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Fred Zindi Music Column
Stories about piracy and music copyright infringement appear fairly regularly in many mainstream publications. Lately, there has been a story of two musicians, one accusing the other of stealing his songs and recording them without his permission. This was solved when the song “thief” was asked to pay $40 and surrender all the CD’s manufactured as a result. How ridiculous.

Few of these disputes go to trial, and fewer still generate published judicial opinions.
Last week,I asked a colleague in the Faculty of Law why the courts do not seem too keen to deal with issues of piracy or copyright infringement.

His reply was: “Most lawyers and law enforcement agencies have no understanding of copyright issues. When confronted with a judicial matter of this nature, they are quick to ask for the contract signed between parties rather than deal directly with copyright infringement.
“This is why there is a problem.

The University of Zimbabwe’s Law Faculty although it has a subject called Intellectual Property, it does not teach copyright law in detail as part of its syllabus, so most lawyers out there do not have an idea how to approach this subject.”

Zimbabwe Music Rights Association (ZIMURA)have dealt with close to a 100 cases dealing with copyright issues over the past ten years, but as far as I know none of these cases have gone to court.

This means that copyright issues in music are not being taken seriously.
It is often said that there is “no property more peculiarly a man’s own than that which is produced by the labour of his mind”.
There are specific traditional songs which form part of Zimbabwe’s national identity. Songs such as “Nhemamusasa”, “Chemutengure”, “Unyawo Lwami”, “Dlalisi” , “Manhanga Kutapira”, and so forth, are traditional songs which give Zimbabwe its national identity.

It is thus imperative both from an individual and a national standpoint that the production and dissemination of this intellectual property be protected.
If these songs are used by foreigners overseas without due copyright agreements, how does Zimbabwe benefit?

I was shocked when visiting Fredrikstad Cultural School, a school in Norway, to see that all the music students there could play “Nhemamusasa” on mbira and marimba and sing it in Shona just like Zimbabwean musicians do.

They even boasted that they had done a recording of this song under the name “Kulturskolen I Fredikstad”.
No mention of Zimbabwe was made on the recording. On being asked how they had obtained the copyright, no one had a straight answer. All I heard was the fact that there is a cultural exchange between Zimbabwe and Norway, but this did not address the issue of copyright.

According to the Zimbabwe Copyright and Neighbouring Rights Act, copyright is the exclusive right given by law for a certain period of time, to a composer, author or artist to control the use of the works of his or her mind. The author of an original musical, literary, dramatic or artistic work is entitled to protection against the unauthorised use of his/her work as well as a share of any earnings from its use.

The economic rewards that copyright assures the author provide a stimulus to creativity from which the whole society benefits.
In Zimbabwe, today, a lot of young music composers are failing to make any money out of their intellectual property because they do not have a clue on how to protect it.
Someone without any talent will come and steal one’s idea and pretend it is their own. The next thing, that music is being sold on the streets without any money going to the originators.

The law of copyright aims at protecting the rights of artists in areas such as literacy, drama and musical work in as far as:
Reproducing the work in any material form.
Publishing the work.
Performing the work in public;
Broadcasting the work.
Causing the work to be transmitted to subscribers to a diffusion service and making any adaptation of the work.
Exception to the above is made if a work is performed, copied, reproduced or adapted for:
Research or private study.
Personal and private use.
Criticism or review if sufficient acknowledgment is made.
Reporting current events in a newspaper, magazine, broadcast, TV programme or movie.
Reproduced and/or performed for judicial proceedings; and.
The performance or broadcast of a reasonable extract if sufficient acknowledgment is made.

Unless a song is in public domain, that is, if the song is still in circulation 50 years after the death of the composer(s), then it cannot be used without permission by anyone else.
In 1951, Augustine Musarurwa, born in Zvimba in 1920, and his Cold Storage Sweet Rhythm Band, recorded through Gallo Records of South Africa, the world famous tune, “Skokiaan”. When Louis “Satchmo” Armstrong the acclaimed jazz trumpeter, visited Zimbabwe (then Rhodesia) in December, 1960, after the United States Information Services (USIS) facilitated his tour of Africa, he was surprised at the similarities between Kwela and Jazz and asked Augustine Musarurwa and his backing band to be the supporting musicians on some of his tunes. At the same time Armstrong tried to fit into some of Musarurwa’s songs.

He fell in love with “Skokiaan” and later, after returning to the United States, recorded “Skokiaan” in 1961.Members of the Musarurwa family I have spoken to say that they never received any royalties for the use of Augustine’s tune.

It is not known who gave Louis Armstrong permission to record “Skokiaan” as both Augustine and Armstrong are now dead.
A similar incident occurred in 1939 when a South African Solomon Popoli Ntsele Linda, a Zulu musician,with his group, The Evening Birds, recorded in a Johannesburg studio a new melody over a background of vocal chants. He named the song “Mbube,” which is Zulu for “lion,” and it went on to become one of the most famous melodies in the world, spawning hundreds of cover versions in Japanese, Spanish, and French, among other languages. The English version, “The Lion Sleeps Tonight,” has been recorded by more than 150 artistes and appears in more than 15 feature films.

One of the groups which recorded the song in England was called Tiger Feet.
They did not acknowledge Solomon Linda for the song neither did Linda’s family receive any royalties for his effort in composing the song. Gallo Records paid Linda and his group a flat session fee for the recording, after which the company owned the song and did not have to pay any composer royalties, even though the record sold an estimated 100,000 copies in South Africa alone. Linda died a pauper on October 8, 1962.

Solomon Linda’s song, “Mbube” was covered by so many artistes such as Miriam Makeba, Ladysmith Black Mambazo, Richard Harris, Pete Seeger and Tiger Feet who generated millions of dollars in royalties which never reached the composer.

It is unbelievable to see that the originators of the songs which made such a big impact on the whole world died poor and the families they left behind are also poor.
Societies such as WIPO (World Intellectual Property Organisation), PRS (Performance Rights Society), and CISAC (Confederation of International Songwriters, Authors and Composers) should come together and confront the record companies that have benefited from profits accrued through the labours of their composers’ minds in order to assist those they left behind.

Fred Zindi is a Professor at the University of Zimbabwe. He is also a musician and an author of several books on music. He can be contacted via e-mail on [email protected]