The African Regional Intellectual Property Organization (ARIPO) Model Law on Copyright and Related Rights
Last week, the African Regional Intellectual Property Organization (ARIPO) published the ARIPO Model Law on Copyright and Related Rights (the Model Law). The ARIPO member states are expected to adopt and/or adapt the Model Law for their respective national purposes.
Even though ARIPOwarns states that “no part of this publication may be reproduced or distributed in any form, or by any means, or stored in database or retrieval system, without the prior written permission of the publisher” [page 4 of the Model Law], this Kat will “brave it” and quote (i.e. reproduce) portions of the Model Law, where relevant.
Some highlights of the Model Law
Recognition of the Marrakesh Treaty: The Model Law contains exceptions that address access by people with disabilities to works that are protected by copyright and related rights. However, the exceptions mirror the Treaty and so the definition of “beneficiary person” does not include other forms of disabilities beyond visual impairment and print disability. See relevant definitions in section 2. It may be advisable for member states to consider including copyright exceptions for other forms of disabilities mentioned in this Scoping Report.
AI-generated works may not be recognised: Section 2 defines “author” to mean “a natural person who created the work”. It seems that to the extent that machines create AI-generated works, such works may not be recognised as having an “author”.
Collective management organisations (CMOs): The Model Law makes very general provisions for CMOs. Under the Model Law, CMOs would include organisations whose “objectives include granting of licences covering works of more than one author/rights holder and distributing the remuneration/ royalties to the right holder”. See section 2. This appears to suggest that even having the mandate of 2 authors suffices to make an organisation a CMO. Does this mean that music aggregators for instance can act as CMOs?
No visible approach to the protection of traditional knowledge and traditional cultural expression: The definition of “performers” in Section 2 recognises persons who perform “traditional cultural expressions/expressions of folklore” but the term is not defined or otherwise mentioned again in the Model Law. However, given that the term, “traditional cultural expressions/expressions of folklore” is not mentioned in the list of protected works and copyright cannot be conferred outside the Model Law [see section 61], it appears ARIPO does not lean towards the protection of folklore within “main stream” copyright (at least).
(Other) “Public interest” provisions: One justification for the existence of limitations and exceptions to copyright protection is the public interest. Public interest considerations result in the argument that copyright limitations and exceptions should promote public access to information and activities of educational and cultural institutions. At the international and regional copyright scene, African countries (and developing countries generally) work to find ways in which limitations and exceptions can best be configured to advance their development and unique socio-economic context. So, does the Model Law make the public interest agenda feasible? To some extent…
Part III of the Model Law deals with general limitation and exceptions. The “most general” of the exceptions would be the fair dealing exception. According to section 18, “the exercise of exclusive rights shall not include the right to control the doing of any of those acts by way of fair dealing for the purposes of scientific research, private use, criticism or review, or the reporting of current events, subject to the acknowledgement of source.”
Like the fair use exceptions in Uganda, US, Israel and South Africa’s Copyright Amendment Bill and the fair dealing exceptions in Canada, the Model Law stipulates factors that are to be considered in determining whether the use made of a work in any particular case is fair. These factors include the purpose and character of the use; the nature of the protected work; the amount used in relation to the protected work as a whole; and the market effect of the use vis-à-vis the potential market for the protected work.
As stated here in respect of South Africa’s fair use provision, it is for the courts to consider these factors and in each case determine whether the use constitutes fair dealing with the work. The beauty of leaving such determination in the hands of the court is that the individual circumstances of each case will be put into consideration. Also, the courts’ decisions will set judicial precedent that may hopefully guide future everyday action as litigants learn from their triumphs and failures.
The Model Law also contains copyright exceptions regarding reproduction by publicly accessible libraries, archives, museums and educational institutions. See section 23. The exception permit these institutions to make a single copy of a work they have lawfully acquired; to make a copy of works for a natural person for the purposes of study, scholarship or private research, where there is no CMO from which licence may be obtained to make such copies; and to make a copy of works in its collection for purposes of backup and preservation.
It appears that outside these purposes and of course outside the fair dealing exception, libraries, archives, museums and educational institutions may be unable to lawfully reproduce copyright-protected works. Also, the criterion of being “publicly accessible” is not defined. The Model Law lumps libraries, archives, museums and educational institutions without recognising that while these institutions may serve similar goals of preserving culture and promoting access to information, there are fundamental differences in other goals, nature of protected materials handled as well as profit models. These differences are worth considering in crafting appropriate copyright exceptions.
Caricature, Parody and Pastiche: Under Section 30 of the Model Law, using a work for parody, caricature or pastiche will not amount to an infringement of the author or right owner’s moral rights. By expressly excluding moral rights, it appears that barring a successful fair dealing defence, parody, caricature or pastiche may infringe on economic rights.
Authors in employment or commissioned authors: By section 31(3) of the Model Law, the original owner of a commissioned work or work made in the course of employment is the employer or the commissioner of the work, unless provided otherwise in a contract.
No safe harbour for ISPs where content availability promotes platform attractiveness: Section 49 of the Model Law provides for the general conditions an Internet service provider (ISP) must meet in order to benefit from limitations on remedies that may be obtained against them for copyright infringement. One of these conditions is that the ISP “does not receive any financial benefit attributable to the infringing activity”. The footnote in respect of this condition stipulate that “in deciding whether a financial benefit is attributable to infringing activity, it is relevant whether the availability of the infringing content enhances the attractiveness of the service.” The availability of content uploaded by users is what enhances the attractiveness of most digital platforms. Accordingly, authors and copyright owners may find it easier to prove this condition when they argue that the safe harbour is inapplicable to a given ISP.
Public domain by renunciation: Just as one can relinquish shares, authors can now renounce copyright in their works. The renunciation must be in writing and made public and such works shall belong to the public domain. See section 35 of the Model Law. The Model Law indicates in the footnote to this section that works which belong to the public domain by virtue of renunciation are different from Creative Common works “as authors in creative commons still retain their rights and grant different licences for the use of their works”. The footnote does not mention the retired Creative Commons Public Domain Dedication tool. One can only hope that countries adopting this provision would stipulate guidelines for making renunciation public.
ARIPO has been in existence since 1973 and its activities represent significant success in sub-regional cooperation in Africa. No doubt, it will play and is already playing a significant role in the drafting of the African Continental Free Trade Area (AfCFTA) Protocol on IP rights. By extension, it is likely that ARIPO’s position as reflected in the Model Law will find its way to the AfCFTA Protocol on IP rights. For this reason (amongst others), it is imperative for ARIPO Member States (and proponents of the Model Law) to be mindful of AfCFTA’s objectives in arguing for the adoption and/or in adapting the provisions of the Model Law.
 |
| ARIPO |
Even though ARIPO
Some highlights of the Model Law
Recognition of the Marrakesh Treaty: The Model Law contains exceptions that address access by people with disabilities to works that are protected by copyright and related rights. However, the exceptions mirror the Treaty and so the definition of “beneficiary person” does not include other forms of disabilities beyond visual impairment and print disability. See relevant definitions in section 2. It may be advisable for member states to consider including copyright exceptions for other forms of disabilities mentioned in this Scoping Report.
AI-generated works may not be recognised: Section 2 defines “author” to mean “a natural person who created the work”. It seems that to the extent that machines create AI-generated works, such works may not be recognised as having an “author”.
Collective management organisations (CMOs): The Model Law makes very general provisions for CMOs. Under the Model Law, CMOs would include organisations whose “objectives include granting of licences covering works of more than one author/rights holder and distributing the remuneration/ royalties to the right holder”. See section 2. This appears to suggest that even having the mandate of 2 authors suffices to make an organisation a CMO. Does this mean that music aggregators for instance can act as CMOs?
No visible approach to the protection of traditional knowledge and traditional cultural expression: The definition of “performers” in Section 2 recognises persons who perform “traditional cultural expressions/expressions of folklore” but the term is not defined or otherwise mentioned again in the Model Law. However, given that the term, “traditional cultural expressions/expressions of folklore” is not mentioned in the list of protected works and copyright cannot be conferred outside the Model Law [see section 61], it appears ARIPO does not lean towards the protection of folklore within “main stream” copyright (at least).
(Other) “Public interest” provisions: One justification for the existence of limitations and exceptions to copyright protection is the public interest. Public interest considerations result in the argument that copyright limitations and exceptions should promote public access to information and activities of educational and cultural institutions. At the international and regional copyright scene, African countries (and developing countries generally) work to find ways in which limitations and exceptions can best be configured to advance their development and unique socio-economic context. So, does the Model Law make the public interest agenda feasible? To some extent…
Part III of the Model Law deals with general limitation and exceptions. The “most general” of the exceptions would be the fair dealing exception. According to section 18, “the exercise of exclusive rights shall not include the right to control the doing of any of those acts by way of fair dealing for the purposes of scientific research, private use, criticism or review, or the reporting of current events, subject to the acknowledgement of source.”
Like the fair use exceptions in Uganda, US, Israel and South Africa’s Copyright Amendment Bill and the fair dealing exceptions in Canada, the Model Law stipulates factors that are to be considered in determining whether the use made of a work in any particular case is fair. These factors include the purpose and character of the use; the nature of the protected work; the amount used in relation to the protected work as a whole; and the market effect of the use vis-à-vis the potential market for the protected work.
As stated here in respect of South Africa’s fair use provision, it is for the courts to consider these factors and in each case determine whether the use constitutes fair dealing with the work. The beauty of leaving such determination in the hands of the court is that the individual circumstances of each case will be put into consideration. Also, the courts’ decisions will set judicial precedent that may hopefully guide future everyday action as litigants learn from their triumphs and failures.
The Model Law also contains copyright exceptions regarding reproduction by publicly accessible libraries, archives, museums and educational institutions. See section 23. The exception permit these institutions to make a single copy of a work they have lawfully acquired; to make a copy of works for a natural person for the purposes of study, scholarship or private research, where there is no CMO from which licence may be obtained to make such copies; and to make a copy of works in its collection for purposes of backup and preservation.
It appears that outside these purposes and of course outside the fair dealing exception, libraries, archives, museums and educational institutions may be unable to lawfully reproduce copyright-protected works. Also, the criterion of being “publicly accessible” is not defined. The Model Law lumps libraries, archives, museums and educational institutions without recognising that while these institutions may serve similar goals of preserving culture and promoting access to information, there are fundamental differences in other goals, nature of protected materials handled as well as profit models. These differences are worth considering in crafting appropriate copyright exceptions.
Caricature, Parody and Pastiche: Under Section 30 of the Model Law, using a work for parody, caricature or pastiche will not amount to an infringement of the author or right owner’s moral rights. By expressly excluding moral rights, it appears that barring a successful fair dealing defence, parody, caricature or pastiche may infringe on economic rights.
Authors in employment or commissioned authors: By section 31(3) of the Model Law, the original owner of a commissioned work or work made in the course of employment is the employer or the commissioner of the work, unless provided otherwise in a contract.
No safe harbour for ISPs where content availability promotes platform attractiveness: Section 49 of the Model Law provides for the general conditions an Internet service provider (ISP) must meet in order to benefit from limitations on remedies that may be obtained against them for copyright infringement. One of these conditions is that the ISP “does not receive any financial benefit attributable to the infringing activity”. The footnote in respect of this condition stipulate that “in deciding whether a financial benefit is attributable to infringing activity, it is relevant whether the availability of the infringing content enhances the attractiveness of the service.” The availability of content uploaded by users is what enhances the attractiveness of most digital platforms. Accordingly, authors and copyright owners may find it easier to prove this condition when they argue that the safe harbour is inapplicable to a given ISP.
Public domain by renunciation: Just as one can relinquish shares, authors can now renounce copyright in their works. The renunciation must be in writing and made public and such works shall belong to the public domain. See section 35 of the Model Law. The Model Law indicates in the footnote to this section that works which belong to the public domain by virtue of renunciation are different from Creative Common works “as authors in creative commons still retain their rights and grant different licences for the use of their works”. The footnote does not mention the retired Creative Commons Public Domain Dedication tool. One can only hope that countries adopting this provision would stipulate guidelines for making renunciation public.
ARIPO has been in existence since 1973 and its activities represent significant success in sub-regional cooperation in Africa. No doubt, it will play and is already playing a significant role in the drafting of the African Continental Free Trade Area (AfCFTA) Protocol on IP rights. By extension, it is likely that ARIPO’s position as reflected in the Model Law will find its way to the AfCFTA Protocol on IP rights. For this reason (amongst others), it is imperative for ARIPO Member States (and proponents of the Model Law) to be mindful of AfCFTA’s objectives in arguing for the adoption and/or in adapting the provisions of the Model Law.
