Africa IP highlights 2022 #1: Copyright matters

It’s December and time for ...drumroll... The Africa IP Highlights! The Africa IP Highlights is an initiative of this Kat and is a series of posts put together to highlight some of the key developments in IP in Africa each year. Interested readers can find the Africa IP Highlights 2021, here.

This Africa IP Highlights 2022 is the result of collaboration between myself and Doreen Adoma Agyei and Clarisse Mideva. 

We begin with developments in the copyright field.

In February, Kenya’s parliament passed the Copyright Amendment Bill 2021. The Bill’s main objective was to amend the Copyright Act in order to provide for a fair formula for sharing of revenue from ringback tunes between copyright owners and the telecommunications operators; establish the National Rights Registry; and repeal the Internet Service Providers (ISP) Liability provisions contained in sections 35B, 35C and 35 D of the Copyright Act. Also in February, the Nigerian Copyright Commission (NCC) facilitated the emergence of a royalty collection framework between the Musical Copyright Society of Nigeria (MCSN) and Disco Jockeys Association of Nigeria (DJAN). Under the framework, the two organisations would agree inter alia on appropriate tariff structure and enforcement modalities. [For this Kat, it is a question of whether DJs should pay for all uses of music or whether the context should determine who pays for the DJs’ use of music]

Source: Pinterest

In April, the then President of Kenya, Uhuru Kenyatta assented to the Copyright Amendment Bill 2021 which has now become the Copyright (Amendment) Act No 14 of 2022. Amongst other things, the Act also establishes a National Rights Registry (NRR), which is the central repository collating details pertaining to the ownership of various copyright works. The NRR allows copyright holders to register and view/download copyright certificates digitally. Also in April, a popular Nigerian musician, Veno Marioghae Mbanefo decided to request the Nigerian Copyright Commission (NCC) to use its investigative and prosecutorial powers to investigate and possibly prosecute Airtel Network Limited for copyright infringement. One national newspaper reported that the NCC granted the request and commenced investigation. It will be interesting to see the outcome of NCC’s investigation (if indeed it was launched) and if criminal prosecution will be undertaken. There is also the possibility of the musician instituting civil infringement suit. Also in April, a High Court in South Africa held in QS Online (Pty) Limited vs The Minister of Public Works that having failed to disclose that its predecessor in title to a contract commissioning the creation of a literary work was a liquidated company and also given the fact of the liquidation, the applicant had no locus standi to institute an action to claim copyright ownership of the work which its predecessor in title had contractually assigned to the respondent. The court’s decision was hinged on the fact that the applicant had misrepresented to the respondent that there was a name change when in fact, the company with whom the respondent had earlier contracted was liquidated.

In June, in Kenya, a High Court issued a permanent injunction against Safaricom in Multichoice Kenya Limited vs Safaricom PLC & Jamii Telkom Limited, compelling them to block all the infringing sites as contained in the takedown notices served to them by Multichoice pursuant to Section 35B of the Copyright (Amendment) Act 2019. MultiChoice had claimed that the respondents continued to host or allow content from 141 websites that infringed on its rights by re-broadcasting or replicating its exclusive content without authorization. Also in June, South Africa's Portfolio Committee on Trade and Industry adopted its report on the Copyright Amendment Bill (CAB) and the Performers' Protection Amendment Bill and approved both bills for second reading. This opens the way for the next step in the reform process: the Second Reading of the Bill where the Bill is debated and voted on at a sitting of the National Assembly. 

In July, Nigerian music producer, Tempoe obtained an order of interim injunction from a Federal High Court in Nigeria restraining Asa (performing artist); P.Priime (another music producer); Platoon (music distribution company); and RUE 11 limited from further distribution of two songs, 'IDG' featuring Grammy-winning artist, Wizkid, and 'Love Me or Give Me Red Wine.' [Interim injunctions are usually issued to last for 7-14 days and in any event, generally last pending the determination of an applicant's Motion on Notice.] In this Kat's opinion, Tempoe’s success in the substantive suit itself will be depend on his being able to establish (1) copyright ownership of the underlying musical composition (was he the songwriter/composer) and/or the sound recording (did he make the arrangement for the making of the work?) and (2) substantial similarity between the version he produced and the ones produced by P.Priime. Also in July, Ghanian music producer, Kwabena Ofei – Kwadey Nkrumah (“Spiky”) sued the Confederation of African Football (CAF) for copyright infringement of his sound recording, Okomfo Anokye. According to SPIKY, CAF’s use of his work in the background music for its football awards programme without his permission infringes his copyright. CAF had responded that the use was not for commercial purposes. There is no such defence (of non-commercial purpose) in Ghana’s Copyright Act. Also in July, the Governments of Nigeria and Germany executed a Joint Declaration regarding the repatriation to Nigeria of ancient Benin bronzes looted during the colonial era. Of note is the failure of the Nigerian Government, provincial government and relevant cultural committees to consider issues around copyright ownership and management relating to these cultural heritage materials – ancient Benin bronzes, especially in view of the large-scale digitization projects that usually precedes repatriation of material cultural heritage to their original sources. Some consideration of those issues here.

In August, Nigeria’s National Assembly passed the Bill for an Act to Repeal the Copyright Act, Cap C28 LFN, 2004 and enact a New Copyright Act 2022. As noted here on The IPKat, the stated objectives of the proposed Act to “…(a) protect the rights of authors to ensure just rewards and recognition for their intellectual efforts; (b) provide appropriate limitations and exceptions to guarantee access to creative works; (c) facilitate Nigeria’s compliance with obligations arising from relevant international copyright treaties and conventions; and (d) enhance the capacity of the Nigerian Copyright Commission for effective regulation, administration, and enforcement of the provisions of this Act” will serve as a useful interpretative tool for the courts. The Bill is now awaiting Presidential assent (or veto). Hopefully, it does not suffer enjoy the same fate as South Africa’s Copyright Amendment Bill which was returned to Parliament to address the President’s (South Africa) reservations. August in Kenya was all about image rights. As reported here on The IPKat, the court held in Catherine Njeri Wanjiru vs Machakos University, that the Petitioner’s image rights were infringed as her photographs were used for commercial purposes and without her consent. In awarding damages however, the court held that even though the Petitioner’s image rights and right to privacy, dignity and property were infringed, she did not sufficiently prove any resulting injury, damage or loss. The court also considered that in general and practical terms, the university was not a profit-making enterprise.

In September, Kenya's Constitutional and Human Rights Court in Kenya Copyright Board v Music Copyright Society of Kenya and 2 others dismissed the application of Kenya Copyright Board (KECOBO) to permit it to collect and distribute royalties to copyright owners once it (KECOBO) goes ahead with its intention to de-register the existing Collective Management Organisations (CMO) for not complying with their licence conditions and over disputes over the distribution of royalties to members. In the court’s opinion, there was no live issue for determination given that the CMOs have not been de-registered. Still on CMOs, the Nigerian Copyright Commission (NCC) reiterated that the operating licence of the Copyright Society of Nigeria (COSON) to operate as a collective management organisation lapsed since 2019 and has not been renewed. As such, the only valid CMO for the music industry is the Musical Copyright Society of Nigeria (MCSN). This Kat has covered this matter previously here, here and here. Also in September, Nigeria Association of the Blind (NAB) appealed to the President to sign the Copyright Amendment Bill to remove copyright restrictions that affect persons with print disabilities. Like their South African counterpart, BlindSA, NAB’s appeal is focused on print disabilities and access to literary works. However, the Marakesh Treaty which informs appeals of this nature deals with visual impairment suggesting room for all works which may be perceived visually. There is in fact room to address restrictions that affect other disabilities as argued/suggested here. South Africa in September offers one case to watch. In The Member of the Executive Council Department of Health, Northern Cape Province v Advocate Lindy Lou Norman, the High Court granted the applicant leave to appeal to the Supreme Court of Appeal (SCA). The leave to appeal was sought on grounds inter alia that the court erred in law by holding that the raw data in the document sought by the applicant for evidence discovery was protected by copyright law and failed to find that even if it applied, section 12 of the Copyright Act specified that the use of copyright-protected matter in judicial proceedings was not infringing. The court held that the issue was of public importance and there were compelling circumstances that may make the SCA inclined to provide guidance for future similar cases. September in South Africa also saw the Constitutional Court unanimously confirm parts of the High Court’s decision in 2021 (discussed here on The IPKat) that the Copyright Act was unconstitutional to the extent that it is inconsistent with the rights of persons with visual and print disabilities as set out in the Constitution. This Kat has already alerted readers to the decision here.

In October, a decade-long battle was settled after the High Court in Kenya ordered Equity Bank to pay a Kenyan University student, Mr Eric Obiero Nyadida Ksh. 5 million for infringing on his copyright. Eric had alleged that he approached the Equity Bank with a proposal to publicise the Equity Group Foundation’s education program dubbed “Wings to Fly” after which he agreed to compose an original musical piece to be used by the bank to advertise the foundation and the bank agreed to pay for his musical composition “wings to fly” for the sum of Ksh 10,000,000. He further alleged inter alia that the bank later reneged on its promise and yet, used the composition to advertise its “wings to fly” programme without his authorization and consent. Also in Kenya in October, the High Court in MCSK v KECOBO confirmed that that Musical Copyright Society of Kenya (MCSK) is a Collective Management Organisation and under the regulatory control of Kenya Copyright Board (KECOBO) because MCSK represents artists and collects royalties on their (artists’) behalf. As part of the ruling, the judge ordered MCSK to register afresh with KECOBO in accordance with copyright law. Also in October, New York-based photographer Marilyn Nance, otherwise known as Soulsista released a new photobook titled Last Day in Lagos, published by Cara. The photobook showcases photographs taken by Soulsista at the Second World Black and African Festival of Arts and Culture (Festac ’77). 

In November in South Africa, the applicant in Sibanyoni v Executive Mayor of Nkangala District Municipality and 4 Others, sought inter alia a declaration that he is the owner of the deed of trust formulating the internal air pollution risk funds and argued that the Copyright Act applies to the said deeds. The court refused the declaratory relief holding that based on the definition of “literary works” under the Copyright Act, the deeds do not qualify for protection as they do not fall under the categories listed. (Methinks that the category of literary works is non-exhaustive as the Copyright Act uses the words “includes” and “irrespective of literary quality and in whatever mode expressed”). The court also held that the deeds were not “original works by the applicant”.