CHAPTER 49:03
COPYRIGHT

ARRANGEMENT OF SECTIONS

   SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

   3.   Application

PART II
THE COPYRIGHT SOCIETY OF MALAWI

   4.   Establishment of a Copyright Society of Malawi

   5.   Functions of the Society

   6.   Powers of the Society

   7.   Board of the Society

   8.   Vacation, etc., of members from office

   9.   Filling of vacancies in the Board

   10.   Co-opted persons

   11.   Chairperson and Vice-Chairperson

   12.   Meetings of the Board

   13.   Remuneration and expenses of the Board of the Society

   14.   Copyright Administrator

   15.   Tenure of office of the Copyright Administrator

   16.   Powers and functions of the Copyright Administrator

   17.   Other staff of the Society

   18.   Disclosure of conflict of interest

   19.   Confidentiality

   20.   Oath of secrecy

   21.   Delegation of powers

   22.   Funds of the Society

   23.   Accounts and audit

   24.   Annual report

PART III
COPYRIGHT

   25.   Copyright

   26.   Eligibility for copyright

   27.   Derivative

   28.   Works not subject to copyright protection

   29.   Economic rights

   30.   Moral rights

   31.   Right to share in proceeds of sale

   32.   Alteration of buildings and objects for practical use

   33.   Ownership of copyright

   34.   Works by employed authors and commissioned works

   35.   Duration of copyright

PART IV
PERMITTED FREE USES OF WORKS

   36.   Permitted free uses of a work

   37.   Transient and incidental copies

   38.   Reproduction, etc., of a work for user’s private use

   39.   Inclusion of quotations

   40.   Critical or scientific presentations, artistic works and literary works

   41.   Use of a work by way of illustration

   42.   Public performance of a work and public display of copies of a work

   43.   Simultaneous and unaltered cable transmission of a work broadcast

   44.   Reproduction in the press, etc., of articles on current topics

   45.   Reporting on current events

   46.   Photography, cinematography, drawings, etc.

   47.   Artistic work forming part of a collection

   48.   Libraries, archives, museums, scientific and educational institutions

   49.   Reproduction of a work for people with disabilities

   50.   Reproduction in the press

   51.   Recordings by a broadcasting organization of its own broadcasts

   52.   Use of a computer programme

   53.   Evidence in administrative or judicial proceedings

PART V
TRANSFER OF COPYRIGHT

   54.   Transferability of copyright

   55.   Contracts for authorization of use of rights under this Act

   56.   Publishing contracts

   57.   Commissioned work

PART VI
LICENCES

   58.   Extended collective licences

   59.   Compulsory licence for public examinations

   60.   Compulsory translation licence

   61.   Conditions of a compulsory translation licence

   62.   Translation licence for broadcasting purposes

   63.   Compulsory reproduction licence

   64.   Conditions of a compulsory reproduction licence

   65.   Compulsory reproduction licence for audio-visual works

   66.   Production of recording of musical works

PART VII
EXPRESSIONS OF FOLKLORE

   67.   Right in expressions of folklore to vest in Government

   68.   Certain uses of expressions of folklore to be subject to authorization

   69.   Free uses of expressions of folklore

   70.   Source of expressions of folklore to be acknowledged

   71.   Authorization for use of expressions of folklore

   72.   Non-hindrance of development of folklore

   73.   Protection under this Part is additional

PART VIII
PERFORMERS, PRODUCERS OF SOUND RECORDINGS, BROADCASTERS AND PUBLISHERS

   74.   Rights of performers, etc., of sound recordings and publishers not to affect copyright

   75.   Exclusive rights of performers

   76.   Moral rights of performers

   77.   Granting of authorization by performers

   78.   Exclusive rights of producers of sound recordings or audio-visual fixations

   79.   Obligations of producers

   80.   Remuneration for public performance of sound recordings or audio-visual fixations

   81.   Exclusive rights of broadcasting organizations

   82.   Rights in typographical arrangements

   83.   Exceptions to certain provisions under this Part

PART IX
PUBLIC DOMAIN

   84.   Works and related subject matter in the public domain

PART X
TECHNOLOGICAL MEASURES AND RIGHTS MANAGEMENT INFORMATION

   85.   Technological measures

   86.   Use of works, etc., when effective technological measures are employed

   87.   Electronic rights management

PART XI
INFRINGEMENT OF COPYRIGHT OR RELATED RIGHTS

   88.   Infringement of copyright

   89.   Infringement of performers’ rights

   90.   Infringement of rights of producers of sound recordings

   91.   Infringement by parallel imports

   92.   Infringement of broadcasting organizations’ rights

   93.   Infringement of publishers’ rights in typographical arrangements

PART XII
INSPECTION

   94.   Inspectors

   95.   Entry into premises

   96.   Mode of inspection

   97.   Inspectors not personally liable

PART XIII
THE COPYRIGHT FUND

   98.   Establishment of the Copyright Fund

   99.   Objectives of the Fund

   100.   Vesting of the Fund

   101.   Financing of the Fund

   102.   Levy on storage devices

   103.   Levy on public sale of original works of art

   104.   Levy on copy shops etc.

   105.   Obligation to pay levies independent

   106.   Determination of the levies

   107.   Utilization of the Fund

   108.   Access to accounts

   109.   Books and other records of accounts

   110.   Financial year of the Fund

PART XIV
COURT PROCEEDINGS, ADMINISTRATIVE PROCEEDINGS AND PENALTIES

   111.   Liabilities of members of companies, etc.

   112.   Administrative penalties

   113.   Offences and penalties

   114.   Compensation to victims of offence

   115.   Forfeiture as an additional penalty

   116.   Proof of facts in proceedings

PART XV
MISCELLANEOUS PROVISIONS

   117.   Extension of the application of Act

   118.   Application of this Act to satellite broadcast

   119.   Regulations

   120.   Repeal and savings

   121.   Transitional provisions

26 of 2016
G.N. 21/2017

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; technological measures and rights management information; the establishment of the Copyright Society of Malawi and the Creativity Promotion Fund; and matters connected therewith or incidental thereto.

[13TH MARCH, 2017 – EXCEPT PART XII]

PART I
PRELIMINARY

1.   Short title

   This Act may be cited as the Copyright Act.

2.   Interpretation

   (1) In this Act, unless the context otherwise requires—

“adaptation”

   (a)   in relation to a dramatic work, means conversion of the work from non-dramatic form to its dramatic form, whether the work is in its original language or not;

   (b)   in relation to a literary work, whether in a non-dramatic form or in a dramatic form, means—

      (i)   a translation of the work, including in relation to a computer programme, a version of the programme in which it is converted into or out of a computer language or code or into a different computer language or code;

      (ii)   a version of the work in which the story or action is conveyed solely or principally by means of pictures;

      (iii)   in relation to a computer programme or a compilation of data, a rearrangement or altered version of the original programme or compilation; or

   (c)   in relation to a musical work, an arrangement or transcription of the work;

   “artistic work”, irrespective of artistic quality, includes—

   (a)   etchings paintings, drawings, sketches, lither crafts, woodcrafts, engravings, etching, products of photographs and prints;

   (b)   photographs;

   (c)   maps, plans, charts or diagrams;

   (d)   sculptures;

   (e)   work of architecture in the form of buildings or models; and

   (f)   work 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—

   (a)   in case of any work other than an audio-visual work, the person who creates the work; or

   (b)   in case of an audio-visual work, the person by whom arrangements for the making of the work were undertaken;

   “broadcast” means the transmission by wireless means of sounds or images, or of representations thereof, over a distance, for direct reception by the general public, or if the signals are encrypted, for direct reception using means for decrypting that are provided to the public by a broadcasting organization or with its consent, and includes broadcast by satellite;

   “broadcast by satellite” means the act of introducing, under the control and responsibility of a broadcasting organization, the programme-carrying signals intended for reception by the public, into an uninterrupted chain of communication leading towards the satellite and down towards the earth;

   “broadcasting organization” means any person, licensed to carry out broadcasting or content services under the Communications Act or any other written law; Act No. 34 of 2016

   “cable retransmission” means the simultaneous, unaltered and unabridged retransmission by cable or a microwave system for reception by the public of an initial transmission by wire or over the air, including that by satellite, of a broadcast, made by an entity other than a broadcasting organization making the initial broadcast;

   “choreographic work” means a dance composition or design by a dance composer of dance patterns;

   “cinematography” means affixation in any physical medium from which a moving picture may, by any means, be reproduced and includes cinematograph films, videotapes and videograms but does not include a broadcast;

   “commercial rental” means rental made with the intention of direct or indirect gain;

   “commissioned work” means a work created in pursuance of a contract between an 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 or related subject matter, means transmission over wires or other paths provided by a material substance of the work or related subject matter, but does not include making it available in a manner so that members of the public can access it from a place and at a time individually chosen by them;

   “communication to the public” in relation to a work or related subject matter, means making the work accessible to the public by way of transmission, by wire or wireless means, of images or sounds, and includes broadcasting and communication by cable and any communication made in such manner that members of the public can access the images or sounds from a place and at a time individually chosen by them;

   “compilations of data” means gathering of data, whether in machine-readable or other form, which, by reason of the selection or arrangement of the contents, constitute intellectual creations:

   Provided that the copyright protection in the compilations does not extend to the data and does not prejudice any copyright in the material contained therein;

   “computer programme” 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 an embodiment in material form, be it permanent or temporary, intransient storage of a work or related subject matter, and includes, except where otherwise stated, the original in the form of a manuscript or similar object, fixation or recording or in any other material form:

   Provided that 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;

   “database” means a machine-readable compilation of data;

   “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;

   “display” means the display of tangible copies which shows the work or related subject matter directly without the use of technical aids;

   “distribution” means the distribution of tangible copies of a work or related subject matter by way of sale, rental, lease, hire, loan, lending, gift or similar arrangement, and includes the offering for sale, rental, lease, hire, loan or as a gift or similar arrangement;

   “dramatic work” includes—

   (a)   a choreographic show or entertainment in a dumb show; or

   (b)   a scenario or script for an audio-visual work but does not include the audio-visual work;

   “engraving” means a picture made by cutting a design on a piece of metal or wood and then printing it on paper does not include a photograph;

   “expressions of folklore” means subject matter in the literary, dramatic, musical or artistic fields, belonging to the traditional cultural heritage of Malawi, preserved and developed by ethnic or local communities or by unidentified individuals of Malawi, and includes—

   (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;

   “first published in Malawi” means that a work, sound recording or published edition was first published abroad but within thirty days thereafter was published in Malawi;

   “fixation” means the embodiment of images or sounds, or of the representations thereof, in a material form, sufficiently permanent or stable to permit them to be heard, perceived, reproduced or communicated, including through a machine or device;

   “infringing copies” means copies of a work or related subject matter produced by any process and in any form the making of which involves infringement of copyright in the work or the rights granted to performers, broadcasters, producers of sound recordings and publishers under this Act, and includes copies the making of which infringes the provisions of this Act relating to expressions of folklore;

   “lawfully made available to the public” refers to any public performance or display, any communication or distribution to the public, made with the consent of the owner of the rights concerned or as otherwise permitted under this Act;

   “literary work”, irrespective of literary quality, includes any of the following—

   (a)   novels, stories or poetry works;

   (b)   plays, stage directions, film scenarios or broadcasting scripts;

   (c)   textbooks, treatises, histories, biographies, essays or articles;

   (d)   encyclopedias, dictionaries, or anthologies;

   (e)   letters, reports or memoranda;

   (f)   lectures, addresses or sermons;

   (g)   computer programmes; and

   (h)   compilation of data or other material;

   “Mandatory Mediation Rules” means the High Court (Commercial Division) (Mandatory Mediation) Rules;

   “manuscript”, in relation to a work, means an 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 or expression of folklore 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, dancer or other person who performs a work or expression of folklore and includes the conductor of a performance of any such work or expression of folklore;

   “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;

   “producer of sound recordings” means a person who makes the initiative and has the responsibility for the first fixation of a sound recording;

   “public performance” means a performance before a group of persons that goes beyond the normal circle of the family and closest social acquaintances of the person initiating the performance, and includes performances made within a commercial context to a comparatively large group, whether closed or not;

   “published” in relation to related subject matter, has the same meaning as that ascribed to the term “published works”, except where otherwise stated;

   “published works” means works which, with the consent of the authors, have been made available to the public in tangible copies 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;

   “related subject matter” includes expressions of folklore, performances, sound recordings, broadcasts and typographical arrangements;

   “remuneration” means money paid to owners of rights or their representative as a compensation for use of a work with no prior authorization;

   “rental” means distribution by way of rental, lease, hire or similar arrangement, and includes exchange of copies that is carried out as an organized activity;

   “reproduction” means the making of one or more copies by any means of a work or related subject matter in whole or in part, and includes—

   (a)   making a fixation from a performance or communication;

   (b)   permanent or temporary storage in electronic form; and

   (c)   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;

   “royalty” means payment to an author or owners of rights for use of their work where prior authorization was granted;

   “Society” means the Copyright Society of Malawi established under section 4;

   “sound recording” means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, from which the sounds may be conveyed, regardless of the medium in which the recording is made or the method by which the sounds are conveyed, but does not include, except where otherwise stated, the fixation when incorporated in an audio-visual work;

   “tangible copy” means a fixed copy that may be put into circulation as a tangible object;

   “work” means a literary, dramatic, musical, artistic or audio-visual work within the meaning of the Berne Convention for the Production of Literary and Artistic Works, in the form of text notation or related illustrations whether published or otherwise made publicly available in any media;

   “works of applied art” means an artistic work applied to objects for practical use whether handicraft or works produced on industrial scale; and

   “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, or is interdependent with, the contribution of the other author or authors.

3.   Application

   (1) Copyright, in accordance with this Act, shall subsist in—

   (a)   literary, dramatic, musical and artistic audio-visual works—

      (i)   of an author who is a citizen of Malawi or has his habitual residence, in Malawi; or

      (ii)   which are first published in Malawi, irrespective of the nationality or residence of the authors;

   (b)   audio-visual works where—

      (i)   the maker of the work has his habitual residence, or has its headquarters, in Malawi; or

      (ii)   the work was first published in Malawi; and

   (c)   works of architecture erected in Malawi or other artistic works incorporated in a building or other structure located in Malawi.

   (2) The protection under this Act of expressions of folklore shall apply to expressions of folklore belonging to the traditional or cultural heritage of Malawi developed and maintained by—

   (a)   ethnic or local communities in Malawi; or

   (b)   unidentified Malawian individuals.

   (3) The rights granted by this Act to performers shall apply to performers, where—

   (a)   the performer is a citizen of Malawi;

   (b)   the performance took place in Malawi;

   (c)   the performance is fixed in a sound recording qualifying for protection under subsection (4); or

   (d)   the performance, which has not been fixed in a sound recording, is embodied in a broadcast qualifying for protection under subsection (5).

   (4) The rights granted by this Act to producers of sound recordings shall apply, where—

   (a)   the producer of the sound recording is a citizen of Malawi or has his habitual residence or its headquarters in Malawi;

   (b)   the first fixation of the sound recording was made in Malawi; or

   (c)   the sound recording was first published in Malawi.

   (5) The rights granted by this Act to a broadcasting organization with regard to their broadcasts shall apply where—

   (a)   the headquarters of the broadcasting organization is situated in Malawi; or

   (b)   the broadcast was transmitted from a transmitter situated in Malawi.

   (6) The rights granted by this Act to publishers with regard to typographical arrangements of published editions shall apply to editions first published in Malawi.

PART II
THE COPYRIGHT SOCIETY OF MALAWI

4.   Establishment of a Copyright Society of Malawi

   (1) There is hereby established a Society to be known as the Copyright Society of Malawi (in this Act otherwise referred to as the “Society”).

   (2) The Society shall—

   (a)   be a body corporate having perpetual succession and a common seal;

   (b)   be capable of suing and being sued in its corporate name;

   (c)   be capable of acquiring, hiring and disposing of any movable or immovable property and do such things and perform such acts as bodies corporate may by law do or perform; and

   (d)   have power to perform such functions and exercise such powers as are conferred by this Act.

5.   Functions of the Society

   (1) The Society shall be responsible for the implementation of this Act and shall have the following functions—

   (a)   promote and protect the interests of authors, performers, translators, producers of sound recordings, broadcasters, publishers and in particular, to collect and distribute any royalties or other remuneration accruing to them in respect of their rights provided for in this Act;

   (b)   maintain registers of works, productions and associations of authors, performers, translators, producers of sound recordings, broadcasters and publishers;

   (c)   publicize the rights of owners and give evidence of the ownership of these rights where there is a dispute or an infringement;

   (d)   print, publish, issue or circulate any information, report, periodical, book, pamphlet, leaflet or any other material relating to copyright, expressions of folklore, rights of broadcasters, performers and producers of sound recordings;

   (e)   co-operate with any associations in Malawi;

   (f)   establish and maintain close and continuous working relationships with national, regional and international organizations or institutions whose objectives are similar to those of the Society, and to negotiate bilateral agreements with collecting societies abroad, in particular as regards use that may be subject to an extended collective licence under section 58;

   (g)   negotiate and enter into collective agreements as mandated by authors, performers, translators, producers of sound recordings, broadcasters and publishers, or any association thereof, in particular agreements that according to section 58 entail an extended collective licence;

   (h)   ensure that there is constant improvement and continued effectiveness of legislation on copyright and related rights and implementation thereof;

   (i)   devise programmes on promotion, introduction and training programmes on copyright and related rights, to which end it may co-ordinate its work with national or international organizations concerned with the same subject matter; and

   (j)   advise the Minister on all matters under this Act.

6.   Powers of the Society

   For the better performance of its functions, the Society shall have power to—

   (a)   subject to the Public Finance Management Act, borrow money whether by way of loan, overdraft or otherwise, on the security of its assets; Cap. 37:01

   (b)   accept and administer any trust or donation;

   (c)   determine minimum rates of royalties to be levied in respect of uses to be made of works registered by the Society;

   (d)   propose fees and levies for registration of works and associations;

   (e)   perform such other functions as may be assigned to the Society by the Minister; and

   (f)   do and perform all such acts or things as it may consider necessary or expedient to achieve the objects of this Act.

7.   Board of the Society

   (1) There shall be a Board of the Society which shall be responsible for directing the affairs of the Society.

   (2) The Board shall consist of the following nine members who shall be citizens of Malawi—

   (a)   a Chairperson appointed by the Minister, from amongst members appointed under paragraph (b);

   (b)   six persons nominated at the annual general assembly of the Society from members and member association and appointed by the Minister;

   (c)   the Secretary responsible for culture or his representative, ex-officio;

   (d)   the Comptroller of Statutory Corporations or his representative, ex-officio; and

   (e)   the Solicitor General or his representative, ex-officio.

   (3) The Board shall consist of not less than forty percent of woman and not more than sixty percent of any gender, and ex-officio, shall hold office for a term of three years and shall be eligible for re-appointment for a further term.

   (4) The Minister shall cause to be published in the Gazette, a notice of the appointment of members of the Board as first constituted and any other appointment of a member of the Board and shall in such notice, specify the current membership of the Board resulting from such appointment.

   (5) A member of the Board shall not, by virtue only of his appointment to the Board, be deemed to be an officer in the public service.

8.   Vacation, etc., of members from office

   (1) The office of a member of the Board shall become vacant where the member—

   (a)   has been declared bankrupt or has assigned his estate for the benefit of, or made a composition or other arrangement with his creditors;

   (b)   has been absent from three consecutive meetings of the Board of which he has had notice, without the leave of the Chairperson of the Board;

   (c)   has been convicted of an offence under this Act;

   (d)   has been convicted within Malawi of a criminal offence, or outside Malawi of an offence by whatever name called which, if committed within Malawi, would have been a criminal offence, and sentenced to imprisonment for a term of six months or more without the option of a fine, whether or not such sentence has been suspended, and has not received a pardon; or

   (e)   is mentally or physically incapable of efficiently performing his duties as member of the Society.

   (2) The Minister may suspend from office, a member of the Board against whom criminal proceedings have been instituted for an offence in respect of which a sentence of imprisonment for a term of six months or more without the option of a fine may be imposed.

   (3) A member of the Board may resign from his office by notice in writing to the Minister.

9.   Filling of vacancies in the Board

   (1) On vacation of office by a member of the Board, the vacancy shall be filled by a person appointed in accordance with section 7:

   Provided that where the remaining period is less than six months, the Minister may decide not to have the vacancy filled until the expiry of the period.

   (2) If any member of the Board is granted leave of absence by the Board, the Board may, if it considers appropriate, co-opt a person, who belongs to the same profession or calling as the member who has been granted leave, to fill the vacancy during the absence of the member.

10.   Co-opted persons

   The Board may at any time and for any period, invite any person to attend any meeting of the Board and take part in the deliberations of at the meeting but such person shall not be entitled to vote at that meeting.

11.   Chairperson and Vice-Chairperson

   (1) The Board shall elect a Vice-Chairperson from amongst its members at the first meeting of the Board.

   (2) The office of the Vice-Chairperson of the Board of the Society shall become vacant if—

   (a)   the holder resigns his office by notice in writing to the Chairperson of the Board;

   (b)   the holder of the office ceases to be a member of the Board; or

   (c)   the Board so determines.

   (3) Whenever the Chairperson of the Board is absent or is for any reason unable to discharge the functions of his office, the Vice-Chairperson shall discharge the functions of the Chairperson.

12.   Meetings of the Board

   (1) The Board shall hold ordinary meetings at least four times in each year.

   (2) Notwithstanding subsection (1), an extraordinary meeting of the Board of the Society—

   (a)   may be convened by the Chairperson of the Board at any time; and

   (b)   shall be convened within twenty-one days of the receipt by the Chairperson of a request in writing signed by not less than any three members of the Board and specifying the purpose for which the meeting is to be convened.

   (3) The quorum at any meeting of the Board shall be five persons.

   (4) The Chairperson or, in his absence, the Vice-Chairperson, shall preside at a meeting of the Board:

   Provided that in the absence of both the Chairperson and the Vice-Chairperson, the members present and forming the quorum shall elect one among their numbers to preside.

   (5) At any meeting of the Board, a decision on any matter shall be that of the majority of the members present and voting at that meeting and in the event of an equality of votes, the Chairperson or the person presiding shall have a casting vote in addition to his deliberative vote.

   (6) The Board may make rules for proceedings at its meetings.

13.   Remuneration and expenses of the Board of the Society

   Members of the Board shall be paid from the funds of the Society, such allowances as the Minister may determine, to cover expenses incurred for the attendance of meetings in connexion with business of the Society.

14.   Copyright Administrator

   (1) The Board shall appoint a Copyright Administrator on such terms and conditions as may be approved by the Minister.

   (2) The Copyright Administrator shall be the secretary to the Board and the chief executive officer of the Society.

15.   Tenure of office of the Copyright Administrator

   (1) The Copyright Administrator shall be appointed for a term of five years, and may be reappointed for a further term.

   (2) The Copyright Administrator shall be removed from office on any of the following grounds—

   (a)   incompetence;

   (b)   misconduct that brings the Society into disrepute;

   (c)   undischarged bankruptcy;

   (d)   non-disclosure of interest in matters of the Society which he ought to disclose;

   (e)   if he has been convicted by a competent court of a crime which is punishable with imprisonment without an option of a fine;

   (f)   involvement in active politics; or

   (g)   incapability to perform his duties as Copyright Administrator by reason of mental or physical infirmity.

   (3) The Copyright Administrator shall not be removed from office unless he has been given an opportunity to be heard.

16.   Powers and functions of the Copyright Administrator

   (1) The Copyright Administrator shall have the following powers and functions—

   (a)   implementing the decisions of the Board of the Society;

   (b)   keeping the Board informed of the activities of the Society;

   (c)   submitting strategic plans, action plans and budget support programmes to the Board for approval;

   (d)   implementing the strategic plans, action plans and budget support programmes;

   (e)   ensuring that activities of the Society comply with relevant laws and policies;

   (f)   acting on behalf of the Society; and

   (g)   generally perform such functions and duties as may be assigned to him by the Board of the Society.

   (2) The Copyright Administrator or, in his absence, such other employee of the Society as he may designate, shall attend meetings of the Board and of any committees of the Board of the Society and may address such meetings, but shall not vote on any matter.

17.   Other staff of the Society

   (1) The Board may appoint such other staff as it considers necessary for the discharge of functions of the Society and on such terms and conditions as the Board may determine:

   Provided that the Board may delegate to the Copyright Administrator power to appoint other staff below the level of director.

   (2) The Copyright Administrator, in consultation with the Chairperson of the Board, may appoint temporary employees at such daily rates of pay, not below the minimum rates otherwise prescribed by written law, as he may consider appropriate and shall, after he has appointed any such employee, report the fact thereof to the Society at its next meeting.

18.   Disclosure of conflict of interest

   (1) Any member of the Board who is present at a meeting of the Board at which any matter in which he has or may have an interest is being considered, that member shall disclose such interest as soon as is practicable after the commencement of the meeting and the member shall not take part in any consideration or discussion of, or vote on, any question relating to the matter.

   (2) The Copyright Administrator shall disclose to the Chairperson of the Board any interest he has in any matter that is under consideration by the Board, and shall not attend any meeting of the Board or of any committee of the Board while any question related to the matter is being discussed.

   (3) Any employee of the Society or any consultant, adviser or sub-contractor of the Society shall disclose to the Copyright Administrator any interest that he has or that may arise in the course of duties related to the operations of the Society, and the Copyright Administrator or the Board in the case of the Copyright Administrator, shall make decisions considered appropriate in each case and submit a report thereon to the Board.

19.   Confidentiality

   (1) A person shall not publish or disclose to any entity, other than in the course of the entity’s duties, the contents of any document, communication or information which has come to the person’s knowledge in the course of his duties under this Act.

   (2) Any member of the Board, employee, consultant, adviser or sub-contractor of the Society who holds confidential information, or any person who has directly or indirectly, obtained any such information from a member of Board, employee, consultant, adviser or sub-contractor of the Society, whom that person knows or has reasonable cause to believe held the information by virtue of his office, and who—

   (a)   deals in any contract or proposed contract to which the information relates and in which the Society is involved;

   (b)   counsels or instigates anyone else to deal in any such contract or proposed contract, knowing or having reasonable cause to believe that the other entity would deal in such contract or proposed contract; or

   (c)   communicates to anyone else the information held or, as the case may be, obtained by him if he knows or has reasonable cause to believe that such other entity or any other entity would make use of the information for the purpose of dealing in, or counselling or causing anyone else to deal in, any contract or proposed contract to which the information relates, and in which the Society is involved,

commits an offence and shall on conviction, be liable to a fine of K5,000,000 and imprisonment for two years.

   (3) This section shall apply to any information that—

   (a)   a member of the Board, employee, consultant, adviser or sub-contractor of the Society holds by virtue of his office or dealings with the Society;

   (b)   would not be expected, or would not be reasonable for the information to be disclosed by a member of the Board, employee, consultant, adviser or sub-contractor of the Society except in the proper performance of the functions of his office; or

   (c)   the member of the Board, employee, consultant, adviser or sub-contractor of the Society holding the information knows or ought to have known that it is unpublished information in relation to any contract or proposed contract of the Society.

   (4) The provisions of this section shall continue to apply to any member of the Board, employee, consultant, adviser or sub-contractor of the Society, notwithstanding the expiry or termination of the term of office of the member or the employment of the employee, consultant, adviser or sub-contractor of the Society, as the case may be.

20.   Oath of secrecy

   A member of the Board, an employee, a consultant, an adviser and a sub-contractor of the Society, shall sign an oath of secrecy upon being appointed to the Board or being engaged by the Society, as the case may be.

21.   Delegation of powers

   (1) The Board may delegate some of its functions under this Act to the Copyright Administrator, any member of the Board, or member of staff of the Society.

   (2) The Copyright Administrator may, with the approval of the Board of the Society, delegate any power or function assigned to him under this Act, to any member of staff of the Society.

22.   Funds of the Society

   (1) The operational and financial costs of the Society shall be provided through—

   (a)   all fees payable under this Act, except levies and fees payable to the Society under Part XIII;

   (b)   administrative penalties paid to the Society under this Act;

   (c)   grants or donations received by the Society;

   (d)   such moneys as may be appropriated to the Society by Parliament; and

   (e)   such other moneys and assets as may vest and accrued to the Society.

   (3) Subject to the Public Finance Management Act, the Society may borrow such moneys as it may require for the performance of its functions under this Act. Cap. 37:02

   (4) The Society may invest with any bank or financial institution in Malawi, any of its moneys that are not immediately required for the performance of its functions under this Act.

   (5) All the moneys of the Society which, at the end of each financial year, are in excess of the Society’s budgetary requirements for that year shall be paid into the Consolidated Fund, but the Society may, subject to agreement with the Minister of Finance, retain such sums as it may reasonably require for operations of the Society.

23.   Accounts and audit

   (1) The Society shall maintain proper books of accounts and other records relating to its accounts.

   (2) The Society shall appoint independent auditors to audit the accounts of the Society annually and a copy of the audited accounts shall be sent to the Auditor General for examination before final presentation to the Minister.

   (3) The financial year of the Society shall be the same as the financial year of the Government.

24.   Annual report

   (1) As soon as practicable, but not more than six months after the expiry of each financial year, the Society shall submit to the Minister, a report concerning its activities during that financial year.

   (2) The report shall be in the form and contain such information as prescribed by the Minister.

   (3) There shall be appended to the report—

   (a)   an audited statement of financial position;

   (b)   an audited statement of income and expenditure;

   (c)   justification for retention of any sums, where applicable; and

   (d)   such other information as the Minister may consider appropriate.

   (4) As soon as practicable, but not more six months after the expiry of the financial year, the Minister shall lay the report before Parliament.

PART III
COPYRIGHT

25.   Copyright

   An author of any work shall, by the mere fact of its creation, enjoy an exclusive property right in the work.

26.   Eligibility for copyright

   (1) Literary, dramatic, musical or artistic work shall not be eligible for copyright under this Part unless—

   (a)   it is original in character; or

   (b)   it is a derivative work.

   (2) A work shall be eligible for copyright under this Act irrespective of its form of expression, its quality or purpose for which it was created.

   (3) For purposes of this Part, a work is original if it is the product of the independent efforts of the author.

27.   Derivative

   (1) The following derivative works, in so far as they constitute independent creations, shall be subject to copyright protection as if they were original works—

   (a)   translations, adaptations, arrangements and any other transformations of original literary, dramatic, musical and artistic works; and

   (b)   collections of works, such as encyclopedias and anthologies, which, by reason only of the selection or arrangements of their contents, constitute intellectual creations.

   (2) The protection of any work referred to under subsection (1) shall be without prejudice to any other protection of a pre-existing work or expression of folklore.

28.   Works not subject to copyright protection

   (1) Copyright protection shall not extend to—

   (a)   written laws and decisions of courts and administrative bodies and to official translations thereof;

   (b)   news published, broadcast or communicated to the public by any other means; or

   (c)   a report made by a commission appointed by the Government or any agency thereof and which the Government has made available to the public.

   (2) Works that have not been made especially for use in documents as mentioned in subsection (1), and which are quoted or reproduced in the documents or made available through news reports, shall be subject to copyright protection.

29.   Economic rights

   (1) Subject to Part IV, an author of any work eligible for copyright under this Part, shall have the exclusive right in respect of such work, to do, or authorize any other person to do, the following acts in relation to the whole work or any part thereof—

   (a)   reproduction of the work;

   (b)   distribution by way of sale, commercial rent or lending of the work to the public;

   (c)   public display of the work;

   (d)   public performance of the work;

   (e)   communication of the work to the public;

   (f)   translation, adaptation, arrangement or any other transformation of the work in relation to a translation, adaptation, arrangement or other transformation of the work; or

   (g)   any of the actions in paragraphs (a), (b), (c), (d) and (h) in relation to a translation, adaptation, arrangement or other transformation of the work.

   (2) Tangible copies of a work which have been sold or otherwise assigned by, or with the consent of, the author may, regardless of whether the transfer of the copy occurred in Malawi or elsewhere, be distributed to the public:

   Provided that the author shall retain—

   (a)   the right of commercial rental of the work, except in the case of objects for practical use and works or architecture in the form of a building;

   (b)   the right of commercial rental in the case of computer programmes, except where the programme itself is not the essential object of the rental or lending; and

   (c)   the right of lending of machine-readable copies of a computer program audio-visual work embodied in sound recording, database or musical work in form of notation.

   (3) Tangible copies of a work which have been sold or otherwise assigned by, or with the consent of the author may be displayed to the public regardless where the transfer of the copy took place.

30.   Moral rights

   (1) An author of any work eligible for copyright under this Act shall have the exclusive right to—

   (a)   claim authorship of his work and in particular, to demand that his name or pseudonym be mentioned in the manner required by proper usage when any of the acts referred to in section 29 (1) is done in relation to such work;

   (b)   object to, and to seek relief in connexion with, any alteration, distortion, mutilation or other modification of the work where—

      (i)   such act would be or is prejudicial to his honour or reputation; or

      (ii)   the work is discredited thereby.

   (2) Whenever a work is made available to the public in a prejudicial manner as stated in subsection (1) (b) (i), the author shall have a right to demand that he be not mentioned as the author of the work, or that it be stated that the alteration does not derive from him.

   (3) The right of the author stated in subsection (2) shall—

   (a)   apply regardless of the author having consented to the use; and

   (b)   not be subject to waiver.

   (4) The rights conferred by subsection (1)—

   (a)   shall not be transferable except on and by reason of the death of the author; and

   (b)   may not be waived except for a use which is limited in nature and extent.

   (5) On the death of an author, the rights conferred by subsection (1) shall be exercisable by his heirs or legal representatives.

   (6) The director of any audio-visual work shall have the right to—

   (a)   be identified as the director of the work and in particular, to demand that his name or pseudonym be mentioned in the manner required by proper usage when any of the acts referred to in section 29 (1) is done in relation to such work;

   (b)   object to, and to seek relief in connexion with, any alteration, distortion, mutilation or other modification of the work where—

      (i)   such act would be or is prejudicial to his honour or reputation; or

      (ii)   the work is discredited thereby, except where such act is done under authority of the author of the work.

   (7) Subsections (2), (3), (4) and (5) shall apply, mutatis mutandis, to the director of an audio-visual work.

31.   Right to share in proceeds of sale

   (1) Notwithstanding any assignment or sale of original work, an author of a graphic work, three-dimensional work and manuscript shall have an inalienable right to share in the proceeds of any sale of that work or manuscript by public auction, through a dealer whatever the method used by the latter to carry out the operation.

   (2) The right conferred by this section shall apply to originals of such work.

   (3) The conditions for the exercise of the right conferred by this section shall be prescribed by regulations made by the Minister under section 118.

32.   Alteration of buildings and objects for practical use

   Subject to the Monuments and Relics Act, buildings and objects for practical use may be altered without the consent of the author when this is done for technical reasons or for practical purposes, irrespective of section 30 (1) (b). Cap. 29:01

33.   Ownership of copyright

   (1) In determining the person vested with copyright under this Part, the following principles shall apply—

   (a)   where one person is the author of the work, the rights shall vest in that person;

   (b)   where two or more persons are the authors of the work of joint ownership, the rights shall vest in them jointly; and

   (c)   where there is no proof to the contrary, the author of the work is the individual whose name or generally known pseudonym, mark or symbol is indicated in the usual manner on the work as its author.

   (2) In the case of published anonymous or pseudonymous works other than those referred to in subsection (1) (c), the publisher whose name appears on the work shall, in the absence of proof to the contrary, be deemed to represent the author and may act on behalf of the author until the author reveals his identity and establishes his claim to authorship of the work.

34.   Works by employed authors and commissioned works

   (1) Unless there is evidence to the contrary, when a work is created by an author in the course of his employment or as a commissioned work, the rights of the author in respect of the work shall vest in the employer or the party that commissioned the work.

   (2) Nothing in subsection (1) shall derogate from the rights of the author as set out in section 30.

35.   Duration of copyright

   (1) Unless otherwise expressly provided in this Act, the rights referred to in sections 29 and 30 shall be protected—

   (a)   during the life of the author and for fifty years after his death;

   (b)   in the case of a work of joint ownership, during the life of the last surviving author and for fifty years after his death;

   (c)   in the case of anonymous or pseudonymous works, for a period of fifty years from the date on which such work was first published or otherwise lawfully made available to the public, whichever date is the latest, or if the work has not thus been made available to the public within fifty years of it having been created, for a period of fifty years from the date on which the work was created:

      Provided that where the author, before the expiration of such period, discloses his identity, or the pseudonym leaves no doubt as to the identity of the author, protection shall be for the duration specified in paragraph (a) or (b), as the case may be;

   (d)   in the case of any audio-visual work, until the expiration of fifty years from the date on which such work is first published or otherwise made available to the public with the consent of the author, whichever date is the latest, or if the work has not thus been made available to the public within fifty years from the making of the work;

   (e)   in the case of a work owned by the Government, for fifty years commencing from the date on which the work was first made available to the public, or, if the work has not thus been made available to the public within fifty years from the making of the work, fifty years from the making of the work; or

   (f)   in the case of a work of applied art which is subject to production on an industrial scale, until the expiration of twenty-five years from the date on which the work was first published, or, if the work has not been published within fifty years of it having been made, for a period of fifty years from the date on which the work was made.

   (2) Every period specified in this section shall run to the end of the calendar year in which it would otherwise expire.

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