Copyright, neighbouring rights and art in the Ugandan perspective
News of the tragic death of Ugandan star Moses Sekibogo (Mozey
Radio) that February morning found me scrolling through an online David and
Goliath tale of a young lad who had embarked on a legal battle against a giant
broadcaster. He alleged that his TV show treatment proposal had been stolen
when he submitted it in hopes of employment. Imagine his alarm on seeing the
station that had promised to get back to him premiering a ‘new show’ bearing
his concept under a totally different name with a celebrity host. He is just
one of hundreds of creative people who get their intellectual property stolen
to enrich others. The deficiency of aggressive copyright jurisprudence has
continued to stand between the royalties and revenue that the estate of this
young singer would have been earned and the sad reality that without concerts, the
financial future seemed bleak. American superstars Michael Jackson and Whitney
Houston were able to posthumously pay off all the immense debt they were in at
the times of their deaths within weeks and even reserve surplus for their heirs
to inherit. The same cannot be said of Philly Bongoley Lutaaya, Herman Bassude,
Elly Wamala and other fallen Ugandan legends.
A discussion on copyright and neighbouring rights in this
country is incomplete without a mention of Eria Sebunya Kasiwukira the first music promoter who established the first
record label. He duplicated music onto cassette tapes in the early 1980s, which
he would brand with his logo and have hawkers go selling them around the city.
In studio he had a problematic arrangement in which he would have an artiste
record a full album, pay the artiste an agreed amount for it and make cassette
tapes to distribute across the country, keeping all the proceeds!
Contrary to popular belief, royalties in Uganda are not a
millennial invention. During the colonial era all Ugandan musicians' rights
were handled by the Performing Rights Society of England (PRS), a British body.
Musicians got royalties from Radio Uganda, the sole radio station. In fact, today's norm of airing
music for free did not happen until
1971 when Idi Amin became president and suspended PRS operations in Uganda. He ordered Radio
Uganda to
stop paying the artistes their royalties. Today
if a musician is to earn, he/she has to turn to music shows or concerts in the absence of
endorsement deals which very few are lucky to land. This means frequent travels
all over the country to perform,
something that would be optional if their royalties were earned whenever
their music was played on the numerous radio and television stations. Free
streaming and download websites have not made the situation any better as it
has left artistes in a position where they are desperate to get as much airplay
as possible irrespective of the cost.
Hunger for copyright-based litigation remains unfed as many
artistes opt to abandon infringement court cases and settle out of court
thereby denying jurisprudence growth. Comedienne Anne Kansiime and Maurice
Kirya are some of those who have settled out of court. Others turn to
collecting societies, a creature of Part VII of the Copyright and neighbouring
Act, 2006. Also known as copyright collecting agencies or copyright collective
management, these bodies engage in collective rights management. They have
authority to license copyrighted works and collect royalties as part of
compulsory licensing or individual licenses negotiated on behalf of their
members. They also collect royalty payments from users of copyrighted works and
distribute royalties to copyright owners.
They include the Uganda Federation of Movie Industry
(UFMI) and the Uganda Performing Rights Society(UPRS). UFMI works to protect
film makers from facing the same knife their musician counterparts are
undergoing. UPRS has filed a few cases on behalf of musicians. It has filed
over 3 cases and lost one. Singer Angella Katatumba recently secured victory
against an anti-graft body for using her song in a radio campaign protesting
the issue of de-gazetting Namanve Forest without her consent or remunerating
her. Justice Christopher Madrama of the Commercial Division of the High Court
ordered Anti-Corruption Coalition of Uganda to pay her damages worth Shs30
million shillings.
Local artiste Henry Ssekyanzi alias Nince Henry was alarmed to discover his music on the shelves of one
of the top shopping malls before he had even launched an album. The album on
display was titled Omukyala Bamukwata
Mpola, which the artiste said was a wrong title as the correct one is Mpola Mpola. The CD even had a warning
that copyright of the CDs and music were reserved and printed by X-Zone
International of H&B Plaza, Plot 36, room 18, Luwum Street. These facts
culminated into a case in which Ssekyanzi sued X-Zone International Limited and
Nakumatt. If successful, the case will cement the position that one who
provides a platform or premise for infringement is as guilty as the person
directly infringing the copyright. Courts serve to ensure that future artists
are better protected and that they can continue to make a living from music the
same way a doctor and an engineer earn off their craft.
What is Copyright?
Copyright refers to a bundle of exclusive legal rights
concerned with the protection of literary and artistic works. In Uganda, the
governing law is the Copyright and Neighbouring Rights Act. The works protected
under the Act include Literary works (e.g. articles, novels, pamphlets, books,
Dramatic works (e.g. scripts for films and dramas), Musical works (e.g.
melodies), Artistic works (e.g. paintings, photographs, drawings, architecture,
sculpture), Sound recordings, Films, Television and radio broadcasts, Cable
programmes, Performances, Computer programs among others. Copyright gives the
creator/ copyright owner exclusive rights to stop others from using their work
without his/her permission. The right to copy, distribute, use and adopt the
work are all subject to this. Copyright owners can license or permanently transfer
or assign their exclusive rights to others. Copyright is intellectual property and
like any other property can be transferred, bought, sold or inherited. This has
been the source of controversy and a legal battle regarding rights to the works
of fallen South African songstress Brenda Fassie whose son and former manager
have locked horns in who holds what rights.
Copyright comprises two main sets of rights i.e the
economic rights and the moral rights. The former comprises of rights of
reproduction, broadcasting, public performance, adaptation, translation, public
recitation, public display, distribution while moral rights which are exclusive
to the author(creator) and aren’t legally transferable include the right to
object to any distortion, mutilation or other modification of his work that
might be prejudicial to his honour or reputation. Neighbouring rights are of
performers, producers and makers of sound recordings. Their purpose is to
protect the economic and moral rights of persons and entities who contribute to
making copyright. Section 6 of the Act directs that the law does not protect ideas,
concepts, procedures, methods and public benefit work. While copyright arises
at creation it is prudent to register one’s works with the Uganda Registration
Services Bureau for purposes of evidence upon infringement. The work must be
original (developed independently by its creator) and expressed in material
form. Registration serves as evidence of ownership of right, identification of
works and authors and maintenance of record of the rights.
Copyright protection lasts for the life of the creator
and 50 years after the creator’s death which means even the heirs and heiresses
to the creators can derive benefit and deceased artists can earn posthumously.
The procedure for applying to register a copyright is made to the Registrar of
copyright and an application fee is paid. This application is published in the
Uganda Gazette for 60 days to ensure notice to all persons who may want to
object or other creators who have been potentially left out by the person
registering. If no objection is made to the registration of the said right, a
certificate of registration will be issued to the applicant.
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