UNIVERSITY OF LUSAKA

SCHOOL OF LAW
L340 – IP LAW
UNIT 4: PROTECTION CRITERIA AND
FORMALITIES
George Mpundu Kanja
 Structure of Presentation
• Introduction
• Criterion of Form
• Criterion of Content
• Criterion of Status
• Formalities
• Term of Protection
 Introduction
• A work comes into existence in the creator’s or
author’s mind at or during a certain time, but
generally it will only have the possibility of being
protected by copyright when it satisfies certain
criteria, which may be called the criteria of form,
content and status.
• Besides there are cases where protection depends
on fulfilment of formalities, such as registration,
deposit of copies and notices affixed to the copies.
 Introduction
• Although such cases are rare, it may be
nonetheless necessary to satisfy formalities in
certain countries in order to bring actions in
case of infringement or to enjoy procedural
advantages.
 Criterion of Form

• For a work to attract copyright protection it must

be in a certain form.
• Thus a literary and musical work will be
expressed in the form of words.
• In case of dramatic work the expression is in
form of action rather than words.
• As for the artistic work, they may be expressed in
the form of paintings, drawings, sculptures,
photographs or works of architecture.
 Criterion of Form

• The reason for the requirement that a copyright

work be in a certain form is because of the basic
copyright principle namely that, copyright does not
protect ideas but the expression of ideas.
• While a work may fulfil the criterion of form in so far
as it is perceptibly expressed, Zambia’s copyright
system like any other common law system of
copyright requires that the work must be fixed in
some material form in order to receive copyright
protection.
 Criterion of Form

• It is interesting to note that whilst the

common law countries such as Zambia, United
Kingdom and Australia, have fixation criterion,
that is to say, a work is not protected unless
it is fixed or recorded in some material form,
the civil law countries like France, do not
require that a work be fixed or recorded in a
material form to attract copyright protection.
 Criterion of Form

• Thus under common law a person who gives an

impromptu talk or interview may have no copyright in it
unless it is recorded.
• In Walter v Lane Lord Rosebery gave a public speech. A
reporter from The Times newspaper attended and took
down the speech verbatim in shorthand. A verbatim
report was published in The Times. Subsequently the
defendant compiled a book of Lord Rosebery’s speeches
and, without the consent of The Times, included the
report of Lord Rosebery’s speech, the source of such
report being The Times newspaper.
 Criterion of Form

• The question that had to be determined by

the Court was, did the reporter of Lord
Rosebery’s words have any copyright in the
report?
• The House of Lords held that the reporter
had copyright in the report.
 Criterion of Content

• The criterion of content incorporates the

fundamental copyright concept that the idea
is not protected, but that the expression of
the idea is protectable.
• Also that in order to qualify for copyright
protection the work must be original.
 Criterion of Status

• For copyright to subsist in a work, under the

Copyright and Performance Rights Act the
qualification requirements must be satisfied.
• This can be achieved either by reference to
the author of the work or by reference to the
country or place and date of publication, or in
the case of a broadcast or cable programme,
the country of first transmission.
 Criterion of Status

• Qualification by reference to the author

• An original copyright work and derivative work will
qualify for copyright protection if the author of the
work was a citizen of, or habitually resident in Zambia
or a Berne Convention country; or a body corporate
incorporated in Zambia or a Berne Convention
country. (s.9 Copyright Act)
• A work is considered to be published simultaneously in
several countries if it has been published in two or
more countries within thirty days of its first publication
 Criterion of Status

• The Copyright and Performance Rights Act

defines what amounts to a “publication” of a
work.
• A work, other than a broadcast or cable
programme is published when copies of the
work are made available to the public,
whether for gain or not.
 Criterion of Status

• Qualification by reference to the country of first publication or

transmission
• There is a distinction between transmitted works, namely broadcasts
and cable programmes, and all other categories of works.
• In the case of the latter, they qualify for copyright protection if they are
made or first published in Zambia or a Berne Convention country, and in
case of the former they will be protected by copyright if they are first
transmitted from a place in Zambia or Berne Convention country.
• A work will still be considered first publication in Zambia if it is
published simultaneously within thirty days after the earliest
publication in another country that is not a member of the Berne
Convention.
 Criterion of Status

• Furthermore, the first publication of a work, other a

broadcast or cable programme, is the earliest
publication of the work made with the authority of
the copyright owner; or any publication of a work
made with the consent of the copyright owner
within thirty days after the earliest such publication.
• Besides any distribution or circulation of a work by
way of sale or rental constitutes making copies of
the work available to the public.
 Criterion of Status

• The Copyright and Performance Rights Act also

specifies acts which do not constitute or
amount to publication.
• In case of a literary or musical work the
following do not constitute publication: the
performance of the work or the broadcasting
of the work or its inclusion in a cable
programme service otherwise than for the
purposes of an electronic retrieval system.
 Formalities
• The general principle of copyright is law is that
copyright protection arises automatically on
creation of the work, and does not depend upon
registration.
• The Copyright and Performance Rights, makes
registration of copyright work not mandatory. It
further provides that the existence and
enforceability of a copyright shall be independent
of whether or not it is registered under the Act.
 Formalities
• Where copyright registration is not necessary
the protection of copyright is shown by the
following symbol: ©
 Term of Protection
• Copyright does not continue indefinitely. The
law provides for a period of time, a duration,
during which the rights of the copyright
owner exists.
• The period or duration of copyright begins
from the moment when the work has been
created or under some jurisdiction, like
Zambia, when it has been expressed in a
tangible form.
 Term of Protection
• The period of the duration continues till some
time 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 the exploitation of the
work after the author’s death.
 Term of Protection
• It is worth noting that the term of protection
given to original works is different from that
provided for derivative or entrepreneurial works.
• Whilst the duration of original works begins from
the moment the work is created until fifty years
after the life of the author, the term of protection
for derivative works is not tied to the life of the
author; it lasts fifty years from the moment it is
created.
 Term of Protection
• Original works
• The term of protection for original works is calculated from the
end of the year in which the author dies and runs for fifty years.
• As a result, copyright in original literary, dramatic, musical and
artistic works expires or comes to an end after the end of the
year in which the author of the work died plus fifty years. That
is life plus fifty years.
• The term of protection for computer programmes, which have no
human author who can die, expires at the end of period of fifty
years from the end of the calendar year in which it was first
published.
 Term of Protection
• Sound Recording
• Copyright in an audiovisual work or sound recording
expires at the end of the period of fifty years from the
end of the calendar year in which it is made; or at the
end of the period of fifty years from the end of the
calendar year in which it is first published.
• A sound recording is first published when the copies of
the work are made available to the public, whether for
gain or not with the authority of the copyright owner.
 Term of Protection
• Films
• The term of copyright protection for a film will expire
fifty years at the end of the year in which the last of
the following persons dies: the principal director, the
author of the screenplay, the author of the dialogue,
or the composer of music specially created for and
used in the film.
• If the identity of all or the persons concerned is
unknown, the film will be protected for fifty years from
the end of the calendar year in which it was made.
 Term of Protection
• Broadcasts and Cable Programmes
• Section 14 of the Copyright and Performance
Rights provides that copyright in a broadcast
or cable programme shall expire at the end of
the period of fifty years from the end of the
calendar year in which the broadcast or cable
programme was first transmitted.
 Term of Protection
• Typographical Arrangement of Published Editions
• Typographical arrangement is the layout of
published editions of literary, dramatic and
musical works.
• The copyright in a typographical arrangement of a
published edition expires at the end of the period
of twenty-five years from the end of the calendar
year in which the edition was first published.
 Special Cases

• (a) Anonymous and Pseudonymous works

• A work is considered to be of unknown authorship if the
identity of none of the authors is known.
• The identity of an author shall be regarded as unknown if it
is not possible for a person to ascertain his identity by
reasonable inquiry.
• Copyright in a work of unknown authorship shall expire at
the end of the period of fifty years from the end of the
calendar year in which the work is first published, unless
the identity of the author of the work becomes known
before that date.
 Special Cases

• (b) Joint Authorship

• A work is considered to be of joint authorship if it is
produced by the collaboration of two or more authors and
the contribution of each author is not distinct from that of
the other author.
• Copyright in the work of joint authorship shall expire at
the end of the period of fifty years from the end of the
calendar year in which the last author dies.
• The Berne Convention provides in Article 7bis that in the
case of a work of joint authorship the term of protection is
to be calculated from the death of the last surviving author.
 Special Cases

• (c) Posthumous Works

• The term “posthumous works” refers to works
which were not published or otherwise
communicated to the public during the
author’s lifetime.
• Under the Berne Convention, such works enjoy
the normal period of protection, that is fifty
years from the calendar year in which the
work was published.
 Special Cases

• (d) Government Copyright  

• The Government has a special copyright in
works created or produced by a public officer
or employee of the Government in the course
of his employment, and the copyright in such
work shall expire at the end of the period of
fifty years from the end of the calendar year
in which the work is made.
THANK YOU