"In a patent infringement suit, a High Court lifted an injunction restraining the Independent National Electoral Commission (INEC) from taking delivery of the Direct Data Capture (DDC) equipment needed for the voter registration exercise on an overriding national public interest".
Thursday, 28 July 2011
Tuesday, 26 July 2011
"What Spotify, in particular the divide between it and Netflix, shows is that copyright holders can compete with pirated copies of their content. However, doing that does require a great deal of work."
"In the end, this is where the marriage of content creators and technology firms has to happen. Content creators have to make things people want to see or listen to and tech companies need to get it into the user’s hands with enough features and convenience to make it worth paying for.
For this to work, both sides need to hold up their end of the bargain. With Netflix, content creators need to make sure their work is accessible at a reasonable price and Netflix needs to take ownership over its PR and interface issues.
If the two sides worth together, some amazing things can happen and piracy can become, at most, a back burner issue.
If they don’t, then piracy isn’t going anywhere and neither side will reap any benefit from the works that have been created."
How does this analyis work in Africa, that by population number, dwarfs the USA and on a continent where piracy, especially music piracy, is rife? Quite well it seems.
Neither Netflix nor Spotify are available in Africa but, of course, content creators and pirates (not the ones pillaging on the East coast) are. In other words, the failure to make their content available on the continent is why online piracy will continue. However, making it available means making it available at a reasonable price - in all probability "convenience and features" are likely to be less important than price to most African customers. Doing that would mean subsidization from somewhere and unless governments get involved, that would mean higher prices elsewhere giving an upper hand to pirates in those countries. Nobody said this was easy.
This blog is awash with stories about counterfeits; indeed probably Africa's single biggest IP related problem. The solution is complex and involves a multiple-faceted approach from improvements in the legal and enforcement framework to education and IP owner and government realisation and responsibilities. A big problem remains desire. Africa is still a tiny and probably insignificant market for many IP owners. Tipped, as it may be, as the "last frontier", the reality is that in recessionary times speculative expenditure on new markets dries up and so does the desire. Even allure of over 1 billion potential customers becomes a difficult sell. So, while Netflix and Spotify define new landscapes in the way we all enjoy music and videos, they need help.
- Posted by Darren
Monday, 25 July 2011
Republic of Burundi
Burundi is a contracting party to the Paris Convention, WIPO Convention and the WTO.
• The Department of Arts and Culture (Ministry of Youth, Sports and Culture) is the competent office responsible for copyright and related rights in Burundi.
• There is currently no website for this office.
Industrial Property OfficeKingsley tweets as @IPinAfrica
• The Ministry of Trade and Industry is the government department responsible for the administration of intellectual property rights in Burundi.
• The website for this office is www.commerceetindustrie.gov.bi (© dated 2007) and in French.
• Visitors may just find this website useful for general knowledge on intellectual property law and procedure in Burundi.
Friday, 22 July 2011
"Nigerian Music Copyright Administration in Legal Chaos
The decision of the Court of Appeal in Musical Copyright Society Nigeria [MCSN] v Cowpact Disc Technologies & others [CA/L/787/2008] delivered on 17 March 2010 has blown wide open the question of who has the legitimate right to collect music royalties on behalf of composers, authors, songwriters and music publishers, both international and indigenous, whose rights are recognised by the Copyright Act. The Court of Appeal in MCSN v Nigeria Hotels , MCSN v Adeokin Records  and the Federal High Court in MCSN v Vee Networks Ltd  held that MCSN is the owner, assignee and exclusive licensee of the largest repertoire of musical works within Nigeria based on an international reciprocal representation agreement with the Performing Rights Society of England [PRS] which grant MCSN exclusive ownership of musical works belonging to over ten million composers and songwriters worldwide, including renowned Nigerian composers, songwriters and authors who have assigned their musical copyrights directly to either PRS or any of the 225 authors’ societies in 118 countries whose repertoires are exclusively controlled in Nigeria by MCSN. The court decisions were reached in favour of MCSN on the ground that it has the locus standi to institute legal actions against infringers under section 15 of the Copyright Act 1988 being the owner, assignee and Exclusive licensee of the musical works in question.
A new provision, now section 17 of the Copyright Act 2004, was introduced which in effect restricted MCSN, or any other substantial owner of copyright works, from suing infringers under the old section 15, now section 16 of the Copyright Act 2004, unless registered as a collecting society or given a certificate of exemption by the Nigeria Copyright Commission [NCC]. The decision of the Court of Appeal in MCSN v Cowpact Disc Technologies  is that in spite the gamut of evidence before the court that MCSN is the owner, assignee and exclusive licensee of the largest repertoire of musical works in Nigeria, a fact that was not in dispute, the court had no choice but to rule MCSN lacked locus standi to bring the action against infringers of numerous musical works belonging to its repertoire since it isn’t a registered collecting society in accordance with section 17 of the Copyright Act. MCSN has a history, dating back to 1993, of application to the Nigeria Copyright Commission for registration as a collecting society but always denied, except in 2005 when NCC issued MCSN with a license which was withdrawn within three months, without explanation. NCC approved Performing Mechanical Rights Society [PMRS] to operate as a collecting society in respect of musical works in 1995, and with the demise of PMRS, Copyright Society of Nigeria [COSON] was licensed to collect royalties for musical works. The fundamental question is what qualifies COSON to be registered as a collecting society in respect of musical works and what disqualifies MCSN in respect of same?
The provision of section 39(2)(c) of the Copyright Act 2004 is vital in the registration process of any collecting society since there is a mandatory pre-registration conditionality that the applicant must “ represents a substantial number of owners of copyright in any category of works protected by this Act”.
The impression given by NCC is that COSON met the pre-registration requirement of section 39(2)(c) and NCC is satisfied under section 39(3) that the approved COSON adequately protects the interest of substantial numbers of musical copyright owners in Nigeria. However, the reality of the contractual arrangements before the law courts is that MCSN is in fact the largest owner of musical works representing substantial owners in that category numbering over ten million composers, authors, songwriters and music publishers across the world whose works are controlled through assignments and exclusive license arrangements entered into with MCSN. The presumption of the court decisions is that MCSN is the owner, assignee and exclusive license of these musical works, since there is no evidence to the contrary before the courts, in accordance with section 43 of the Copyright Act. If the presumption of the Nigerian courts is that MCSN is the substantial owner of musical copyright within Nigeria then the assumption of NCC in support of COSON’s registration remain unsubstantiated unless COSON can present the assignments and exclusive licenses that make it the “substantial owner of musical copyrights” in compliance with section 39(2)(c). Since PMRS or COSON is yet to establish its rights in court as owners, assignee and exclusive licensee of musical works under section 16 it is difficult to determine the extent of the society’s repertoire, that is, if any.
Did COSON meet the requirement of section 39(2) (c) of the Copyright Act 2004? The evidence of Chief Tony Okoroji, then PMRS and present COSON chairman, on behalf of the defendant infringer in MCSN v Vee Networks Limited [page 18 & 19] is that PMRS has no legal nexus whatsoever to the author/owner of the musical work in question which it licensed for use to the defendant company, “PMRS is in the habit of collecting royalties of those who are not assignees of the society”, “PMRS protect artists without any agreements which “is the tradition all over the world” and “PMRS does these activities because it has the approval of NCC to do so”. The summation of the judge on the evidence given by Chief Tony Okoroji is that “He did not give any useful evidence that relates to infringement of the copyright of the plaintiff by the defendant...in fact this witness did not give any substantial evidence to show that they have a right to the musical work or to use it or that it was obtained from a legal source”. It is clear that the activities of PMRS, as described in evidence by Chief Okoroji, is tantamount to illegality and touting the license issued to the society by NCC which is contrary to the intention of the Copyright Act.
Where does this leave music copyright administration in Nigeria? MCSN the legal owner, assignee and exclusive licensee of musical works under section 16 is debarred by virtue of section 17 from protecting and enforcing tens of millions of musical works belonging to it unless it is approved as a collecting society. COSON, on the other hand, is registered as a collecting society and though it may claim to have locus standi by virtue of section 17 but obviously it doesn’t have the locus standi to prosecute infringement actions in respect of the substantial numbers of musical works belonging to MCSN under section 16. COSON may have a government license but clearly not the contractual consent of the majority of musical copyright owners.
In practicality both MCSN and COSON are rendered incapable of licensing or enforcing the copyrights of millions of composers, authors, songwriters and music publishers worldwide who continue to suffer piracy of their musical works on Nigerian radio, television and cable stations. What can be done to resolve the dilemma? NCC has clearly goofed in law thereby creating the chaotic situation. It has no choice but to revisit the provisions of sections 39(2) (c) and 39(3) of the Copyright Act through which the locus standi requirement in sections 16 and 17 derive its source of authority. The alternative is for NCC to grant MCSN a certificate of exemption under section 17 permitting it to enforce its legitimate rights under section 16 of the Copyright Act or even create a level playing field by approving both societies to compete in a free market".Thanks so much, Ayo!
Thursday, 21 July 2011
"The establishment of the new state South of Sudan has been announced on 9 July 2011, which was extracted from the main land of the Republic of Sudan.
Since there are no IP Laws in the new state, the Sudanese Laws will be applicable until the issuance of their own law. Furthermore, any registrations at the Sudan office will be valid at the new state and enforceable as well till further notice".NJQ & Associates invite anyone seeking further clarification to email them at firstname.lastname@example.org.
Tuesday, 19 July 2011
As announced in the Awareness Times, Sierra Leone’s parliament approved a new copyright act, replacing the old 1965 Act.
“Claded [sic] in white T-Shirts with various anti-piracy inscriptions, throngs of celebrants used loud musical sets placed on top of vehicles, plus traditional musical instruments including the popular ‘Bubu’ instruments, to party all day long along major streets in Freetown.
Most of the celebrants carried photo banners of President Ernest Bai Koroma, while chanting songs of praises for the latter’s move in making sure the copyright bill becomes law under his watch.”
Wonder if they got permission to use those photos or paid royalties for the music they were playing…
Unfortunately, as Afro-Leo could find neither the old act nor the new act online, that’s the extent of this report. Anyone have either of them or information on what may be different in the new act?
Monday, 18 July 2011
Burkina Faso is a contracting party to, inter alia, the African Intellectual Property Organization (OAPI) www.oapi.int, WIPO and WTO.
• The Bureau Burkinabe des Droits d'Auteur (BBDA) operates under the auspices of the Ministry of Culture, Arts and Tourism.
• This office has a website which is in French www.bbda.bf (although © is dated 2007, the site appears to be updated).
• Among other things, this website is useful for general information on copyright law and procedure in Burkina Faso; however, a few links or pages do not function.
Industrial Property OfficeYou can contact Kingsley on Twitter at @IPinAfrica
• The National Directorate of Industrial Property under the auspices of the Ministry of Trade, Promotion of Companies and Handicraft.
• There is no website for this office.
Sunday, 17 July 2011
At issue was whether a photograph of Kumalo taken whilst she was shopping in Cycle Lab and subsequently used for advertising the shop, without obtaining her explicit consent, was unlawful.
Kumalo’s lawyers placed this Col Du Tourmalet in the path of Cycle Lab by claiming that the publication was an inuria* and damages on four separate grounds:
1. sentimental damages based on the actio iniuriarum*; Outcome : Successful
2. alternatively to 1. constitutional damages arising from a violation of the plaintiff’s rights to dignity and privacy; Not relevant because of 1.
3. patrimonial or special damages; Outcome : Not successful lack of evidence; and
4. unjustified enrichment. Abandoned
Although commented on in the judgement, claims based on passing off and trade mark infringement were not pleaded - see Afro Leo's comments below.
The amount of the damages award was held over for later determination.
Afro Leo found Judge Boruchowitz’s analysis of the law, the latin* and the claims a highly useful summary and directs readers to paras 12-24, 33, 40, and for the purposes of this blog:
“..the plaintiff’s image has been used in a misleading way. It generates the false impression that she endorses the lady-specific cycling products sold by the defendant and the defendant’s campaign to promote cycling among women. Use of her image in this manner constitutes a violation of her right to identity. The appropriation and misuse of the plaintiff’s image is wrongful and would be considered by persons of ordinary and reasonable sensibilities to constitute an iniuria which is deserving of legal protection.”
“In a broad sense, the plaintiff’s right to dignity has also been infringed.”
"...her photograph in an advertisement cannot be justified on the basis that she is a public figure or celebrity.”
“That the defendant did not use the plaintiff’s name in the advertisement is legally irrelevant”
“It is also not necessary for the attachment of liability that the photograph depict the plaintiff in an objectively degrading, humiliating or insulting manner.”
“Whilst it is true that the plaintiff uses a company to promote her image and persona, she has not thereby abandoned the right to choose who is to have access to her image. Personality rights are inseparably bound up with one’s personality. They do not exist independently of the human personality and are incapable of being transferred. There is a fundamental distinction between personality rights and intellectual or immaterial property rights which are capable of being transferred and have a separate legal existence”
“... animus iniuriandi (intent). It is well settled that what this encompasses is not only the intention to achieve a particular result, but also the consciousness that such a result would be wrongful.”
“no evidence has been presented by the plaintiff to prove that any diminution in the commercial value of her image or her patrimony was caused as a result of the publication of her photograph.
“...The immaterial or intellectual property rights held by the plaintiff exist independently of the plaintiff’s personality rights and are capable of separate enforcement. The plaintiff has not sought to enforce these rights. The appropriation by the defendant of the plaintiff’s image may constitute the delictual wrong of passing off but the plaintiff does not assert such claim. In foreign jurisdictions, the remedy of passing off is often utilised for the protection of advertising images. Neither was the plaintiff’s case pleaded or argued on the basis that the Court should recognise a free-standing or independent patrimonial immaterial property right to identity along the lines contended for by certain academic writers.”
The facts of this case sit wonderfully at the crossroads of passing off, trade mark infringement (not mentioned by the Judge), common law personality rights and the constitutional right to privacy. It seems clear that a case based on passing off would likely have succeeded and in many ways Afro Leo thinks that this claim would have been the cheapest and easiest to prove in the circumstances; there would be no need to show “intention”, the case could have been made and tried on the papers (instead of using the more risky and costly trial procedure) and damages (which have been equated to a “reasonable royalty” in other jurisdictions) may have been easier to prove.
It would also have been an interesting for the Judge to consider whether the use of the picture infringed any of the registered trade marks which arguably symbolise the image and identity of Kumalo ie the goodwill attached to her image. The argument is that her picture is trade mark use of a conceptually identical mark to the registered trade mark “Basetsana Kumalo” in the course of trade for goods/services identical or similar (Afro Leo has not seen the goods/services covered by the registered trade mark) to the registered trade mark such that confusion eg a perception of an endorsement, is likely to occur. Damages could have been claimed based in a “reasonable royalty”.
The case is also indicative of the attitude of many businesses in RSA who are prepared to "take a chance". One cannot help but admire Kumalo, who has not only worked hard to create her brand and image, AND is prepared to enforce it. It is ironic that another celebrity’s company sought to take advantage of her image, although one gets the impression that amounts she claimed were so puffed up that any attempt at a settlement became untenable.
|Posing content, today|
"Afro-IP arose from a concern that there was no decent source from which to obtain reliable news concerning IP developments in Africa and nowhere to put it once you’d got hold of it. This is because, while most of Africa faces the same crippling problems of counterfeits, border controls, deficient technology transfer, detection and enforcement of infringers, the continent is split between nearly 60 jurisdictions and many different legal cultures. This makes conventional for-profit IP publishing in the form of law reports, practitioners’ texts and scholarly writing a largely untenable proposition. The weblog, in contrast, is free, easy to update and increasingly accessible."
Thanks for the support. Please continue to send us information by emailing your favourite member of the blogging team or by writing to this email address.
Monday, 11 July 2011
Republic of BotswanaYou can contact Kingsley on Twitter at @IPinAfrica
Overview: Bostwana is a member of the African Regional Intellectual Property Organisation (ARIPO) www.aripo.org. The Ministry of Trade and Industry (MTI) www.mti.gov.bw (in English, © dated 2010) is the government department responsible for intellectual property in Bostwana.
• The Registrar of Companies and Intellectual Property.
• There is no website for this office.
Industrial Property Office
• The Registrar of Companies and Intellectual Property.
• There is no website for this office.
The Registrar of Companies and Intellectual Property (RCIP) is the competent office in charge of intellectual property administration in Bostwana.
Currently, the RCIP does not have a dedicated website; however, the MTI’s website does hold basic information on intellectual property in Bostwana.
Intellectual property proprietors and/or their representatives may find the MTI’s website (in English) useful, in terms of procedure, tips and the law in Bostwana.
Another source of information is http://www.gov.bw/en/Business/Sub-audiences/Small--Medium-Businesses/Intellectual-Property/ (in English and Setswana, © dated 2011).
Sunday, 10 July 2011
The key topics to be covered in the four day workshop include;
+ Introduction to Intellectual property
+ Industrial Designs
+ Copyright, Related Rights and Software
This workshop is of particular importance as it targets Legal Practitioners, Judicial officers and diplomats. These are all people that are critical in increasing awareness of the value, importance and commercial relevance of intellectual property to Uganda. email Paul@sipilawuganda.com for a copy of the program.
Insead's Global Innovation Index results: among Sub-Saharan African economies, Mauritius (53rd) achieves the top regional spot while South Africa (59th) is the runner-up. Ghana comes next at position 70, and is ranked first among economies classified as low-income throughout all regions. The top 10 economies in the Innovation Efficiency Index (examines how economies leverage their enabling environments to stimulate innovation results) are Côte d’Ivoire, Nigeria, China, Pakistan, Moldova, Sweden, Brazil, Argentina, India, and Bangladesh. Afro Leo suspects that Mauritius's top performance has more to do with its favourable tax laws than it being a beacon of African innovation. Comments welcome.
RSA's newly formed CIPC Companies and Intellectual Property Commission is addressing its problems according to this article in ITWeb. The South African Institute of Chartered Accountants gets some credit but the South African Institute of Intellectual Property Law, nought.
The colourful characters, brands and events that helped shape South Africa are the heroes of a new book from Affinity Publishing - From Groot Constantia to Google: 1685 - 2010 - due to hit the shelves at the end of July. Afro Leo had been combing his mane in anticipation of a snap inclusion, alas.
Monday, 4 July 2011
"Republic of Benin
Overview: the Republic of Benin is a member of the African Organization of Intellectual Property (OAPI territory)
Copyright OfficeYou can contact Kingsley on Twitter at @IPinAfrica
• The Beninese Copyright Office (BUBEDRA) falls under the jurisdiction of the Ministry of Culture and Communication.
• There is no website for this office.
Industrial Property Office
• The national office is the Industrial Property Office National Industrial Property Center (CENAPI), Ministry of Industry and Commerce.
• This office has no website; however, details about intellectual property in Benin can be found on http://www.mic.bj/spip.php?rubrique37 (in French).
In conclusion, neither of the above has a website to itself; but this may well be as a result of the existence of the OAPI system".
“Although Intellectual Property Law is taught in South African law faculties, there is a lack of high-level, research-driven emphasis in the field. With a view to the demands of a globalised world economy, the Chair will make a unique contribution – particularly in relation to the implementation and functioning of intellectual property law in the international context and the challenge posed by a borderless world of internet-based digital communication to traditional views on intellectual property,” (Proff Lubbe - Dean of the Faculty of Law)
Kicking off the initiative is their International Intellectual Property Law Conference held on 1-2 September. The program, which includes some of the leading IP names locally and internationally, should get you to a plane! Not to be missed - check it out here and register here.
Saturday, 2 July 2011
It is important that the Activity had not been a one off and had continued for a period of time after it had commenced. It also appears that matter had once been before the Courts but had not proceeded because of a failure to prosecute. A fresh action was then brought over six years after the initial Activity had taken place.
|Mr Justice Madrama|
“So long as it is subsisting, a continuous sale of goods by passing off of goods as that of the owner of the trademark is actionable and is a continuing tort or breach or infringement of rights protected by the statute. The continuous breach of the right leads to an accrual of a fresh cause of action by each breach.”
“…the defendant’s objections that the suit is time barred is misconceived and is accordingly overruled with costs.”
Afro Leo commends the Judge for his thorough and thoughtful analysis of the law and wonders what Paul makes of the case.
Thanks to Saflii for the link to the case.
Posted by Darren Olivier