For a continent so rich in culture, music and creative works, surprisingly little is published about copyright law on the African continent, outside of South Africa.
Despite much of it being in dire need of updating and reform, most African countries do have copyright legislation, however. This form of IP protection can be an incredibly useful tool in a brand owner's arsenal, especially in countries where the brand owner may not yet have registered their trade mark. Copyright can also be especially helpful in trade dress infringement matters.
This article briefly looks at copyright law in the key jurisdictions of Ethiopia, Kenya, Nigeria and Uganda.
Copyright is a creature of statute which, in these countries, subsists automatically in a "work" that is eligible for copyright protection on certain conditions being met. These conditions are prescribed in the relevant copyright legislation. Works include, for instance, musical, literary and artistic works. In addition, these categories of works encompass specific creations, such as songs, books and speeches, drawings and photographs. Each category of work will usually be defined in the relevant legislation, as will the owner of the copyright subsisting in the work.
These countries, except for Ethiopia, are also members of the Berne Convention for the Protection of Literary and Artistic Works. This is an international treaty which governs copyright and provides reciprocity of rights to its member states and their nationals. In plain terms, copyright protection in a work created by a citizen of one member country will extend to other member states of the Berne Convention.
Ethiopia is not a member of the Berne Convention. Very limited copyright protection is therefore available to foreign nationals under the Ethiopian Copyright Proclamation.
Specifically, insofar as foreign nationals are concerned, Article 3(1)(b) of the Proclamation provides that the Proclamation will apply to works first published in Ethiopia and works first published abroad and also published in Ethiopia within 30 days, irrespective of the nationality or residence of their authors.
Copyright subsists in a work automatically if it is original and fixed in a tangible form. Registration is not a requirement for copyright to subsist, but it possible and an application for registration can be made to the Ethiopian Intellectual Property Office (EIPO). The EIPO will examine the application as to compliance with the formalities and issue the registration certificate.
Originality is a requirement for the subsistence of copyright. Works must be reduced to material form to be eligible for copyright protection. Novelty is not a requirement for copyright protection.
Registration of certain copyright works is possible, specifically, works of a musical, audio visual, literary and artistic nature. The requirements for registration are:
- The work must be original.
- The work should be in tangible format, including digital format.
Works already registered in Kenya appear on the National Rights Registry (NRR) system and the Kenyan Copyright Board (KECOBO) facilitates the registration of new copyright works via its official website. It is envisaged that the copyright owner will personally apply for the registration of their copyright.
A work is eligible for copyright protection in Nigeria if sufficient effort has been expended on making the work to give it an original character and the work has been fixed in any definite medium of expression. Registration of copyright is not a requirement but is possible. Copyright must subsist in the work in question or the work must be eligible for copyright protection under the copyright legislation to qualify for registration.
An application for registration is made to the Nigerian Copyright Commission (NCC), which maintains a register of copyright works registered in Nigeria.
Copyright subsists in a work automatically if it is original and reduced to material form. Registration of copyright is not a requirement for the subsistence of copyright but is possible in Uganda.
An application for registration is made to the Registrar of Copyright and the registration procedure envisages an objection period. If that period passes without any third-party objections, a certificate of registration is issued.
The threshold for copyright protection in these countries is evidently low and while registration is not a requirement, it is possible. The obvious benefit of obtaining copyright registration is that the registration certificate is evidence of the right to be enforced or protected and negates the need to adduce copious evidence satisfying a court that copyright subsists in a work or that one is the owner of the copyright subsisting in a work. A registration also confirms the proprietary right and acts as a deterrent to infringement.
Brand owners would do well not to ignore copyright as part of their overall strategy in protecting their rights in Africa.
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.