Opinion / Columnist
Unpacking the Great Legal Controversy: Zimura vs Nacz and the Zimbabwe Musicians Association (Part 1)
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The recent public disagreement between the Zimbabwe Music Rights Association (ZIMURA) and the National Arts Council of Zimbabwe (NACZ), (established under Chapter 25:07), along with the involvement of the Zimbabwe Musicians Association, has raised critical legal, regulatory, and practical questions regarding ZIMURA's legal status, its obligations under the NACZ Act, and its authority under the Copyright and Neighbouring Rights Act (Chapter 26:05). The NACZ has directed ZIMURA to register as an arts association in terms of Section 23 of the NACZ Act and has suspended ZIMURA's current system of collecting royalties from artists, or musicians in response, ZIMURA has argued that it is not subject to NACZ oversight and operates under the Ministry of Justice, Legal and Parliamentary Affairs.
The Zimbabwe Musicians Association has strongly opposed ZIMURA, accusing it of threats, swindling musicians, and lacking accountability and good corporate governance. Credit is given to Mr. Raisedon Baya, an accomplished writer, arts critic, and cultural practitioner, for bringing this issue to broader public attention. Many other artists have also shared compelling viewpoints on the matter.
This legal opinion analyzes the dispute and proposes a way forward to ensure fairness in royalty administration, balancing private rights and the state's regulatory role.
2. Key Legal Issues In dealing with the matter, the following critical legal questions arise: 1) Is ZIMURA an "arts organization" within the meaning of the NACZ Act, and is it obligated to register under Section 23 of the Act? If it is not, what is its legal authority to act on behalf of musicians and artists, and does it have the right to collect royalties outside the NACZ framework?
2) Is ZIMURA governed by the Copyright and Neighbouring Rights Act? If so, what is its legal status, and what is the legal framework governing its operations?
3) What is the way forward in resolving this dispute legally and practically? The Legal Analysis and answers in Summary are as follows:-
(a) ZIMURA's Status Under the NACZ Act
The NACZ Act [Chapter 25:07] defines an "arts organization" as any group involved in promoting, organizing, or representing artistic activities. Section 23 of the Act mandates the registration of all arts organizations with the NACZ. NACZ relies on this provision to argue that ZIMURA must register.
However, ZIMURA's core function is the administration of intellectual property rights rather than promoting artistic activities. If ZIMURA is purely a copyright collective management organization (CMO) or collective society (C.S) as it argues rather than an "arts association," its operations may fall outside NACZ's regulatory scope. ZIMURA's legal foundation must be clarified— whether it is a trust, company, or another legal entity. Without such clarity, its authority to represent artists remains in question.
(b) ZIMURA's Governance Under the Copyright and Neighbouring Rights Act The Copyright and Neighbouring Rights Act [Chapter 26:05] provides for the protection and enforcement of copyright and related rights. The Act allows for the existence of CMOs or CSs like ZIMURA, which are empowered to collect and distribute royalties on behalf of rights holders. If ZIMURA is operating under this Act, then its authority to collect royalties is derived from copyright law rather than the NACZ Act. However, it must be noted that ZIMURA is not exempt from oversight. The Registrar of Copyright, under the Ministry of Justice, Legal and Parliamentary Affairs, has the authority to oversee ZIMURA's operations. Additionally, if there are concerns about mismanagement, lack of transparency, or unfair practices, aggrieved parties can apply for the deregistration of ZIMURA.
The law does not grant ZIMURA an exclusive monopoly as the sole collecting entity for royalties, meaning other organizations may also apply to perform similar functions, subject to legal compliance. The Copyright and Neighbouring Rights Act provide the basis for ZIMURA's existence as a collective management organization. ZIMURA must be properly licensed and adhere to the terms set by the Registrar, under threat of sanctions, including deregistration. Importantly, the Act does not establish a monopoly for ZIMURA or any other CMO, as such exclusivity would violate the constitutional right to freedom of association under the Zimbabwean Constitution (2013).
The Proposed Way Forward and Conclusion
Given the legal complexities, the following steps are recommended:-
(a) Clarification of ZIMURA's Legal Status: ZIMURA must publicly disclose its legal status—whether it is a trust, a private voluntary organization (PVO), or a company. This would determine the extent of its legal obligations under both the NACZ Act and the Copyright and Neighbouring Rights Act.
(b) Dialogue Between NACZ, ZIMURA, and the Zimbabwe Musicians Association: All parties should engage in constructive discussions to clarify their respective mandates. If necessary, legal amendments should be considered to explicitly define the relationship between CMOs and the NACZ, ensuring harmony between the Ministry of Justice and Parliamentary Affairs and the NACZ, which has a statutory mandate to regulate, promote, and develop artists.
(c) Audit and Transparency Measures: Artists have raised concerns regarding ZIMURA's financial practices. An independent audit and the adoption of best practices in royalty distribution should be undertaken to restore trust and credibility.
(d) Legal Reform: If there is a regulatory gap regarding CMOs, a policy review may be necessary to ensure that copyright collective management is properly legislated and supervised without unnecessary overlap with arts promotion agencies like NACZ.
(e) Accountability Mechanisms: Artists and other affected parties should utilize existing legal avenues to seek redress, including lodging complaints with the Registrar of Copyright and, if necessary, pushing for legislative changes that prevent monopolistic practices in royalty collection. While NACZ oversees arts associations, ZIMURA's mandate appears to be primarily governed by copyright law. However, ZIMURA must still be accountable for its actions, and aggrieved parties have legal recourse to challenge its operations, including seeking its deregistration.
The dispute between ZIMURA and NACZ highlights a legal grey area regarding the regulation of copyright administration in Zimbabwe. While NACZ oversees arts associations, ZIMURA's role is governed primarily by copyright law. However, ZIMURA must still be accountable for its actions. The key to resolving this matter lies in legal clarity, transparency, and constructive engagement between stakeholders. Ultimately, musicians and artists must fully benefit from their talent and work, while regulatory bodies such as NACZ must fulfill their statutory mandate. Where necessary, legislative reforms should be introduced to ensure fair representation, protection of artists' rights, and the prevention of self-interest and financial mismanagement in royalty administration.
It may be best to learn from and adopt best practices regionally and internationally and possibly adopt the South African model that has several Sector based CMOs for the musicians, producers, namely, the Southern African Music Rights Organisation (SAMRO), for composers, authors and publishers, South African Music Performance Rights Association (SAMPRA) for recording artistes and record Companies, Composers, Authors And Publishers Association (CAPASSO), for reproduction of music, musical works in all forms and Recording Industry of South Africa (RiSA), for major and independent record labels. Their system appears more organised and less chaotic. This is a wake - up call for all stakeholders to come up with a winning model for all in the arts industry.
This article has been written by Sindiso Shepherd Mazibisa who is a Legal Expert and Chairman of the Centre for Legal & Research and Advocacy in Zimbabwe (CLRAZ), and can be contacted on Cell: 0713794510, Email: clraz@gmail.com.
The Zimbabwe Musicians Association has strongly opposed ZIMURA, accusing it of threats, swindling musicians, and lacking accountability and good corporate governance. Credit is given to Mr. Raisedon Baya, an accomplished writer, arts critic, and cultural practitioner, for bringing this issue to broader public attention. Many other artists have also shared compelling viewpoints on the matter.
This legal opinion analyzes the dispute and proposes a way forward to ensure fairness in royalty administration, balancing private rights and the state's regulatory role.
2. Key Legal Issues In dealing with the matter, the following critical legal questions arise: 1) Is ZIMURA an "arts organization" within the meaning of the NACZ Act, and is it obligated to register under Section 23 of the Act? If it is not, what is its legal authority to act on behalf of musicians and artists, and does it have the right to collect royalties outside the NACZ framework?
2) Is ZIMURA governed by the Copyright and Neighbouring Rights Act? If so, what is its legal status, and what is the legal framework governing its operations?
3) What is the way forward in resolving this dispute legally and practically? The Legal Analysis and answers in Summary are as follows:-
(a) ZIMURA's Status Under the NACZ Act
The NACZ Act [Chapter 25:07] defines an "arts organization" as any group involved in promoting, organizing, or representing artistic activities. Section 23 of the Act mandates the registration of all arts organizations with the NACZ. NACZ relies on this provision to argue that ZIMURA must register.
However, ZIMURA's core function is the administration of intellectual property rights rather than promoting artistic activities. If ZIMURA is purely a copyright collective management organization (CMO) or collective society (C.S) as it argues rather than an "arts association," its operations may fall outside NACZ's regulatory scope. ZIMURA's legal foundation must be clarified— whether it is a trust, company, or another legal entity. Without such clarity, its authority to represent artists remains in question.
(b) ZIMURA's Governance Under the Copyright and Neighbouring Rights Act The Copyright and Neighbouring Rights Act [Chapter 26:05] provides for the protection and enforcement of copyright and related rights. The Act allows for the existence of CMOs or CSs like ZIMURA, which are empowered to collect and distribute royalties on behalf of rights holders. If ZIMURA is operating under this Act, then its authority to collect royalties is derived from copyright law rather than the NACZ Act. However, it must be noted that ZIMURA is not exempt from oversight. The Registrar of Copyright, under the Ministry of Justice, Legal and Parliamentary Affairs, has the authority to oversee ZIMURA's operations. Additionally, if there are concerns about mismanagement, lack of transparency, or unfair practices, aggrieved parties can apply for the deregistration of ZIMURA.
The Proposed Way Forward and Conclusion
Given the legal complexities, the following steps are recommended:-
(a) Clarification of ZIMURA's Legal Status: ZIMURA must publicly disclose its legal status—whether it is a trust, a private voluntary organization (PVO), or a company. This would determine the extent of its legal obligations under both the NACZ Act and the Copyright and Neighbouring Rights Act.
(b) Dialogue Between NACZ, ZIMURA, and the Zimbabwe Musicians Association: All parties should engage in constructive discussions to clarify their respective mandates. If necessary, legal amendments should be considered to explicitly define the relationship between CMOs and the NACZ, ensuring harmony between the Ministry of Justice and Parliamentary Affairs and the NACZ, which has a statutory mandate to regulate, promote, and develop artists.
(c) Audit and Transparency Measures: Artists have raised concerns regarding ZIMURA's financial practices. An independent audit and the adoption of best practices in royalty distribution should be undertaken to restore trust and credibility.
(d) Legal Reform: If there is a regulatory gap regarding CMOs, a policy review may be necessary to ensure that copyright collective management is properly legislated and supervised without unnecessary overlap with arts promotion agencies like NACZ.
(e) Accountability Mechanisms: Artists and other affected parties should utilize existing legal avenues to seek redress, including lodging complaints with the Registrar of Copyright and, if necessary, pushing for legislative changes that prevent monopolistic practices in royalty collection. While NACZ oversees arts associations, ZIMURA's mandate appears to be primarily governed by copyright law. However, ZIMURA must still be accountable for its actions, and aggrieved parties have legal recourse to challenge its operations, including seeking its deregistration.
The dispute between ZIMURA and NACZ highlights a legal grey area regarding the regulation of copyright administration in Zimbabwe. While NACZ oversees arts associations, ZIMURA's role is governed primarily by copyright law. However, ZIMURA must still be accountable for its actions. The key to resolving this matter lies in legal clarity, transparency, and constructive engagement between stakeholders. Ultimately, musicians and artists must fully benefit from their talent and work, while regulatory bodies such as NACZ must fulfill their statutory mandate. Where necessary, legislative reforms should be introduced to ensure fair representation, protection of artists' rights, and the prevention of self-interest and financial mismanagement in royalty administration.
It may be best to learn from and adopt best practices regionally and internationally and possibly adopt the South African model that has several Sector based CMOs for the musicians, producers, namely, the Southern African Music Rights Organisation (SAMRO), for composers, authors and publishers, South African Music Performance Rights Association (SAMPRA) for recording artistes and record Companies, Composers, Authors And Publishers Association (CAPASSO), for reproduction of music, musical works in all forms and Recording Industry of South Africa (RiSA), for major and independent record labels. Their system appears more organised and less chaotic. This is a wake - up call for all stakeholders to come up with a winning model for all in the arts industry.
This article has been written by Sindiso Shepherd Mazibisa who is a Legal Expert and Chairman of the Centre for Legal & Research and Advocacy in Zimbabwe (CLRAZ), and can be contacted on Cell: 0713794510, Email: clraz@gmail.com.
Source - Sindiso Shepherd Mazibisa
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