1 – Copyright Subsistence

1.1 – What are the requirements for copyright to subsist in a work ?

Under Senegalese law, for copyright to subsist in work, the work must be a "work of mind" ("Suvre de l'esprit") and it must be original. Under the Copyright Act, "originality" is defined as the footprint of the personality of the author.

1.2 – Are there any other works in which copyright can subsist and are there any works which are excluded from copyright protection ?

The Copyright Act provides that copyright also subsists on works derived from a pre-existent work provided it is original. Therefore, copyright subsists in:

  • translations and adaptations; and
  • anthologies and collections of works or diverse data, such as databases and computer programs.

However, under Articles 9, 10, and 11 of the Copyright Act, copyright protection is excluded from:

  • the official legislative, administrative or judicial texts and their official translations;
  • ideas, procedures, methods of functioning or mathematical concepts as such; and
  • information; specifically, daily information.

1.3 – Is there a system for registration of copyright and if so what is the effect of registration ?

There is no system of registration. However, in practice, authors may be well advised to seek registration of their work in order to secure proof of their ownership and priority.

1.4 – What is the duration of copyright protection? Does this vary depending on the type of work ?

The Copyright Act distinguishes between moral rights and patrimonial rights. A moral right is imprescriptible.

The duration of patrimonial rights is the entire life of the author and 70 years after their death.

In the case of a "collaboration work", the duration of patrimonial rights is the entire life of the last surviving collaborator and 70 years after his death.

In the case of a "posthumous work", the duration is 70 years starting from the publication of the work.

In the case of an anonymous or pseudonym work, the duration of patrimonial rights is 70 years starting from the publication. If the work has not been published during the 70 years following its completion, the duration of the patrimonial rights is 70 years starting from the completion date of the work.

2 – Ownership

2.1 – Who is the first owner of copyright in each of the works protected (other than where questions 2.2 or 2.3 apply) ?

The first owner of copyright is the author. The author, pursuant to Article 12 of the Copyright Act, is the person who created the work. However, in the case of publication of the work, the author is the person under whose name, the publication is created, unless the contrary is proven.

2.2 – Where a work is commissioned, how is ownership of the copyright determined between the author and the commissioner ?

Article 22 of the Copyright Act provides that, when a work is commissioned, the transfer of the ownership on the material support of the work does not include the transfer of patrimonial rights. It means that the author remains the owner of the copyright.

2.3 – Where a work is created by an employee, how is ownership of the copyright determined between the employee and the employer ?

There are two types of employees: those employed by an individual or a private entity called "salarié"; and those employed by the State called "fonctionnaire".

Employees are the owners of the copyright on works they create.

However rights on works created by salarié in the course of employment are presumed assigned to the employer by reason of the employment agreement to the extent justified by the normal activities at the time of creation of the work.

Furthermore, to the strict extent necessary to the accomplishment of a public interest mission, patrimonial rights on works created by fonctionnaire in the course of employment or under instructions received are presumed assigned to the administration to which they belong, starting from the creation date.

2.4 – Is there a concept of joint ownership and, if so, what rules apply to dealings with a jointly owned work ?

The Copyright Act recognises the concept of joint ownership on collaborative work ("Suvre collaborative"). "Collaborative work" is defined as a work that is created by two or several authors without consideration of the fact that the work is undivided or is composed of separate works.

The ownership of the copyright is undivided between the authors. Thus, the exercise of copyright must be done on mutual agreement. In the case authors fail to find the mutual agreement, Courts are competent. However, in case of breach of the copyright on the collaborative work, each co-author is entitled to go to Court and claim compensation.

Each co-author whose contribution is identifiable can, unless agreed otherwise, exploit it separately to the extent that the exploitation does not harm the exploitation of the collaborative work.

3 – Exploitation

3.1 – Are there any formalities which apply to the transfer/assignment of ownership ?

Only patrimonial rights can be assigned. With respect to the author, the assignment is proved by written or an equivalent mode. In addition, each patrimonial right must be namely assigned, whereas the assigned right must be specified as to its scope and purpose, its duration and its territory of use.

3.2 – Are there any formalities required for a copyright licence ?

Licence agreements are subject to the above-mentioned formalities.

3.3 – Are there any laws which limit the licence terms parties may agree ?

There is no specific provision restricting the licence terms parties may agree, except for the general principle which states that moral rights cannot be assigned.

4 – Copyright Enforcement

4.1 – Are there any statutory enforcement agencies ?

The statutory enforcement agency is the "Brigade Nationale de Lute contre la Piraterie et la Contrefaçon, BNLCP". It is vested with the power to investigate, establish and prosecute violations relating to copyright. However, the BNLCP has no power of sanction. It reports the violations and their authors to the Prosecutor.

4.2 – Other than the copyright owner, can anyone else bring a claim for infringement of the copyright in a work ?

Yes. In addition to the copyright owner, collective licencing bodies and professional associations legally constituted can also claim for their members the assignee of a copyright to the extent of the right assigned.

4.3 – Are there any general or specific exceptions which can be relied upon as a defence to a claim of infringement ?

Yes. They are: free communication in a family circle or during a religious service in rooms reserved for that purpose; copies or reproductions strictly reserved for private use; backup copies of a computer program; analyses and quotations, parody and educational use; press reviews; and use of graphic and plastic work located in a public area.

4.5 – Are interim or permanent injunctions available ?

Yes. The court may order following injunctions:

  • suspension of manufacturing of unauthorised reproduction:
  • seizure at any moment of unauthorised reproduction copies, already manufactured or in , of incomes, as well copies illicitly used;
  • suspension of any unauthorised communication to the public; and
  • seizure of income deriving from any unauthorised reproduction or communication to the public.

4.6 – On what basis are damages or an account of profits calculated ?

Damages are calculated by the losses and the moral prejudice as well the profits illegally made and the expenses, including court costs, caused by the act of violation.

4.7 – What is the period in which an action must be commenced ?

The statute of limitation is 10 years for civil actions, commencing from the date when the owner knows or should have known about the existence of the infringement. However, in the case that the owner starts proceedings with an infringement seizure, he has 30 days starting from the date of the seizure to refer the case to Court, and if not, the release of the seizure can be obtained.

The statute of limitation is three years for criminal actions. In principle, the starting point is when the infringing activity has ceased.

5 – Criminal Offences

5.1 – Are there any criminal offences relating to copyright infringement ?

Yes. Criminal offences are listed include:

  • infringement of the exploitation rights;
  • distribution, import and export of illicit copies;
  • infringement of moral rights;
  • infringement of the technical measures; and
  • failure to pay equitable remuneration and remuneration for private copying.

5.2 – What are the potential sanctions ?

The sanctions are imprisonment of one month to two years and a fine between 500,000 francs CFA to 5 million francs CFA. The court can also order the destruction of illegal copies and the confiscation of the equipment specially installed to realise the infringement, the display and publication of the judgment or extracts of the judgment.

First published on 24 May 2017

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.