THE DEVELOPMENT OF MODERN COPYRIGHT LAWS IN THE
SADC REGION: THE CASE OF BOTSWANA
BY
John Kiggundu
LLB (Hons) (Makerere), LLM, PhD (London), Dip.L.P (LDC), FSALS
Associate Professor, Department of Law, University of Botswana
Research Fellow, University of South Africa
2
I.
INTRODUCTION
Botswana is a landlocked country in Southern Africa lying between 17 and
27S latitude and 20 and 30 E longitude. It is at an average altitude of 1, 000
metres.
It is bordered by Namibia to the West and North, Zambia and
Zimbabwe to the North and Northeast, and South Africa to the South and
South East. It is a very large country with a surface area of 581,730 square
kilometres but with a small population of 1,347,569. The Kalahari Desert
covers a large part of the country especially in the West. The climate is hot
and dry most of the year round and drought is a constant threat1.
Botswana has a dual legal system. The received Roman-Dutch law prevails
alongside the customary law of the various tribes. The court structure is also
dual. The main courts administer the general law, while the customary courts
administer customary law2.
Botswana has four national principles: democracy; development; self-reliance;
and unity. The principles are derived from the traditional culture of Botswana
and, taken together are designed to promote social harmony. In planning
national development the government is guided by form objectives: sustained
development; rapid economic growth; economic independence; and social
justice.
1
See further Kiggundu, J., Legal Aspects of Doing Business in Botswana in: Campbell, D
(Ed) Legal Aspects of Doing Business in Africa (Kluwer Law International, The Hague
1997) p.1.
2
Ibid., pp.1-2.
3
At the time of independence in 1966, Botswana was one of the poorest
countries in Africa. An overwhelmingly rural population depended mainly on
agriculture for a livelihood. Beef production was the mainstay of the economy
in terms of output and export earnings. Apart from the railway line running
through Botswana from South Africa to Zimbabwe, communications and
infrastructure were barely developed. Prospects for rapid development of the
economy seemed bleak, and the government was dependent on foreign aid not
only for all its investment projects, but also to finance its recurrent
expenditures. The last 40 years since independence have seen a remarkable
economic transformation3.
Since the 1970’s, Botswana’s mineral endowment has been central to the
country’s rapid economic development. The mineral sector has underpinned
Botswana’s rapid economic growth and development.
The main mineral
exports of the country are diamonds, copper, nickel, soda ash, salt, and small
quantities of gold. Diamonds are the country’s major export. Botswana is one
of the world’s leading diamond producers both in terms of quality and
quantity. The country has a thriving tourist industry.
The overall goals of the Botswana government involve economic
diversification, increased international competitiveness, promotion of nontraditional exports, sustainable development, and employment creation
throughout the country.
In order to achieve such goals, the government
considers it essential to provide an enabling environment. The government
achieves this through the provision of efficient support services, a sound social
3
Republic of Botswana, National Development Plan 8 (Government Printer, Gaborone, 1999)
p.17.
4
infrastructure and the maintenance of macro economic stability. To this end,
the government is committed to increasing the private sector’s participation in
the country’s economic growth. In support of a conducive policy environment,
the government has pursued, as its strategy, disciplined fiscal and antiinflationary monetary policies, a decreasing rate of corporate tax, a liberalised
foreign exchange regime, and realistic interest and exchange rates politics, with
a resultant strong balance of payment position4. Botswana is now one of the
most economically prosperous countries in Africa. As part of its efforts to
create a conducive business environment the government has embarked on a
comprehensive programme of modernising the country’s laws especially those
which directly impact on business and investment. Intellectual property law is
one of those areas where the law has undergone tremendous reform.
Botswana is a member of the Southern African Development Community
(SADC).
This is a regional trade arrangement whose other members are
Angola, the Democratic Republic of Congo, Lesotho, Malawi, Mauritius,
Mozambique, Namibia, Seychelles, South Africa, Tanzania, Zambia and
Zimbabwe.
The main objective of SADC is to achieve development and economic growth,
alleviate poverty, enhance the standard and quality of life of the people of
Southern Africa and support the socially disadvantaged through regional
integration5.
4
See Botswana Review of Commerce and Industry (15th edn) p.5.
5
See Article 5 (1) (a) of the SADC Treaty (2001).
5
The laws within SADC are not homogeneous6, but there are national as well as
regional efforts to harmonise these laws. Countries such as Botswana and
South Africa have made great strides to modernize their various laws
especially in the commercial law area. This paper is an examination of the
efforts that Botswana has made to modernize its copyright laws.
II.
THE
PROTECTION
OF
COPYRIGHT
AND
NEIGHBOURING
RIGHTS
A.
COPYRIGHT PROTECTION
The object of copyright is to protect creative individuals such as authors
and artists from having their work copied or reproduced without their
authorization7. Copyright is fundamentally different from a patent, a
design or a mark in that legal protection is automatic. This means that a
work protected by copyright does not have to be registered with a
government agency in order to gain legal protection. Copyright law is
concerned with the copying of actual words or other physical material,
as opposed to reproduction of ideas. Copyright is a form of property
which may be sold or licensed for use by others, typically by way of
contract for the publication of the work8.
6
This is mainly because the various countries within SADC were ruled by different colonial
powers. South Africa, Botswana, Swaziland, Zimbabwe, Lesotho, Malawi and Zambia were
ruled by Britain. Namibia was ruled by Germany and South Africa. The Democratic
Republic of Congo was ruled by Belgium. The Seychelles and Mauritius were ruled by both
the French and the British, while Angola and Mozambique were Portuguese colonies.
7
See A. Briscoe and J. Kiggundu, A Guide to Intellectual Property Law in Botswana (Morula
Press, Gaborone 2001) p.16.
8
Briscoe and Kiggundu op cit (note 7) loc cit.
6
The British Imperial Copyright Act 1911 was made operable in
Botswana by Order in Council9. When Britain enacted the Copyright
Act 1956 this too was made operable in Botswana in 1965 by Statutory
Instrument10. When Botswana became independent in 1966, the British
Copyright Act 1956 continued in force11.
Although the concept of
copyright existed in Botswana, the majority of the people never used the
term “copyright” and did not even know what it meant. Most people did
not even realize that Botswana had a Copyright Act12.
The Botswana Copyright Act 1956 had numerous limitations and
shortcomings. It was obscure, bulky, outdated and complicated. It was
not suited to Botswana’s social and economic conditions and aspirations.
Most importantly, it did not protect folkloric works, moral rights and
neighboring rights. Botswana required a copyright law which would
reflect its social and economic values and aspirations as well as national
and international technological developments. By April 1998, Botswana
had acceded to the TRIPS Agreement, the WIPO Convention 1970 and
the Paris Convention 1883.
In addition to these two Conventions,
Botswana is a party to the Berne Convention for the Protection of
Literary and Artistic Works 1886. Moreover, two other treaties were
9
No. 35 of 1912.
10
The Copyright (Bechuanaland) Order 1965 (S.I 1965/2009).
11
See the Botswana Independence Act 1966 (Cap 23) and the Botswana Independence Order
(S.I 1966/117). This is an example of dependent legislation continuing in force in a country
after it has gained independence. See further, Segopolo, S.M.A. ‘Development and Current
Status of Copyright Protection in Botswana’ (WIPO/CNR/GBE/97/2) page 3.
12
Segopolo, S.M.A. ‘Development and Current Status of Copyright Protection in Botswana’
(WIPO/CNR/GBE/97/2) page 3.
7
adopted in December 1996 under the auspices of WIPO, namely, the
WIPO Copyright Treaty (WCT) and the WIPO Performances and
Phonograms Treaty (WPPT).
Botswana has ratified both of them.
Additionally, Botswana is a member of the African Regional Intellectual
Property Organisation (ARIPO)13. The ratification of these Conventions
and Agreements placed an obligation on Botswana to revise the laws
providing for the protection and regulation of copyright so as to bring
the levels of protection and type of works protected in line with
international standards.
These reforms were introduced by the
Copyright and Neighboring Rights Act 200014. This Act was recently
amended by the Copyright and Neighbouring Rights (Amendment) Act
200515. It is to these reforms that we now turn.
(i)
Protected works
A literary16 or artistic work17 is not protected by copyright under
the Act unless it is an original intellectual creation in the literary
13
This organization was established by the Lusaka Agreement 1976. One of its aims is to
promote the harmonization and development of the Industrial property laws and matters
related thereto, appropriate to the needs of its members and of the region as a whole
particularly English-speaking Africa.
14
Now Chapter 68:01, Laws of Botswana (LRO 1/2002).
15
Act No. 6 of 2006.
16
‘Literary
17
‘Artistic
work’ means any work, other than a dramatic or musical work, which is written,
spoken or sung, and accordingly includes a table of compilation and a computer programme.
See Copyright and Neighbouring Rights Act 2000, s.2.
work’ means: (a) a graphic work, photograph, sculpture or collage, irrespective of
its artistic quality; (b) a work of architecture being a building or a model of a building
irrespective of its artistic quality; and (c) a work of artistic craftsmanship not falling within
8
or artistic domain18.
The types of literary and artistic works
protected by the act include:
(a)
books, pamphlets, articles, computer programmes and other
writings;
(b)
speeches, lectures, addresses, sermons and other oral
works;
(c)
dramatic,
dramatic-musical
works,
pantomimes,
choreographic works and other works created for stage
productions;
(d)
stage productions of works referred to in paragraph (a) and
of expressions of folklore;
(e)
musical works with or without accompanying words;
(f)
audiovisual works;
(g)
works of architecture;
(h)
works
of
drawings,
painting,
sculpture,
engraving,
lithography, tapestry and other works of fine art;
paragraph (a) or (b) irrespective of its artistic quality: see Copyright and Neighbouring
Rights Act 2000, s.2.
18
Copyright and Neighbouring Rights Act 2000, s.3 (1).
9
(i)
photographic works;
(j)
works of applied art; and
(k)
illustrations, maps, plans, sketches and three-dimensional
works relative to geography, typography, architecture or
science19.
It can be seen that s.3 (2) is very inclusive.
Many musicians and playrights in Southern Africa have been
ripped off for decades due to lack of copyright protection at home
and abroad. Artists from abroad have come to Africa, listened to
songs of local artists and then returned abroad and recorded
modified versions of these songs passing them off as their own.
Music producers have done the same. They come to Africa and
take away with them recordings of songs by an African artists.
When they return to the developed countries they reproduce the
songs and make millions of dollars without paying royalties to the
original composers of these songs in Africa. This is piracy. Such
pirated works have raised much concern, particularly in the area
of music recordings, as the authors or producers and other owners
of the copyright applicable together with their nations have lost
19
Copyright and Neighbouring Rights Act, s.3 (2). The Minister of Trade and Industry may
by Orders add to or otherwise vary this list of works: s.3 (3). Moreover, under s.4 of the
same Act derivative works are also given copyright protection. These are: translations,
adaptations, arrangements and other transformations or modifications of works; and
collections of works, collections of mere data (databases) whether in machine readable or
other form, and collections of expression of folklore, provided that such collections are
original by reason of the selection, co-ordination or arrangement of their contents.
10
considerable amounts of revenue to pirates of copyright. The
Copyright and Neighbouring Act 2000 solves this problem by
expressly protecting oral works, dramatic, dramatic-musical
works with or without accompanying words. Given the fact that
Botswana is a party to the international Conventions referred to
above, local copyright holders as well as foreign copyright holders
from countries that are party to the conventions are able to enforce
their copyright within Botswana, and local copyright holders are
able to enforce their copyright in all other countries that are also
party to the Conventions20.
(ii)
Basis of protection
A work is protected under the Act by the sole fact of its creation
and irrespective of its mode or form of expression, as well as of its
content, quality or purpose21. This means that much as the work
must be an original intellectual creation, it does not have to be
reduced to writing in permanent form – which is the traditional
requirement for granting copyright protection. The law does not
require high quality or permanent form. Oral works are therefore
protected.
Traditional song and dance is therefore clearly
protected.
20
See further, Kiggundu, J., ‘Intellectual Property Law and the Protection of Indigenous
Knowledge’ in: Mazonde, I. and Thomas, P., Issues in Intellectual Property in the TwentyFirst Century (Codesria, Dakar, 2006) Chapter 3.
21
Copyright and Neighbouring Rights Act 2000, s.6 (i).
11
Section 6 (2) of the Act provides that copyright protection does
not extend to any idea, procedure, system, method of operation,
concept, principle, discovery or mere data, even if expressed,
described, explained, illustrated or embodied in a work. This is a
very important provision because it codifies the common law
position22.
(iii)
Rights of the author
The owner of copyright in a protected work may use the work as
he wishes, and may prevent others from using it without his
authorization.
The rights given to the author by the Act are
exclusive rights. He can authorize others to use the work, subject
to the legally recognized rights and interests of others23. There are
two types of rights under copyright: economic rights24, which
22
See University of London Press v University Tutorial Press [1916] 2 Ch 601; Ladbroke
(Football) v William Hill [1964] 1 All ER 465; Cramp v Smythson [1944] AC 329; Exxon
Corp v Exxon Insurance Consultants (1982) RPC 69; Express Newspapers v Liverpool
Daily Post [1985] FSR 306; Green v Broadcasting Corp of New Zealand [1989] RPC. 8700.
23
Briscoe and Kiggundu, op cit (note 8) p.17.
24
See Copyright and Neighbouring Rights Act 2000, s.7. The author or other owner of
copyright has the exclusive right to carry out or authorize any of the following acts in
relation to the work:





Reproduction of the work;
Translation of the work;
Adaptation, arrangement or other transformation of the work;
The first public distribution of the original and each copy of an audiovisual work, a
work embodied in sound recording, a computer programme, a database or a musical
work in the form of notation, irrespective of the ownership of the original or copy
concerned;
Importation of copies of the work, even where the imported copies were made with
the authorization of the author or other owner of copyright;
12
allow the owner of rights to derive financial gain from the use of
his work by others; and moral rights25, which allow the author to
take certain actions to preserve the personal link between himself
and the work26.
(iv)
Duration of copyright
The duration of copyright has become a controversial issue in
recent times. In Botswana, the period of copyright protection is
the life of the author and a further fifty years after his death27.
Where the work is a work of joint authorship, copyright subsists
in the work during the life of the last surviving and for fifty years
after his death28. Where the work is a collective work (other than
a work of applied art) or an audiovisual work, copyright subsists
for fifty years from the date on which the work was made, or first
made available to the public, or first published, whichever date is
the latest29.



Public display of the original or a copy of the work;
Public performance of the work;
Broadcasting of the work;
Other communication to the public of work (this covers cable and internet
distribution). See further Briscoe and Kiggundu op cit (note 23) pp.18-19.
25
Ibid., s.8.
26
Briscoe and Kiggundu, op cit (note 23) p.17.
27
Copyright and Neighbouring Rights Act, 2000, s.10 (1).
28
Ibid, s.10 (2).
29
Ibid, s.10 (3). See further s.10 (4)-(6).
13
B.
NEIGHBOURING RIGHTS
Neighbouring rights are the intellectual property rights provided for the
protection of the legal interests of certain persons and legal entities who
either contribute to making works available to the public or produce
subject matter which does not qualify as “works” under the general
understanding of copyright but who nevertheless express creativity or
technical and organizational skill sufficient to justify recognition of their
contribution as deserving protection30. It can therefore be seen that the
protection of neighbouring rights is a crucial component in the
protection of indigenous knowledge and rights since most of these
‘border’ on copyright and would not be protected in mainstream
copyright law.
Neighbouring rights include the rights of performers,
producers of sound recordings and broadcasters.
The rights of
performers31 are recognized because their creative intervention is
necessary to give life, for example to musical works, dramatic and
choreographic works and motion pictures, and because they have a
justifiable interest in the legal protection of their individual
interpretation32. The rights of producers33 of recordings are recognized
because their creative, financial and organization resources are necessary
to make recorded sound available to the public in the form of
commercial phonograms such as tapes, cassettes, CDs and Mini Discs.
30
Briscoe and Kiggundu, op cit (note 26) p.20.
31
See Copyright and Neighbouring Rights Act 2000, s.24.
32
Briscoe and Kiggundu, op cit (note 30) loc cit.
33
See Copyright and Neighbouring Rights Act 2000, s.25.
14
They also have a legitimate interest in having the legal resources
necessary to take against unauthorized uses whether it be through the
making and distribution of unauthorized copies (piracy) or in the form of
unauthorized broadcasting or communication to the public of their
phonograms. The rights of broadcasters34 are recognized because of
their role in making works available to the public, and in the light of
their justified interest in controlling the transmission of their
broadcasts35.
III.
THE PROVISION OF EFFECTIVE REMEDIES
One of the most fascinating aspects of intellectual property law is its ability to
evolve with the times by developing new rights. Examples of rights that have
been developed recently include: indigenous knowledge; plant variety
protection; chip protection; and neighbouring rights. In addition to new rights
intellectual property law has been able to develop new remedies and
procedures to protect intellectual property rights.
This is very significant
because the development of new rights per se is not sufficient; it must be
matched by the development and refinement of effective remedies to protect
those rights. This section of the paper examines the remedies available for the
protection of intellectual property rights in Botswana copyright law and their
effectiveness.
34
See Copyright and Neighbouring Rights Act 2000, s.27.
35
Briscoe and Kiggundu, op cit (note 32) loc cit. See also Kiggundu, op cit (note 20) pp. 3536.
15
The protection of intellectual property right has become more crucial than ever
before. Professor Cornish has aptly summed up the position as follows36:
“Those who undertake scientific and technological research, those who
create and interpret works of learning, culture, embarrassment and
information, those who devise the marketing of products and services - all
look to legal protection against competitors, as a way of sustaining the
value of their skill and labour or their investment in what is distinctively
theirs.
In biotechnology, computing, telecommunications and many
related courts, the scale of production of new individual material is such
that their case has to be conceded; rights have to be created or enhanced”.
The precise value of a right must be measured in terms of the remedies that lie
for its enforcement37.
Due to economic globalisation and the spectacular
developments in information technology, new intellectual property rights are
evolving very rapidly. In order to ensure proper and effective protection of
intellectual property rights, the law must be very clear and precise as to the
intellectual property rights to be protected; the infringing acts in respect of
each right; the remedies available in cases of infringement; and the procedures
for the enforcement of those rights.
The remedies in the Copyright and
Neighbouring Rights Act 2000 can be divided into the following categories:
conservatory or provisional measures; civil remedies; criminal sanctions;
measures to be taken at the border; and measures, remedies and sanctions
against abuses in respect of technical devices.
36
Cornish, W.R. Intellectual Property (3 ed, Sweet & Maxwell, 1996) at vii.
37
Ibid, para 2-27.
16
A.
CONSERVATORY OR PROVISIONAL MEASURES38
These have two purposes: first, to prevent infringements from occurring,
particularly to prevent the entry of infringing goods into the channels of
commerce, including entry of imported goods after clearance by
customs; and second, to preserve relevant evidence in regard to an
alleged infringement. Thus, judicial authorities may have the authority
to order that provisional measures be carried out without advance notice
to the alleged infringer. In this way, the alleged infringer is prevented
from relocating the suspected infringing materials to avoid detection.
The most common provisional measure is a search of the premises of the
alleged infringer and seizure of suspected infringing goods, the
equipment used to manufacture them, and all relevant documents and
other records of the alleged infringing business activities. This remedy
known as the Anton Piller order, deserves a more detailed discussion
here.
THE ANTON PILLER ORDER
This is one of the most exciting recent developments in intellectual
property law.
The remedy was developed in Anton Piller v
Manufacturing Processes39. In this case, the English Court of Appeal
approved a procedure that is of major practical importance to some
owners of intellectual property rights. Under this procedure, the plaintiff
38
Copyright and Neighbouring Rights Act, s.29.
39
[1976] Ch. 55; [1976] RPC 719.
17
applies to the High Court in camera without any notice to the defendant,
for an order that the defendant permit him and his attorney to inspect the
defendant's premises and to seize, copy or photograph material relevant
to the alleged infringement40. The defendant may be required to deliver
up infringing goods41, keep infringing stock or incriminating papers42,
and even to give information, for example, about his sources of supply,
or the destination of stock passing through his lands. An injunction
against infringement may be part of the order43.
(a)
Criteria for grant
The Anton Piller Order will be granted where the plaintiff:

provides an extremely strong prima facie case of
infringement;

shows that the damage, actual or potential, to him is very
serious; and

provides clear evidence that the defendant has in his
possession incriminating documents or items and that there
40
See Cornish, op cit para 2-47. See further, S.Gee, Mareva Injunctions and Anton Piller
Relief (2nd ed, 1990); M Dockray, Anton Piller Orders (1992); RN Ough and W. Fenley,
The Mareva Injunction and Anton Piller Order (2nd ed 1993).
41
See Universal City Studios v Mukhtar & Sons [1976] FSR 252.
42
See EMI v Sarwar [1977] FSR 146.
43
Cornish, op cit loc cit note 40 above.
18
is a real possibility that this material will be destroyed
before any application inter partes can be made44.
This remedy is important to a plaintiff who wishes to secure
evidence of infringement in order to strengthen his case. Its main
strength lies in the element of surprise; the defendant has no
notice of the plaintiff's application. The remedy is very popular
and has increased the speed and effectiveness of civil process45.
But the remedy has its dangers: these are summed up by Professor
Cornish as follows46:
"The proceedings turn upon the plaintiff's evidence alone and they
occur in camera. If a single judge is satisfied prima facie that there
is infringement and a likelihood of serious injury, the plaintiff
through his solicitor is empowered to launch his own attack on the
defendant. Those executing the order are likely to believe that right
is on their side and that they must put on a show of aggression if they
are to secure what their client needs and deserves. In the tensions
generated by the surprise service of the order, a defendant will need
considerable temerity if he is to seek legal advice and challenge the
basis on which the order was made. As a measure of "privatisation"
the order is remarkable: a non-state agency is employed in a direct
infraction of personal liberties, and, more than that, those executing
the order act for the very person who can least be expected to
preserve a measure of objectivity and sense of proportion".
44
See Anton Piller v Manufacturing Processes [1976] RPC 719 at 724 and 726.
45
Cornish, op cit, 2-48.
46
Id.
19
(b)
The safeguards
Because of the inherent dangers indicated above English law has
developed the following safeguards:

the plaintiff's attorney, who is an officer of the court, must
attend, and so in most cases must a supervising attorney
from another firm;

the defendant must be given time to think and must be
informed of his right to consult his own attorney and to
apply to discharge the order;

the plaintiff must give a cross-undertaking in damages47.
Subject to these safeguards, the defendant's refusal to allow the
inspection amounts to contempt of court and will be dealt with
according to the circumstances48.
Many common law countries have incorporated the Anton Piller
order into their laws. In South Africa, the order was first granted
by a South African court in Roamer Watch Co SA & Another v
47
See further Cornish, op cit 2-47.
48
Id.
20
African Textile Distributors also t/a MK Patel Wholesale
Merchants & Direct Importers49.
But the Transvaal courts
attempted to jettison it in Economic Data Processing (Pty) Ltd &
Others v Pentreath50 and in Cerebos Food Corporation Ltd v
Diverse Food SA (Pty) Ltd & another51. The remedy was finally
restored as part of South African law by the Appellate in
Universal City Studios Inc & others v Network Video (Pty) Ltd52.
Corbett JA said held that it was not beyond the inherent powers of
the court to grant such an order in a case where the applicant can
establish prima facie that he has a cause of action against the
respondent which he intends to pursue, that the respondent has in
his possession specific documents or things which constitute vital
evidence in substantiation of the applicant’s cause of action but in
respect of which the applicant can claim no real or personal right
and that there is a real and well-founded apprehension that this
evidence may be hidden or destroyed or in some manner spirited
away by the time the case comes to trial and the applicant asks the
court to make an order designed to preserve the evidence in some
way53 . The Anton Piller order is now well established in South
African law54.
49
1980 (2) SA 254 (W).
50
1984 (2) SA 605 (W).
51
1984 (4) SA 149 (T).
52
1986 (2) SA 734 (A).
53
1986 (2) SA 734 at 755 A-C.
21
(c)
The Botswana statutory model
The Botswana Copyright and Neighbouring Rights Act 2000 has
introduced a rather interesting statutory modification of the Anton
Piller Order.
Where a complaint of the contravention of the
provisions of the Act is made and it is considered that a document,
book or other object connected to any investigation in regard to
the complaint is being concealed within specified premises, a
police officer or any such other person appointed by the Minister
(the investigating officer) may enter the premises to conduct a
search and seize any item found within the premises55.
The
investigating officer cannot enter, conduct a search or seize any
item unless he has obtained the consent in writing of the owner of
the premises or a search warrant56.
The court must grant the application for a search warrant if it
appears on information given on oath or affirmation that there are
reasonable grounds to suspect that there are works that infringe
54
See Shoba v Officer Commanding, Temporary Police Camp, Wagendrift Dam & another,
Mpulanga v Officer Commanding SA Police Murder & Robbery Unit, Pietermaritzburg &
others 1995 (4) SA 1 (A); Janit & another v Motor Industry Fund Administrators (Pty) Ltd
& another 1995 (4) SA 293 (A). See further, Van Winsen et al, Herbstein and Van Winsen:
The Civil Practice of the Supreme Court of South Africa (4 ed, Juta, 1997) Chapter 45. See
also, CB Prest, Interlocutory Interdicts (Juta, 1993); H.J Erasmus “Anton Piller Orders in
South African Practice” (1984) 101 SALJ 324; by the same author. ‘The Anton Piller
Muddle’ (1991) 108 SALJ 379.
55
Copyright and Neighbouring Rights Act 2000 s.29 (1).
56
Ibid, s.29 (2) (a) and (b). It is imperative to emphasise that an Anton Piller order is not,
stricto sensu, a search warrant.
22
the rights protected under the Act in the premises; there is in the
premises equipment or other device specifically designed or
adapted to incumbent any device or means intended to prevent or
restrict reproduction of a work or to impair the quality of copies
made; or a document, book or other object which may afford
evidence of such infringement is within those premises57.
Where a Chief or Senior Magistrate is satisfied from the
information given on oath or affirmation by the investigating
officer that urgent action is required to obtain evidence pertaining
to the contravention of the provisions of the Act, which evidence
is likely to be concealed or destroyed, the Magistrate may
dispense with any procedural requirements and grant a search
warrant to the investigating officer at such time and place and
under such conditions as the urgency of the matter may require 58.
A search warrant granted by the court authorises the investigating
officer named in the warrant to enter the premises identified in the
warrant to conduct searches, examinations, take extracts or copies,
seize any item or to do any such other thing as may assist in the
investigation59.
The search warrant must be executed by day
unless the court authorises its execution by night and it remains in
57
Copyright and Neighbouring Rights Act 2000, s.29 (3).
58
Ibid, s.29 (4).
59
Ibid, s.29 (5) (a).
23
force until it is executed or cancelled by the court, or for a period
of one month from the date of its issue60.
The investigating officer executing a search warrant must, before
such execution or upon demand by any person whose rights might
be affected, present his identification card and hand to such person
a copy of the warrant61. He must not seize any item found within
the premises being searched unless he has handed the person from
whose possession or change the item is being seized, a receipt of
the seizure in the prescribed form62.
A person from whose possession or charge a document, book or
other object has been seized must be allowed on request to make
copies or to take extracts from the material at any reasonable time
at his own expense and under the supervision of that investigating
officer or other authorised person as long as the material is in the
possession or charge of the investigating officer63.
A person is not entitled to refuse to answer any question or to
produce any document, book or other object on the ground that
such answer, document, book or other object would incriminate
60
Ibid, s.29 (5) (b) and (c).
61
Ibid, s.29 (6) (a) and (b).
62
Ibid, s.29 (7).
63
Ibid, s.29 (8).
24
him64.
However, incriminating evidence arising out of any
answer, document, book or other object a person may present to
an investigating officer in an answer to an inquiry made by such
officer shall not be admissible in any criminal trial against that
person65.
Any person who obstructs or hinders the investigating officer in
the performance of his jurisdictions or knowingly makes a false
statement or gives a false answer to any inquiry is guilty of an
offence is liable upon conviction to a fine not exceeding P2 000 or
to imprisonment for a term not exceeding 12 months or both66.
This statutory model is modern and comprehensive and it
effectively addresses most of the dangers inherent in the Anton
Piller order at common law. But these statutory provisions raise
several issues. First, the procedure excludes the plaintiff and his
attorney. Policemen in Botswana – and indeed in many other
parts of the world – are not generally conversant with intellectual
property law. This is a complex and technical area of the law.
The police officer therefore might not be able to appreciate what
information exactly to extract from a document or what material
to seize or copy. The plaintiff and his attorney are the people who
intimately know the right that is being infringed, the infringing
64
Ibid, s.29 (9). The position is the same in relation to the Anton Piller order in English law.
See further Cornish, op cit para 2-53.
65
Copyright and Neighbouring Rights Act 2000, s.29 (10).
66
Ibid, s.29 (11).
25
material and the equipment that is being used to infringe it. They
should therefore be present to guide the police officer or other
investigating officer in the right direction.
In fact, even the
defendant and his attorney should also be present to ensure
transparency and to avoid all sorts of unwarranted accusations.
Second, it is not clear from the Act as to who is to foot the bill for
the search and seizure. Is it the plaintiff? Is it the State? The bill
could run into thousands of pula especially where the documents
are voluminous. This matter needs clarification.
Third, the plaintiff is not required to give a cross-undertaking in
damages in case he loses the main action. The procedure could
disrupt the defendant’s business and could even cause him
financial ruin.
He therefore needs protection by way of
safeguards.
Fourth, the procedure does not apply to other intellectual property
rights. It is only provided for in the Copyright and Neighbouring
Rights Act 2000. There is no corresponding procedure in the
Industrial and Property Act 199667.
This means that those
plaintiffs wishing to protect patents, utility models, designs and
trade marks will have to use the Anton Piller order at common
law. It is submitted that the Botswana Industrial and Intellectual
Property Act 1996 should be amended to introduce the statutory
67
Cap ---- as amended by the Industrial Property (Amendment) Act 1997 (No. 19 of 1997).
26
model in relation to the intellectual property rights covered by that
Act.
B.
CIVIL REMEDIES68
These compensate the owner of rights for economic injury suffered
because of the infringement, usually in the form of monetary damages,
and create an effective deterrent to further infringement, often in the
form of judicial order to destroy the infringing goods and the materials
and implements which have been predominantly used for producing
them; where there is a danger that infringing acts may be continued, the
court may also issue injunctions against such acts, failure to comply with
which would subject the infringer to payment of a fine.
Section 4 of the Copyright and Neighbouring Rights (Amendment) Act
2005 introduces two new civil remedies. First, the court may order the
defendant to pay the damages suffered by the copyright owner as a result
of the infringement, including any profits enjoyed by the defendant that
are attributable to the infringement69. Second, the court may award
exemplary damages where the moral rights of the copyright owner have
been infringed70.
68
See Copyright and Neighbouring Rights Act 2000, s.30.
69
Copyright and Neighbouring Rights Act 2000, s.30 (1) (c) as introduced by s.4 of the
Copyright and Neighbouring Rights (Amendment) Act 2005.
70
Copyright and Neighbouring Rights Act 2000, s.30 (1) (d) as introduced by s.4 of the
(Amendment) Act 2005.
27
C.
CRIMINAL SANCTIONS71
These are intended to punish those who willfully commit acts of piracy
of copyright and neighbouring rights on a commercial scale, and, as in
the case of civil remedies, to deter further infringement. The purpose of
punishment is served by the imposition of substantial fines, and by
sentences of imprisonment consistent with the level of penalties applied
for crimes of corresponding seriousness, particularly in cases of repeat
offenses. The purpose of deterrence is served by orders for the seizure,
forfeiture and destruction of infringing goods, as well as the materials
and implements the predominant use of which has been to commit the
offense.
D.
MEASURES TO BE TAKEN AT THE BORDER72
These are different from the enforcement measures described so far, in
that they involve action by the customs authorities rather than by the
judicial authorities. Border measures allow the owner of rights to apply
to customs authorities to suspend the release into circulation of goods
which are suspected of infringing copyright.
The purpose of the
suspension into circulation is to provide the owner of rights a reasonable
time to commence judicial proceedings against the suspected infringer,
without the risk that the alleged infringing goods will disappear into
circulation following customs clearance.
71
See Copyright and Neighbouring Rights Act 2000, s.31.
72
Ibid, s.32.
The owner of rights must
28
generally satisfy the customs authorities that there is prima facie
evidence of infringement, must provide detailed description of the goods
so that they may be recognized, and must provide a security to
indemnify the importer, the owner of the goods, and the customs
authorities in case the goods turn out to be non-infringing.
E.
MEASURES, REMEDIES AND SANCTIONS AGAINST ABUSES
IN RESPECT OF TECHNICAL MEANS73
The final category of enforcement provisions, which has achieved
greater important in the advent of digital technology. In certain cases,
the only practical means of preventing copying is through so-called
“copy-protection” or “copy-management” systems, which contain
technical devices that either prevent entirely the making of copies or
make the quality of the copies so poor that they are unusable. Technical
devises are also used to prevent the reception of encrypted commercial
television programs except with use of decoders.
However, it is
technically possible to manufacture devices by means of which copyprotection and copy-management systems, as well as encryption
systems, may be circumvented. The theory behind provisions against
abuse of such devices is that their manufacture, importation and
distribution should be considered infringements of copyright to be
sanctioned in ways similar to other violations.
Section 6 of the Copyright and Neighbouring Right (Amendment) Act
2005 introduces new provisions74 relating to security devices. Every
73
See Copyright and Neighbouring Rights Act 2000, s.33.
29
sound and audio-visual recording made available to the public by sale,
rental, lending or distribution in any other manner to the public for
commercial purposes in Botswana must have a security device affixed to
it75. The security device shall be issued by the Copyright office to any
person who makes such works available to the public76. Such device
shall only be issued to a person upon proof that he or she is authorised
by the owner of the copyright to sell, rent, lend or otherwise distribute
the work77. The security device shall be proof that the work to which it
is affixed is not a pirated work78. Any person who contravenes the
provisions of s.35A is guilty of an offence and is liable to a fine not
exceeding P20,000 or to imprisonment for a term nor exceeding two
years, or both79. Furthermore, any person who without the permission of
the Copyright Office, is in possession of, or reproduces a security device
or is in possession of any machine, instrument or contrivance intended to
be used to produce or reproduce a security device is guilty of an offence
and is liable to a fine not exceeding P50,000 or to imprisonment for a
term not exceeding five years or both80.
74
See Copyright and Neighbouring Rights Act, ss. 35A, 35BC, 35D, 35E, 35F and 35G as
introduced by s.6 of the Copyright and Neighbouring Rights (Amendment) Act 2005.
75
Copyright and Neighbouring Rights Act 2000, s.35A (1).
76
Ibid, s.35A (2).
77
Ibid, s.35A (3).
78
Ibid, s.35A (3).
79
Ibid, s.35A (5).
80
Ibid, s.35A (6).
30
IV.
NEW ADMINISTRATIVE MEASURES
The Copyright and Neighbouring Rights (Amendment) Act 2005 introduces
new administrative measures intended to enhance the protection of copyright
owners.
A.
THE COPYRIGHT OFFICE
The Act provides for the establishment of Copyright office to be headed
by a Copyright Administrator81. Such Administrator shall be a public
officer who shall, subject to the direction of the Minister of Trade and
Industry, perform such functions as may be conferred upon him by the
Act or any other enactment82. The Copyright Office is responsible for
all matters affecting copyright in Botswana and its other functions
include the following83:

supervision of the Copyright Society;

advising the Government of Botswana and its agencies on all
matters pertaining to copyright;

monitoring Botswana’s position in relation to international
Conventions relating to copyright and to advise the Government
thereon;
81
Copyright and Neighbouring Rights Act 2000, s.22A (1) and (2).
82
Id.
83
Copyright and Neighbouring Rights Act 2000, s.22B.
31

advising the Government on the negotiation, conclusion and
implementation of bilateral and multilateral agreements on
copyright between Botswana and other countries;

organizing out-reach and awareness creation programmes to
inform, educate and sensitise the public on matters relating to
copyright; and

maintaining an effective database on copyright matters and on
authors and their works.
By creating a Copyright Office operating independently from the
Registrar of Companies, Patents, Designs and Trademarks, and from the
Attorney-General’s Chambers, the Government has clearly demonstrated
the premium it attacks to the effective protection of copyright in
Botswana.
A.
THE COPYRIGHT ARBITRATION PANEL
There Act establishes Copyright Arbitration Panel to be appointed by the
Minister of Trade and Industry84. The Panel shall consist of not less than
three but not more than five persons85. One of the members of the Panel,
who shall also be its Chairperson, shall be a person who is enrolled to
practice as an attorney in the High Court of Botswana of not less than
84
Copyright and Neighbouring Rights Act 2000, s.33A (1).
85
Ibid, s.33A (2).
32
seven years standing86. Alternatively, he or she shall be a person who
has held judicial office in Botswana87. The other members shall be
persons knowledgeable in the filed of copyright88.
The establishment of the Copyright Arbitration Panel is quite
commendable mainly because it creates an alternative dispute settlement
mechanism thereby widening
the scope of remedies available to
copyright owners.
C.
THE COPYRIGHT SOCIETY OF BOTSWANA
The objective of the collecting society for the collective administration
of rights is to provide a vehicle through which rights users can more
easily clear permissions and rights holders more effectively get their
remuneration.
It is not always practicable for rights users to clear
permissions one by one, and collecting societies for literary works, (also
known as Reproduction Rights Organisations, or RROs), provide users
with an acceptable means of copying extracts from copyright-protected
published works for internal use when the whole work is not required,
and provide rights owners with monetary compensation when extracts
from their works are used. In addition, a collecting society can provide
an important focus point for copyright issued, play a vital role in
providing ease of access to information, provide research and policy
information and generally play a development and educational role.
86
Ibid, s.22A (2) and (3).
87
Ibid, s.33A (2).
88
Ibid, s.33A (4).
33
Collecting societies are thus key players in the copyright environment.
Licensing can be transactional, requiring a separate transaction for each
clearance, or through a blanket license, which allows upfront
comprehensive clearance for copying, within certain specified
limitations, with reporting carried out retrospectively. The degree to
which a country enforces statutory licensing depends upon national
policy approaches, negotiated between government, rights holders and
rights users, particularly educational institutions.
The ownership of
collecting societies is an important adjunct to their policy role: in
general, collecting societies are owned by rights owners, an important
factor in their credibility in the eyes of rights users. Authors and other
content creators are important stakeholders involved in collecting
societies and their ownership.
Money collected through collecting societies can make an important
contribution to the advancement of copyright awareness, as well as
general cultural development through projects like publication and
awareness programmes projects funded from rights income.
Section 7 of the Copyright and Neighbouring Rights (Amendment) Act
2005 introduces a collective administrative body to be known as the
Copyright Society of Botswana89. The Society shall be a non-profit
making company limited by guaranteed and shall be responsible for the
following:
89
Copyright and Neighbouring Rights Act 2000, s.36A (1).
34
(i)
the negotiation and granting of licences in written agreement with
the owners of copyright for the adaptation of works, performances
and sound recordings, the insertion of works, performances or
sound recordings in other scopes; and the use of works for
publicity purposes;
(ii)
the setting of rates for royalties in accordance with a acceptable
international standards; and
(iii)
the collection and distribution of royalties to appropriate copyright
owners90.
The Society shall represent the copyright owners in the various
categories of protected works and put in place rules and regulations
approved by the Copyright Office, which contain such provisions as are
necessary to ensure the protection of the interests of its members91.
V.
CONCLUDING REMARKS
The laws of the SADC countries are not homogenous because of the disparate
legal history of the region. It is hoped that they will be modernized and
harmonized in order to reach acceptable international standards in a globalised
world. Botswana has made great strides in modernizing its laws in general and
intellectual property in particular. The Copyright and Neighbouring Rights Act
2000 as amended by the Copyright and Neighbouring Rights Act 2005 is a
90
Copyright and Neighbouring Rights Act 2000, s.36A (2).
91
Ibid, s.36A (3).
35
commendable statute.
It meets Botswana’s social, cultural and economic
aspirations and it implements Botswana’s obligations under international
conventions. It is simple, accessible and avoids unnecessary detail.
It encompasses the entire spectrum of copyright and provides an adequate and
effective remedies. It is currently the most up-to-date piece of copyright
legislation in the SADC region and beyond and could serve as a model for the
other SADC countries and other English-speaking African countries.
Unfortunately, the Act is not in force. The Act repealed the old law in the
Copyright Act 1956. But after it was enacted it was realized that it did not
have the requisite Rules and Regulations essential for its operation. It was
therefore decided to keep the Act in abeyance until the Regulations have been
drafted and enacted by Parliament. The Act therefore has not yet come into
force. Botswana’s copyright law is in limbo. This state of affairs has caused
numerous problems for copyright owners, academics, judges, legal
practitioners, librarians, law students and all those involved in the practice and
administration of copyright. Several people are under the mistaken belief that
the Act is in force while in fact it is not. While the Act is very attractive on
paper, the failure to bring it into operation within a reasonable time has proved
a major drawback. The law is unable to protect copyright owners and might
even be overtaken by national and international developments and become
obsolete without ever coming into operation. This is very disappointing. Six
years is surely too long a period to wait for Regulations to be put in place. It is
hoped therefore that the Attorney-General’s Chambers will shortly conclude
the drafting of the Copyright Regulations and that soon thereafter, they will be
36
enacted by Parliament thereby making it possible for the Act to come into
operation.