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Intellectual Property Law and Respecting Others Property

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Table of Contents

  • International Conventions:
  • Judicial decisions:
  • Eminent writers:
  • Conclusion:
  • Works cited

The primary source of the Intellectual Property Law in Zambia is the Constitution Cap 1, which is the supreme law of the land. Article 257 (e) provides for he protection and enhancement of intellectual property in, and indigenous knowledge of, biodiversity and genetic resources of local communities.

There are other statutes that have been enacted to manage the intellectual property law as subordinate legislation on the subject matter. These include the Penal Code Cap 87, Registered Designs Act, Cap 402, Patents Act , Cap 400, Trademarks Act Cap 401, and the State Security Act, Cap 111 of the Laws of Zambia.

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Prior to 2010, Zambia had no intellectual property policy. Result of this is that monitoring and coordination of intellectual property activities was very difficult. The office that is mandated to administer Intellectual Property in the country is the Patents and Companies Registration Agency (PACRA).

Prior to 1994, copyright legislation could only be created under the Societies Act. However, the Copyright and Performance Rights Act provided for the registration of collecting societies, by defining a collecting society as an association , partnership or body corporate whose principal purpose is the representation of copyright owners in the negotiation and administration of collective copyright agreement. The most prominent collective society in the music category was formed in 1996, called Zambia Music Copyright Protection Society (ZAMCOPS) to represent the music industry.

Zambia has also enacted a new Act for the protection of Layout designs for integrated circuits (ICs).

International Conventions:

This is a world body, an agency of the UN based in Geneva, specialised on intellectual property. Zambia is a signatory to several intellectual property conventions of World Intellectual Property Organisation (WIPO) through which it administers intellectual property issues on the international platform. The Convention establishing the WIPO in 1967 in its Article 2 (viii) provides the scope of intellectual property rights which includes rights relating to literary, artistic and scientific works; performances of performing artists, phonograms and broadcasts; inventions in all fields of human endeavours, scientific discoveries, industrial designs, trademarks, service marks and commercial names and designations, and protection against unfair competition.

Zambia also collaborates with other regional and international bodies. Some of these are the Patent Cooperation Treaty (PTC) and the Madrid Protocol dealing with the registration of trademarks internationally. Further, Zambia is a signatory of the TRIPs agreement under the World Trade Organisation (WTO) which brings issues of trade and intellectual property together with their administration.

Judicial decisions:

In Franklin Mint Corp. v. National Wildlife Art Exchange Inc., the plaintiff, the National Wildlife Art Exchange, commissioned a well- known wildlife artist to produce a watercolour bird painting of cardinals. The artist transferred the copyright to the plaintiff, who issued limited edition prints of the work. Three years later, the defendant, Franklin Mint, commissioned the same artist to paint a set of four bird pictures, including one of cardinals, and also issued prints of the pictures for sale. The plaintiff sued the defendant for copyright infringement of its cardinals. The plaintiff claimed that the painter had copied a substantial part of the earlier work. The painter replied that he had just taken the idea and that he should not be barred from ever painting pictures of cardinals again. The court of the first instance agreed with the painter and the Appeal Court affirmed a judgment for the defendant.

In the case Trade Kings Limited v Unilever PLC and others, the High Court ordered the de-registration of Geza soap and asked the Patents and Trade Marks Office to consider the opposition filed by the makers of the rival Geisha soap on the issue.

On appeal in the Supreme Court, the respondents commenced an action in the Lower Court seeking an injunction to restrain the appellants from allegedly infringing their trademark 83/93 in respect of GEISHA and from passing off the soap GEZA as the respondent's soap. The Supreme Court observed that the trial judge opted not to deal with the case as presented by the complainants but sought to re-open the registration process at a point where an objection had been received and ordered that the registration of GEZA be expunged and that the statutory processes consequent upon the receipt of a valid objection be proceeded with.

It was held that the Supreme Court was bound to take heed of section 57 of the Trade Marks Act-Cap 401, which asserted that registration formed prima facie evidence of the validity of the original registration. The court therefore held that the appellant’s registration of the trade mark GEZA was restored and the decision of the court below set aside and a re-hearing ordered in the lower court.

In the appeal case, DH Brothers industries(PTY) Ltd v Olivine Industries (PTY) Ltd, the court held that the Trade mark ‘Daily’ could not be protected because it was not registered despite sufficient prior use of the mark in Zambia.

Eminent writers:

The fourth source of intellectual property rights law is writings of eminent writers. These include inter alia George M Kanja, Kamil Idris, Lloyd Samson Thole, and members of academia in the faculty of law in both public and private universities.

Conclusion:

Intellectual Property Law deals with the rights that are given to a person or an entity in regard to intangible things which come about through the intellect of a human being. The main concern of the law is the protection of these rights from unauthorised use or infringement. The protection of intellectual property seeks to advance two major ends, and these are to encourage the disclosure of new developments and ensuring honesty in commercial transactions.

Normally, the state gives the inventor a monopoly position as a reward for his labour in innovating. 

Works cited

  1. Kanja, G. M. (2018). The role of intellectual property in the promotion of innovation in Zambia. Journal of Intellectual Property Law and Practice, 13(9), 721-729.
  2. Idris, K. (2007). Intellectual property: A power tool for economic growth and development in Zambia. World Intellectual Property Organization Magazine, 5, 12-13.
  3. Thole, L. S. (2015). The evolution of intellectual property in Zambia: A socio-legal perspective. International Journal of Intellectual Property Management, 5(2), 101-113.
  4. Mwansa, J. M., & Machila, S. C. (2017). Intellectual property law in Zambia: Current status and future prospects. Journal of Intellectual Property Law and Practice, 12(11), 926-938.
  5. Sinkala, S. (2013). The protection of indigenous knowledge in Zambia: The case of traditional medicines. International Journal of Intangible Heritage, 8, 189-203.
  6. Mwaanga, O. (2019). The impact of the TRIPS agreement on the development of intellectual property law in Zambia. African Journal of International and Comparative Law, 27(3), 296-312.

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