Uganda holds its head high as a founder member of the World Trade
Organization – founded in 1994, and pursuant to that, one of the signatories to the TRIPS
(Trade Related Aspects of Intellectual property Rights) Agreement that was drafted
to guide member states in coming up with domestic legislation addressing
Intellectual Property protection.
It has been a rather slow progress since then in
the country’s efforts to live up to its TRIPS related obligations. In as far as
Copyright law is concerned; we were stuck with the ghost of the 1964 Copyright
law – borrowed from our former colonial masters, until the enactment of the
Copyright and Neighboring Rights Act in 2006. This was Uganda’s first effort in
addressing its part of the TRIPS bargain. Much as the country has recently come
up with new legislation in the area of Trademark and Trade secrets law, a lot
more demands remain to be fulfilled with regards to the other branches of
Intellectual property, more particularly Patent Law. Indeed our law makers
should be applauded for pushing for fresh I.P legislation but going by the
growing trend of development in the industry one legitimate question is whether
the new legislation effectively cover the rising challenges in the
appreciation of Intellectual Property in Uganda.
The 2006 Copyright Act has been criticized for
being biased towards the music industry and ultimately ignoring or not directly
addressing other branches of what constitutes Copyright works, inclusive of dramatic
works, pictorial, graphic and sculptural works, motion pictures, architectural
works and the like. Never mind the fact that section 5 of the Act spells out
which type of works are eligible for copyright protection and actually includes
some of the aforementioned. The focus of this argument is more inclined on the
thesis that coverage of the Act is too broad, lacks some much-needed
specificity and is premised on offering protection to artists than any other
author of copyright works.
As such, this discomforting trend set by the
Copyright law, since its enactment, is analyzed through the lens of a few
pointers:
First of all, basing on the fact that appreciation
of Copyright law, and generally – Intellectual property law, in Uganda is still
minimal, those looking into the law are unwittingly sucked into a limited
mindset as to how far Copyright law can go. If key players in society,
inclusive of members of the legal profession and members of the bench, develop
an understanding that the boundaries of copyright protection can only go as far
as the Act portrays, then the level of innovation in this branch of
Intellectual Property is being affected negatively even before the law allows
it to develop to greater heights. Copyright law in the United States of
America, for instance, is based on the Constitutional provision that focuses on
promoting “the progress of science and
the useful Arts, by securing for limited times to Authors and Inventors the
exclusive rights to their respective writings and discoveries.” (Article 1,
sec. 8, cl. 8).The overriding objective of copyright law in this regard, is the
advancement of useful arts. The same should apply to copyright works in Uganda
by understanding how much can be protected as copyright and how long such
protection can last. This would expand the field for innovation and spread the
ensuing benefits to both authors and consumers.
Secondly, enforcement cannot grow if those
entrusted to put the enforcement into effect do not know what they are enforcing
against. To stretch this point a bit further, even those breaking the law by
infringing on copyrights of authors will not know that what they are doing is
illegal. Television images in July this year which showed law enforcement
officers, backed by the Uganda Performing Rights Society, fighting it out with
violators of copyrights were a true depiction of how little our societies are
aware of copyright law. The perpetrators of the infringement strongly believed
that they were not doing anything wrong. Regardless of the fact that ignorance
of the law is no defense, there is still a lot of dissemination that needs to
be done in a tactical manner.
Thirdly, is the issue of durability in protecting
copyright works. I am reminded of the
phrase: ”let sleeping dogs lie”. Ignorance of the level and extent of
protection afforded to works eligible for copyright can stand the risk of
affecting the enjoyment that one would have earned from the exclusivity that
comes with such protection. The exclusive right of protection given to an
author of copyright works, stands as a reward for the efforts put in place by
such person in producing the work as well as a form of incentive for others to get
creative as well so as to enjoy similar benefits. As an artist, for instance, if
you are not aware that your work enjoys eligibility for copyright protection,
you stand to lose out on a lot of benefits that come with such protection and,
regardless of the fact that the duration of protection afforded under the law
may be quite long, your work may fall into the public domain before anyone
discovers the potential it holds. This is the present burden faced by
Indigenous communities that hold claims to traditional cultural expressions
that have been appropriated by certain individuals for personal gain and this
is not even illegal especially since the appropriated works are subsequently
protected as Intellectual property.
However, there is a very rich potential for a
vibrant intellectual property environment in Uganda. All it can take is for us
to keep stirring the waters in order to cause a storm that will upset the tide
that has been favoring infringers – both the intentional and unintentional
infringers, guilty and innocent ones as well. It is exciting when the news
headlines scream out about a former mayor suing a leading corporation for using
his speeches without obtaining his permission, while another headline also
points out a story about a musician suing another for the use of her songs
without permission. In the United States of America, a classic “speech” case
that stands out involved the law suit over the unlawful use of the famous Dr.
Martin Luther King “I have a dream” speech by CBS Inc. in 1994. Judgment was in
favor of the plaintiff on the basis of the fact that Dr. King owned the
copyright to the speech (Estate of Martin
Luther King, Jr., Inc. v. CBS, Inc.). Whereas in the much earlier British
case of Walter v. Lane (1900), the
judgment was to the effect that the reporters who recorded the speeches of Lord
Rosebery were entitled to copyright protection. This is the intriguing nature
of copyright law – it takes up a number of interesting dimensions depending on
jurisdiction and can still be able to teach the recipient of the information
something of value. However, it is of significance that our legal environment
is beginning to embrace this challenge through the courts of law. It speaks volumes about the fact that people
are waking up and realizing that they own not only tangible but also intangible
property and there are avenues that can be explored in asserting their rights
of protection.
More still needs to be done. For instance, there
are still musicians out there who are unaware of the fact that even riding on
their hard earned work without giving them any sort of accreditation can lead
to a law suit under Copyright law for breach of moral rights. We also need to
understand that our territorial boundaries of Copyright protection can and need
to go further than what the Act envisages. The sooner we address this concern through
law reform, the better, so as not to kill the underlying innovations in this
field. Our members of the bench and registrars also need to be guided further
because they are swimming in unfamiliar waters as they create new jurisprudence
for Ugandan case law in areas which lack any strong precedent. The lawyers and
academicians also need to do a lot more research as copyright law itself
continues to evolve and enlarge its boundaries in a world that is shrinking
further into a small global village thanks to the internet. This is creating
even more challenges towards cross-border enforcement.
