Africa IP highlights 2020 #1: The copyright field

Despite the challenges of 2020, the IP world has recorded many triumphs and moved forward on many issues. In Africa particularly, there were key court decisions in the IPRs and IP enforcement fields as well as significant legislative and institutional reforms.

The IPKat is running a series of posts (Africa IP Highlights 2020) highlighting some of the key developments in IP in Africa between January and December 2020. This Africa IP Highlights 2020 is the result of collaboration between myself and several IP practitioners and researchers across Africa (in alphabetical order): Caroline Wanjiru (Centre for IP and IT Law, Strathmore University, Kenya); Chinasa Uwanna and Ekene Chuks-Okeke (Banwo & Ighodalo, Nigeria); Marius Schneider and Nora Ho Tu Nam (IPvocate Africa, Mauritius); Vanessa Ferguson (Ferguson Attorneys, South Africa).

 

Story time...

Today, we begin with developments in the copyright field.

As at January, there was no COVID-19 pandemic even though China was grappling with the rapid spread of the coronavirus. In Nigeria, we celebrated the establishment of the WIPO External Office in Nigeria, referred to as WIPO Nigeria Office (WNO). The WNO is part of a network of WIPO External Offices and supports WIPO’s cooperation and services in Nigeria. January 2020 also came with the news that the Federal High Court of Nigeria (Lagos Judicial Division) delivered judgement in the copyright infringement case between popular performer, Onyeka Onwenu and digital music distribution company, iRoking. The court ruled that by continuing to display Onyeka Onwenu’s works on Apple Music after the parties’ digital distribution agreement had expired, iRoking was liable for copyright infringement and breach of contract. The court awarded damages for copyright infringement and breach of contract. January also came with the news that the South African Government issued a Communication to the World Trade Organisation’s (WTO) Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS Council) essentially wanting to know how far it may go in fulfilling the principles and objectives of Articles 7 and 8 of the TRIPS Agreement when it is crafting copyright limitations and exceptions. This Kat commented on this development in this Katpost back in January.

The Beijing Treaty on Audiovisual Performances (“Beijing Treaty”) entered into force on 28 April 2020 (3 months after the 30th Contracting Party had submitted its instrument of ratification or accession to WIPO). It now behoves on Contracting Parties to implement the treaty or domesticate the treaty into their respective national laws. This Africa Correspondent’s “Beijing Treaty in Africa series” tracks the implementation/domestication of the Beijing Treaty across Africa. While countries like Algeria has acceded to the treaty, which now forms parts of its laws, countries like Nigeria and South Africa are yet to domesticate the treaty into their respective national laws. The Nigerian Copyright Commission (NCC) has however restated its commitment to seeing the Draft Copyright Bill 2015, which incorporates the Treaty, passed into law. The Draft Copyright Bill 2015 has been on the floor of the National Assembly since 2015. April also saw several Nigerian musicians and songwriters withdraw the rights to their music catalogues from Copyright Society of Nigeria (COSON). The artists moved to withdraw their rights following COSON’s failure to conduct a forensic audit of the society’s accounts, despite several calls for them to do so.

In May, a Federal High Court in Abuja, Nigeria ordered the National Universities Commission (NUC) and telecommunications network, Airtel (formerly Zain) to pay N703,000,000 ($1,843,934 approximately) in damages. The plaintiff, TV Xtra Production had designed a quiz program titled “University Challenge” and had approached the NUC to endorse the programme. A similar programme titled “Zain Africa Challenge” was later commissioned by Airtel and endorsed by the NUC. The Court agreed with the Plaintiffs that their copyright in the show had been infringed and awarded damages accordingly. Also in May, Kenya’s copyright regulatory authority, Kenya Copyright Board (KECOBO) issued a clarification on the issue of rates payable and responsibilities of Disc Jockeys (DJs) for streaming recorded music on digital platforms. KECOBO clarified that DJs who wish to stream sound recordings on digital platforms are subject to the terms and conditions of the platform they wish to use for the streaming. It further stated that such streaming is outside the purview of its authority and also outside the purview of CMOs. This Katpost wondered if KECOBO’s clarification was based on the right premise.

In June, South Africa’s President Cyril Ramaphosa referred the South African Copyright Amendment Bill and the Performer’s Protection Amendment Bill to the National Assembly, based on the President’s reservations about due process and constitutionality of the legislation passed by Parliament. See here for Katpost on that development. Also in June, the Court of Appeal of Nigeria (Lagos division) upheld the judgment of the Federal High Court awarding the sum of N5.4 Billion ($14,163,934 approximately) as damages for copyright infringement against Nigeria’s the largest cable television provider, Multichoice. Multichoice had sued a collective management organisation, MCSN (Musical Copyright Society of Nigeria), arguing that as MCSN was not licensed [at the time] by the NCC, Multichoice was not obliged to pay to royalties to MCSN for copyright-protected material used in programming on DSTV. Also, Nigeria’s National Broadcasting Commission (NBC) published Amendments to the 6th Edition of the Nigerian Broadcasting Code (NBC Code amendments) in June, after public presentation of the amendments to stakeholders in the broadcast media industry in Nigeria. The NBC Code amendments which provide inter alia for web/online broadcasting, prohibition of agreements in restraint of trade; requirements for acquisition of sports rights; local content requirements and compulsory sub-licensing have attracted comments from various quarters including here on the IPKat. One filmmaker has sued the NBC and has asked the court to nullify the NBC Code Amendments or to compel the NBC to disclose and make public the full details and records of its meeting(s) or proceedings at which the amendments were proposed, considered and established.

August in Nigeria saw more regulation of copyright-protected content. The Executive Secretary of the Lagos State Film and Video Censorship Board (LFVCB) introduced a 5% levy on audio and visual content “produced, sold, distributed, marketed, exhibited, streamed, downloaded and shared across all physical and digital platform situate lying and being within Lagos State”. [On what parameters would a digital platform be considered as lying and being within Lagos State?]

The Lagos State Government in September distanced itself from the earlier announced 5% levy on audio and visual content. The Executive Secretary of the LFVCB was reportedly suspended, pending an administrative enquiry.

In October, the Business and Intellectual Property Authority of Namibia (BIPA), began consultation aimed at changing its legislative framework for copyright, and considering a regime change that would be similar to those proposed for South Africa. [Would Namibia’s copyright reform face similar opposition to that of South Africa?] The Working Document for the Development of the new Copyright legal framework in Namibia was issued by BIPA for public comment before 15 October 2020. The review is aimed at developing a new legislation to serve the goals of the national development agenda and the industry, which is aligned to international best practices.

In November, specific developments in Copyright and related rights in Kenya happened through amendment of the law. Copyright (Amendment) Act was enacted in 2019 with heavy focus on administration of rights. [See Katpost on this here]. This was followed by the Copyright Regulations, 2020 and Copyright (Collective Management) Regulations, 2020, which were aimed at easing the process of collection and distribution of royalties to rights holders. These changes were largely motivated by frustration expressed by artists on the royalties they received from their CMOs. Further, National Rights Registry (NRR) was established under the auspices of KECOBO in a bid to restructure the compensation structure for right holders. The main function of the NRR is to collate all details on ownership of copyright works in Kenya. Registration of copyright will also be under the NRR.

By their enabling statutes, National and State Film and Video Censorship Boards in Nigeria are empowered to examine the content of films intended for public exhibition and determine their classification. In recent times, some filmmakers and distributors have taken to publishing their work on YouTube, instead of through the conventional channels (television and DVDs), thereby avoiding the classification requirement. However, in November, the Kano State Film and Censorship Board announced that the Board must vet all movies prior to their being uploaded on Hausa YouTube channels. Also in November, the member of the Trade & Industry Committee indicated that the South African Copyright Amendment Bill and the Performer’s Protection Amendment Bill would remain in limbo until 2021. This was after the Department of Trade and Industry (DTI) had made multiple presentations to Parliament’s portfolio committee on the Bill in August.

This December, news came of a decision of a Federal High Court in Lagos, Nigeria  prohibiting Copyright Society of Nigeria (COSON) from distributing royalties to its members in a manner, known as "General distribution" as such distribution does not reflect the usage of works covered by COSON's repertoire and is not based on usage information furnished by users. COSON has a practice known as "general distribution" where it sets aside part of the royalties it receives and shares a flat sum to all members irrespective of whether they have earned royalties in a given year.