Africa, is arguably a place with the most instances of exploitation, artists losing rights and a large number of artists having no legal backing or otherwise cannot afford to hire lawyers who would negotiate on their behalf let alone provide legal opinion as it were. As it were, many cases of these kinds might crop up in the future considering the fact that the industry is rapidly growing but many countries have yet to institute comprehensive laws to this effect.
Though in recent times, as opposed to previous years, where for instance in Kenya, there were stories of how the old-age artists would surrender their music to a label, individual producer and such and only get paid a one-off payment for their performances mostly in studio, many of the younger or modern artists are now aware of their rights. These days a casual chat with any artist of whatever nature, one gets a feeling that they are much aware of their rights. There are also lawyers who are exclusively providing services to these artists when it comes to copyright and intellectual laws as it were. A bright future isn’t it? But hey, to the artist reading this… how much do you know about the law?
In this write up we intend to give a general view into laws around intellectual property in Africa, It is however prudent for any artist out there to always seek legal advice before negotiating or entering into an agreement with any individual or entity.
The law is not a cup of tea for all artists, indeed many artists tend to keep away from it; some consider it too technical others ignore it out-rightly. There are cases of artists losing millions in terms of money and rights to their own music because of the stated reasons or numerous other reasons out there.
Intellectual Property Law (IPL) is a set of jurisdictional laws either written or unwritten that provide protection for Intellectual Property (IP). It is IPL that creates what is generally known as Intellectual Property Rights (IPRs).
IP is an intangible property that is in various categories such as Patent, Geographical Indicator, Copyright, Trademark, and Industrial Design. The World Intellectual Property Organisation (WIPO) defines IP as “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.” It is important to note that certain categories of IP have subcategories, for instance, copyright entails literary work, artistic work, audio visual, sound recordings, among others while for patents there is utility and design patents.
Earlier on, it has been mentioned that IPL is jurisdictional in nature, which means IPL will differ from State to State. For instance, some countries will require that for an original work to be protected and even seek judicial remedies, it must be registered with the appropriate Government or Government licensed bodies, while in other Countries, that is not the case – therefore, the Copyright is automatic upon creation of the original work – particularly countries that are members of the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) or Universal Copyright Convention (UCC). Nevertheless, it is always advisable that a person registers the original work.
In accentuating on how IPL and IPRs differs from one Jurisdiction to the other, a person can consider the protection of a Mobile Application or Software (Software). In some Jurisdictions the Software can be registered as a Copyright or Patent while in others, the Software can only be registered as a Copyright. Therefore, it is important that a person should understand what kind of legal protection that is needed, and what are the pros and cons of taking one option over the other and pros of utilising all the two.
In this segment of IPL, the general focus will be on Copyright in reference to Music. The Oxford Dictionary of Law defines copyright as [t]he exclusive right to reproduce or authorize others to reproduce artistic, dramatic, literary, or musical works, and the Black’s Law Dictionary a property right in an original work of authorship (including literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, and architectural works; motion pictures and other audiovisual works; and sound recordings) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work.
In reference to the above definitions, particularly that by the Black’s Law Dictionary, it is clear that there are various forms of Copyright that can be protected under the law.
A piece of music or visual content entails various components of Copyright, which includes: Literary Works, the Song Lyrics can be registered separately as literary works, and that is exclusive of the instruments/loops, or vocals; Musical Works, this is exclusive of the phrases or activities intended to be uttered as a statement or through singing together with the music; Sound Recordings, it is inclusive of all or any of composer, compiler rights, literary, musical, or dramatic from which sound is (re)produced; Film Soundtracks; and Moral Rights.
Therefore, in the event one needs to use a certain Music, there are several rights that ought to be issued to the person. For instance, one will have to seek performer’s rights, right to perform the work to the or in public, synchronisation rights/license, publishing royalties, payment for mechanical royalties, performance royalties, waiving of/ demand to have moral rights, right to play a sound recording to the public, re-recording rights/ restrictions.
It is important that when parties that intend to engage in an assignment of rights of a given music or film, the parties ought to be very particular on what rights are given in total, sparingly, or totally restricted. In addition, a party that intends to give a license to a Copyright, the party should be knowledgeable of the rights that it has, for instance, composer or producer rights might be owned by a different person.
Serious business-oriented Management Companies, particularly all-round management companies, tend to provide comprehensive Management Contracts between the Company and an artist. It is advisable that one should seek legal advice to avoid surrendering all rights to a Management Company or similar entities.
The protection of a Copyright is likely to take the whole life of the author and an additional fifty years after the demise of the author – that is as per the Berne Convention – and certain subclasses of Copyright such as cinematography or pseudonyms/ anonymous work have at least fifty years of protection that commences on its production. However, Berne Convention is not determinant of all that entails Copyright, therefore, each member State has its own municipal laws’ that addresses the Term of Protection of Copyright. The UCC provides for protection lasting the life time of the author and an additional twenty-five years after the death of the author of the work.
Based on this general information concerning Copyright, it is evident that there is a lot that most people will find interesting and imperative when securing Copyright protection. As many persons’ in the Music industry have failed to consider the number of copyrights that they have other than merely registering with the Collective Management Schemes to get paid for royalties, it is important that most artists understand what concept of Copyright in detail and how to go about securing the copyrights through contractual agreements, quasi-judicial processes, and judicial processes.
Ombo Malumbe is an advocate by profession
*This article first appeared on Afroway Magazine. Check out the digital publication below: