Implementation through collaboration: Actualising recent copyright reforms in African countries

This Kat's father had one Igbo proverb that he liked to quote to emphasise the power of collaboration...a nyụkọ mamịrị ọnụ, ọ gba ụfụfụ (literal translation: when we urinate together on the same spot, it foams). There are variations of this proverb in the very popular African saying: if you want to go fast, go alone; if you want to go far, go together.

The proverb came to my mind in the light of the recent copyright reforms in Nigeria (2023), South Africa (ongoing) and Kenya (2019 and 2022) and the hope and expectations regarding the far-reaching changes that the legislative reforms would occasion. See Katposts here, here and here. 

In the case of Nigeria, the objectives of the new Copyright Act 2022 are indicated inter alia to be the protection of the rights of authors to “ensure just rewards and recognition for their intellectual efforts” and also the provision of “appropriate limitations and exceptions to guarantee access to creative works”. See section 1 of the Act. Similar sentiments regarding rewarding the intellectual efforts of authors and increasing access to copyright-protected materials have been expressed regarding Kenya’s Copyright Amendment Act 2019 and South Africa’s Copyright Amendment Bill.

Cats in collaboration...

While the statutory provisions offers an avenue for actualising these objectives of rewarding authors and providing access to creative works, those provisions require interpretation and practical implementation if the objectives are to be realised. In this regard, it is tempting to fix all eyes on the courts for the interpretation of these statutory provisions before implementing them and/or in order to implement them. 

In this paper, I argue that there are different reasons why such total focus and reliance on the courts is wrong or at least, limiting. For one, in many countries in Africa, there is limited access to courts for interpretation in copyright cases due to limited financial and other resources. Even when matters are brought before the courts, the courts are constitutionally and institutionally limited to the case pleaded by parties before them and cannot launch into an interpretation of the entirety of the relevant statute(s).

In my view, actualising the objectives of copyright protection and exceptions as expressed in legislative provisions is not a task meant solely for the judiciary. Instead, the executive arm of government as represented by the President, the cabinet, ministerial departments, executive agencies, public independent agencies, regulatory bodies, commissions and government parastatals, etc. has a role to play. I offer several reasons for this position:

1) The executive has a primary constitutional duty to implement and/or ‘execute’ statutes and in order to do so, it must engage in an interpretative exercise to, not only identify its duties but to also understand the purpose of the statute so as to implement same.

2) Within the respective copyright statutes, there are also provisions that confer powers on specific executive bodies or institutions (e.g., Copyright Commission, a specific minister/cabinet member, etc.) to take actions that have binding force. These powers include powers to make regulations, license, advise, investigate, recommend, coordinate resource management, etc. 

3) Institutionally, the executive is not constrained in its interpretative duty to any/the ‘case pleaded’ as the courts are. Instead, the executive can explain and clarify (and these are exercises in interpretation) statutory provisions as needed to drive policy objectives.

4) Being an integral part of the law-making process (for e.g., through presentation of bills before parliament, presidential veto and assent, etc.), the executive has better opportunity to provide statutory interpretation that aligns with statutory text, legislative history, industry/sectoral understandings, etc. 

5) By institutional design, executive agencies are led by individuals who are statutorily required to be subject matter experts. For instance, section 79 of Nigeria’s Copyright Act 2022 requires the Chairman of the Governing Board of the Nigerian Copyright Commission to be “a person knowledgeable in copyright matters”. 

6) Not only do executive agencies including in the copyright field have subject-specific expertise, they (unlike the courts) also have ‘procedural flexibility’ in the choice of medium utilised to implement statutory provisions. They could use regulations (whether the statutes explicitly so stipulate), policy documents, guidelines, comments and other forms of communication with varying degrees of binding force, to implement statutory provisions and purpose. 

Exercising these interpretative powers and communicating its interpretation to the public engenders the actualisation and application of statutory provisions. Practical, real-life examples of these exist in Nigeria and South Africa and in many parts of the world. One example offered in the paper is the activities of the Nigerian Copyright Commission (NCC) in the area of copyright collective management. In this regard, the NCC had issued the CMO Regulations 2007 which, it is argued, offers insights into the NCC’s understanding and interpretation of what the Copyright Act meant by “the purposes of [section 39] of [the] Act”. As argued here, the NCC understood this provision as conferring it with powers to intervene in the corporate governance of CMOs. Also, the NCC has used directives and press releases to further explain to CMOs and the general public, its interpretation of the scope of its powers to regulate the activities of CMOs in Nigeria. Furthermore, the press releases and directives served to inform public behaviour and decisions as to dealing with the Copyright Society of Nigeria (COSON) because they (i.e. the press releases and directives) explained how the activities of COSON had contravened relevant provisions of the Copyright Act and the CMO Regulations including thwarting the purpose of CMO regulations leading to the decision to revoke its operating licence. 

Another example is the reservation letter/statement from the President of South Africa regarding the Copyright Amendment Bill. In order to head off judicial interference in the executive’s participation in the legislative reform process, the President took the action of communicating to Parliament of constitutional reservations with respect to the Copyright Amendment Bill and presented Parliament with the opportunity to change its course in terms of at least the process of the copyright Amendment Bill. 

Other examples are discussed in the paper including pointers as to how the research exception in the copyright statutes may be interpreted and public articulated. The key point of this ‘treatise’ being that the three branches of government can work together to take copyright law and objectives far. This is especially so when the executive chooses to articulate its legal position or understanding of specific statutory provisions as this would in turn galvanise the relevant sections of the public to positive change be it towards better author remuneration or accessing creative works. Otherwise, as I argued, copyright statutory provisions may “well lie fallow in the pages of statute books without ever getting expression in public and private life”. 

What do the readers think?