Вы находитесь на странице: 1из 10

OVERVIEW OF COPYRIGHT PROTECTION

IN UGANDA
Presentation made at the “National Seminar On The TRIPS Agreement”
held at the Imperial Royale Hotel Kampala, on February 23 – 24, 2010.
BY

James Wasula
General Secretary, Uganda Performing Right Society

Organised by the Ministry of Tourism, Trade and Industry, Kampala


• In this presentation, the feminine pronoun refers to both genders.

1. Introduction

Due to historical reasons, Uganda inherited the British Copyright


Act and the entire copyright system.

The Performing Right Society of England (PRS) continued to


administer rights in Uganda as its territory until 1972. Whereas
this was not a hindrance in itself, their unceremonious departure
at the declaration of the Economic War by President Dr. Idi Amin
Dada VC, DSO, MC, CBE indeed was.

Since 1972 (or thereabout) there existed no collecting society or


administrative structures for copyright administration in Uganda.

In all, Uganda has experienced over 40 years of absence of


effective copyright administration.

This commentary will present a general overview of the relevant


statutes, subject matter, protection terms, exclusive rights that
constitute copyright law in Uganda, Economic Importance of
Copyright, and the challenges of enforcing the law.

2. Framework for the Protection of Copyright

The Copyright and Neighbouring Rights Act (CNRA) basically


governs the protection of Copyright in Uganda. The Act promotes
the Progress of Science and useful Arts, by securing for limited
time to authors of original works the exclusive rights to their
respective writings and creations.

JAMES WASULA (February 23, 2010)


However, there are other pieces of legislation that relate to piracy
such as the Penal Code Act (sections 377 to 380) that provides
for Counterfeiting of Trademarks and the Trademarks Act
(Section 8), which provides for infringement of Trademarks by
breach of restrictions.

The Copyright and Neighbouring Rights Regulations 2010 also


strengthen the enforcement of the CNRA by giving explicit
directions to the provisions of the Act.

The proposed Anti-Counterfeit Bill is focused on providing


measures against Trademark and Copyright infringement. It also
involves Counterfeiting, which is basically also part of physical
piracy but more so, it is focused on the packaging of the
copied music material in such a way as to resemble the original
as much as possible; it also involves Bootlegs, which is
unauthorized recordings of live or broadcast performances, e.g.
recording Afrigo’s live performance using a camcorder or other
device and then duplicating and selling the copies.

Since my presentation’s particular interest is Copyright and not


Trademarks, what we have to note is that the only way to relate
the two Intellectual Property rights together under the present
regulations is that if, for example, a musician makes a design that
can be used to identify her music with her cover CD and then the
cover/jacket of the music CD is copied (and of course the
contents of the CD) without permission and with a view towards
depriving the owner of her royalties/profits, then the
aforementioned provisions of the Penal Code Act and
Trademarks Act would apply. You also have to be aware that if
the musician did not register a trademark for her music CD cover
/design then she will lacks cause of action for trademark
infringement (Section 4 Trademarks Act).

3. Statutes
In general terms a "copyright" is an intangible, incorporeal right
granted by statute to the author or originator of certain literary or
artistic productions, whereby she is invested, for a specified
period, with the sole and exclusive privilege of multiplying copies
of the same and publishing and selling them.

2
Copyright protection is governed by the CNRA legislation. The
current Act was enacted in 2006 and became effective on August
4, 2006. The CNRA repealed the 1964 Act and all rights that
existed immediately before the repeal of the Act shall be
enforceable under the CNRA as if it was in force at the time of the
creation of that work (S84).

4. Copyright Protection

Like many other National Copyright legislations, the CNRA


protects copyright and author's rights by granting limited rights of
exclusivity to originators or authors of literary or artistic works.

There are four basic principles that govern copyright protection:


(a) originality; (b) idea-expression; (c) Fixation and (d) authorship.

(a) Originality: To qualify for copyright the work has to be


independently created by the author (and possess at least
some minimal degree of creativity). Minimal creativity, however,
does not necessarily mean artistic merit.

(b) Idea-expression: Copyright protection is granted to the


expression of the idea, not to the idea itself. This principle is
known as the idea-expression dichotomy. According to this
postulate, copyright protection under no circumstances extends
to an idea, procedure, process, system, method of operation,
concept, principle or discovery.

(c)Fixation: As a matter of law, copyrights exist as soon as the


work of authorship is reduced in a tangible medium of
expression. (This principle is found in Article 2(2) of the Berne
Convention and Section 4 of the CNRA.

Interestingly, in the US if there are only a restricted number of


ways to express an idea, the expression merges with the idea
and becomes un-protectable. This concept is also referred to
as "the merger doctrine" because the idea and the mode of
expression are deemed to merge.

3
(d) Authorship: The CNRA defines AUTHOR as “the physical
person who created or creates work protected under section 5
and includes a person or authority commissioning work or
employing a person making work in the course of employment”
The CNRA enumerates nine categories of works that qualify for
copyright protection.

In Uganda, a work is protected from the moment that it satisfies


the four principles previously mentioned. Registration is
optional for evidence purposes. However, the Act alludes to the
requirement of a copyright notice ©.

5. Subject Matter and Protection Terms

The CNRA enumerates nine types of works of authorship that are


entitled to copyright protection: (1) literary works; (2) dramatic and
musical works, including any accompanying words; (3)
audiovisual and cinematographic works; (4) pantomimes and
choreographic works; (5) works of drawing, engraving, pictorial,
graphic, and sculptural works; (6) works of applied art and
designing; (7) illustrations, maps, plans and three dimensional
works; (8) derivative and compilation works; and (9) traditional
folklore and knowledge.

This is not an exclusive and exhaustive list since any other work
that satisfies the four basic principles previously discussed
(fixation, idea-expression, originality and authorship) may also
qualify for copyright protection. Section 5 of the CNRA defines
these nine categories.

The duration of copyright in Uganda is contained in Part Three of


the CNRA, which establishes several rules that deal with the
duration of copyright. The most relevant rules are as follows:

(a) For a natural author, the duration is for life and 50 years
after her death;
(b) In respect of joint authors the duration is until the death of
the last surviving co-author, and 50 years thereafter;
(c)For an anonymously published work or under a pseudonym,
the duration is 50 years from the date of the work’s first
publication;

4
(d) In case of audiovisual work, sound recording or broadcast,
the duration is 50 years from the date of making the work
available to the public;
(e) For computer program, the duration is 50 years from the
date of making available the program to the public; and
(f) In case of photographic work, the duration is 50 years from the
date of making the work.
Moral rights are protected in perpetuity.

6. Exclusive Rights and Limitations

A clear demarcation of the rights and limitations granted by the


CNRA is relevant because, as a general rule, any violation of
rights constitutes copyrights infringement.

Copyright protection comprises of a collection of cumulative rights


that can be subdivided, transferred and owned separately. These
rights enable the copyright holder to do and/or to authorise others
to do any of the following:

(a) Reproduction: The reproduction right grants the privilege to


copies of the protected work. This right is undeniably the most
important economic prerogative established in the Act. The
term "copy" is defined statutorily as material form, ... in which a
work is fixed by any method from which the work can be
perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device.

Under the provisions of the Act, the right of reproduction is not


absolute. In certain cases, qualified individuals or entities such
as computer program owners, libraries, and broadcasters are
allowed to make single copies of a work, provided that certain
requirements are met. (Sections 15, 16 and 17)

5
(b) Adaptation: The adaptation right is an exclusive prerogative
of a copyright and essentially permits the transformation of a
work into another form. The Act refers to this as the right to
prepare "derivative works." A "derivative work" is a work that is
based upon one or more pre-existing works, such as a
translation, musical arrangement, dramatisation,
fictionalisation, motion picture version, sound recordings, art
reproduction, abridgment, or any other form in which a work
may be recast, transformed or adapted.
(c)Distribution: The distribution right entitles the copyright owner
to distribute copies of the copyrighted work to the public by sale
or other transfer of ownership or by rental, lease, or lending.
(d) Public performance: This right essentially entitles the owner
to perform the copyrighted work publicly. This right can be
limited in order to permit certain educational and non-profit
performances.
(e) Importation: The importation right entitles the owner of a
copyrighted work to prevent the importation into Uganda of
copies of a work that have been acquired outside the Country.
Violation of this right constitutes an infringement of the
exclusive right to distribute copies.

7. Economic Importance of Copyright


Prologue
Today, Copyrights are at the heart of modernity and in particular
of a wide range of economic activities which are generally
identified as “Cultural industries”.

Since 1986 the cultural industries have registered steady growth


in Uganda – which is probably faster than the whole economy. A
few indirect indicators show the recent development of the various
sectors, sub-sectors and segments that are directly and indirectly
related to the copyright industry.

It is estimated that between 2004 and 2008 Uganda’s exports of


Cultural Goods and services were valued at $20m –
approximately Shs.36b/=.

6
In terms of employment, Copyright Industries employ about
100,000 people countrywide, with 10 – 12 people employed in
every 1000 in the Central Region and 0 – 1 in 1000 in the
Northern Region, according to a mapping survey commissioned
by the UNATCOM for UNESCO – 2009.
Categorisation
Introduction
In this presentation I will try to identify the main sectors and
economic activities involved in copyright-related activities in
Uganda, giving hints to their estimated share of GDP, the number
of people employed and their participation in trade flows.

I will look at the general characterisation of the Copyright Industry


in Uganda, including indirect indicators of recent economic
performance of main activities related to copyright.

Museum and Heritage


It is interesting to note that Museum and Heritage contribute
highest to the export earnings by the Cultural Industries.
According to a mapping survey commissioned by the National
Commission for UNESCO, Museum and Heritage contribute
about 35%; Multimedia 15%; Visual Arts 13%; and the Music
Industry 10%.

It is noteworthy that the Music Industry could afford a 10% share


of the export income in spite of the fact that the phonographic and
audiovisual segments are one of the most affected by sales of
pirated products and unauthorised copies both locally and
internationally.

Music
Whereas sale of recorded audio music has gone down in urban
centres, there is marked growth in rural areas. The downtrend of
sales in urban areas has been compensated by attendance of live
concerts, which is phenomenal.

7
Audiovisual
Local music VCDs and DVDs and local films dubbed UGAWOOD
have over the years acquired a strong participation in the cultural
industries in Uganda. Although I do not have figures, the
contribution of audiovisual works to the Cultural industries Gross
Product is significant.

Broadcasting
Radios and Televisions occupy an important place in activities
related to copyrights in Uganda today. Most Broadcasters,
particularly radio stations now dedicate about 50% of their airplay
time to local content. This means increased revenue to the sector.

Books
The publishing market is also steadily growing since the 1990s.
The number of local book publishers who have joined in the
business evidences this, coupled with the many printing presses
and the increase in the number of students at all the levels.

8. Challenges of enforcing Copyright


As stated earlier, the legal framework is in place and the relevant
institutions like the Uganda Registration Service Bureau, the
Police and the judiciary are also in place to facilitate enforcement.

However, there is rampant sale of infringing products particularly


music and audiovisual works. A number of factors have
contributed to increase in unauthorised music reproduction, the
most important being technological progress.

It is now possible to make copies with the same quality as the


originals at low costs.

The infrastructure for producing CDs and tapes require low


investment and allows great mobility. In addition, copies can be
easily obtained from Internet without costs to users.

Nonetheless, that does not mean Police should not swing into
action to protect rights’ holders.

8
That aside, most copyright holders are not yet clear about what is
being protected and how they may benefit from the protection.

This is a result of lukewarm interest taken by Government in


popularising the Act. By this we mean Government should take
the lead in sensitising copyright holders on all matters of the law;
that is, its legal implications and its economic advantages.

It is unfortunate that a lot of emphasis is put on the legal aspects


as if copyright is essentially about its legal nature. The crucial
economic aspects have received minimum exposure rendering
the copyright holders to wonder whether it is relevant at all!

Likewise, Government is also unaware of the revenue it loses in


uncollected taxes that would accrue from royalties. No effort has
been made by either the Ministry responsible for Culture or that of
Finance or even the Uganda Revenue Authority to try to find out
the possible revenue that could be collected from copyright
protected works.

To the contrary, some politicians have taken to hobnobbing with


copyright infringers, offering them protection against paying what
is legitimately due to the copyright holder.

Besides that, there is apparent lack of understanding of copyright


protection by the Police. Whereas the National Commission for
UNESCO facilitated UPRS to train Officer Cadets in Masindi in
2008, the impact of that training is yet to be notice.

In spite of such daunting challenges, UPRS has so far managed


to license over 40 users including Broadcasters, Hotels, Banks,
and Discotheques etc.

9. Way forward
• Line Ministries – Justice and Constitutional Affairs, Gender,
Labour and Social Development, and Tourism, Trade and
Industry need to cooperate to enforce IP laws;
• A comprehensive study should be undertaken to establish the
contribution of the sector to the National economy;

9
• Uganda should accede to International Conventions such as
the WIPO Treats, Berne Convention etc.;
• Sector should be given incentives for investments;
• Uganda Registration Services Bureau should urgently appoint
Inspectors;
• Police should establish specialised desks for IP cases just like
it has done for domestic, land, children etc issues;
• Government should offer extensive training to Magistrates and
Judges in IP to keep them abreast with IP matters.

THANKS YOU.

END OF DOCUMENT

10