimum of P30,000 or a maximum of P5,000,000 or be imprisoned for a term not exceeding ten years~ or to both.
32.. Any goods imported into the country that are in contravention of the provisions of this Act, may be placed under an embargo, destroyed or otherwise disposed of as provided for under sections 115 and 116 of the Customs and Excise Duty Act.
Powers of Custom officials Cap 51 :01.
18
Application of Act to works protected under Cap 68:01 ,#
33. (1) The following acts shall be considered unlawful and, in the application of the civil and criminal remedies under this Part, shall be assimilated to infringements of the rights protected under this Act -
(a) the manufacture or importation for sa1e or rental of any device or means specifically designed or adapted to circumvent any device or means intended to prevent or restrict reproduction of a work, sound recording or a broadcast, or to impair the quality of copies made (the latter device or means hereinafter referred to as ··copy- protection or copy-management device or means'); or
(b) the manufacture or importation for sale or rental of any device or means that is susceptible to enable or assist the reception of an encrypted program, which is broadcast or otherwise communicated to the public, including by satellite, by those who are not entitled to receive the program;
(c) the removal or alteration of any electronic rights management information without authority;
(d) the distribution import for distribution, broadcasting, communication to the public or making available to the public, without authority, of works, performances, sound recording or broadcasts, knowing or having reas9n to know that electronic rights management information has been removed or altered without authority.
(2) In the application of civil and criminal remedies under this Patt, any illicit device and means referred to in subsection (1) and any copy from which rights management information has been removed, or in which such information has been altered, shall be assimilated to infringing copies of works, and any illicit act referred to in subsection (1) shall be treated as an infringement of copyright or related rights to which the civil remedies and criminal sanctions provided for in this Part are applicable.
(3) In this section, "rights management inf01mation" means any inforrnation which identifies the author, the work, the producer of the sound recording, the broadcaster, the performer, the perfom1ance, or any owner of a right ur:ider this Act, any infom1ation about the terms and conditions of use of the work or the performance, and any numbers or codes that represent such information, when any of these items of a work or a fixed performance, appears in connexion with the broadcasting, communication to the public or making available to the public of a work or a fixed performance.
PART VI-General Provisions
34. (l) The provisions of this Act shall apply to works, performances, sound recordings and broadcasts protected under the · Copyright Act (which is repealed under section 38 and is hereinafter referred to as "the repealed Act'') before the commencement of this Act, provided that the term of protection had not expired under the repealed Act or under the legislation of the country of origin of such works, performances, sound recordings or broadcasts that are to be protected under an international treaty✓to which the Republic of Botswana is party.
(2) The provisions of this Act shall not affect contracts on works, performances, sound recordings and broadcasts concluded before the commencement of the Act.
Measures, remedies and sanctions against abuses in respect of technical means of protection and rights management information
19
Scope of application
35. (1) The provisions of this Act concerning the protection of literary and artistic works shall apply to -
(a) work of authors who are nationals of, or have their habitual residence in Botswana;
(b) works first published in Botswana~ and works first published in another country and also published in Botswana within thirty days' of their first publication,'irrespective of the nationality or residence of their authors;
(c) audiovisual works, the producer of which has his headquarters or habitual residence in Botswana;
(d) works of architecture erected in Botswana and other artistic works incorporated in a building or other structure located in Botswana.
(2) The provisions of this Act shall also apply to works that are protected in Botswana by virtue of and in accordance with any international convention or other international agreement to which the country is party.
(3) The provisions of this Act on the protection of performers shall apply to-
(a) performers who are nationals of Botswana; (b) performers \Vho are not nationals of Botswana but whose
performances - (i) take place on the territory of Botswana; (ii) are incorporated in sound recordings that are protected
under this Act; or (iii) have not been fixed in a sound recording but are included in
broadcasts qualifying for protection under this Act. (4) The provisions of this Act on the protection of sound recordings
shall apply to - (a) sound recordings the producers of which are nationals of
Botswana; (b) sound recordings first fixed in Botswana~ and (c) sound recordings first published in Botswana.
(5) The provisions of this Act on the protection of broadcasts shall apply to-
(a) broadcasts of broadcasting organizations the headquarters of which are situated in Botswana; and
(b) broadcasts transmitted from transmitters situated in Botswana. (6) The provisions in this Act shall also apply to perfonners,
producers of sound recordings and broadcasting organizations protected by virtue of and in accordance with any international convention or other international agreement to which Botswana is party.
36. The provisions of any international treaty in respect of copyright and related rights to which the Republic of Botswana is a party shall apply to matters dealt with under this Act.
37. (1) The Minister may make regulations providing for any matter which under this Act is to be prescribed or for the better carrying out of the purposes and provisions of this Act
(2) Without prejudice to the generality of the subsection (1), the Minister may make Regulations to -
Application of International Treaties
Regulations
20 (a) estahlish, constitute and provide the functions of a Copyright
Council to administer the Act and to regulate the rights protected under the Act;
(b) provide for the setting up of a Copyright Society and such other body of persons necessary to promote the rights protected under the Act.
38. The Copyright Act, is hereby repealed. Repeal of Cap. 68:01
39. ) Nothing in this Act shall affect the operation of any rule SaYings relating to breaches of trust or confidence.
(2) Nothing in this Act shall affect the right of the State or of any person deriving title from the State to sen, use or otherwise deal with artic1es forfeited under the laws relating to customs or excise, including any article forfeited by virtue of this Act or the repealed Act.
PASSED by the National Assembly this 6th day of April, 2000.
S.S. MODIMAKWANE, Acting Clerk ofthe 11\lational
Assembly.