Case 9-1 Essay

Copyright - Infringement - Defence of mistake and innocence - Claims for injunction and damages.
Headnote
This was an application for injunction and claim for damages for infringement of copyright. The defendant played three musical records in public without obtaining a licence from the plaintiff who was the owner of the copyright. The court found that the infringement was for one day. The defence was that the performance was done innocently and under mistake.
Held: (i) Under s. 13 of the Copyright Act, copyright is infringed if an act is done falling within the copyright without licence of the person in whom copyright is vested. Infringement is actionable at the suit of the owner.
(ii) If it is proved and admitted that the infringement was committed but that the defendant was not aware and had no reasonable grounds for suspecting that copyright subsisted in the work, the plaintiff shall not be entitled to any damages against the defendant but to an account of the profits in respect of the infringement whether any other relief is granted or not.
(iii) On the evidence of the instant case, and taking into account the defence put up by the defendant, the plaintiff was not entitled to any damages but to an account of profits in respect of the infringement.
(iv) Injunction granted and the plaintiff is entitled to profits.
[Editorial Note: The judge seems to have ignored that piece of evidence where the defendant said, that he had received several letters from the plaintiff's solicitors asking him to stop playing copyright music, but he did not know what they were asking. He had never in his life heard that there is copyright in music-see Halsbury's Laws of England, 4th ed, Vol. 9, para. 938; "defendant does not establish that he had no reasonable grounds for suspecting the existence of copyright by showing that he held an honest but erroneous view of the law."]
Legislation referred to:
Copyright Act, Cap. 701, s. 13.
Copyright Act, 1956 (England), s. 17, (2).
For the plaintiff: N. Mavrokefalos, D.H. Kemp & Co.
For the defendant: A.R. Lawrence, Solly Patel, Hamir & Lawrence.
Judgment
SAKALA, J.: The plaintiff's claim is for an injunction to restrain the defendant whether by himself or by his servants or agents from infringing the plaintiff's copyright by communicating to the public or authorising or procuring communication to the public of the musical worlds "Kung Fu Fighting", "House of Exile", and "Money won't save you" or any other musical works the copyright of which vests in the plaintiff. The plaintiff also claims for damages.
In support of the claim, PW1 Ronald Clarence Chipumza an accountant with Lightfoot Advertising told the court that he is also the Zambian Agent for the Performing Right Society Limited, the plaintiff in this case. He testified that the objective of the plaintiff is to protect copyright of music writers, artists and composers. The society represents them and collects fees on behalf of its members which in the end is distributed to the members. In Zambia, the position of the plaintiff is to represent the copyright of the affiliated societies throughout the world. He testified that in early 1975, a search was conducted at the defendant's premises to determine the extent to which the copyright of the society members was being violated. He told the court that in September, a letter was sent to the defendant advising him that the plaintiff's copyright was being infringed. Another letter was sent in October 1975, reminding the defendant of the consequence of performing copyright music without the consent of the copyright owner. The witness further testified that he also wrote the defendant suggesting to him to take out the society's licence. But there was no reply to any of the letters. Further, the defendant made no attempt to arrange for a meeting. In the end the matter was referred to the plaintiff's solicitors. The witness further testified that he physically, on several occasions

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