Most African countries have their own IP laws, (some of which were inherited from colonial powers) or modified versions of the World Intellectual Property Organization (WIPO) Copyright Treaty. Many of these laws have proved ineffective against the debilitating effects of copyright infringement.
The protection and enforcement of Intellectual Property rights is pivotal to the development of the creative industry. In recognition of this, some African countries have tried to invigorate creative endeavour by reviewing extant laws. We examine recent developments in copyright enforcement in some African countries.
Three years ago, Ethiopia introduced a new framework for legal, policy and institutional solutions to aid the development of its IP sector. Previously, Ethiopia’s Penal and Civil Codes of 1957 and 1960 respectively, contained provisions to deal with copyright issues. While the Civil Code focused on the protection of ownership of Literary and Artistic works, the Penal Code imposed options of imprisonment or fine on copyright infringers.
The laws however fell short of effectiveness in their attempts to provide copyright protection. This led to the emergence of Ethiopia’s first comprehensive institutional and legal framework by the establishment in 2003 of an autonomous Ethiopian Intellectual Property Office and the enactment in 2004 of the Copyright and Neighboring Rights Protection Proclamation No. 410/2004.
The Proclamation provided a better enforcement mechanism and widened the protection scope of copyright while stringent sanctions were introduced into the Ethiopian Criminal Code. However, notwithstanding the existence of these laws, there was no structure for the collection and distribution of royalties, and the ever increasing infringement of copyright by way of piracy, resulted in a severe decline in revenue for creative authors.
This lacuna in the 2004 Ethiopian copyright law gave rise to an amendment that birthed the more effective Copyright and Neighboring Rights Protection (Amendment) Proclamation No. 872/2014. The 2014 Law established a royalty collection and distribution system, structured to effectively protect the copyright of Ethiopian artists, which in turn, contributes to the development of the creative industry.
In nearby Eritrea, artists and authors have continued to suffer revenue loss from piracy because theirs is one of several African countries whose Copyright law does not provide adequate protection or enforcement, neither is there an organized royalty collection and distribution mechanism. Besides, the fact that Eritrea is not a signatory to international IP treaties is a major setback for its creative industry as far as copyright protection is concerned.
Although the recently enacted Eritrean Penal Code of 2015 introduced tougher penalties on copyright infringers when compared with the old Eritrean Transitional Penal Code, it is ineffective in dealing with online infringement of copyright. It is merely effective to the extent of a sanction of three years imprisonment for reported and adjudged cases of copyright infringement, which judgments are few and far between.
The 2016 reform of the Mauritius Copyright Act came about as a result of legal as well as extra-legal demand by Mauritian artists, with support from politicians, for their royalties to be effectively managed and their copyrights protected.
The Department of Arts and Culture and the Mauritius Revenue Authority in collaboration with a WIPO expert, formed an Action Committee that was saddled with setting in motion the amendments to the Copyright Act to reflect sanctions for buyers of pirated works; a major re-structuring of the Rights Management Society Board and a new royalty fees payment schedule. The Mauritius Society of Authors was also replaced and renamed the ‘Rights Management Society’. Hopefully, a final ratification of the amended Copyright Act will yield better protection of right owners in the Mauritius creative industry.
There are still far too many African countries relying on the inadequate provisions of outdated copyright laws. Some progress has been made in the collection and distribution of royalties to rights owners with the adoption of the Collective Management Organisations (CMOs) model in some countries. This method, whereby an independent body collects on behalf of, and distributes royalties to rights owners, has proven to be a success in Kenya, Nigeria, Botswana and Uganda, amongst others. And in spite of the challenges of semi-acceptance, political interference and transparency, it does appear to be beneficial to countries struggling with enforcement of copyright laws.
Nonetheless, it should be understood that the mere adoption or review of copyright laws in itself is not enough. A positive attitude towards copyright, an appreciation of the benefits of copyright protection, a willingness to protect IP rights and stringent enforcement mechanisms will aid sustainable growth of creative industries across the continent.
*ALP is a law firm in Nigeria associated with ALP International (Mauritius) Ltd and with Law offices in Rwanda, Uganda and Tanzania.