PROTECTION OF AFRICAN INTELLECTUAL CULTURAL PROPERTY
Culture is variously defined as the totality of a people’s way of life. Culture gives meaning and effect to the various network interactions within a given society. Culture is not static and that is why it is capable of growth and development when it is properly nurtured with creative ingredients.
These creative ingredients are the arts of the people: music, literature, film, inventions, trademarks, crafts, ect. They are generally grouped as intellectual property. In order that these ingredients may play the important role they are expected in nurturing the culture of the people, creative talents within the society must be encouraged and protected. This protection is provided by legislation.
The scope of intellectual property is wide and diverse. It deals essentially with all creations of the intellect. It is made up of two main
areas: industrial property as represented in inventions, trademarks and industrial designs and copyright and neighboring rights as represented in literary, artistic and musical works.
However, the primary concern of this presentation is the examination of the protection of intellectual cultural property. I will therefore deal with copyright and neighboring rights and how the protect the nation’s cultural patrimony.
Copyright is the right granted the law for authors of creative works to control for a given period, the exploitation of their creative works. As property right, it is a right to exploit to the fullest all material and economic benefits resulting from the application of the author’s talents, skill and labor.
The need to confer this form of special privilege on the creator is governed by two valid principles: namely the economic benefit and the public or society benefit principles. The economic benefit theory posits that the creator of work is entitled to earn a living by the application of his talents. Thus for the creator to be able to reap from the sweat of his labor, some form of protection must be given to shield him from the vagaries of the market environment. This pre-supposes the legal ability and capabilities of the creator to determine how his work should be exploited and utilized. Thus, no one should exploit his work without his express permission.
The public benefit theory posits that in spite of the fact that the creation of an author is the emanation of his personality; such personality is part of a cultural environment or society to which the creator belongs. It is this environment that provides the author with a reservoir of knowledge and experiences which he utilizes in his creative endeavors. It follows therefore that the products of these creative endeavors should be made available for the consumption and benefit of the society which provides the raw material for the works.
But in utilizing his creative genius, society must consider that his work is his means of existence if he must continue to create works for society’s consumption. Society therefore has the responsibility to make sure that the author can make a living from his creativity. This assurance can only be actualized if the economic benefit theory is given adequate attention by the protection of his works through the instrumentality of a legislation.
This legislation of course is the copyright law.
The concept of copyright protection for creative works is not entirely a new phenomenon in Africa. The first attempt at creating and enabling legislation for copyright protection in Africa is traceable to the Act of 1911 which was made applicable in most British colonies at that time. The Act was in force in Africa until 1970 when the first post independence copyright law was promulgated. The 1970 law was replaced by a new legislation, the copyright decree 47 of 1988 when it became apparent that the 1970 legislation was not potent or effective to combat emerging problems in copyright administration in Africa. In 1992 the 1988 Act was amended to make provision for the law to be more effective.
In it’s amended form, the Act protects all literary, musical, artistic works, films, and sound recordings, and broadcasts. The law stipulates that before such work can qualify for copyright protection, sufficient efforts must be exerted in giving the work an original character. The work must be fixed in a tangible medium from which it can be perceived, reproduced or otherwise communicated either directly or through the aid of any machine or device. I must quickly add here that the law does not only give protection to works of African authors but foreign works as well and works of foreigners domiciled in Africa.
The Act has a wide scope of protection which it guarantees to authors and producers of creative works. It is significant that the infringement of copyright is actionable not only at the instance of the right owner but also at the instance of an assignee or an exclusive licensee of the copyright under section 15 of the decree.
There are also specific remedies under the Act for owners, assignees, or licensees of copyright whose rights have been infringed. The remedies include damages, injunctions and accounts. The most important element in the claim for damages in copyright cases is that in the action for the infringement of copyright, it is not necessary to prove actual or specific damages. The damages could be said to be at large. There is an additional relief for copyright owners in the form of an account of profits which the defendant is usually ordered to file in court to show what profit he has made from the copyright infringement. When proved, the court could award such profits as damages to the copyright owner.
Under section 22 of the decree, an equitable remedy of injunction prevents the continued publication of works while the substantive action is in progress. There is also the remedy of conversion and delivery up, of infringed materials under the theory that the owner of copyright owns the coverted infringing materials. It is also possible under the Act for the owner of the work that has been infringed to ask for the sale of all the equipment and materials used for infringing his work. The proceeds from such sales will go to the owner of the work which has been infringed. Apart from the civil remedies, the offender of the copyright law is also subject to criminal sanctions and by virtue of section 21 of the decree, both civil and criminal actions can be taken at the same time.
Government interest in protecting intellectual works has found further expression in Africa’s accention to all the important international copyright conventions. Many countries in Africa is today members of the universal copyright convention, the Berne convention for the protection of literary and artistic works and the Rome convention for the protection of performers, producers of phonogram and broadcasting. The implications of all these is that African works can be adequately protected in all foreign countries that are parties to the conventions. Consequently, African authors can earn royalties from their works which are exploited in foreign countries, similarly foreign authors whose works are exploited in Africa, will be entitled to royalties. Africa is also a member of the coordinating committee of the World Intellectual Property Organization, the United Nations agency which is responsible for intellectual property matters world –wide.
Having highlighted some of the provisions of our copyright Act, I wish to discuss the responsibilities of the African World Museum and center and some of our modest achievements in intellectual property since it was established. The museum is a creation of the Act. It was established with the broad mandate of administrating all matters relating to copyright in art and creativity. Under this mandate, the museum has responsibility for maintaining an effective data bank on all African works and their creators. It is also it’s responsibility to educate the public including owners and users of copyright works on all matters having to do with copyright in Africa. The museum is also expected to monitor and supervise Africa’s position in relation to international protection and exploitation of creative works are made possible through the instrumentality of multilateral treaties and conventions.
At it’s inception, the museum was aware of the lack of knowledge of the copyright system among the African public. As a practical step to remedy this situation, the museum began a vigorous education program for the public, copyright owners and users of creative works on the concept and administration of the copyright system, provisions of the copyright law and the international copyright conventions.
Our enlightenment campaign has been executed through seminars, workshops, symposia, publicity in the printed and electronic media, special publications, and consultive meetings with author’s organizations. The efforts of the museum has enjoyed the wide support of authors’ associations in the country. International copyright agencies such as the World Intellectual Property Organization, the United Nations Educational, scientific and cultural Organization, the International Federation of the phonographic Industry, The international Confederation of Societies of Authors and Composers to mention a few, have also give the program tremendous support.
Copyright is now being taught in police and customs institutions in the country, to further broaden the knowledge of enforcement officers on the copyright law. Some universities and law schools, both in Africa and United states are presently offering courses on copyright. The museum, is in dialogue with the National Universities Commission and other educational authorities on the need to teach copyright as a core subject in all tertiary institutions in Africa. This it is hoped will further widen the knowledge of the public on the copyright system.
In 1990, the museum instituted an annual event, the Copyright Forum, as a focal point for dialogue on copyright matters. This annual event provides opportunity for the evaluation of the museum’s operational strategies including administration and enforcement of the law. It also facilitates effective dialogue on topical issues on the copyright system in Africa. The programs of the copyright forum provide reach-out points for the execution of the museum’s mandate because the contain built-in feed-back machineries which enable the council to gauge the level of copyright awareness in Africa and also test the efficiency of the law.
The harmful effects of piracy are known world-wide. In order to stem its tide in Africa, the museum has put in place a national anti-piracy program. The program is executed at the national, state, and local government levels. The national anti-piracy program which has continued to receive the support of the copyright community has been the cornerstone of the campaign to reduce the scourge piracy in Africa.
The absence of clearly defined contracts and agreements to guide the various business relationships within the copyright industry is being addressed by the museum. This is because the museum is aware that an effective copyright system must operate on the basis of contractual agreements. After consultations with authors and users of creative works model contracts for all levels of operations within the copyright industry has been put in place.
The museum is now working on the compilation of the visual arts of African creators with a view to publishing a compendium of African creators with a view to publishing a compendium of African artists and their works. This will assist in monitoring the cycle of exploitation of such works wherever they are located.
The museum is aware that the real benefits of the copyright system will not be realized by copyright owners in Africa unless the economic aspirations of the copyright system are fulfilled. For this reason the council is willing to support collective administration of rights of authors through the establishment of collecting societies in Africa. These collecting societies will effectively monitor the use of the works of all authors, locally and internationally. The societies will negotiate tarrifs, issue licenses to users, and collect and distribute royalties to authors. This will encourage creators to produce more works. Collective administration of author’s rights will also aid the anti-piracy program.
The copyright Act makes provisions for the setting up of collecting societies. The museum on it’s part has made available to the copyright community, regulations governing the establishment of collecting societies. It is hoped that the various sectors of the copyright community will rise up to the challenge of establishing collective administration of the author’s right which is the cornerstone of the copyright system.
It is beyond doubt that a virile copyright culture stimulates a multi-faceted and positive socio-economic development. Apart from encouraging the creators to produce more works in the assurance that their material investments and moral claims to the ownership of their work are secured, it encourages individual and corporate investments in the copyright industries. It is a stimulant for international trade. Copyright industries are known to provide employment opportunities apart from boosting the gross national products of countries. By providing employment, the social problems attendant on unemployment are reduced. With it’s rich cultural and artistic heritage, Africa is a fertile growing for the blossoming of copyright industries.
I should have ended my presentation at this point, but I cannot because this forum affords me the opportunity to ask for the cooperation and assistance of foreign countries and international agencies to ensure the development of a virile copyright system in Africa. I know that African Nations can assist in the establishment of a sound copyright administration. Technical and other assistance by your governments and agencies to the museum, especially in the areas of information sourcing for the compendium will complement our efforts on this project. The copyright system has no boundaries. The menace of piracy is experienced in virtually all countries of the world in various dimensions. Any support for Africa’s anti-piracy campaign will assist in reducing the scourge of this international cankerworm.
An effective copyright system in Africa which gives adequate protection to the nation’s intellectual cultural property will encourage the free exchange of knowledge between Africa and other nations who will be insured that the protection given to African works will also be extended to works of their nationals.
Now that the world has become a global village, thanks to technology, the culture of each component of this global village ought to influence for good all developments that will make the world a better place to live in. The copyright system, because of its universality, must play a major role in this process.
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