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The African Regional Intellectual Property Organization (ARIPO) Model Law on Copyright and Related Rights

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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.

ARIPO

Even though ARIPO ~~warns~~ 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.

[Guest Post] Can the Government Get Your Copyright? The Supreme Court of Canada Says “Yes”.

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This Kat found it quite fascinating when she saw last week that Canada’s Supreme Court ruled on the question of whether the Government of Ontario, Canada owned copyright in a work created for someone else (home owners, developers and other private citizens who commission surveyors), but used by a government partner. Coming on the heels of a similar public interest consideration in Uganda, this Kat is excited that Professor Jeremy de Beer (University of Ottawa) [disclaimer: Prof de Beer represented the Intervener Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic in the Supreme Court] is able to provide this detailed explanation and analysis of the judgment of Canada’s top court:

Can the Government Get Your Copyright? The Supreme Court of Canada Says "Yes"

by Jeremy de Beer

“When and how can the government get copyright protection? In a recent Canadian decision on Crown copyright, Keatley Surveying v Teranet, the Supreme Court has for the first time addressed that issue. Its guidance, however, will be hard to implement in practice. Parliament should respond by reforming the century-old statutory provision.

The decision ends a class action lawsuit brought by land surveyors against a company that makes land survey plans available electronically. The company, Teranet, partnered with the provincial government of Ontario to build a database of documents about all land in Ontario, including digital surveys that mark the legal boundaries of property in the province. When surveyors sued Teranet, one of the company’s defences was that surveyors don’t own the copyrights; the government does. Thus, an issue of Crown copyright arises.

The Test for Crown Copyright
The Court finds, by virtue of section 12 of Canada’s Copyright Act, that copyright belongs to Her Majesty in several different scenarios. Most clearly, the government gets copyright in a work that is prepared by the government, including employees of Her Majesty or any government department (para 64).

This copyright is the Crown's! (Image: Jeremy de Beer)

The government also gets copyright in a work that an independent contractor prepares under government’s direction and control (para 65). In effect, the government may own copyright by reason of a “work-made-for-hire” [the work-for-hire rule does not ordinarily exist in Canadian copyright law].

Copyright can also belong to the government if a work is published by or under the direction or control of the government. That aspect of the test for Crown copyright is the most convoluted and controversial. The seven-member panel of the Court split four against three, concurring in the result but for different reasons.

No wonder the judges cannot agree on the proper statutory interpretation. The provision is described as a “legislative monstrosity” with “atrocious drafting” (para 55). See for yourself:

Where copyright belongs to Her Majesty
12 Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year.

“Merely making someone else’s work available to the public is insufficient”, writes Justice Abella for the majority of four judges. While the plain language of the Act appears to give the government copyright in any work “published by” the government, such an interpretation “profoundly derogates from the general scheme of the Act” (para 67).

The three other judges, in reasons coauthored by Justices Côté and Brown, agree that “a literal reading would effectively empower the Crown to expropriate copyright from independent creators in any copyrightable work merely by publishing the work itself or causing a third party to publish the work” (para 97).

It's a split decision (Image by Jeremy de Beer)

According to the four-judge majority, to acquire someone else’s copyright, the government must exercise “direction or control over the publication process, including both the person publishing the work and the nature, form and content of the final, published version of a work” (para 67). In the case of land surveys made available online, the majority observes that the government has “complete control” over the publication process.

But what about other situations: Intellectual property applications made available to the public by governments? Securities prospectuses filed with and published by financial regulators? Or lawyers’ pleadings prepared according to strict rules and then put onto court websites?

Those examples have some of the “relevant indicia of governmental direction or control”, which according to the majority “may include the presence of a statutory scheme transferring property rights in the works to the Crown; a statutory scheme which places strict controls on the form and content of the works; whether the Crown physically possesses the works; whether exclusive control is given to the government to modify the works; the opt-in nature of the statutory scheme; and the necessity of the Crown making the works available to the public” (para 69).

The minority of three judges criticize the majority’s “question of degree” test, because it provides no future guidance on what less than complete control is “sufficiently extensive” for Crown copyright. The lack of guidance, they write, “will inevitably create instability in Crown copyright” (paras 110-12).

The minority would, therefore, focus on acts of preparing or publishing the work, not the work that is prepared or published (para 117). Furthermore, the minority would vest Crown copyright only in “a government work” that is prepared by or under the direction or control of the Crown (para 99). While any kind of literary, dramatic, musical, or artistic work may be Crown copyrightable, a government work is a work that “serves a public purpose” (paras 99, 141). The minority writes: “These will be works in which the government has an important interest concerning their accuracy, integrity, and dissemination” (para 127). Crown copyright, under this theory, is basically a tool to control distribution of and access to a work.

In the end, all judges agree that the scope for Crown copyright is narrow. Nonetheless, in this case, surveyors lose their copyright to the government; either because of the complete government control over the process of making surveys available to the public, or because the accuracy, integrity, and dissemination of these works are crucial to proper functioning of the land registry system in Ontario.

The surveyors’ class action is effectively over. But there are broader impacts to consider.

Balance is at the heart of copyright law
For many years Canada has been at the forefront of a shift in global copyright law that balances both authors’ and users’ rights. In Keatley the Court summarizes Canada’s pathbreaking copyright jurisprudence but goes even further than previous decisions to emphasize how balance is “at the heart” of copyright law (para 140).

The Court clarifies that fair dealing is only one “emblematic” component of the balancing approach to copyright law in Canada. Both the majority and minority concurring reasons speak powerfully of users’ rights, not merely interests or expectations (paras 46, 140). The Court also explains that “the users’ rights framework” is “so integral to Canadian copyright law” that “[a]ll provisions of the Copyright Act … must be interpreted with this balance in mind”.

Crown copyright is “uniquely amenable to realizing a balance”, in effect recognizing the government as both a creator of its own works and a user of others’ works (para 47).

Should public legal documents be copyrightable?
Multiple interveners before the Court argued that no one should own sources of law or public legal documents, such as statutes, regulations, and judicial decisions. Copyright, whether owned by the Crown or anyone else, can impede free access to the law, which everyone has the right to know.

The minority judgment expressly acknowledges this concern about copyrighting the law but would “leave this issue for another day” (para 142). This downplays the fact that plans of survey are actually sources of law. In Ontario, like many jurisdictions, registered plans of survey mark the legal boundaries of property and are relied upon to determine property rights and obligations (paras 82, 143).

Similar issues are playing out now in the United States, where the U.S. Supreme Court has agreed to hear a case involving copyright in annotated legal code: Georgia, et al. v. Public.Resource.Org, Inc. Back in Canada, “another day” could come soon, as the Supreme Court is considering whether to take another Crown copyright case involving ownership of the Canadian Standards Association’s Electrical Code, which is incorporated by reference into several regulations and statutes.

More fundamentally, neither party had reason to raise the obvious question of whether copyright can subsist in plans of survey at all. While Canada’s Copyright Act, like the Berne Convention, defines an “artistic work” to include maps and plans, the surveys at issue in this case can hardly be original. Plans of survey must, to be useful, accurately represent facts; there is little room for the skill and judgment copyright requires.

Over to Parliament
The majority reasons in Keatley conclude by noting that section 12 of the Copyright Act is a century old. The Court writes: “Parliament is of course free to consider updating the provision in its current review as it sees fit” (para 90). That language, combined with the Court’s quote about this legislative monstrosity, is about as blunt as judges can be about the need for statutory reform.

Beaker, looking at Parliament (Image by Jeremy de Beer)

A Parliamentary committee recently held hearings and reported on Canada’s Copyright Act. Crown copyright was heavily criticized: “In fact,” writes the Committee, “no witness supported its continuation, at least in its current form – a rare point of consensus.” The Committee recommended changing the law.

The United Kingdom, Australia, and New Zealand have all abandoned the atrocious drafting of section 18 of the original 1911 UK Copyright Act that Canada’s section 12 still mirrors. As Crown copyright takes on heightened importance in the era of big data and mass digitization projects, which often involve public/private partnerships, the task now falls to Parliament to update Canada’s Copyright Act”.

Who owns copyright in Uganda’s National Anthem?

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Between the Ugandan government, which organised a contest for the composition of the national anthem and the late Professor Goerge Kokoma who composed the winning entry adopted as the national anthem, who owns copyright in the Ugandan national anthem?

This is the principal question that the Ugandan Court of Appeal answered in the case of Elizabeth Kokoma vs Attorney General, Civil case no. 50 of 2011 decided in July 2019.

Background
Professor George Kokoma (now deceased) had instituted an action at the High Court of Uganda (the lower court) against the Attorney General (of Uganda) for copyright infringement and royalties over the span of 40 years. Professor Kokoma claimed that as the composer of the national anthem of Uganda, he owned copyright in the said national anthem and that the Ugandan Government owed him royalties for the use of the national anthem since 1962 when it was composed.

The Ugandan flag

In 1962, the Ugandan government advertised an open competition for the composition of the national anthem. Aside from indicating that the winning entry would be adopted as the national anthem and that Shs.2000 would be paid to the composer of the winning entry, no conditions (particularly, no copyright conditions) were indicated on the advertisement. Subsequently, the government selected Professor Kokoma’s composition and adopted it with some amendments. Professor Kokoma was paid Shs2,000 for winning the competition. Professor Kokoma subsequently sought compensation or payment in order to assign copyright in his composition to the Ugandan Government but was unsuccessful. He then instituted an action for copyright infringement, and claimed inter alia, royalties for use of copyright and damages for infringement at the lower court.

The lower court held that Professor Kokoma was not entitled to the reliefs sought. However, the court awarded the sum of Shs. 50million ($13,000 approximately) to Professor Kokoma as a remedy it deemed “just and fitting in the circumstances” given the value of the composition and the time and effort Professor Kokoma expended in creating the composition. Dissatisfied with the court's finding that he did not own copyright and with the sum of awarded, Professor Kokoma’s wife, as representative of his estate appealed to the Court of Appeal. The Court of Appeal reversed the judgment of the lower court and held that Professor Kokoma did not own copyright in the national anthem, rather the Ugandan Government owned copyright because it organised the contest and managed the process of submissions up to the selection and adoption of George Kokoma’s entry as the national anthem. According to the Court of Appeal, such activities meant that the composition was undertaken under the government’s direction or control.

Issues raised on appeal

In her lead judgment, Justice Elizabeth Musoke identified a sole issue for the resolution of the appeal viz: Who owns the intangible property right in the national anthem with the attendant privilege to reproduce same? See page 12. She held that the other issues relating to commissioning of the composition and/or assignment of copyright in the composition would amount to an academic exercise given that the Ugandan Government owned copyright in the composition. [Pages 14 and 15 of the judgment.]

To resolve this issue, the court considered section 2 (definition of author to include a person who commissioned the creation of a work), section 4 (originality, fixability and absence of formality for protection), section 5 (categories of protected works including musical works) and section 8 (ownership of copyright in a work made under employment, commissioned by another or made under the direction or control of the Government) of the Copyright and Neighbouring Rights Act 2006. See page 12-13

The Court noted that the subject of the appeal involved the government and therefore particularly considered section 8(2) of the Ugandan Copyright Act. The Court observed that the Act did not define what it meant to create a work under the “direction or control” of government. However, using the dictionary definition, it held that control and direction respectively meant restricting/limiting/managing something and the art of managing or guiding something or someone. See page 14. The Court went on to hold that by initiating the idea of the contest for the composition of the national anthem; managing the entire process and making amendments to the appellant’s submission and having the power to decide whether or not to adopt the appellant’s composition as the national anthem, the Government “directed” and “controlled” the composition of the work. [Page 14]. And, by virtue of section 8(2) of the Act, the Government owned copyright in the work.

The court further held that by virtue of section 13 of the Copyright Act, the copyright in the work (i.e. national anthem) expired in 2012 having belonged to the government for 50 years since 1962, when it was published. Section 13 of the Copyright Act stipulates that the duration of copyright held by the government is 50 years. The court also held that the award of Shs50million made by the court of first instance had no legal basis and therefore, set it aside. [See pages 15 and 16].

Comments
The Court of Appeal rightly identified that the resolution of the appeal hinged on the determination of the person who owned copyright in the composition. Further, given that section 8 of the Copyright Act deals with copyright involving the government, the court rightly relied on that section as a basis for its judgment. However, in holding that copyright vested in the Government because the composition was made under the direction and control of the government under section 8(2), the Court of Appeal did not consider the purport of section 8(3) of the Act.

The vesting of copyright in the employer under section 8(1)(a), the commissioner of a work under section 8(1)(b) or the government under section 8(2) is dependent on the condition in section 8(3). Section 8(3) provides that:

“Vesting of copyright referred to in (1) and (2) above shall apply only to work created within the stipulated schedule of work of an employee.”

It is opined that even where a work is made under the direction and control of the government, vesting of copyright in such work upon the government requires the establishment of some employment nexus between the government and the creator of such work. Such employment nexus does not exist in this case. In the view of this Africa Correspondent, the government need not own copyright in the national anthem in order to use it in this instance and serve the interests of Ugandan citizens. Given that the advert for the contest clearly stated that the winning entry will be adopted and used as the national anthem and the winner would be given the prize of Shs.2000, it is argued that there was an implied (express licence, even) license to use the work as the national anthem with the attendant activities inherent in such use. Otherwise, it may mean that based on this decision, copyright in “contest-created” works would be construed as made under the direction and control of the person who organised the contest. In this era of artists and fan engagement through social media contests, the judgement herein may provide a basis for arguing that copyright in the submissions of entrants would vest in the artist or organiser of the contest (in the absence of an agreement to the contrary). That would be tough.

What do readers think?

P.S. - Africa Correspondent is grateful to Phillip Karugaba for obliging me with a copy of the judgment of the (Ugandan) Court of Appeal discussed here.

Badly behaved politicians, Parliamentary Pirates and a point of copyright principle

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Amelia Andersdotter

Merpel has received a call for assistance from an unusual source: Amelia Andersdotter. A Swedish politician and former Swedish Pirate Party Member of the European Parliament, Amelia does not yet share all of Merpel's perspectives on intellectual property law and practice and may in all probability never do so. However, both Amelia and Merpel are believers in respect for the Parliamentary process and both feel that IP should be used for the benefit of society, not its detriment. Writes Amelia (who apologises for the fact that her source material, from Dagens Media, is only available in Swedish):

A right-wing populist politician was photographed and filmed while carrying an iron bar that was used to threaten people in central Stockholm. The politician was acting very aggressively towards a number of people during this incident and it caused national outrage since he is highly ranked in his party (the Swedish democrats) and a member of parliament. He later sued the newspaper for making wrongful use of the copyright in the images, especially the moving images. This politician has at least two ongoing cases and is winning in the lower courts.

I don't know the details of the case and am not qualified to make legal analyses in either case. Maybe Merpel knows someone?

The case has in either case been perceived as interesting since the publication of the films and pictures is so obviously of a political interest, given the nature of this individual's public mission. The courts have stated that there seems to be no reason why the news media would NOT have had to ask permission to have images/films published, and therefore the politician was granted compensation.

More information concerning the events in question can be found on the Wikipedia entry for the politician, Kent Ekerith.

Just like politicians?*

Even bearing in mind that the press do not always get their IP facts right, and that Merpel's conversational Swedish and her personal experience of Swedish copyright law and practice are both a bit rusty, she couldn't possibly comment on the accuracy of the press report or the Wikipedia entry. Having said that, (i) she fails to see in the first place how the politician in question may have a copyright interest in in the images, since it may be unlikely that he took selfies or videos of himself while engaging in those "physical" activities (in which case he would not be the author of the images); (ii) how any interest (including those of a publicity/image right nature) in protecting the proprietary interest of the copyright owner in images of this nature could trump the public interest in appreciating (if that be the right word) the public behaviour in a public space of any of its public representatives -- be they right-wing, left-wing or Monster Raving Loony; so she would not expect to see any injunction granted to stop their publication.

Merpel will be writing to Amelia under separate cover in due course, but in the meantime she encourages any of her Swedish copyright expert readers who can be of assistance in this case to contact Amelia by email here.

* Cover illustration of Cats Behaving Badly, by Celia Haddon (here).