Copyright Research

The right of the copyright owner to prevent others from making copies of his
works without his authorization is the most basic right protected by copyright
legislation. The right to control the act of reproduction – be it the reproduction
of books by a publisher, or the manufacture by a record producer of compact
discs containing recorded performances of musical works - is the legal basis
for many forms of exploitation of protected works.

Copyright does not continue indefinitely. The law provides for a period of time
during which the rights of the copyright owner exist. The period or duration
of copyright begins from the moment when the work has been created, or,
under some national laws, when it has been expressed in a tangible form. It
continues, in general, until sometime after the death of the author. The
purpose of this provision in the law is to enable the author’s successors to
benefit economically from exploitation of the work after the author’s death.

In countries, like Zimbabwe, that are a party to the Berne Convention, and in
many other countries, the duration of copyright provided for by national law
is as a general rule the life of the author plus not less than 50 years after his
death. The Berne Convention also establishes periods of protection for works
such as anonymous, posthumous and cinematographic works, where it is not
possible to base duration on the life of an individual author.

In terms of the Sony Pictures Television UK Rights Limited v C Media

Africa (Private) Limited and Another (129 of 2021) [2021] ZWSC 129 case,
“the Berne Convention only finds application in Zimbabwe to the extent that
its provisions have been domesticated in the Act or any other domestic or local
enactment in terms of s 327 of the Constitution of Zimbabwe.” The Act
referred to in the case is the Copyright and Neighbouring Rights Act Chapter
26:05. This functions as the specific legislation that regulates copyright law.
Regarding duration, section 15 of the Acts states that:

(1) Subject to this section, the duration of copyright shall be, in the case
of⎯
 (a) an audio-visual work, a collective work, a photograph or a
computer program, fifty years from the end of the year in which the work is
made available to the public with the consent of the owner of the copyright
or, failing such an event within fifty years from the making of the work, fifty
years from the end of the year in which the work is made;

(b) a sound recording, fifty years from the end of the year in which
the recording is first published;

(c) a broadcast, fifty years from the end of the year in which the
broadcast first takes place;

(d) a programme-carrying signal, fifty years from the end of the year
in which the signal is first emitted to a satellite;

(e) a published edition, fifty years from the end of the year in which
the edition is first published;

(f) any other literary, musical or artistic work, the life of the author
and fifty years from the end of the year in which the author dies.

Case Law

In 1903, in Bleistein v. Donaldson Lithographing Co. 188 U.S. 239 (1903),

the U.S Supreme Court held for the first time that an illustration used in an
advertisement is protected by copyright. It held such works are "pictorial
illustrations" within the subject matter of copyright regardless of whether they
are used in advertisements. The Court based its decision primarily on the
difficulty in drawing the line between commercial and fine art-it found both
could be valuable to the public. The Court further noted "[i]t would be a
dangerous undertaking for persons trained only in the law to constitute
themselves final judges of the worth of pictorial illustrations, outside of the
narrowest and most obvious limits. After Bleistein, it was clear that copyright
law protected any artistic works used in advertising, even those prepared
specifically for use in advertising.
In L'Oréal SA v Bellure NV (Case C-487/07) EU:C:2009:378 (CJEU) the
court considered whether a competitor’s use of a proprietor’s trade mark when
comparing goods constituted infringement. Bellure sold cheap imitations of
L’Oréal’s luxury perfumes and published lists comparing them. The bottles’
shapes and packaging were similar, but there was no likelihood of confusion
as the Bellure perfumes were sold under different names. It was held Article
5(1)(a) of the trade mark Directive entitles a trade mark proprietor to prevent
the use of their trade mark by a third party where the comparative
advertisement does not satisfy the requirements of Article 3a(1) of Directive
84/450/EEC. There is an assumption that comparative advertising should be
allowed.

However, by imitating the perfumes of L’Oréal, even though they were telling
the truth, Bellure was held to be riding on the coat-tails of the famous mark.
It was taking unfair advantage of the reputation of the well-known mark by
presenting its goods as imitations or replicas contrary to Article 3a of the
misleading advertising Directive. The CFEU held that there was an effect on
not just the origin function, but extended this to other functions of the trade
mark, such as the guarantee of quality, communication, investment and
advertising. This extension of the function of a trade mark has given rise to
uncertainty. One should now question whether this case would be decided
differently in the light of the revised regulations, which state that the function
of a trade mark is to indicate origin.