NDOU J: Both accused persons
were convicted by a Bulawayo Magistrate in different trials. I propose to deal with both these matters
under this judgment as the problem that I am concerned with is similar. I referred the matters to the Office of the
Attorney General and they indicated that they do not support the convictions in
these matters.
The salient facts of these matters
are the following. The members of an
organisation going under the name of the Zimbabwe Anti-Piracy Organisation, in
conjunction with the Zimbabwe Republic Police carried out raids at businesses
that were selling copied compact discs and so called DVDs. The accused persons were selling or
displaying for sale these items resulting in their arrest and prosecution for
"selling or hiring out" [in respect of
Moyo] and possession [in respect of Tshaba] infringed copies of DVDs and
CDs in contravention of section 59 of the Copyright and Neighbouring Rights Act
[Chapter 26:05]. This is novel prosecution in this region for
the protection of the creations of the human mind. This is a welcome development in our
jurisdiction where copyright infringement is very rife but enforcement is
extremely low. This scenario has
resulted in the confusion of the public as to the source of the goods, products
or service. In the circumstances
intellectual property rights infringement has to be curbed with zeal and
determination. Having said so, I should
hasten to say that such a battle has to be within the confines of our
procedural law. This then brings me to
the procedural flaws in these two cases.
In order to enhance the appreciation of the offences the accused persons
were facing I propose to cite section 59 which creates the offences. Section 59 provides:
"(1) Any person shall be
guilty of an offence if, at a time when copyright subsists in a work, he does
any of the following things in Zimbabwe
without the authority of the owner of the copyright in the work-
(a)
in relation to an article which
is an infringing copy and which the
person knows or has reason to believe is an infringing copy -
(i)
he makes it; or
(ii)
otherwise than for his personal
and private use, imports it into Zimbabwe
or exports it from Zimbabwe;
or
(iii)
in the cause of business, he possesses it or exhibits it in
public or distributes it; or
(iv)
he sells it or lets it for hire
or offers or exposes it for sale or hire; or
(v)
otherwise than in the course of
business, he distributes it to such an extent that the owner of the copyright
is prejudicially affected;
(b)
in relation to an article which
is specifically designed or adopted for making copies of the work and which the
person knows or has reason to believe is to be used for that purpose -
(i)
he makes it; or
(ii)
he imports it into Zimbabwe or exports it from Zimbabwe; or
(iii)
he possesses it in the course
of business; or
(iv)
he sells it or lets it for hire
or offers or exposes it for sale or hire.
(2)
Any person who causes a
literary or musical work to be performed in public knowing that copyright
subsists in the work and the performances constitutes an infringement of the
copyright, shall be guilty of an offence.
(3)
.
(4)
.
(5)
A person guilty of an offence
under this section shall be liable to a fine not exceeding level ten or to
imprisonment for a period not exceeding two years or both such fine and such
imprisonment in respect of each article to which this offence relates."
In the Moyo
case:
The accused was charged in count 1 for
contravening section 59(1)(a)(iv) i.e. selling infringing copies of DVDs and
CDs. When the essential elements were
canvassed this is what he was asked,
"Q Is it
correct that on the 1st of February 2008 and at 42 Nicoz House, Bulawayo you offered for
sale or hire 50 blank CDs and 49 DVDs which were infringed copies without the
owner's consent?
A - Yes
Q Correct that you had reason
to believe that the DVDs were infringed copies?
A - Yes
Q - What
was your intention?
A - I
wanted to raise money for my school
Q - Do
you have any defence to offer
A - No
Q - Any
lawful right?
A - No
Q Is your
plea a genuine admission of the charge, facts and essential elements as put to
you?
A - Yes
Verdict: Guilty as charged."
There are several problems with this
count. First, the charge sheet alleges
the CDs and DVDs were blank. This
implies that there was nothing copied in the CDs and DVDs. Without copying there is obviously no
infringement if they are blanks, unless if it is a trademark infringement under
the Trade Marks Act [Chapter 26:04].
Second, there is no essential
element canvassed on which copyright is allegedly infringed. Who is the owner of such copyright?
Third, there is no essential element
canvassed on the subsistence of copyright at time. The elements of the charge have not been
satisfactorily explained and the conviction cannot stand - S v Svondo
1984 (1) ZLR 140 (H). It is trite law
that the trial magistrate must ensure that the accused fully understands the
nature of the charge. To do this, he/she
should examine the charge before it is put to the accused in order to remedy
any defects and to clarify any obscure points.
The court must also ensure that several elements of the offence are
understood and admitted by the accused - Criminal Procedure in Zimbabwe by
J Reid Rowland at p 17-6; S v Sikarama & Anor 1984 (1) ZLR
170 (H) and S v Dube & Anor 1988(2) ZLR 385 (S).
In count 2 the accused was charged
with "possession of equipment designed or adopted for making infringed copies"
in contravention of section 59(1)(b)(iii).
There are equally many flaws in this count. First, the penalty clause refers to specifically
designed or adopted articles. The charge
sheet and the facts do not allege that the articles in question were specifically
designed or adopted. So on essential
elements of the offence is missing from the charge sheet. Second, I am indebted to Mr W. Mabaudhi who
made written representations on behalf of the Attorney General. He stated:-
"The possession of an ordinary
computer capable of burning music CDs and DVDs cannot on its own constitute an
offence. Modern computers are being
manufactured with those basic drives.
From the reading of the record of the court a quo there is
nothing peculiar about the computer that was taken as an exhibit and later
forfeited to the state. No evidence was
established from the summary trial that it was used in the commission of any
offence. It is for these reasons that the
Attorney General's Office will not support the convictions."
The essential elements explained to
the accused in count 2 are not consistent with those in the offence created
under section 59(1)(b)(iii).
In the Tshaba case
At least these were infringing
copies. The only problem is that there
is no element that copyright was still in subsistence. The trial magistrate made an erroneous
assumption that the mere possession of non-original copies of work of art
constituted an offence under this Act.
It is vital that the charge should be framed pursuant to the provisions
of the Act.
In view of the above, the
convictions cannot stand.
Accordingly, the convictions in
these two matters are quashed and sentences set aside. It is ordered that trials de novo take place
before a different magistrate.
Kamocha
J ........... I agree
