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.
by George W Kiwanuka @Georgewkiwanuka