Bakampa
Brian Baryaguma
1.
Introduction
Copyright was first
introduced in Uganda by the British, during their colonial regime. It is
therefore, a fairly recent development, initially designed to protect British
authors and publishers within the Ugandan protectorate.[1] According to Justice Ntabgoba,
in the case of John Murray (Publishers)
Ltd & Ors vs George William Senkindu & Anor,[2] prior to independence in
1962, Uganda applied the United Kingdom
Copyright Act, 1956.
Copyright law regime found
its way in Uganda through the British common law, itself introduced by the
reception clause of the Uganda Order in
Council, 1902 which empowered the High Court to apply common law and United
Kingdom statutes of general application in exercise of its jurisdiction.[3] This
provision was re-codified in the Judicature
Act, No. 62 of 1962, but the statutes of general application were outlawed
with the elevation of the Act into a chapter of the laws of Uganda (Cap. 34).
This divestiture of legal sanctity was confirmed in the case of Uganda Motors Limited vs Wavah Holdings
Limited holding that, ‘... the Acts of general application no longer have
any place in the jurisdiction of the High Court….’[4]
The term copyright is an amalgamation of two
distinct words i.e. copy and right. Whereas all along the word copy has been defined,[5] its
counterpart, right, has not been
defined at all. Unfortunately, the term copyright
has never been meaningfully defined in any of the relevant copyright laws of
Uganda. The Copyright Act, 1964
(hereinafter, the 1964 Act)[6]
vaguely defined copyright as meaning ‘copyright under this Act’ under section 1(g).
For its part, The Copyright and
Neighbouring Rights Act, 2006 (hereinafter, the 2006 Act),[7] does
not contain any corresponding provision.
Literally, copyright is understood to mean the,
sole legal right, held for a certain number of years, by the author or composer of a work, or by someone delegated by him, to print, publish, sell, broadcast, perform, film or record his work or any part of it.[8]
Conceptually however,
copyright has variously been defined as,
The exclusive right to reproduce or authorize others to reproduce artistic, dramatic, literary, or musical works.[9]
Copyright is a component of
intellectual property, which essentially denotes an intangible property right
which subsists in original creative works.[10] It is a proprietary right,[11]
which protects the right of an author to prevent any unauthorized copying and
modification of authorship works.[12]
Based upon the principle that I think, so
I earn, copyright law protects expressions – not ideas, operations and
processes.[13]
2.
Background
Britain is known to have
developed the first advanced copyright law, following a 1556 royal charter that
established the Stationers’ Company and giving it exclusive printing control.[14]
Eventually, it became clear that copyright was a powerful instrument for economic
development, export growth and diffusion of new technologies, art and culture.[15]
Uganda also found it
necessary to formulate her own copyright law regime. Therefore, the 1964 Act
was enacted, commencing on 20 July, 1964. According to the long title, it was,
An Act to make provision for copyright of literary, musical and artistic works, cinematograph pictures, gramophone records and broadcasts, and other purposes connected therewith.
However, due to
technological advancements, coupled with international law and policy changes,
this Act was over time considered to be inadequate, due to lack of sufficient
protection mechanisms. Thus, there was need for a new law to address the
loopholes inherent in the 1964 Act.
Consequently, in 2004, The Copyright and Neighbouring Rights Bill
No. 16 of 2004, was introduced in Parliament by Honourable Jacob Oulanyah.[16]
Parliament subsequently passed the Bill into an Act (herein the 2006 Act) which
received presidential assent on 31st May, 2006 and commenced on 4th
August, 2006. According to the Act’s long title, it is,
An Act to repeal and replace the Copyright Act, and to provide for the protection of literary, scientific and artistic intellectual works and their neighbouring rights; and to provide for other related matters.
The 2006 Act ushered in
fundamental changes in Uganda’s copyright law regime. These and the rationale
for them are explored in the proceeding parts of this essay.
3.
A
Comparative Analysis of the 1964 Act, and the 2006 Act
Upon close scrutiny and
examination, a comparative analysis of the two Acts reveals that they have some
similarities and several differences. This part of the essay will highlight
these similarities and differences and the reasons thereto.
A.
Similarities
Even though the 2006
Act repealed and replaced the 1964 Act, it must be conceded that the two Acts
are similar or related in one way or the other. This is only a natural
consequence especially, considering that both Acts deal with the common subject
of copyright protection.
However, these are
really few, minor and arguably incidental, such that they need not detain us
here,[17]
with valuable time, energy and space invested in the name of analyzing them – all
at the expense of a more deserving need to scrutinize the differences between
the two Acts and the reasons therefor. The need to repeal the 1964 Act
altogether, is sufficient to relieve one of this burden.
B.
Differences
In terms of content,
the 2006 Act is radically different from the 1964 Act, moreover, as the ensuing
discussion will reveal, it contains provisions with far more reaching impact.
For starters, while the 1964 Act has only 16 sections, the 2006 Act has 85
sections. Nevertheless, the efficacy and utility of a law should not merely
determined by its form but the substance of its subject matter.
First, the 2006 Act has
a much wider application than the 1964 Act. According to section 3 of the 2006
Act, it applies to all works that were created or published before its
commencement, by (a) a citizen of Uganda or a person resident in Uganda; (b)
first published in Uganda (irrespective of the author’s nationality or
residence); and (c) works first published in a country that is a member of the
World Intellectual Property Organization (WIPO), Africa Region Intellectual
Property Organization (ARIPO), the United Nations Educational Scientific and
Cultural Organization (UNESCO) and the World Trade Organization (WTO) or that
country is signatory to the TRIPS agreement. The only condition is that the
work seeking copyright protection should not have fallen into the public
domain.
This is unlike the 1964
Act (as per sections 2, 3, 4(1), First and Second schedules), whose
application, was for works of a literary, musical or artistic nature, made
before and after its commencement, including cinematograph films, gramophone
records and broadcasts or the work was authored in Uganda or a country party to
the Universal Copyright Convention.
The rationale for the
wider scope of copyright protection under the 2006 Act, is the need for law to
be modernized to cope with global changes, which includes the broader area of
work protected elsewhere in the world especially, meeting the TRIPS agreement
demands.[18]
The second difference
is the protection of neighbouring rights in the 2006 Act which was not the case
in the 1964 Act. Whereas the latter basically provided copyright protection for
literary,[19]
musical and artistic works,[20] the
former expanded the scope of protection to cover scientific works and also
recognizes neighbouring rights under part IV particularly, section 21.[21]
The rationale for this
change is that it became imperative to recognize that there were other parties
who may have contributed to the making of the work who needed protection as
well for their effort.
The third difference
concerns the recognition and protection of moral rights in the 2006 Act, which
was not the case in the 1964 Act. Moral rights are non-economic in nature, as
they only grant a right to claim authorship or performance.[22] The author’s moral rights
are protected under section 10 of the 2006 Act and those of a performer are
protected under section 23.
The rationale for the
introduction of moral rights in the 2006 Act is two-fold. First, to promote
investment and invention by authors and performers, thereby enhancing Uganda’s
development aspirations through rewarding hard work[23]; and second, to take
cognizance of demands by such groups as the Uganda Performing Artists’ Society
as well as the East African Community demands that Uganda should strengthen its
legal and institutional framework to protect artists’ work.[24]
The fourth difference
relates to change in language used in the two Acts i.e. from fair dealing as under the 1964 Act,[25] to fair use as under the 2006 Act.[26] In
both Acts, the two phrases are defences to copyright infringement more so in
instances of judicial processes, criticism and review, professional advice and
research, study or news reporting.[27]
It should be noted however, that legally speaking, dealing is different from use
in so far as the former is concise, precise and rather stringent unlike the
former which is more flexible and susceptible to liberal interpretation.
The rationale for this
change in language is that it not only widens access to copyrighted material
but also permits judicial officers to interpret fair use expansively rather
than narrowly, where disputes arise.[28]
The fifth difference
pertains to the remedies available for copyright infringement. Whereas the 1964
Act only provided for civil remedies (i.e. damages and injunctions) in cases of
copyright infringement under section 13(2),[29] the 2006 Act provides for
both civil and criminal remedies under sections 45 (civil remedies), 47 (under
which it is an offence to infringe copyright and also creates penalties e.g.
imprisonment and fines), 48 (offence of and penalty for infringing neighbouring
rights), 49 (offences by groups of people) and 50 (on general penalties and
compensation).
The rationale is that
first, the sanction-stipulating provisions should be clearer;[30] and
second, civil and criminal remedies are necessary to prevent unlawful
infringement, though with minimal interference with the rights of legitimate
and bona fide users.[31]
The sixth difference
relates to protection of public benefit works. While the 1964 Act conferred
copyright protection to works of Government and its organs and agencies (like
courts, parliament, ministries, statutory corporations as well as committees
and commissions etc.) under section 6, the 2006 Act totally divests such works
of any protection under section 7.
The reason for this is
simply part of the
need to balance between otherwise private property rights and the social need
for easy access to information, without infringing copyright.[32]
Through payment of taxes, taxpayers can reasonably be taken to have made their
fair contribution towards the expenses of creating works of this kind.
4.
Conclusion
No doubt, the shift
from The Copyright Act, 1964 to The Copyright and Neighbouring Rights Act,
2006 has fundamentally changed Uganda’s long standing copyright
jurisprudence, practice, and implementation. It is also a great contribution to
international developments in this area especially, in the mainstream media
condemnation of piracy, by making it highly costly and risky to copy protected
work.
Needless to say, the
most important contribution lies in the ability of the 2006 Act to implement
article 26 of the 1995 Constitution, which guarantees against deprivation of
property, while also promoting access to information and operationalizing other
national development goals like those enshrined in the National Development
Plan and the Poverty Eradication Action Plan.
Notes and References
[1] Dick Kawooya, Ronald
Kakungulu, and Jeroline Akubu, African
Copyright and Access to Knowledge Project: Uganda Country Report
(2009), at 8.
[3] H. F.
Morris and James Reed, Uganda: The
Development of its Laws and Constitution (1966), at 238-239.
[8] A. S. Hornby,
A. P. Cowie, and A. C. Gimson, Oxford
Advanced Learner’s Dictionary of Current English (1983), 192.
[10] Uganda Law Reform Commission, A Study Report on Copyright and Neighbouring
Rights Law (2004), at 1. What constitutes original work is not sufficiently clear. But In Kalamazoo Ltd and Anor vs Systems Africa Ltd
[1973] EA 242, Chanan Singh, J. was of the view that for work to be
original, sufficient effort (in terms of knowledge, labour and skill) should be
expended on its making.
[12] Some of these
include literary works like books or computer programmes, dramatic works like
plays, musical works, audio-visual works like movies and videos, visual art
works like sculptures, paintings, architectural works, technical drawings, maps
and photographs.
[13] Uganda Law Reform Commission, supra note 10, at xvi. The report further
notes that, ‘Copyright was invented by, and for early capitalism, and its
importance to that system has grown ever since.’ Ibid.
[15] Consequently, several other countries enacted and
passed copyright laws to partake of these benefits. At the international arena,
this frenzy is well captured in the Agreement
on Trade-Related Aspects of Intellectual Property Rights (hereinafter, the TRIPS Agreement),
which is a global treaty on intellectual property.
[16] Edgar
Tabaro, ‘Copyright Law Reform in Uganda: Addressing International Standards at
the Expense of Domestic Objectives' (2005), at iv.
[17] For
avoidance of doubt, some of the similarities are; both do not define the term ‘copyright;’
both seek to provide copyright protection, with some exceptions; both have no
requirement for knowledge of copyright infringement; and that related sections
use somewhat similar language albeit to a limited extent, among others.
[18] Uganda Law
Reform Commission, supra note 10, at
xviii; and Dick
Kawooya, Ronald Kakungulu, and Jeroline Akubu, supra note 1, at 14.
[19] In British Oxygen Company Ltd vs Liquid Air Ltd
[1925] 1 Ch. 383, 391, Romer J. held that a letter, being written matter,
is a 'literary' work.
[20] In George Hensher Ltd Vs Restawhile Upholstery (Lancs) Ltd [1974] 2
All ER 420, it was held that there must be some artistic quality in a work
for it to qualify for copyright protection. In Kalamazoo Ltd and Anor vs Systems Africa Ltd [1973] EA 242, it was
held that for work to be artistic, sufficient effort (in terms of knowledge,
labour and skill) should be expended on its making, in order to make it
original.
[21] According to S. 21(1) of the 2006 Act, neighbouring
rights are rights attached to the auxiliary role played by performers,
producers of sound recording and audio-visual and broadcasting companies through
(a) the fulfilment of literary or artistic works; (b) the provision of destiny
and permanence in works; and (c) the diminishing of distance in the publication
of works; respectively, which auxiliary role is dependent on the work of the
author and without which the role cannot begin.
[23] In Digital Solutions Ltd vs MTN Uganda Ltd,
Misc. Appl. No. 546 of 2004 (arising out of HCCS No. 570 of 2004 (unreported),
the applicant company complained inter alia that the respondent company did not
acknowledge its (Digital Solutions’) title or authorship of the ‘Me2U’ software
programme that was in dispute. This case also portrayed the need for a
comprehensive law in Uganda to address protection of computer programmes as
required under article 10 of the TRIPS Agreement.
[24] Uganda
Law Reform Commission, xix;
In the case of Uganda Performing Rights
Society Ltd vs Fred Mukubira, HCT-00-CC-CS-842-2003
(unreported), the
plaintiff Society requested court, ‘… to take judicial notice of the prevalence
of piracy of Musical Works in Uganda and the notorious disregard for
intellectual property rights in the entertainment industry….’ In his judgment,
Kiryabwire J. stated at page 15 that, ‘I find that indeed that intellectual
property rights in Uganda are not well observed.’ This
case established that an assignee of copyright can enforce copyright
protection. Assignment of copyright is provided for under section 14 of the
2006 Act and section 12 of the 1964 Act.
[27] Regarding unpublished works,
Romer J. stated in British Oxygen Company
Ltd Vs Liquid Air Limited [1925] 1 Ch. 383, 393 that, ‘… it would be
manifestly unfair that an unpublished literary work should, without the consent
of the author, be the subject of public criticism, review or newspaper summary.
Any such dealing with an unpublished literary work would not … be a ‘fair
dealing.’’
[29] In Attorney General vs Sanyu Television [1998] 1 KALR 87, an
injunction was awarded to restrain the respondent company from infringing the
applicant’s copyright to broadcast the 1998 World Cup football matches in
Uganda.
[30] The need
for clarity is evident from the case of Kalamazoo
Ltd and Anor vs Systems Africa Ltd [1973] EA 242, 244, where there was some
confusion regarding some forms used by both the Government of Kenya and the
Post Office (which ordinarily is a Government agency but was not listed as such
for purposes of the Kenyan Copyright Act. Court stated that, ‘On principle,
there should be no difference between the Government or the Post Office …,’ and
therefore that, since ‘The Post Office is not in the list [it] has to be
treated like a private body.’
[32] Ibid.
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