Copyright And Related Rights

1. What is copyright?

Copyright is an exclusive legal right acquired by a creator of an original literary or artistic work expressed in a tangible form. Copyright is an automatic right by virtue of creation. Copyright grants the monopoly rights to authorize or prohibit the use of the work.

2. Is there a worldwide Copyright Law?

No. Copyright is territorial. Each country has a copyright law which is adhered to in that country.

3. Which categories of works are protected by copyright?

Each territory establishes the list of works that are covered taking into account the requirements of Article 2 of the Berne Convention. These may include the following, among others:   Literary works such as books, journals, manuals, computer programs, speeches, poems and novels, Musical works, such as lyrics and musical notations Dramatic works such as scripts and plays Artistic works like paintings, sculptures, cartoons Audio-visual works such as films Applied art works such as jewelry Most of the ARIPO Member States have the same categories of works to be protected in their Copyright Laws

4. What rights are granted by copyright?

There are economic rights and moral rights. Each territory establishes these rights, which commonly include the following, among others: Economic rights enable the rights holder to benefit economically: they can reproduce (making copies), distribute, sell, hire, broadcast, translate, adapt, rent, perform publicly, and communicate to the public. Moral rights are the right to be identified as the author also known as paternity right and the right to object to any mutilation or distortion of the work also known as right of integrity. The Copyright Laws of most ARIPO Member States grant both economic rights and moral rights in line with the Berne Convention provisions. Mozambique’s Copyright Law Section 8 mentions non-economic rights which are the same as Moral Rights.

5. What does copyright protect?

Copyright protects original expression of ideas in a tangible form and the rights of copyright owners to authorize or prohibit the use of their works; it also seeks to promote the free flow and exchange of information by providing a number of ways of exploitation of copyrighted works and at the same time remunerating the rights holder.

6. What does copyright not protect?

Copyright does not protect: Ideas, facts, laws, methods of operation, concepts, principles and discoveries.7. What are related rights (neighbouring rights)?

Related rights (also known as neighbouring rights) are rights of performers, producers of sound recordings and broadcasting organizations. These related rights are secondary rights and cannot exist on their own but they accrue from the copyrighted work. These are the rights given to the persons or legal entities who contribute to producing or making of the copyrighted work. They are also known as entrepreneurial rights.

8. What is the duration of copyright?

Economic rights in copyright is normally protected throughout the life of the author/creator and 50 years (for example in countries like Botswana, Kenya and Rwanda) or more (70 years in some jurisdictions like Ghana, European Union (EU) and United States of America (USA)) after the death of the author. Moral rights usually exist into perpetuity and may be transmissible by testamentary disposition or by operation of the law following the death of the author. Example Rwanda Copyright Law No. 31/2009 Section 228; Section 8(3) CAP. 68:02 Botswana Copyright Law provides the author may waive the moral rights.

9. What is the duration of related rights?

Under the WIPO Performances and Phonograms Treaty (WPPT) 1996, the term of protection for performers under the WPPT shall last, at least, until the end of a period of 50 years from the end of the year in which the performance was fixed in a phonogram. The term of protection for producers of phonograms (sound recordings) under WPPT shall last, at least, until the end of a period of 50 years from the end of the year in which the phonogram was published, or failing such publication within 50 years from fixation of the phonogram. One exception is Ghana’s Copyright Act Section 29 Act 690 of 2005 which provides for protection of Performers rights for 70 years.

10. Do related rights detract copyright protection?

Related rights do not diminish or undermine copyright protection for a work that is performed, recorded or broadcast.

11. Can copyright be transferred to someone else?

Yes. Copyright, at least with respect to economic rights, can be transferred as it is the property of the right holder. It can be transferred, wholly or in part, bought or sold, inherited, transferred through operation of the law and licensed. Some or all of the rights may subsequently belong to someone other than the first owner and may be jointly owned by the rights holders to whom those rights have been transferred. Transfer is normally in writing.  Most ARIPO Member States Copyright Laws provide for transfer of economic rights in writing. Exceptions exist for moral rights which normally continue to exist with original author even after transfer of economic rights. Some jurisdictions allow the transfer of moral rights by testamentary disposition or by operation of the law following the death of the author.

12. Can moral rights be transferred?

It depends on the laws of each jurisdiction, but in general the right to be recognized as an author remains even after the economic rights lapse or have been transferred in whole or in part. Moral rights have to be respected by anyone who has been licensed to exploit the economic rights. The licensee should not use the work to the prejudice of the paternity/attribution and integrity rights of the rights holder. The author will still be the author of a work and can object to any use of the work that will water down the moral rights, even when all economic rights in that work have been transferred. In a testamentary disposition, normally in writing, the author can state to whom the moral rights should be given after their death, also by operation of the law. In some jurisdictions, like the United Kingdom, Botswana one can waive the moral rights usually in writing.

13. Do I own copyright if I own a copyright work?

Owning a copy of a work does not necessarily mean owning copyright rights.  A creator (first owner) will own copyright, and someone else may also own copyright through the transfer or rights. For example owning a copy of a book does not mean owning the copyright of that book unless the copyright was transferred. Thus permission would be needed from the rights holder to exploit the copyright.

14. Who owns copyright in a work?

The author of the work is the first copyright owner. If the work is made by an employee in the course of employment then the employer who is not the author is the first owner of copyright, unless there is an agreement to the contrary between the employer and the employee. If one of the joint authors is not an employee of the same employer, then copyright in that joint work would be jointly owned by the employer and the joint author.  In the case of commissioned work the author is usually not the copyright owner unless there is an agreement to the contrary.

15. Who owns copyright in a collection?

Where the finished work includes distinct and separate works by different authors, each contributing author owns only the copyright in their own work included in the “collection”.  In a collection of poetry whereby each poem is written by a different person (author) then each will own copyright in respect to his or her poem. Copyright ownership for a particular author applies only to the extent of the creative work that has been authored and included in the collection.

16. What is joint authorship?

Where two or more people have created a work protected by copyright these people are joint authors. In commercializing the work consent is usually needed from the joint authors unless there is an agreement to the contrary. The duration of protection for joint authorship works is the life of the authors plus in most cases 50 or 70 years (depending on the jurisdiction/country law) after the death of the last surviving author.

17. What is public domain?

When a copyrighted work has enjoyed protection for the 50 or 70 years (depending on the jurisdiction/ country’s law) after the death of the last surviving author, it enters into the public domain. Works in the public domain may be used freely without the permission from the heirs of the former copyright owner or copyright office or collective management organization. In some ARIPO Member States like Ghana, Kenya, Sierra Leone and Rwanda Copyright Laws provide an exception. Example in Rwanda all works in public domain are treated as Rwanda’s heritage and culture Article 202. In Ghana section 38(3) provides subject to payment of such fees as may be determined by minister in relation thereto, a work which has fallen into the public domain may be used without restriction. While in Kenya section 45(3) provides subject to payment of such fees as may be determined by minister in relation thereto, a work which has fallen into the public domain may be used without restriction. In arrangements of public domain works where substantial new creative work has been added then copyright automatically rests in the new elements added to that specific version.

18. What about other Intellectual Property Rights (IPRs) attached to a copyright work which has entered into public domain?

Some copyright works have other intellectual property rights (IPRs) attached to them, for example cartoon characters are often registered as trademarks, one has to be sure there are no other legal rights attached to the copyright work. Due diligence has to be undertaken before using a work to be sure there are no other IPRs attached; if they are present, permission to use the work must be obtained from the owners of those IPRs.

19. Does copyright allow using works without permission of the right holder?

In general permission is required. However, most copyright laws provide for exceptions and limitations whereby limited use is allowed without the permission of the copyright owner. Such uses often need to meet the “three step test”. Use of a substantial part of the copyrighted work is usually not permitted, and what is substantial is generally determined on a case-by-case basis. Typical exceptions and limitations allow use of the work exclusively for personal and private use, or for quotations, commentaries, criticism, scholarly reports, news reporting or illustration. Acknowledging the source and the name of the author is important.

20. When should one obtain permission to use copyrighted works?

Permission is needed from the rights holder (copyright owner) if the use is not subject to an exception or limitation.  This will often occur when the use applies to a substantial part of a work which has not entered into the public domain or a specific new arrangement of a public domain work. A use that does not meet the three step test generally requires permission. The Rwanda’s Copyright Law No. 31/2009 Section 215 recognizes the Visually Impaired Persons and that work may be reproduced and distributed for their benefit without the author authorization.

21. Where can one obtain permission to use copyrighted works?

Permission can be obtained from the rights holder.  In some cases contact information may be available from national copyright offices. As it can be cumbersome to get permission from each rights holder of a work from which one wants to use a substantial part, collective management organizations (CMOs) can often license use of the work.  CMOs collect royalties and distribute them to the rights holders.

22. What is the three step test?

The three step test allows use of a copyrighted work without the permission of the author (1) in certain special cases, (2) when the usage does not conflict with normal exploitation of the work and (3) the usage does not unreasonably prejudice the legitimate interest of the author. For example use of a few paragraphs from a book for quotation in academic work as a special case with acknowledgement of the source and the author. But reproduction of a whole book and supplying it to a whole class may not be permitted because the reproduction conflicts with the normal exploitation of the work by the rights holder and will prejudice the legitimate interest of the right holder.  Hence permission is needed to reproduce and distribute the book.

23. What is licensing?

Through licensing the copyright owner or rights holder authorizes others to carry out specified acts in relation to his or her economic rights. Licensing can be done by the copyright owner in person or by the CMO or independent individual or organization that has been duly assigned the rights to license on behalf of the copyright owner or rights holder.

24. What is a non-exclusive license?

A non-exclusive license entitles the licensee to carry out the act concerned concurrently with the copyright owner or rights holder.  Other licensees may be permitted to make the same use of the copyrighted work.

25. What is an exclusive license?

An exclusive license entitles the licensee to carry out the act concerned – the use of the copyrighted work – to the exclusion of all others including the copyright owner or rights holder.

26. Who owns copyright in the work lecturers and students produce as part of a course?

In general, copyright in works prepared by lecturers would usually be addressed by their employment contracts and might be addressed by legal provisions addressing copyright and employment relationships. Students would generally own copyright in works created as part of a course unless there is an agreement between the institution and the students to the contrary.   Ownership of copyright materials created by lecturers and students is usually addressed in a learning institution’s policy on the ownership of Intellectual Property Rights (IPRs). It is important for all learning institutions to have such policies and for all students and lecturers to request this important document prior to generating intellectual property works.

27. If I change someone else’s work do I have copyright of the new work?

Copyright creates monopoly rights in the work for the owner, but at the same time through the application of limitations and exceptions the public may have access to use the copyrighted work in a manner acceptable under the law and consistent with the three step test. Absent an applicable limitation or exception, only the owner or rights holder of copyright in a work has the right to change or improve the work, or to authorize someone else to create a new version or edition, adaptation, or translation of that work. Therefore consent is usually needed to improve, adapt, or translate someone else’s work. Upon obtaining consent, copyright is only acquired to the extent that part of the work is new, original creation. The original owner or rights holder retains copyright in other parts or aspects of the work and the new work will normally be considered a work of joint authorship.

28. What are Collective Management Organizations (CMOs)?

Collective Management Organizations (CMOs) are organizations established to act in the interest of and on behalf of rights holders and users, as they act as a link between creative artists and users of works. They manage and license copyright and related rights and the distribution of collected royalties to their members. CMOs are sometimes known as collecting societies. There are various CMOs within the ARIPO Member States dealing with Music, Audio-visual, Literary and other copyright works. The CMOs normally get mandates from the right holders and they are mandated by the government or a supervisory authority to operate. Amongst the ARIPO Member States Malawi and Tanzania have a dual office that is they operate both as a Copyright Office and as a CMO. While in other ARIPO Member States such as Kenya, Zambia, Zimbabwe, Namibia, Uganda, Rwanda they have CMOs for specific category of works.

29. What is the role of Collective Management Organizations (CMO’s)?

Collective Management Organizations (CMOs) have a variety of responsibilities. They may implement enabling legislation in their jurisdictions; facilitate access to users by licensing rights for equitable remuneration; monitor where, when and by whom the rights are used so as to license new users; negotiate rates or tariffs for the benefit of their rights holders; grant licenses, collect and distribute royalties to the rights holders; lobby for the interests of rights holders; and enter into reciprocal (bilateral) agreements with other collecting societies. They may also have a role in the fight against piracy and fulfill social responsibilities.

30. What are the categories of Collective Management Organizations (CMO)?

These categories are often specified in national legislation, although in some countries authority for CMOs to operate may come from regulations or through other means. Depending on the provisions in national legislation there can be one or more CMOs for rights holders in different types of works such as Music, Performers, Producers, Audio-visual, Literary (also known as the Reproduction/Reprographic Organizations), and Visual Arts, among others.

31. Can one own a website?

Yes one can own a website. In general, one should not make content from other people or websites look like one’s own content.  The content of the website has to be chosen and monitored carefully. If materials uploaded on the website are not original creations of the owner, but have other copyright owners or rights holders, clearance and proper acknowledgement are needed. Care should also be taken when linking to other web pages. Depending on the jurisdiction it may be problematic to “deep link”, or bypass the home page and use other methods to link to other content on the website. It is advisable to have permission from the owner or rights holder before deep linking.

32.  How can a website be protected?

One can protect their website by using a password to provide permission to view the work in a password protected area. One can also use a disclaimer or terms and conditions of access each time the site is entered. Furthermore, one can require log in information and acceptance to the terms and conditions to access the website. Using statements like the site owner does not accept any liability for wrongful use of the material contained on the site may exonerate the site owner from liability and inserting a copyright notice on the website to alert the viewers of the site may also be helpful. There should also be restrictions on editing, prohibiting copying or any other use of the material contained within the Internet site except pursuant to the provisions of the national law.     On some occasions an Internet site may contain copyrighted material that has not been cleared by having the author’s permission because the copyright holder cannot be found or identified.  While the specific law of the jurisdiction regarding orphan works should be consulted, in such a case the Internet site may want to include disclaimers such as a notice stating that the site owner has been unsuccessful in identifying or locating the copyright owner and inviting the copyright owner to contact the site owner.  This is a safeguard on the part of the site owner who will be seen to have conducted due diligence to get in touch with the author.

33. How do I protect my copyright in an electronic environment?

Copyright comes into effect automatically as soon as an original work of authorship is created and fixed in a tangible form, for instance on paper or film, in sound recording or digital file, or on tape or CD. Methods of protecting copyrighted works can include copyright notices; express copyright statements on the extent of the permitted uses of the work; adopting digital protection measures; retaining supporting evidence for proof of copyright ownership; and in some jurisdictions using the registration, depository and notification systems which will be of help in case of an infringement if there is need to prove ownership. Many forms of digital works may contain certain identifiers embedded in the electronic file.

34. What is copyright infringement?

Copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work, or otherwise exploited without the permission of the copyright owner or rights holder and outside the requirements of a permitted limitation or exception, which may be in violation of the three step test. The laws of each country usually stipulate what entails copyright infringement and the penalties for such infringement.

35. Does a copyright owner need contractual agreements?

Contractual agreements are very important to copyright owners and rights holders as they help owners administer some of the economic rights. Non-Disclosure Agreements (confidentiality agreements) are important while negotiating about the copyrighted works with individuals and companies, especially if the work has not been published. This will prevent the parties to the negotiation from disclosing information to third parties or wrongfully claiming to be the author of the creative work. Contractual agreements may be important in the following contexts among others:  commercializing work, partnering with someone to exploit a copyrighted work, joining a collective management organization/ collecting society, and selling or transferring a work to someone else.

36. How do I get copyright protection in other countries?

Copyrighted works acquire automatic protection by virtue of creation. Copyright is territorially administered which is why there are different copyright laws in the different jurisdictions. Most countries are parties to international copyright conventions and treaties. Some of the treaties and conventions administered by the World Intellectual Property Organization (WIPO) include the Berne Convention for the Protection of Literary and Artistic Works; the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations; the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT); the Beijing Treaty on Audiovisual Performances; the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled; the Brussels Convention relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite; and the Geneva Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms. Also the World Trade Organization administers The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). The international conventions and treaties have minimum standards that are to be followed by each contracting party. For example copyright treaties may contain protection and enforcement provisions to be included in the national legislation. Another example is the “national treatment principle” whereby a country is to treat the works of non-national authors in the same way as they treat the works of national authors. Therefore, there will be no discrimination as each country is required to treat works from other countries in the same way as they treat the works of their own nationals. Similarly non-national right holders cannot demand to have their works treated differently to that of national right holders in the different jurisdictions, provided that each jurisdiction applies the national legislative requirements to national and non-national rights holders alike.

Collective Management Organizations (CMOs) are established to act in the interest of and on behalf of rights holders. The CMOs are a link between creative artists and users of works. They manage and administer license of copyright and related rights and distribute collected royalties to the rights holders.

There are various CMOs within the ARIPO Member States dealing with music, audio-visual, literary and visual arts. The government or a supervisory authority mandates the CMO to operate. CMOs normally get mandates from right holders to collectively administer and manage their rights. Malawi has a dual office that operates both as a Copyright Office and as a CMO. While in other ARIPO Member States such as Ghana, Kenya, Namibia, Uganda, Zambia, and Zimbabwe, have CMOs for a specific category of works.

Role of CMOs

CMOs receive mandate from their rights holders to collectively manage their rights. CMOs have a variety of responsibilities. They implement enabling legislation in their jurisdiction, facilitate legal access to users through licensing, monitor where, when and by whom the rights are used, negotiate tariffs, collect and distribute royalties to the rights holders and enter into reciprocal agreements with other CMOs.

CMOs Categories

These categories are often specified in national legislation, although in some countries authority for CMOs to operate may come from regulations or through other means. Depending on the provisions in national legislation there can be one or more CMOs for rights holders in different types of works such as Music, Performers, Producers, Audio-visual, Literary (also known as the Reproduction/Reprographic Organizations), and Visual Arts, among others.

Copyright Publications

The Nairobi Strategic Plan has four (4) strategic areas and key topics as follows:

The areas and key topics are:

The Harare Strategic Plan has seven strategic pillars with a view of reaching a level playing field in the copyright & related rights ecosystem. The implementation period for the Harare Strategic Plan was extended to be in line with the ARIPO Strategic Plan 2022-2026. The pillars and areas of focus are:

(I) Policy and Legal Framework:

• - Ratification/ Accession of International Instruments
• - Update of national laws
• - Content Policy and Strategy

(II)  Institutional Framework (Administrative infrastructure)

• - Upgrading Collective Management Organizations and CMO Governance
• - Technical Support
• - Commercial infrastructure and financial mechanism
• - Management
• - Improvement of the Copyright Offices and development of ARIPO Copyright Department

(III)  Capacity Building and Awareness Creation

• - Copyright awareness for high-level policymakers
• - Linkages with other training institutions
• - Development of relevant modules and customization of existing modules

(IV)   Building evidenced-based information pipelines for copyright/creative industries

• - Comprehensive data collection and statistics
• - Development of experts specialized in economics and statistics to produce intellectual property statistics
• - Studies and indexes of the contribution of creative industries to economic development

(V) Building Partnerships and Synergies

• - Building and Strengthening Public-Private Partnership (PPP)
• - Promoting and mentoring on a regional basis among Copyright Offices and Collective Management Organizations.

(VI)   Enforcement

• - Regional collaboration on sharing of information on enforcement
• - Promoting respect for copyright and related rights for all intermediaries in the value chain
• - Build capacity of law enforcement agencies
• - Customization of WIPO toolkit on Intellectual Property Crime Prosecution
• - Collection and dissemination of copyright case law

(VII) Monitoring and Evaluation