COPYRIGHT ACT, 1989
An Act to make provision for copyright in literary, dramatic, musical and artistic works, audio-visual works, sound recordings and broadcasts; the rights of performers; the establishment of the Copyright Society of Malawi; and for matters incidental thereto or connected therewith.
Published by
COPYRIGHT SOCIETY OF MALAWI (COSOMA)
Johnstone Road, P.O Box 30784, Lilongwe 3, Malawi
Tel: +265 751148 Fax: +265 751148 E-mail: cosoma@sdnp.org.mw
2001
MALAWI
COPYRIGHT ACT, 1989
An Act to make provision for copyright in literary, dramatic, musical and artistic works, audio-visual works, sound recordings and broadcasts; the rights of performers; the establishment of the Copyright Society of Malawi; and for matters incidental thereto or connected therewith
[as amended up to November 2, 1989]
ARRANGEMENT OF SECTIONS
PART I-PRELIMINARY Section
1. |
Short title and commencement |
2. |
Interpretation |
PART II-COPYRIGHT
3. |
Copyright |
4. |
Works in which copyright subsists |
PART III-LITERARY, DRAMATIC, MUSICAL AND ARTISTIC WORKS
5. |
Copyright in literary, dramatic, musical and artistic works |
6. |
Derivative works |
7. |
Works not subject to copyright protection |
8. |
Economic rights |
9. |
Moral rights |
10. |
Permitted free uses of a work |
11. |
Ownership of copyright |
12. |
Employed authors |
13. |
Duration of copyright |
PART IV- TRANSFER OF RIGHTS AND COMPULSORY LICENCES Division I-Transfer of Copyright
14. |
Transferability of copyright |
15. |
Contracts for authorization of use of rights under this Act |
16. |
Commissioned work |
Division II-Compulsory Licences
17. |
Compulsory translation licence |
18. |
Conditions of a compulsory translation licence |
19. |
Translation licence for broadcasting purposes |
20. |
Compulsory reproduction licence |
21. |
Conditions of a compulsory reproduction licence |
22. |
Compulsory reproduction licence for audio-visual works |
23. |
Production of recording of musical works |
PART V-EXPRESSIONS OF FOLKLORE
24. |
Copyright in expressions of folklore to vest in Government |
25. |
Certain uses of expressions of folklore to be subject to authorization |
26. |
Free uses of expressions of folklore |
27. |
Source of expressions of folklore to be acknowledged |
28. |
Authorization for use of expressions of folklore |
29. |
Non-hindrance of development of folklore |
30. |
Protection under this part to be additional |
PART VI-BROADCASTERS, PERFORMERS AND PRODUCERS OF SOUND RECORDINGS
31. |
Rights of broadcasters, performers and producers of sound recordings not to affect copyright |
32. |
Acts requiring authorization of performers |
33. |
Granting of authorization by performers |
34. |
Acts requiring the authorization of producers of sound recordings |
35. |
Obligations of producers of sound recordings |
36. |
Notice of protection of rights of producers of sound recordings |
37. |
Sound recording performance in public places |
38. |
Rights of broadcasting organizations |
39. |
Exceptions to certain provisions under this Part |
PART VII-PUBLIC DOMAIN
40. |
Works in the public domain |
PART VIII-THE COPYRIGHT SOCIETY OF MALAWI
41. |
Establishment of a Copyright Society of Malawi |
42. |
Functions of the Society |
43. |
Powers of the Society |
44. |
Funds of the Society |
45. |
Accounts and audit |
46. |
Constitution, proceedings and other matters of the Society |
PART IX-INFRINGEMENT OF COPYRIGHT, OFFENCES AND MISCELLANEOUS PROVISIONS
47. |
Infringement of copyright, etc. |
48. |
Offences and penalties |
49. |
Compensation to victims of offence |
50. |
Proof of facts in proceedings |
51. |
Inspectors |
52. |
Entry into premises |
53. |
Mode of inspection |
54. |
Inspectors not to be personally liable for acts done by them under this Act |
55. |
Extension of the application of this Act |
56. |
Regulations |
57. |
Application to works created before and after commencement of this Act |
58. |
Repeal |
Schedule [as amended in 2001]
Date of Act (No. 9): April 26, 1989; of amendatory Law (No. 2): November 2, 1989. Date of entry into force: May 8, 1989. Observation: According to Article 58 of the present Act, "The Copyright Act (of 1965) is hereby repealed".
PART I PRELIMINARY
Short title and commencement
1. This Act may be cited as the Copyright Act, 1989, and shall come into operation on such date as the Minister may appoint by notice in the Gazette.
Interpretation
2. In this Act, unless the context otherwise requires "adaptation":
(a) in relation to a literary work, (whether the work is in its original language or in a different language) in non-dramatic form, means a version of the work in a dramatic form; or
(b) in relation to a literary work (whether in its original language or in a different language) in a dramatic form, means a version of the work in a non-dramatic form; or
(c) in relation to a literary work (whether in a non-dramatic form or in a dramatic form) means
(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; or
(d) in relation to a musical work, means an arrangement or transcription of the work;
"artistic work", irrespective of artistic quality, means any of the following works:
(a) paintings, drawings, etchings, lithographs, woodcuts, engravings, product of photogravure and prints; or
(b) photography not comprised in a cinematograph film; or
(c) maps, plans, charts or diagrams; or
(d) sculpture; or
(e) works of architecture in the form of buildings or models; or
(f) works of applied art, whether handicraft or produced on an industrial scale;
"association" means an association of persons whose works are protected under this Act; "audio-visual work" means a fixation in any physical medium of images synchronized with or without sound from which a moving picture may by any means be reproduced and includes cinematograph films, videotapes and videograms but does not include a broadcast; "author" means the person who creates a work, and:
(a) in the case of a cinematograph film or sound recording, means a person by whom arrangements for the making of the film or recording were undertaken; and
(b) in the case of a broadcast transmitted from within a country, includes the person by whom the arrangements for the making of the transmission within that country were undertaken;
"Board" means the Board for the management of the Society as referred to in section 46; "broadcast" means the transmission of programmes or materials for reception by the general public over a distance by means of radio, television, electromagnetic emissions, light beams, wire cable or other means; "broadcasting organization" means the Malawi Broadcasting Corporation, established by the Malawi Broadcasting Act and any other broadcaster whether licensed under that Act or any other written law; "building" includes any structure; "choreographic work" means a dance composition or design by a dance composer of dance patterns which may be used as blue print for unified dance presentations on stage or in recordings of any kind regardless of how long they may last; "commissioned work" means a work created in pursuance of a contract between the author and an individual or a legal entity commissioning a specified work from the author against an agreed author's fee; "communication by cable", in relation to a work, means transmission over wires or other paths provided by a material substance of the work, production or performance of the work; "communication to the public" means making a work accessible to the public; "computer software" means a set of instructions, whether expressed in words or in schematic or other form, which is capable, when incorporated in a machine-readable medium, of causing an electronic or other device having information processing capabilities to indicate, perform or achieve a particular function, task or result; "copy" means a reproduction of a work in a written form, or in the form of a recording or in any other material form, but an object shall not be taken to be a copy of an architectural work unless the object is a building or model; "copyright" means copyright protected under this Act; "derivative work" means a work resulting from adaptation, translation or other transformation of an original work in so far as it constitutes an independent creation; "distribution" means the distribution to the public for commercial purposes of copies of a work or production by way of sale, rental, lease, hire, loan or similar arrangement; "distributor" means the person who decides that the distribution should take place; "dramatic work" includes:
(a) a choreographic show or entertainment in dumb show;
(b) a scenario or script for an audiovisual work but does not include the audio-visual work;
"engraving" does not include a photograph; "fixation" means the embodiment of images or sounds or both in a material form sufficiently permanent or stable to permit them to be perceived, reproduced or communicated; "folklore" means all literary, dramatic, musical and artistic works belonging to the cultural heritage of Malawi created, preserved and developed by ethnic communities of Malawi or by unidentified Malawi authors, and includes, in particular:
(a) folk tales, folk poetry and riddles;
(b) folk songs and instrumental folk music;
(c) folk dances, plays and artistic forms of rituals;
(d) production of folk art, in particular drawings, paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewellery, baskets and costumes;
(e) traditional musical instruments; and
(f) any works designated as such by the Minister by notice published in the Gazette;
"infringement of copyright" has the meaning assigned thereto in section 47; "infringing copies of a work" means copies of a work produced by any process and in any form the making of which involves infringement of the copyright in the work or the rights granted to performers, broadcasters and producers of sound recordings under this Act and includes copies the making of which infringes the provisions of this Act relating to folklore; "literary work" irrespective of literary quality, includes any of the following:
(a) novels, stories or poetical works;
(b) plays, stage direction, film scenario or broadcasting scripts;
(c) textbooks, treatises, histories, biographies, essays or articles;
(d) encyclopaedias, dictionaries, directories or anthologies;
(e) letters, reports or memorandum;
(f) lectures, addresses or sermons; and
(g) computer programs;
"manuscript", in relation to a work, means the original document embodying the work whether written by hand or otherwise; "musical work" includes any musical work irrespective of its musical quality, and includes words composed for musical accompaniment; "performance" means the presentation of a work by such action as dancing, playing, reciting, singing, delivering, declaiming or projecting to listeners or spectators, live or by any means whatsoever; "performer" means actor, singer, declaimer, musician, or other person who performs a literary or artistic work and includes the conductor or director of a performance of any such work; "photograph" includes photolithograph and other work produced by any process analogous to photography but does not include any part of an audio-visual work; "plate" means any material object in which a work, production, performance or edition has been embodied and by the means of which copies or reproductions of the work, production performance or edition may be made; "public performance" means the performance of a work which is presented to listeners or spectators not restricted to specific persons belonging to a private group; "publication of a sound recording" means the offering of a sound recording to the public in a quantity sufficient to satisfy a reasonable demand for the sound recording; "published works" means works reproduced with the consent of their authors in copies made available to the public in a quantity sufficient to satisfy a reasonable demand for the work; "rebroadcasting" means the simultaneous or subsequent broadcasting in part or in whole by one broadcasting organization of the broadcast of another broadcasting organization; "reproduction" means the making of one or more copies of a literary, dramatic, musical or artistic work or expressions of folklore or fixation in any material form including any audio-visual work or sound recording, and in the case of an artistic work, includes converting a work into a three-dimensional form or, if existing in a three-dimensional form, converting it into a two-dimensional form; "Society" means the Copyright Society of Malawi established under section 41; "sound recording" means:
(a) a recording of sounds from which the sounds may be reproduced;
(b) a recording of a literary, dramatic or musical work from which sounds reproducing the work may be produced,
in either case, regardless of the medium on which the recording is made or the method by which the sounds are reproduced; "work" means any work or other matter in which copyright subsists under this Act; "works of applied art" means an artistic work applied to objects for practical use whether handicraft or works produced on industrial scale; "works published in Malawi" includes works published abroad but thereafter published in Malawi within thirty days; "works of joint authorship" means a work created by the collaboration of two or more authors in which the contribution of each author is not separable from the contribution of the other author or authors.
PART II COPYRIGHT
Copyright
3. Subject to the provisions of this Act, an author of any work shall, by the mere fact of its creation, enjoy an exclusive property right in the work against all persons.
Works in which copyright subsists
4. (1) Copyright shall subsist in accordance with this Act in:
(a) literary, dramatic, musical and artistic works:
(i) of an author who is a national of, or is resident in, Malawi; (ii) which are first published in Malawi, irrespective of the nationality or residence of their authors;
(b) expressions of folklore developed and maintained in Malawi;
(c) performances, if:
(i) the performer is a national of Malawi; or (ii) the performance took place in Malawi; or (iii) the performance is fixed in a sound recording qualifying for copyright under paragraph (d); or (iv) the performance, which has not been fixed in a sound recording, is embodied in a broadcast qualifying for protection under paragraph (e);
(d) audio-visual work and sound recording, where:
(i) the producer of audio-visual work or sound recording is a national of, or is resident in, Malawi; or (ii) the first fixation of the audiovisual work or sound recording was made in Malawi; or (iii) the audio-visual work or sound recording was first published in Malawi;
(e) broadcasts, where: