Gramma Records (Private) Limited and Charles Charamba v Herman Chimusoro

The second applicant, Charles Charamba, is a renowned gospel artist in Zimbabwe. The first applicant, Gramma Records, is a recording company contracted to arrange recording of Charamba's live show. On 13 September 2005, a contract was entered into with the respondent, Herman Chimusoro (trading as Crossline Music & Video), to supply and operate 24-track recording equipment and to film, edit and supply a finished DVD master of a live concert to be held on 1 October 2005 at the Harare International Conference Centre. The total contract sum was $372,500 (old currency), of which $212,700 was paid as deposit before the show. The balance of $159,800 remained outstanding. The show was held, but the respondent failed to deliver the DVD master as required. The applicants claimed the delivered DVD did not contain a substantial portion of the live recording. Following the show, the respondent alleged poor sound quality and entered into a subsequent arrangement for studio time to enhance the audio recording. The respondent refused to deliver the copyright materials until paid for the balance of the original contract and additional studio time costs.

• Whether the applicants are entitled to delivery of the audio-visual work and sound recording under the contract
• Whether ownership of copyright in commissioned works vests in the person who commissions and pays or agrees to pay for such works under section 14(4) of the Copyright and Neighbouring Rights Act
• Whether the respondent has a lien over the copyright materials for unpaid amounts
• Whether the common law lien can apply to copyright matters given the provisions of section 128 of the Copyright and Neighbouring Rights Act
• Whether the respondent's possession of the copyright constitutes infringement under sections 51(2)(a)(iii) and 51(2)(b)(iii) of the Act
• Whether the respondent's counter-claims for additional amounts are sustainable in the application procedure

1. The Respondent shall, against payment to him by either or both applicants of the sum of $159,800,000 (old currency) effect delivery to the 1st Applicant of the audio visual work and the sound recording in respect of the concert performed by the 2nd Applicant on 1 October 2005 at the Harare International Conference Centre and all related sound recording within 48 hours of service of this order. 2. The respondent shall pay the costs of this application. 3. The respondent's counter claim is dismissed with costs.

Under section 14(4) of the Copyright and Neighbouring Rights Act [Chapter 26:05], where a person commissions the making of an audio-visual work or sound recording and pays or agrees to pay for it in money or money's worth, that person shall be the owner of any copyright subsisting in the work. Ownership is not qualified and vests once payment is made or agreed. Section 128 of the Act ousts the common law regarding copyright, providing that no copyright or right in the nature of copyright shall subsist otherwise than by virtue of the Act or any other enactment. Consequently, common law liens do not apply to copyright materials, and a producer commissioned to create copyright works cannot withhold delivery of those works on the basis of a lien for unpaid amounts, as the Act does not provide for such liens.

The court commented that neither legal practitioner made adequate effort to construe the meaning of 'possess' in the context of section 51(2)(a)(iii) of the Act, especially given that such possession could result in criminal sanction. Gowora J suggested that the word 'possess' in this context likely refers to a person who acquires possession of copyright from someone not entitled to possess it, without authority from the owner, and who had no hand in its creation. The court indicated that a thorough examination of the meaning of 'possess' would be necessary before holding that the respondent's possession in the circumstances (holding the work to compel payment after having been commissioned to create it) constituted infringement. The judge also noted that the counter-claim for additional studio time and other amounts was inappropriately brought by way of application rather than action, given that the amounts were unliquidated and not properly substantiated.

This case is significant in Zimbabwean copyright law as it clarifies the ownership rights in commissioned copyright works under section 14(4) of the Copyright and Neighbouring Rights Act. It establishes that ownership vests immediately in the commissioning party who pays or agrees to pay, without qualification. The case also importantly confirms that section 128 of the Act ousts the common law in relation to copyright matters, meaning that common law remedies such as liens do not apply to copyright unless specifically provided for in the Act. This decision reinforces the statutory nature of copyright protection and limits the ability of creators/producers to withhold commissioned works on the basis of disputes over payment.