Celebrating the Love of Friends in a Loving World

Celebrating the Love of Friends in a Loving World
Red Roses for You, My Sweet Friends ... Total Love.

My Sweet Friends

My sweet friends,

We grow closer to each other;

When we interact together and share ideas;

The common faith that we share,

Binds our hearts in one accord.

For sweet friendships last a life time,

When built on mutual respect, humility and understanding;

Throughout each different season,

We find we are one in life.

Sweet friends are there through times of grief;

And times when hope is gone;

Always there with encouragement;

So we can carry on.

I thank the Lord for you,

My true and faithful friends;

To fondly speak with you, whether we agree or not,

On this, our beloved blog;

For sweet friends will stay, no matter what;

Giving support.

Together, our hearts and minds truly unite;

With the amazing love of sweet friends.

In the spirit of true friendship,

Best wishes, my sweet friends;

May the Lord bless you abundantly.

I remain, yours truly,

B.B. Bakampa.

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Saturday, February 11, 2012

A Comparative Analysis of the Copyright Act, 1964 (Cap. 215, Laws of Uganda) with the Copyright and Neighbouring Rights Act, 2006: Highlighting the Rationale for the Change in the Law.

By Bakampa Brian Baryaguma
[Dip. Law (First Class)–LDC; Cert. PELD–NALI-K; LLB Student–Mak.]

February, 2012

1.0. Introduction

Copyright was first introduced in Uganda by the British, during their colonial regime. It is therefore, a fairly recent development, initially designed to protect British authors and publishers within the Ugandan protectorate. [1] According to J.H. Ntabgoba P.J. in John Murray (Publishers) Ltd & Ors Vs George William Senkindu & Anor, [2] prior to independence in 1962, Uganda applied the United Kingdom Copyright Act, 1956.

Copyright law regime found its way in Uganda through the British common law, itself introduced by the reception clause of The Uganda Order in Council, 1902 which empowered the High Court to apply common law and United Kingdom statutes of general application in exercise of its jurisdiction. [3] This provision was re-codified in the Judicature Act, No. 62 of 1962, but the statutes of general application were outlawed with the elevation of the Act into a chapter of the laws of Uganda (Cap. 34). This divestiture of legal sanctity was confirmed in the case of Uganda Motors Limited Vs Wavah Holdings Limited [4] holding that, “... the Acts of general application no longer have any place in the jurisdiction of the High Court...” at page 4 thereof.

The term copyright is an amalgamation of two distinct words i.e. copy and right. Whereas all along the word copy has been defined, [5] its counterpart, right, has not been defined at all. Unfortunately, the term copyright has never been meaningfully defined in any of the relevant copyright laws of Uganda. The Copyright Act [6] of 1964 (hereinafter, the 1964 Act) vaguely defined copyright as meaning “copyright under this Act” under section 1 (g). For its part, The Copyright and Neighbouring Rights Act, 2006 [7] (hereinafter, the 2006 Act), does not contain any corresponding provision.

Literally, copyright is understood to mean the, "sole legal right, held for a certain number of years, by the author or composer of a work, or by someone delegated by him, to print, publish, sell, broadcast, perform, film or record his work or any part of it." [8]

Conceptually however, copyright has variously been defined as, "The exclusive right to reproduce or authorize others to reproduce artistic, dramatic, literary, or musical works." [9]

Copyright is a component of intellectual property, which essentially denotes an intangible property right which subsists in original creative works. [10] It is a proprietary right [11] which protects the right of an author to prevent any unauthorized copying and modification of authorship works. [12] Based upon the principle that I think so I earn, copyright law protects expressions––not ideas, operations and processes. [13]

2.0. Background

Britain is known to have developed the first advanced copyright law, following a 1556 royal charter that established the Stationers’ Company and giving it exclusive printing control. [14] Eventually, it became clear that copyright was a powerful instrument for economic development, export growth and diffusion of new technologies, art and culture. [15]

Uganda also found it necessary to formulate her own copyright law regime. Therefore, the 1964 Act was enacted, commencing on 20 July, 1964. According to the long title, it was, "An Act to make provision for copyright of literary, musical and artistic works, cinematograph pictures, gramophone records and broadcasts, and other purposes connected therewith."

However, due to technological advancements, coupled with international law and policy changes, this Act was over time considered to be inadequate, due to lack of sufficient protection mechanisms. Thus, there was need for a new law to address the loopholes inherent in the 1964 Act.

Consequently, in 2004, The Copyright and Neighbouring Rights Bill No. 16 of 2004, was introduced in Parliament by Honourable Jacob Oulanyah. [16] Parliament subsequently passed the Bill into an Act (herein the 2006 Act) which received presidential assent on 31st May, 2006 and commenced on 4th August, 2006. According to the Act’s long title, it is, "An Act to repeal and replace the Copyright Act, and to provide for the protection of literary, scientific and artistic intellectual works and their neighbouring rights; and to provide for other related matters."

The 2006 Act ushered in fundamental changes in Uganda’s copyright law regime. These and the rationale for them are explored in the proceeding parts of this essay.

3.0. The Copyright Act, 1964 vis-a-vis The Copyright and Neighbouring Rights Act, 2006: A Comparative Analysis

Upon close scrutiny and examination, a comparative analysis of the two Acts reveals that they have some similarities and several differences. This part of the essay will highlight these similarities and differences and the reasons thereto.

3.1. Similarities

Even though the 2006 Act repealed and replaced the 1964 Act, it must be conceded that the two Acts are similar or related in one way or the other. This is only a natural consequence especially, considering that both Acts deal with the common subject of copyright protection.

However, these are really few, minor and arguably incidental, such that they need not detain us here, [17] with valuable time, energy and space invested in the name of analyzing them–all at the expense of a more deserving need to scrutinize the differences between the two Acts and the reasons therefor. The need to repeal the 1964 Act altogether, is sufficient to relieve one of this burden.

3.2. Differences

In terms of content, the 2006 Act is radically different from the 1964 Act, more over, as the ensuing discussion will reveal, it contains provisions with far more reaching impact. For starters, while the 1964 Act has only 16 sections, the 2006 Act has 85 sections. Nevertheless, the efficacy and utility of a law should not merely determined by its form but the substance of its subject matter.

First, the 2006 Act has a much wider application than the 1964 Act. According to section 3 of the 2006 Act, it applies to all works that were created or published before its commencement, by (a) a citizen of Uganda or a person resident in Uganda; (b) first published in Uganda (irrespective of the author’s nationality or residence); and (c) works first published in a country that is a member of the World Intellectual Property Organization (WIPO), Africa Region Intellectual Property Organization (ARIPO), the United Nations Educational Scientific and Cultural Organization (UNESCO) and the World Trade Organization (WTO) or that country is signatory to the TRIPS agreement. The only condition is that the work seeking copyright protection should not have fallen into the public domain.

This is unlike the 1964 Act (as per sections 2, 3, 4(1), First and Second schedules), whose application, was for works of a literary, musical or artistic nature, made before and after its commencement, including cinematograph films, gramophone records and broadcasts or the work was authored in Uganda or a country party to the Universal Copyright Convention.

The rationale for the wider scope of copyright protection under the 2006 Act, is the need for law to be modernized to cope with global changes, which includes the broader area of work protected elsewhere in the world especially, meeting the TRIPS agreement demands. [18]

The second difference is the protection of neighbouring rights in the 2006 Act which was not the case in the 1964 Act. Whereas the latter basically provided copyright protection for literary, [19] musical and artistic works, [20] the former expanded the scope of protection to cover scientific works and also recognizes neighbouring rights under part IV particularly, section 21. [21]

The rationale for this change is that it became imperative to recognize that there were other parties who may have contributed to the making of the work who needed protection as well for their effort.

The third difference concerns the recognition and protection of moral rights in the 2006 Act, which was not the case in the 1964 Act. Moral rights are non-economic in nature, as they only grant a right to claim authorship or performance. [22] The author’s moral rights are protected under section 10 of the 2006 Act and those of a performer are protected under section 23.

The rationale for the introduction of moral rights in the 2006 Act is two-fold. First, to promote investment and invention by authors and performers, thereby enhancing Uganda’s development aspirations through rewarding hard work; [23] and second, to take cognizance of demands by such groups as the Uganda Performing Artists’ Society as well as the East African Community demands that Uganda should strengthen its legal and institutional framework to protect artists’ work. [24]

The fourth difference relates to change in language used in the two Acts i.e. from fair dealing as under the 1964 Act, [25] to fair use as under the 2006 Act. [26] In both Acts, the two phrases are defences to copyright infringement more so in instances of judicial processes, criticism and review, professional advice and research, study or news reporting. [27] It should be noted however, that legally speaking, dealing is different from use in so far as the former is concise, precise and rather stringent unlike the former which is more flexible and susceptible to liberal interpretation.

The rationale for this change in language is that it not only widens access to copyrighted material but also permits judicial officers to interpret fair use expansively rather than narrowly, where disputes arise. [28]

The fifth difference pertains to the remedies available for copyright infringement. Whereas the 1964 Act only provided for civil remedies (i.e. damages and injunctions) in cases of copyright infringement under section 13(2), [29] the 2006 Act provides for both civil and criminal remedies under sections 45 (civil remedies), 47 (under which it is an offence to infringe copyright and also creates penalties e.g. imprisonment and fines), 48 (offence of and penalty for infringing neighbouring rights), 49 (offences by groups of people) and 50 (on general penalties and compensation).

The rationale is that first, the sanction-stipulating provisions should be clearer; [30] and second, civil and criminal remedies are necessary to prevent unlawful infringement, though with minimal interference with the rights of legitimate and bona fide users. [31]

The sixth difference relates to protection of public benefit works. While the 1964 Act conferred copyright protection to works of Government and its organs and agencies (like courts, parliament, ministries, statutory corporations as well as committees and commissions etc) under section 6, the 2006 Act totally divests such works of any protection under section 7.

The reason for this is simply part of the need to balance between otherwise private property rights and the social need for easy access to information, without infringing copyright. [32] Through payment of taxes, taxpayers can reasonably be taken to have made their fair contribution towards the expenses of creating works of this kind.

4.0 Conclusion

No doubt, the shift from The Copyright Act, 1964 to The Copyright and Neighbouring Rights Act, 2006 has fundamentally changed Uganda’s long standing copyright jurisprudence, practice and implementation. It is also a great contribution to international developments in this area especially in the mainstream media condemnation of piracy by making it highly costly and risky to copy protected work.

However, the most important contribution lies in the ability of the 2006 Act to implement article 26 of the 1995 Constitution, which guarantees against deprivation of property, while also promoting access to information and operationalizing other national development goals like those enshrined in the National Development Plan and the Poverty Eradication Action Plan.

Notes and References

1. Dick Kawooya, Ronald Kakungulu and Jeroline Akubu, African Copyright and Access to Knowledge Project Uganda Country Report (May 2009), 8.

2. High Court Civil Suit No. 1018 of 1997 (unreported), 11.

3. H.F Morris and James Reed, Uganda: The Development of its Laws and Constitution (1966), 238-239.

4. Supreme Court Civil Appeal No. 19 of 1991.

5. See Section 1 (f) of the 1964 Act and section 2 the 2006 Act.

6. This Act has since been repealed.

7. This Act repealed the 1964 Act under S. 84(1).

8. Hornby A.S, Cowie A.P and Gimson A.C, Oxford Advanced Learner’s Dictionary of Current English (Oxford University Press, 1983), 192.

9. Elizabeth A. Martin (Ed.), A Dictionary of Law (Oxford University Press, 2003), 119.

10. Uganda Law Reform Commission, A Study Report on Copyright and Neighbouring Rights Law (Law Com. Pub. No. 9 of 2004), 1. What constitutes original work is not sufficiently clear. But In Kalamazoo Ltd and Anor Vs Systems Africa Ltd [1973] EA 242, Chanan Singh, J. was of the view that for work to be original, sufficient effort (in terms of knowledge, labour and skill) should be expended on its making.

11. Copyinger and James on Copyright (10th Edition), 158.

12. Some of these include literary works like books or computer programmes, dramatic works like plays, musical works, audio-visual works like movies and videos, visual art works like sculptures, paintings, architectural works, technical drawings, maps and photographs.

13. Uganda Law Reform Commission, xvi. The report further notes that, “Copyright was invented by and for early capitalism, and its importance to that system has grown ever since.” Ibid.

14. Ibid, 2.

15. Consequently, several other countries enacted and passed copyright laws to partake of these benefits. At the international arena, this frenzy is well captured in the Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter, the TRIPS Agreement), which is a global treaty on intellectual property.

16. Edgar Tabaro, “Copyright Law Reform in Uganda: Addressing International Standards at the Expense of Domestic Objectives,” ACODE Policy Briefing Paper No. 10, 2005: iv.

17. For avoidance of doubt, some of the similarities are; both do not define the term “copyright”; both seek to provide copyright protection, with some exceptions; both have no requirement for knowledge of copyright infringement; and that related sections use somewhat similar language albeit to a limited extent, among others.

18. Uganda Law Reform Commission, xviii; Dick Kawooya, Ronald Kakungulu and Jeroline Akubu, 14.

19. In British Oxygen Company Ltd Vs Liquid Air Ltd [1925] 1 Ch. 383, 391, Romer J. held that a letter, being written matter, is a “literary” work.

20. In George Hensher Ltd Vs Restawhile Upholstery (Lancs) Ltd [1974] 2 All ER 420, it was held that there must be some artistic quality in a work for it to qualify for copyright protection. In Kalamazoo Ltd and Anor Vs Systems Africa Ltd [1973] EA 242, it was held that for work to be artistic, sufficient effort (in terms of knowledge, labour and skill) should be expended on its making, in order to make it original.

21. According to S. 21(1) of the 2006 Act, neighbouring rights are rights attached to the auxiliary role played by performers, producers of sound recording and audio-visual and broadcasting companies through (a) the fulfilment of literary or artistic works; (b) the provision of destiny and permanence in works; and (c) the diminishing of distance in the publication of works; respectively, which auxiliary role is dependent on the work of the author and without which the role cannot begin.

22. Section 2 of the 2006 Act.

23. In Digital Solutions Ltd Vs MTN Uganda Ltd, Misc. Appl. No. 546 of 2004 (arising out of HCCS No. 570 of 2004 (unreported), the applicant company complained inter alia that the respondent company did not acknowledge its (Digital Solutions’) title or authorship of the ‘Me2U’ software programme that was in dispute. This case also portrayed the need for a comprehensive law in Uganda to address protection of computer programmes as required under article 10 of the TRIPS Agreement.

24. Uganda Law Reform Commission, xix; In the case of Uganda Performing Rights Society Ltd Vs Fred Mukubira, HCT-00-CC-CS-842-2003 (unreported) the plaintiff Society requested court “…to take judicial notice of the prevalence of piracy of Musical Works in Uganda and the notorious disregard for intellectual property rights in the entertainment industry….” In his judgment, Kiryabwire J. stated at page 15 that, “I find that indeed that intellectual property rights in Uganda are not well observed.” This case established that an assignee of copyright can enforce copyright protection. Assignment of copyright is provided for under section 14 of the 2006 Act and section 12 of the 1964 Act.

25. See section 7(2)(a) thereof.

26. See section 15 thereof.

27. Regarding unpublished works, Romer J. stated in British Oxygen Company Ltd Vs Liquid Air Limited [1925] 1 Ch. 383, 393 that, “...it would be manifestly unfair that an unpublished literary work should, without the consent of the author, be the subject of public criticism, review or newspaper summary. Any such dealing with an unpublished literary work would not...be a ‘fair dealing.’”

28. Dick Kawooya, Ronald Kakungulu and Jeroline Akubu, 17.

29. In Attorney General Vs Sanyu Television [1998] 1 KALR 87, an injunction was awarded to restrain the respondent company from infringing the applicant’s copyright to broadcast the 1998 World Cup football matches in Uganda.

30. The need for clarity is evident from the case of Kalamazoo Ltd and Anor Vs Systems Africa Ltd [1973] EA 242, 244, where there was some confusion regarding some forms used by both the Government of Kenya and the Post Office (which ordinarily is a Government agency but was not listed as such for purposes of the Kenyan Copyright Act. Court stated that, “On principle, there should be no difference between the Government or the Post Office...” and therefore that, since “The post Office is not in the list [it] has to be treated like a private body.”

31. Uganda Law Reform Commission, xviii.

32. Ibid.