Africa IP highlights 2023: Copyright

Another December is here which means “The Africa IP Highlights” are here! 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 2022, here.

This Africa IP Highlights 2023 is the result of collaboration between myself and several IP practitioners and researchers across Africa: Clarisse Mideva; Rita Chindah; and Jessie Mgonga.

Today, we begin with developments in the copyright field.

January: The year kicked off in Tanzania with the news that the Parliamentary Standing Committee in Tanzania received a report from the Ministry of Culture, Arts and Sports addressing its efforts to review and improve the loopholes found in the Copyright Licensing and Rights to Benefit from Re-Sale Regulations, 2022. The Regulations were made pursuant to section 45 of the Copyright and Neighbouring Rights Act and came into force on 18th March 2022. The Regulations inter alia prohibit public performance, communication, reproduction or broadcasting of a work that is copyright-protected unless one is licensed to do so by the Copyright Office, or is authorised by the owner of the work or it is free to use in accordance with the Copyright Act. The Regulations also protect the rights of authors of an original applied or fine artwork to a share in the proceeds of sale of that work as long as copyright subsists. A presentation of the report was made by Hon. Pauline Gekul, former Deputy Minister of Culture, Arts and Sports who stated that the Ministry was committed to working on the various loopholes, through collaborating with the Copyright Office. On the Parliamentary Committee’s part, they directed the Ministry to complete the review process and submit them to the committee for further steps to be taken. Heads up: The Regulations were revoked in March by the Copyright and Neighbouring Rights (Royalty Collection and Distribution) (Collective Management Organisations) Regulations, 2023.

In Nigeria, Airtel Nigeria Limited neglected to renew their contract with actor and filmmaker Adewole Ojo to use his photographs for advertisements. The company was found liable for copyright infringement and breach of contract for using the actor’s photographs picture for advertisements between December 2014 and April 2015 without getting his permission or authorization. The company was ordered to pay Ojo, ₦20 million (US$44 448) in damages. 

February: As the NFT craze seems to be dying down globally, it made a big splash in Nigeria with the election season. The picture of a boy, Yusuf Alabi with his arms wide open and standing in front of the campaign convoy of one of the popular presidential candidates, Peter Obi of the Labour Party, went viral across social media. Some person produced an NFT version of that picture/moment and put it up for sale on OpenSea where it is listed for N349,000 24hours after it was taken! The photographer, Esther Umoh called this person out for copyright infringement on social media platform “X”.

In Tanzania, the High Court of Tanzania, Dar es Salaam Sub District Registry ordered Home Box Office Inc to pay Tshs 22, 879, 100,000 (US$10million approximately) in damages. The Plaintiffs, Anselm Tryphone Ngaiza (popularly known as ‘Soggy Doggy Anter’), Florence Martin Kassela (‘Dataz’), and Enrico Figueiredo (‘Enrico’) had sued the Defendant for copyright infringement for using a song that was created by them, without their consent, in a movie that was produced and sold in 2005.

In Kenya, High court concluded the case of Fatma Adam Hussein vs Misky Nur Abdullahi & another dismissed the applicant’s application for an injunction to restrain the respondents from printing, publishing selling and promoting the 1st Respondent’s book on the grounds that said book substantially plagiarized her (the applicant’s) work. According to the court, no prima facie case was established as no clear evidence of infringement or plagiarism was produced. Instead, the issues raised required a more in-depth analysis best suited for trial.

In South Africa, the National Council of Provinces (NCOP) began the first set of public hearings on the Copyright Amendment Bill (CAB) to address the President’s reservations on the Bill passed in 2020. Katpost on that here.

March: Nigeria’s Copyright Bill, 2022 was signed into law. The Bill repealed the previous Copyright Act of 2004 and ratified outstanding copyright treaties including the Marrakesh Treaty. Katpost on some of the Bill’s highlight here. In other news in Nigeria in March, the Economic and Financial Crimes Commission (EFCC) was accused of violating economist Odilim Enwegbara's intellectual property rights after the EFCC introduced the Electronic Eagle-Eyed Portal System, which details all aspects of the invention and is a replication of the technology submitted by the Plaintiffs to the Defendants on January 27, 2020, and February 11, 2020, claiming ownership of the online application. This accusation comes two years after the EFCC launched its online application for reporting crime, called the "Eagle Eye".

In Tanzania, the Deputy Minister of Culture, Arts and Sports, while on a working visit to the Copyright Office, issued a stern warning to companies that use works of art and creativity for profit- making without paying appropriate royalties. The warning came as a result of complaints from various artists and designers who assert that their works are being distributed on various platforms without benefitting them. The Deputy Minister also ordered the Copyright Office (formerly COSOTA) to take legal measures against all those who refused to pay after the public notice being issued as a way to expose and address the conflicts arising between artists and distributors of their work.

In Kenya, the High Court dismissed an application for injunction in Netresource Limited v Ministry of Education & 3 others stating that no prima facie case was established. The applicant had sought an injunction to restrain the respondents from continued copyright infringement of a computer program (software) known as the National Education Management Integrated System (NEMIS). The court also determined that the balance of convenience favored the respondent, as granting the injunction would adversely affect students using NEMIS. In Hubert Mbuku Nakitare vs Brian Mutinda & Syinix Electronics, the plaintiff fared better as his claim for copyright infringement was successful. The defendant has used the plaintiff’s song in an advertisement without the plaintiff's consent.

April: The Creative Economy Practice at CcHUB launched the Creative Vibrancy Index for Africa (CVIA or the Index) which comprehensively ranks African cities based on their support for arts, culture and creative industries. The CVIA ranks 12 African cities: Accra, Cairo, Dakar, Dar-Es-Salaam, Harare, Johannesburg, Kinshasa, Lagos, Luanda, Marrakech, Nairobi, and Tunis on their respective creative vibrancy defined as “the capacity of a place to enable cultural and creative expression and cultural participation by supporting creative talent and activity”. Johannesburg ranked the highest overall in terms of creative vibrancy. Katpost on the Index here.

May: In Tanzania, the Parliamentary Committee on Subsidiary Legislations and Education, Culture and Sports called on the government to strongly address all matters related to copyright infringement and content piracy to empower stakeholders in the creative industry.

June: In Nigeria, the Cross Rivers State Carnival Commission and the Cross Rivers State government were found liable for copyright infringement by the Court of Appeal, which upheld a 2018 Federal High Court judgement that awarded N500million to the Collecting Management Organisation, the Copyright Society of Nigeria (COSON), despite the COSON's issues with the NCC over its lack of proper licencing as a collecting body.

In South Africa, a High Court delivered a ruling in Mdletshe and Another v Youtube Channel and Another - a dispute between two musicians and their former management company in which the management company had requested YouTube and other digital streaming platforms to takedown the musicians' songs from their platform on grounds of alleged copyright infringement. The court granted the Applicants' application for an interim injunction restraining the second Respondent from interfering in the contracts between the Applicants and various digital streaming platforms. Katpost on the ruling here.

July: In Nigeria, former Afriq Arbitrage System employee Abayomi Segun Oluwasesan was detained by the International Criminal Police Organisation (INTERPOL) agents in Nigeria for hacking his company's blockchain and stealing billions of Naira using codes and private information that his employer, Jesam Michael, who underwent liver transplantation, had given to him.

In Tanzania, the government, in a remarkable display of appreciation for the country’s talented artists, took a significant step towards recognizing their contributions to the nation’s cultural landscape. Through the Copyright Office (COSOTA), artists are now reaping the well- deserved rewards as a result of their music being played across various platforms, including TV and radio stations. The government, recognizing the value of their artistic endeavours distributed royalties to various artists as a token of acknowledgment for the impact they bring to the nation through their music. Also, in July, the government, through the Business Registrations and Licensing Agency (BRELA), signed a cooperation Agreement with COSOTA, the Zanzibar Business and Property Registration Agency (BPRA) and the Zanzibar Copyright Office with the aim of implementing the project of the Centre for Intellectual Property Training in the country.

September: In Tanzania, a High Court awarded Tzs200million (US$76,906 approximately) damages in favour of John Raphael Bocco, a high-profile footballer in Tanzania playing for the giants Simba Sports Club and the National Team, Taifa Stars, for the unauthorized use of his image in a commercial advertisement.

October: In Nigeria, it was announced by the Lagos State Governement that the Kebulania Lagos Film City, will be built through a private-public partnership (PPP) and is expected to cost $100 million.

In Tanzania, Multichoice Ltd filed an appeal against the judgment of the High Court awarding damages against it for image rights infringement. Multichoice was said to have used the images of the claimants on billboards and across social media platforms in the lead-up to the Olympic games.

November: In Nigeria, a Federal High Court in Lagos issued an ex parte order prohibiting Virony Nigeria Ltd. from using popular actress, Mercy Johnson's image and intellectual property going forward. Sadly, online book sales platform, OkadaBooks closed its virtual doors. Also, following a recent decision by a Commercial Division of a High Court in London, news surfaced that Chocolate City, one of Nigeria's leading music labels, may lose as much as 60% of its equity to an international partner, WEA International, a division of Warner Music Group (WMG).

Next up is highlights from the trade marks arena in Africa.