NAMIBIA Law and Practice Contributed by: Nadine van Schalkwyk, Ralph Strauss, Bonita R de Silva, Ivo dos Santos, Chrissie Turck, Jané Louw, Nicole Freygang and Natasha Nekuta, Dr. Weder, Kruger & Haikali Inc.
• a programme-carrying signal, for a period of 50 years from the end of the year in which the signal is emitted to a satellite. Copyright subsists automatically in eligible works which meet the requirements set out in the Copyright and Neighbouring Rights Protection Act No 6 of 1994, and no formal registration process is required. How - ever, in practice, the Business and Intellectual Prop - erty Authority (BIPA) may issue registration certificates for copyright. Copyright is infringed by a person who, without the licence of the owner, does or causes any act which the owner has the exclusive right to do or authorise. Infringement proceedings are brought before the court, and the copyright owner may seek remedies including damages, an interdict, delivery up of infring - ing copies, or the delivery of plates used or intended to be used for the production of infringing copies. Such remedies are available to the owner in the same manner as those available to a plaintiff in correspond - ing proceedings concerning the infringement of other proprietary rights. At the option of the owner, dam - ages may be calculated on the basis of a reasonable royalty that would, in the circumstances, have been payable by a licensee or sub-licensee in respect of the copyright concerned. 7.5 Others When reference is being made to “other” IP rights, a distinction should be drawn between software and databases, and trade secrets. The distinction arises from the different forms of pro - tection applicable to these rights. Software and data - bases qualify for protection under copyright and are defined as such in the Copyright and Neighbouring Rights Protection Act 6 of 1994. Under the Copyright and Neighbouring Rights Protection Act 6 of 1994, “software” is classified as a computer program and a “database” as a literary work. Trade secrets, on the other hand, enjoy no specific legislative protection in Namibia. Protection is how - ever found in the common law. The common law posi -
tion and protection vest if three requirements are met. These requirements are: • The information must relate to trade or industry and be capable of practical application. • It must be secret or confidential, meaning it must not be public knowledge or property. • The information must have economic or business value to the person claiming rights over it. Trade secrets, if the above requirements are met, cannot be registered, as with other IP rights, as the registration would defeat the purpose of secrecy. In practice, trade secrets are mostly protected through the use of confidentiality agreements. This may also include clauses in employment agreements that bind employees to the non-disclosure obligations. Enforcement may take different forms, although disputes are ultimately determined by the courts of Namibia. The forms of enforcement include action proceedings for damages, in cases of unauthorised disclosure, interdictory relief on application in cases of unfair competition, or specific performance on appli - cation in the enforcement of contractual obligations, in cases in which the obligation exists. It must be borne in mind that disclosure of the trade secret would disqualify the trade secret from further common law protection, as the requirement of secrecy would no longer be met. Namibia currently does not have comprehensive gen - eral data protection legislation in force. Namibia relies on the constitutional privacy rights in terms of Article 13 and sector-specific laws that address individual data protection. The right to privacy is a fundamental human right that is limited to what is required by law. This right consists of protecting national security, public safety, economy, health, morals and protection against crimes. 8. Data Protection 8.1 Applicable Regulations
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