SAKALA,
J.: The plaintiff's claim is for
an injunction to restrain the defendant whether by himself or by
his servants or agents from
infringing the plaintiff's copyright
by communicating to the public or authorising or procuring
communication to the public
of the musical worlds "Kung Fu
Fighting", "House of Exile", and "Money
won't save you" or
any other musical works the copyright of
which vests in the plaintiff. The plaintiff also claims for
damages.
In
support of the claim, PW1 Ronald Clarence Chipumza an accountant
with Lightfoot Advertising told the court that he is
also the
Zambian Agent for the Performing Right Society Limited, the
plaintiff
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in
this case. He testified that the objective of the plaintiff is to
protect copyright of music writers, artists and composers.
The
society represents them and collects fees on behalf of its
members which in the end is distributed to the members.
In
Zambia, the position of the plaintiff is to represent the
copyright of the affiliated societies throughout the world.
He
testified that in early 1975, a search was conducted at the
defendant's premises to determine the extent to which the
copyright of the society members was being violated. He told the
court that in September, a letter was sent to the defendant
advising him that the plaintiff's copyright was being infringed.
Another letter was sent in October 1975, reminding the
defendant
of the consequence of performing copyright music without the
consent of the copyright owner. The witness further
testified
that he also wrote the defendant suggesting to him to take out
the society's licence. But there was no reply
to any of the
letters. Further, the defendant made no attempt to arrange for a
meeting. In the end the matter was referred
to the plaintiff's
solicitors. The witness further testified that he physically, on
several occasions made searches at
the defendant's premises.
First of the occasions was on the 4th April 1975. He discovered
that the Society's copyright
was being infringed. The inspections
were carried out, after the defendant failed to reply to the
correspondence. At the
time of the inspections, the songs that
were being performed were "Kung Fu Fighting", "House
of Exile",
and "Money won't save you". These last
two songs were composed by Jimmy Cliff while "Kung Fu
Fighting"
was by Carl Douglas. He testified that the
copyright in these works
subsists in the plaintiff. The witness also told the court that
after the institution of the present
proceedings, he carried out
another search at the defendant's premises on the 11th July,
1978. It was again established
that the copyright of the society
was still being violated. He said about five searches in all were
carried out by him
personally. He said that other works of the
plaintiff are still being infringed in addition to those
specifically mentioned
in the pleadings.
The witness
further testified that the fees collected by the society on
behalf of its members are calculated on the basis
of the number
of people who attend a dance. The calculation is K2.00 per fifty
people per dance. He said on the five occasions,
he inspected the
defendant's premises, he observed that about fifty to sixty
people were present on each occasion. The
inspections were
carried out on different days of the week. The royalty fees at
K2.00 per fifty persons per dance amount
to K2.00 per night.
In
cross-examination, the witness said that in his letters to the
defendant, the records "Kung Fu Fighting", "House
of Exile", and "Money won't save you", were not
mentioned. He also said there are several versions of "Kung
Fu Fighting" by different artists. He said at the time he
entered the defendant's premises for inspection, he paid
K2.00
and apart from the three records he heard, there were many others
playing. He did not approach the defendant and
did not ask him
not to play the records in question. He said it was possible that
the defendant was not aware of the infringement
of the copyright.
He told the
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court that it
was on the 26th April 1976, when he heard the three records being
played. The witness said after the 11th
November 1976, his lawyer
advised him that the defendant had indicated that he will not
play the three records again although
he was not sure that the
copyright was vested in the plaintiff. He said the writ of
summons was issued on the 11th November
1976. He said it was
possible that one could innocently play the records without
knowing whose works they are.
In
re-examination, he told the court that from the correspondence
sent to the defendant, the defendant must have or ought
to have
been aware that he was infringing the plaintiff's copyright. This
was prior to the institution of the proceedings.
He said in
addition a pamphlet was sent to the defendant. In answer to
questions by court, the witness said the copyright
of the records
has nothing to do with the plaintiff but the musical works.
In defence, DW1
Francis Anthony Hickey testified that he is one of the
proprietors of Bar - B-Que Drive-in Restaurant. He
agreed that on
the 26th April 1976, he caused to be heard in public three
records namely, "Kung Fu Fighting",
"House of
Exile", and "Money won't save you". He said it is
not his intention to carry on breaking
the copyright. He said
before then he received several letters from the plaintiff's
solicitors asking him to stop playing
copyright music. But he did
not know what they were asking him. He has never in his life
heard that there is copyright
in music. He testified that he has
bought records and played them. The letters he received did not
mention any specific
records and the pamphlet he received did not
specify the music. He said he only realised that the letters
referred to "Kung
Fu Fighting", "House of Exile",
and "Money won't save you" when he approached his
lawyer who explained
to him. Otherwise before then he had no
idea. He said he does not intend to play these records until he
obtains the licence
from the rightful owner. He told the court
that nobody approached him at his restaurant asking him to stop
playing the
records. He said he holds about one dance a week
depending on the licence allocated to him by the police.
In
cross-examination, he said on receipt of the various letters from
the plaintiff, he asked his various friends who run
discos and in
their case, they did not know anything of copyright and as he was
a beginner himself, he thought that these
letters were some sort
of a money making racket. He said he does not remember whether he
read the pamphlet sent to him.
He said he understood the word
copyright to mean that you cannot manufacture the item in
question.
At the end of
this witness's evidence, both learned counsel made submissions. I
have very carefully addressed my mind to
the evidence in support
of this claim and the defence thereto. I have also considered the
submissions. According to the
evidence and pleadings, it is not
in dispute that the copyright of the musical works "Kung Fu
Fighting" "House
of Exile", and "Money won't
save you" vests in the plaintiff. It is also not in dispute
that the defendant
is one of the proprietors of the Bar - B-Que
Drive-in Restaurant. It is also not disputed that the defendant
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on or about the
26th April 1976, caused to be heard in public without a valid
licence issued by the plaintiff and without
the authority of the
plaintiff the three musical works. It appears also not to be in
dispute that the plaintiff is entitled
to royalty fees in respect
of the public performance of musical works the copyright of which
is vested in them. It also
appears not to be in dispute that
several letters were written by the plaintiff drawing the
attention of the defendant
to the infringement of the copyright
of the musical works of the plaintiff's members. From the various
letters written
no specific musical works was mentioned. It is
not disputed that the three musical works cited have the origin
in the UK
one of the countries listed in the schedule to the
Copyright Act, Cap. 701.
The contention
by the plaintiff is that, they have lost royalty fees by reason
of the defendant's refusal and or negligence
to take out the
plaintiff's licence. As a result, they are claiming for an
injunction to restrain the defendant by himself
or its servants
or agents from causing to be heard in public at the defendants'
premises the said musical works or any
other such work the
copyright of which vests in the plaintiff or from authorising
performance without a licence from the
plaintiff. They also ask
for damages for infringement of the copyright.
The defendant's
contention is that, while it is conceded that he caused the sound
recording of the three musical works on
the 26th April 1976, he
did not know that copyright existed in any of the said records.
He was not aware at any time and
had no reasonable grounds for
suspecting that the plaintiff were the owners of the copyright in
the said sound recording.
It is further the contention of the
defendant that they have no intention of causing the said sound
recording to be heard
again in his establishment without the
licence of the right owner of the copyright.
It will be
observed from the evidence and the documents available that the
only musical works specifically pleaded and testified
to are the
three records, namely, "Kung Fu Fighting", "House
of Exile" and "Money won't save you".
The other
musical works have not been named and this court does not know
them. The repertoire allegedly sent to the defendant
containing
the other works the copyright of which is vested in the plaintiff
was not produced to this court. In the circumstances,
I cannot
speculate or assume that the defendant infringed any other
musical works of which the copyright vests in the plaintiff.
It
will also be observed from the bundle of agreed documents that in
all the letters sent to the defendant, the three records
were not
mentioned. It will also be observed that nobody from the
plaintiff's side specifically told the defend ant the
records
whose copyright he was infringing. According to the evidence of
PW1, he visited the defendant's premises five times.
One of the
visits was made on the 26th April 1976. He specifically said that
on this day, he found the three records mentioned
in the
pleadings being played. His evidence is not clear as to what
records were being played on the other four occasions
when he
visited the defendant's premises. The nature of the claim in this
action in my view depends on the number of musical
works
infringed and the specific days of the infringement.
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In the
circumstances, I do not think it would be competent for this
court to assume that on the other four occasions, when
PW1
visited the defendant's premises, it was the three records
pleaded which were being played in the absence of any evidence
direct or circumstantial.
It
was also argued that the three works specifically mentioned in
the pleadings were intended to show that the plaintiff
was
entitled to copyright and as such, it was found not only
impracticable but impossible to have produced before the court
the mountain of documentation to establish copyright of the
entire repertoire of the plaintiff. This argument, in my view
begs the question. The argument on behalf of the plaintiff as I
understand it is that, they are not primarily concerned
with the
quantum of damages but royalty fees. They also seek for an
injunction which must not only be in respect of the
three musical
works but all the other musical works. If royalty fees are based
on a number of people per dance how does
this court know that the
dances at the defendant's
premises involved only the musical works of the plaintiff? If the
injunction has to be in respect of all other
musical works of the
plaintiff how does the court's order distinguish the plaintiff's
musical works from the other works
in particular, when there is a
clear admission from the defendant that they only infringed three
musical works on one day
only and
that they play other records other than the three. For my part,
there was nothing impracticable or even impossible for
the
plaintiff to produce the repertoire and list the musical works of
its members for which they are seeking damages, royalty
fees and
injunction. At the least, evidence of specific other works other
than the three would have been adduced. As it
is the only
evidence before me relates to three musical works which have
actually been pleaded. The statement of claim
only pleads
infringement of the copyright of these three works for only a
day, namely, the 26th April, 1976. On a consideration
of the
totality of the evidence before me, I am satisfied and find as a
fact that the defendant infringed the copyright
of the three
musical works of the plaintiff for only one day as pleaded.
The defence is
that, the performance was done innocently and under mistake. The
submission on behalf of the defendant was
that, in matters of
copyright infringement it is a good defence that at the time of
the infringement the defendant was
not aware and had no
reasonable grounds for suspecting that copyright subsisted. A
further submission on behalf of the
defendant is that, if the
plaintiff suffered any damage, the damages should only relate to
one day as pleaded. In the circumstances,
counsel for the
defendant urged that the damages should be either nominal or nil.
It is conceded on behalf of the defendant
in the submissions that
the granting of an injunction cannot be opposed and was never at
any stage objected to. The plaintiff's
contention is that, regard
being had to all the correspondence sent to the defendant, the
defence of innocence must be
rejected.
The law
governing copyright of musical works and others in Zambia is
contained in the Copyright Act, Cap. 701. I must confess
that in
my research, I have not come across any Zambian authority based
on the
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Copyright Act.
Even in the submissions, I was not referred to any local decided
cases. Musical works under the Act is eligible
for copyright.
Infringement of copyright is specifically provided for in s. 13
of the Act. Section 13 (1) reads as follows:
"Copyright
shall be infringed by any person who does, or causes any other
person to do, an act falling within the copyright
without the
licence of the person in whom is vested either the whole of the
copyright or, where there has been a partial
assignment or
partial testamentary disposition, the relevant portion of the
copyright."
In the instant
case, the defendant admits that on the 26th April 1976, he did
perform or cause the performance of the three
musical works
without a licence.
Section 13 (2)
of the Copyright Act states as follows:
"Subject
to the provisions of this Act, infringements of copyright shall
be actionable at the suit of the owner of
the copyright; and in
any action for such an infringement all such relief, by way of
damages, injunction, accounts or otherwise,
shall be available to
the plaintiff as is available in any corresponding proceedings in
respect of infringement of other
proprietary rights."
The plaintiff
claims in this action for an injunction, to retrain the defendant
whether by himself or by his servants or
agents from infringing
the plaintiff's copyright by communicating to the public or
authorising or procuring communication
to the public of the
musical works "Kung Fu Fighting", "House of
Exile", and "Money won't save
you", or any other
musical works the copyright of which vests in the plaintiff. He
also claims damages. Section 13
(3) provides a defence to
infringements of copyright. The subsection reads as follows:
"Where
in an action for infringement of copyright it is proved or
admitted
(a) that
an infringement was committed; but
(b) that
at the time of the infringement the defendant was not aware, and
had no reasonable grounds for suspecting, that
copyright
subsisted in the world or other subject-matter to which the
action relates;
the
plaintiff shall not be entitled under this section to any damages
against the defendant in respect of the infringement,
but shall
be entitled to an account of profits in respect of the
infringement whether any other relief is granted under
this
section or not."
In the instant
proceedings, the infringement of the copyright of the three
musical works for one day only is not only proved
but also
admitted to have been committed. The contention on behalf of the
defendant is that, at the time of the infringement
he was not
aware and had no reasonable grounds for suspecting, that
copyright subsisted in the three works. The evidence
adduced by
the plaintiff is that, the three musical works were
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never mentioned
in their correspondence to the defendant. While there is evidence
that PW1 visited the defendant's premises
there is no evidence
that he personally spoke to him on these infringements.
As already
mentioned, the defence raised is one of innocence. Quite clearly
s. 13 (3) of Cap. 701 provides a good defence
of innocence of
infringements of copyright. Although there is no decided
authority in Zambia where this defence has been
successfully
pleaded, English decisions based on the English Copyright Act of
1956 (although the Act is not applicable
to Zambia) have very
strong persuasive value in particular, bearing in mind that the
wording of s. 13 (3) of Cap. 701 is
the same as s. 17 (2) of the
English Copyright Act, 1956. The English section reads as
follows:
"Where
in an action for infringement of copyright it is proved or
admitted
(a) that
an infringement was committed, but
(b) that
at the time of the infringement the defendant was not aware, and
had no reasonable grounds for suspecting, that
copyright
subsisted in the work or other subject-matter to which the action
relates,
the
plaintiff shall not be entitled under this section to any damages
against the defendant in respect of the infringement,
but shall
be entitled to an account of profits in respect of the
infringement whether any other relief is granted under
this
section or not."
Innocence as a
defence under this section has been considered in a number of
English cases reference to which will be found
in Halsbury's Laws
of England, 4th ed., Volume 9 at para 938, p. 602. Part of that
paragraph reads as follows:
"In
general, any invasion of a right of property gives a cause of
action to the owner against the person responsible
for the
invasion, whether it is intentional or not. Consequently,
innocence is no defence to an action for infringement
of
copyright or for the conversion or detention of any infringing
copy or a plate.Where, however, it is proved or admitted
in an
action for infringement that an infringement was committed, but
that at the time of the infringement the defendant
was not aware
and had no reasonable grounds for suspecting that copyright
subsisted in the work or other subject matter
to which the action
relates, the plaintiff is not entitled to damages, but is
entitled to an account of profits whether
any other relief is
granted or not."
On the evidence
before me, I am satisfied and find as a fact that at the time of
the defendant's admitted infringement,
he was not aware and had
no reasonable grounds for suspecting that copyright subsisted in
the plaintiff's three musical
works. This being the case, I hold
that the plaintiff is not entitled to any damages against the
defendant in respect of
the infringement. The section on the
other hand provides an alternative to damages in that the
plaintiff is entitled to
an amount of profits in respect of the
infringement whether any other relief is granted or not.
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On the
defendant's admission of the infringement of the plaintiff's
copyright of the three musical works on 26th April 1976,
I hold
that the plaintiff is entitled to the profits made on that day.
As to quantum, I grant the parties liberty to apply
in chambers.
The defendant at least from evidence does not appear to object to
the injunction being granted. In the circumstances,
I grant the
injunction as prayed in respect of the three musical works
pleaded. I make no order as to costs.
Delivered in
open court at Lusaka this 8th day of December 1978.
Injunction
granted
Order for profits
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