RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/248/Add.2
10 July 2001
(01-3443)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Namibia to questions posed by Canada and the United States
Addendum
By means of a communication from the Permanent Mission of Namibia, dated 21 June 2001,
the Secretariat has received the following responses to outstanding initial questions posed by Canadaand the United States, circulated in documents IP/C/W/245 and 240, respectively, together with the
following responses to follow-up questions posed by the United States, circulated in document
IP/C/W/240/Add.1.
_______________
CANADA
1. Please describe how the enforcement obligations (Articles 41-61 of the TRIPS Agreement)
have been implemented.
1
The Act governing copyright in Namibia sets ou t the remedies available to the injured party.
Chapter two of the Copyright and Neighbouring Rights Protection of Act 1994 deals with
infringement of copyright and the infringement thereof.
Section 30 of the Act provides for the institution of civil proceedings in a court of law by the
owner of the copyright whenever an infringement is committed.  The said Section also provides for
relief which may be claimed as a result of such infringement.  The relief that may be claimed includes
damages, interdicts, delivery of infringing copies or plates used or intended to be used for infringing
copies or otherwise.
The remedies available as set out in the above paragraph are self explanatory.  However, we
wish to point out the following in respect of interdict and damages:
Interdicts can be either prohibitory, restitutory  or mandatory.  The interdict restraining the
alleged infringement act is usually the principal remedy sought by the copyright holder.  This type ofinterdict is called prohibitory interdict.  The righ t to obtain an interdict can only be exerted by the
copyright holder of the exclusive licensee or sub-licensee.  This remedy can be on a case-to-case basis
be classified as a provisional remedy.
"Damages" refer to the delictual damages the copyright holder will be entitled to upon
infringement.  The holder will be compensated for his patrimonial loss.  This compensation will be
calculated pursuant to the infringement.
                                                     
1 This response supplements that circulated in document IP/C/W/240.IP/C/W/248/Add.2
Page 2
Under Section 31, the Act also avails the aforementioned remedies to an exclusive licensee
and a sub-licensee.  Note that these rights shall be concurrent to those of the owner.
Our law further recognises the "Anton Piller Order", as a so-called "assistance remedy" to the
copyright holder.  The said order is primarily a procedural remedy whereby the deputy sheriff of the
High Court of Namibia is directed to enter the premises of the respondent (infringer) and to take
possession of a and to retain in his custody pending the hearing of the matter all relevant evidence
relating to the applicant's (holder) cause of action.  This type of order is granted without notice to the
respondent in order to preserve the secrecy of the matter, as the rationale behind the granting of the
order is that the respondent has in his possession relevant information which he is likely to destroy or
put beyond the reach of the applicant.
Another remedy available to the copyright holder is contained in Section 34 of the Act which
provides for the restriction of importing of infringi ng copies.  In terms this Section, the owner of the
copyright in any published work may give notice to the Commissioner of Customs and Excise
informing the latter the (s)he is the owner of th e copyright in that work and request that the
Commissioner treat as prohibited goods, during a period specified in the notice, any copies of that
work.  The Section goes further, stipulating that  the said owner must provide security to the
Commissioner for securing the fulfilment of any liability and the payment of any expense which the
Commissioner may incur by the reason of the detention of any copy of the work referred to in the
notice.
Other secondary remedies available to the copyright holder by virtue of our Law of Delicts
includes civil claims based on unlawful infringement of privacy, unlawful competition and
passing-off.  These remedies can only be enforced through the Namibian courts of law and the
procedure and the procedure to enforce same is governed by our civil procedural law as set out in theMagistrate's Court Act 32 of 1944 and the Rules promulgated thereunder, as well as the High Court
Act 16 of 1990 and the Rules of the High Court promulgated under the said Act.
UNITED STATES
Initial questions:
2
27. Please describe in detail the all of the civil remedies that are available to right holders under
the laws of Namibia, citing to the relevant provisions of law or regulation.
The Act governing copyright in Namibia sets ou t the remedies available to the injured party.
Chapter two of the Copyright and Neighbouring Rights Protection Act of 1994 deals with
infringement of copyright and the infringement thereof.
Section 30 of the Act provides for the institution of civil remedies in a court of law by the
owner of the copyright whenever an infringement was committed.  The said Section also provides forrelief which may be claimed as a result of such infringement. The relief that may be claimed includes
damages, interdicts, delivery of infringing copies or plates used or intended to be used for infringing
copies or otherwise.
Interdicts can be either prohibitory, restitutory  or mandatory.  The interdict restraining the
alleged infringement act is usually the principal remedy sought by the copyright holder.  This type of
interdict is called prohibitory interdict. The righ t to obtain an interdict can only be exerted by the
copyright holder of the exclusive licensee or sub-licensee. This remedy can be on a case-to-case basis
be classified as a provisional remedy.
                                                     
2 These responses supplement those circulated in document IP/C/W/248/Add.1.IP/C/W/248/Add.2
Page 3
"Damages" refer to the delictual damages the copyright holder will be entitled to upon
infringement.  The holder will be compensated for his patrimonial loss.  This compensation will be
calculated pursuant to the infringement.  Under Section 31 the Act also avail the aforementioned
remedies to an exclusive licensee or sub-licensee.  Note that these rights shall be concurrent to that ofthe owner.
Our law further recognises the "Anton Piller Order", as a so-called "assistance remedy" to the
copyright holder.  The said order is primarily a procedural remedy whereby the deputy sheriff of the
High Court of Namibia is directed to enter the premises of the respondent (infringer) and to take
possessions of and to retain in his custody pending the hearing of the matter all relevant evidence
relating to the applicants' (holder) cause of action. This type of order is granted without notice to therespondent in order to preserve the secrecy of the matter, as the rationale behind the granting of the
order is that the respondent has in his possession relevant information which he is likely to destroy or
put beyond the reach of the applicant.
Another remedy available to the copyright holder is contained in Section 34 of the Act which
provides for the restriction of importing of infringing copies. In terms of this Section, the owner of the
copyright in any published work may give notice to the Commissioner of Customs and Excise
informing the latter that he/she is the owner of the copyright in that work and request the
Commissioner of Customs and Excise to treat such work as prohibited goods, during a period
specified in the notice.  The Section goes further s tipulating that the said owner must provide security
to the Commissioner for securing the fulfilment of any liability and the payment of any expense which
the Commissioner may incur by the reason of the detention of any copy of the work referred to in the
notice.
Other secondary remedies available to the copyright holder by virtue of Law of Delicts
include civil claims based on unlawful infringeme nt of privacy, unlawful competition and passing-off.
These remedies can only be enforced through the Namibian courts of law and the procedure to enforce
same is governed by our civil procedural law as set out in the Magistrate Court Act 32 of 1944 as the
Rules promulgated thereunder, as well as the High Court Act 16 of 1990 and the Rules of the High
Court promulgated under the said Act.
Under Patents Law, Section 65(3) makes provision for civil remedies in case of infringement.
The remedies available includes interdict, delivery up of infringe product or any article or product of
which the infringe product forms an inseparable part, and damages. Section 70(1) refers to declaration
in re groundless threat.
Under Trademarks law, Section 43 indirectly points to damages.
32. Please describe in detail how the laws of Namibia implement Article 61 of the TRIPS
Agreement that requires Members to have criminal  procedures and penalties, including imprisonment
and/or monetary fines sufficient to act as a de terrent, at least for cases of willful trademark
counterfeiting and copyright infringement on a commercial scale.  Please cite to the relevantprovisions of law and regulation.
Trademarks
- Section 70: false entry in register or making, producing or tendering false copy - N$200 or 12
months imprisonment or both;
- Section 71: making false statements in order to deceive register or other officer - N$200 or 12
months imprisonment or both;
- Section 72: falsely representing a trademark as registered - N$100IP/C/W/248/Add.2
Page 4
Copyrights
The following actions amount to criminal offences or penalties with respect to copyrights
under the following Sections:
Section 33(1):- making for sale or hire- selling or letting or by way of trade offering or exposing for sale or hire, - by way of
trade exhibits in public;
- importing into Namibia for a purpose other than for his or her private or domestic use;
- distributing for purposes of trade;
- distributing for any other purpose to such an extent that the owner of the copyright is
prejudicially affected,
any article which he or she knows to be an infringing copy of the work.
Section 33(2):
- causing a literary or musical work to be performed in public, knowing that copyright
subsists in the work and that such perfo rmance constitutes an infringement of the
copyright;
- causing a broadcast to be rebroadcast or transmitted in a diffusion service, knowing
that copyright subsists in the broadcast and that such rebroadcast or transmission
constitutes an infringement of the copyright;
- causing programme carrying signals to he distributed by a distributor for whom they
were not intended, knowing that copyright subsists in the signals and that suchdistribution constitutes all infringement of copyright.
Penalties
- N$12 000 or 3 years imprisonment or both for first conviction
- N$20 000 or 5 years imprisonment or both for second conviction
Follow up questions:
1. In your response to a question we posed regarding copyright protection you stated that
"Namibia treats all works of intellectual property the same, regardless of their countries of origin."3
One of our industry associations has advised us that Section 63 of your Copyright Act
provides the Minister of Information and Broadcasting authority to issue a notice extending protectionto foreign works.
                                                     
3  IP/C/W/248/Add.1, question 1 posed by the US.IP/C/W/248/Add.2
Page 5
We have been advised that, to date, no such notice has been issued and that this has led to a
reluctance, on the part of Namibia's Office of the Prosecutor General, to prosecute any infringement
cases due to the fact that foreign works are not clearly protected under the law of Namibia.
We would appreciate receiving clarificati on regarding how a work of a foreign author
receives copyright protection under your law (and therefore, how a copyright owner can enforce his
or her rights to a work in your country).
[Please see reproduced in the annex copies of an Official Notice for Publication in the
Government Gazette and a Government Notice by the Minister of Foreign Affairs, Information and
Broadcasting, both dated 13 June 2001.]
2. We note that in your responses to questions posed by the United States, no response was
received on our request to describe in detail all of the civil remedies that are available to right holders
under the laws of Namibia, citing to the relevant prov isions of law or regulation. We look forward to
receiving the answers to this question.4
The Act governing copyright in Namibia sets ou t the remedies available to the injured party.
Chapter two of the Copyright and Neighbouring Rights Protection of Act 1994 deals with
infringement of copyright and the infringement thereof.
Section 30 of the Act provides for the institution of civil proceedings in a court of law by the
owner of the copyright whenever an infringement is committed.  The said Section also provides for
relief which may be claimed as a result of such infringement.  The relief that may be claimed includes
damages, interdicts, delivery of infringing copies or plates used or intended to be used for infringing
copies or otherwise.
The remedies available as set out in the above paragraph are self explanatory.  However, we
wish to point out the following in respect of interdict and damages:
Interdicts can be either prohibitory, restitutory  or mandatory.  The interdict restraining the
alleged infringement act is usually the principal remedy sought by the copyright holder.  This type of
interdict is called prohibitory interdict.  The righ t to obtain an interdict can only be exerted by the
copyright holder of the exclusive licensee or sub-licensee.  This remedy can be on a case-to-case basisbe classified as a provisional remedy.
"Damages" refer to the delictual damages the copyright holder will be entitled to upon
infringement.  The holder will be compensated for his patrimonial loss.  This compensation will be
calculated pursuant to the infringement.
Under Section 31, the Act also avails the aforementioned remedies to an exclusive licensee
and a sub-licensee.  Note that these rights shall be concurrent to those of the owner.
Our law further recognises the "Anton Piller Order", as a so-called "assistance remedy" to the
copyright holder.  The said order is primarily a procedural remedy whereby the deputy sheriff of the
High Court of Namibia is directed to enter the premises of the respondent (infringer) and to take
possession of a and to retain in his custody pending the hearing of the matter all relevant evidence
relating to the applicant's (holder) cause of action.  This type of order is granted without notice to the
respondent in order to preserve the secrecy of the matter, as the rationale behind the granting of theorder is that the respondent has in his possession relevant information which he is likely to destroy or
put beyond the reach of the applicant.
                                                     
4  IP/C/W/248/Add.1, response to question 27.IP/C/W/248/Add.2
Page 6
Another remedy available to the copyright holder is contained in Section 34 of the Act which
provides for the restriction of importing of infringi ng copies.  In terms this Section, the owner of the
copyright in any published work may give notice to the Commissioner of Customs and Excise
informing the latter the (s)he is the owner of th e copyright in that work and request that the
Commissioner treat as prohibited goods, during a period specified in the notice, any copies of thatwork.  The Section goes further, stipulating that  the said owner must provide security to the
Commissioner for securing the fulfilment of any liability and the payment of any expense which the
Commissioner may incur by the reason of the detention of any copy of the work referred to in the
notice.
Other secondary remedies available to the copyright holder by virtue of our Law of Delicts
includes civil claims based on unlawful infringement of privacy, unlawful competition andpassing-off.  These remedies can only be enforced through the Namibian courts of law and the
procedure and the procedure to enforce same is governed by our civil procedural law as set out in the
Magistrate's Court Act 32 of 1944 and the Rules promulgated thereunder, as well as the High Court
Act 16 of 1990 and the Rules of the High Court promulgated under the said Act.
3. We note that in your response to the question posed by the United States on provisional
procedures and remedies available to right holders under the laws of Namibia
5, no provisions of law
and regulation were cited and we look forward to receiving that information.
Please see the answer to follow-up question 2, above.
                                                     
5  IP/C/W/248/Add.1, question 28.IP/C/W/248/Add.2
Page 7
ANNEX
GOVERNMENT OF THE REPUBLIC OF NAMIBIA
GOVERNMENT SERVICE
Reference No.
……..
OFFICIAL NOTICE FOR PUBLICATION
The Permanent Secretary Ministry/Department of Foreign Affairs
Ministry of Justice
Private Bag 13302
WINDHOEK
SUBJECT: Extension of copyright protection in relation to members of the Berne
Copyright Union: Copyright and Neighbouring Rights Protection
Act, 1994
Please accept the attached official notice as approved by   Legal Affairs
for publication in the Government Gazette as pper instruction below:N.B. Mark with and 'X' in the appropriate space.
[ ] Proclamation [ ] General Notice
[ ] Act  [ ] Ordinance
[X] Government Notice [ ] Advertisement
Number of Insertions:  1 ....... ................................. Whether proof required? Yes
Date of first insertion: 27-06-01 ................. ........... Number of slip copies required: 10
Should you require further information, kindly contact T. H. Shinavena   Telephone number:
222266
Signature [signature] 13/06/01
Date
For use by the Government Gazette Section
Received by [signature] Date : 13/06/01IP/C/W/248/Add.2
Page 8
GOVERNMENT NOTICE
MINISTRY OF FOREIGN AFFAIRS, INFORMATION AND BROADCASTING
No. 2001
EXTENSION OF COPYRIGHT PROTECTION IN RELATION
TO MEMBERS OF THE BERNE COPYRIGHT UNION:
COPYRIGHT AND NEIGHBOURING
RIGHTS PROTECTION ACT, 1994
Under the powers vested in me by section 63(1) of the Copyright and Neighbouring Rights Protection
Act, 1994 (Act No. 6 of 1994), I hereby determine that the provisions of that Act specified in the
Schedule shall apply in relation to the countries of the Berne Copyright Union set out in the Annexure
to that Schedule.
Minister of Foreign Affairs, [Signature]
Information and Broadcasting, Windhoek, 13 June 2001
SCHEDULE
Definitions
1. In this Schedule, a word or expression to which a meaning has been assigned in the
Act has that meaning and, unless the context otherwise indicates -
"material time" means -(a) in relation to an unpublished work, other than a programme-carrying, signal, the time at
which such work was made or, if the making thereof extended over a period, a substantial part
of that period;
(b) in relation to a published work, the time of first publication;
(c) in relation to a programme-carrying signal, the time at which the signal is emitted to a
satellite.
"published" means the making available of copies of a work to the public in reasonable quantities for
sale, hire, public lending or for other transfer of the ownership or possession of the copies with the
consent of the owner of copyright in that work;
"published simultaneously" means published in two or more countries within a period of 30 days;"the Act" means the Copyright and Neighbouring Rights Protection Act, 1994 (Act No. 6 of 1994);
andIP/C/W/248/Add.2
Page 9
"Union" means the Berne Copyright Union constitu ted by the Berne Convention for the Protection of
Literary and Artistic Works signed on 9 September 1886 and completed at Paris on 4 May 1896,
revised by the Berlin Convention on 13 November 1908 and completed at Berne on 20 March 1914,
revised by the Rome Convention on 2 June 1928 and revised by the Brussels Convention on 26 June
1948, revised by the Stockholm Convention on 14 July 1967 and revised at Paris on 24 July 1971; and
"country of the Union" means any country which rati fied or acceded to any one or more of the said
Conventions and is mentioned in the Annexure.
Extension of copyright protection in relation to countries of the Union
2. Chapters 1 and 2 of Part I and all other provisions of the Act relevant to works that
are eligible for copyright protection under the Act apply with regard to a country of the Union
specified in the Annexure to this Schedule and -
(a) in relation to literary, musical or artistic works, computer programs, cinematograph
films, sound recordings or published editions  first published in that country, in the
same manner as they apply in relation to literary, musical or artistic works, computer
programs, cinematograph films, sound recordings or published editions first publishedin Namibia;
(b) in relation to persons who at a material time are citizens or subjects of that country, in
the same manner as they apply in relation to persons who at such a time are Namibian
citizens;
(c) in relation to persons who at a material time are domiciled or resident in that country,
in the same manner as they apply in relation to persons who at such a time are
domiciled or resident in Namibia;
(d) in relation to bodies incorporated under the laws of that country, in the same manner
as they apply in relation to bodies incorporated under the laws of Namibia;
(e) in relation to broadcasts made or programme-carrying signals emitted to a satellite
from places in that country, in the same manner as they apply in relation to
broadcasts made and programme-carrying signals emitted to a satellite from a place
in Namibia.
Repeal of Proclamations
3. Proclamations No. R.73 of 18 March 1966 and No. R. 171 of 15 August 1966 are
repealed.
Coming into operation of notice
4. This notice shall be deemed to have come into operation on 15 March 1996.IP/C/W/248/Add.2
Page 10
ANNEXURE
Countries of the Union
AJ
Denmark
Albania Dominica Jamaica
Algeria Dominican Republic Japan
Antigua and Barbuda Jordan
Argentina E
Armenia K
Australia Ecuador
Austria Egypt Kazakhstan
Azerbaijan El Salvador Kenya
Equatorial Guinea Kyrgyzstan
BE s t o n i a
L
Bahamas F
Bahrain Latvia
Bangladesh Fiji Lebanon
Barbados Finland Lesotho
Belarus France Liberia
Belgium Libya
Belize G Liechtenstein
Benin Lithuania
Bolivia Gabon Luxembourg
Bosnia and Herzegovina Gambia
Botswana Georgia M
Brazil Germany
Bulgaria Ghana Macedonia
Burkina Faso Great Britain Madagascar
Greece Malawi
C Grenada Malaysia
Guatemala Mali
Cameroon Guinea Malta
Canada Guinea-Bissau Mauritania
Cape Verde Guyana Mauritius
Central African Republic Mexico
Chad H Moldavia
Chile Monaco
China Haiti Mongolia
Colombia Holy. See Morocco
Congo Honduras
Costa Rica Hungary, N
C6te d'lvoire
Croatia I Netherlands
Cuba New Zealand
Cyprus Iceland Nicaragua
Czech Republic India Niger
Indonesia Nigeria
D Ireland Norway
Israel
Democratic Republic of the Congo ItalyIP/C/W/248/Add.2
Page 11
OU
Oman Ukraine
United States of America
PU r u g u a y
Pakistan V
Panama
Paraguay Venezuela
Peru
Philippines Y
Poland
Portugal Yugoslavia
QZ
Qatar Zambia
Zimbabwe
R
Romania
Russian Federation
Rwanda
S
Saint Kitts and Nevis
Saint Lucia
Saint Vincent and the Grenadines
Senegal
Singapore
Slovakia
Slovenia
South Africa
South Korea
Spain
Sri Lanka
Sudan
Suriname
Swaziland
Sweden
Switzerland
T
Tajikistan
Tanzania
Thailand
Togo
Trinidad and Tobago
Tunisia
Turkey
__________