The plaintiff and second defendant were both registered collecting societies under the Copyright and Neighbouring Rights Act [Chapter 26:05]. The plaintiff represented 4,520 artists who had assigned their copyrights to it, and was also an agent for foreign collecting societies under CISAC (Confederation of Societies of Authors and Composers). The first defendant operated food outlets under various brand names (Chicken Inn, Pizza Inn, etc.) and played music at its outlets. Prior to November 2023, the first defendant was licensed by the plaintiff but switched to the second defendant's cheaper licensing. Between November 2023 and October 2024, the plaintiff's inspectors visited the first defendant's outlets and found them playing music by artists from the plaintiff's stable without a licence from the plaintiff. The plaintiff claimed USD86,719 in damages, representing the licence fees for that period, and sought a declaration that the second defendant had no authority to license music belonging to the plaintiff's members.
1. The second defendant shall not authorise any person to play music that is protected by copyright in terms of the Copyright and Neighbouring Rights Act [Chapter 26:05] or CISAC. 2. The first defendant is absolved from the plaintiff's claim. 3. The second defendant shall bear the plaintiff's costs. 4. As between the plaintiff and the first defendant, each party shall bear their own costs.
A collecting society registered under the Copyright and Neighbouring Rights Act can only authorize the use of and collect royalties for musical works by artists who have assigned their copyrights to that specific society. A licence issued by one collecting society does not entitle the licensee to use music protected by copyrights assigned to a different collecting society. Copyright is a statutory real right that subsists exclusively in terms of the Act (s 128), and infringement occurs when someone uses copyrighted works without authorization from the copyright owner (s 51). Damages for copyright infringement must be computed in accordance with s 52 and s 56 of the Act, taking into account factors such as reasonable royalties, market value of the works, extent and nature of infringement, and cannot simply be calculated as licence fees that would have been payable.
The court observed that nearly all famous singers and composers on the Zimbabwean discography covering virtually every genre have assigned their copyrights to the plaintiff, making it difficult to determine whose music could legitimately be played without the plaintiff's authorization. The court noted that it appeared some artists were registered with both collecting societies, though the number seemed infinitesimal. The court commented that the plaintiff's prayer in the summons was "inelegant, too widely cast and open ended" and "one that a court cannot possibly grant in its form." The court also observed that it is not a basis for claiming costs on the higher scale "that a litigant has been forced to litigate" and that costs on the higher scale are "generally reserved for serious misbehaviour by a litigant or its legal representative."
This case clarifies important principles regarding copyright enforcement by collecting societies in Zimbabwe. It establishes that: (1) collecting societies can only license and collect royalties for artists registered with them; (2) a licence from one collecting society does not provide blanket authorization to use all copyrighted music; (3) copyright is a statutory right that exists exclusively under the Act with no common law copyright; (4) damages for copyright infringement must be properly assessed according to statutory criteria (market value, reasonable royalties, extent of infringement) rather than simply claiming licence fees; and (5) artists may assign their copyrights to collecting societies who then have exclusive rights to authorize use. The case provides guidance on the operation of competing collecting societies and the limits of their respective licensing authority.