COMPARISON OF THE COPYRIGHT ACT, 1964(CAP215) WITH THE COPYRIGHT & NEIGHBORING RIGHTS ACT 2006

A COMPARISON OF  THE COPYRIGHT ACT, 1964(CAP215) WITH THE COPYRIGHT & NEIGHBORING RIGHTS ACT 2006 CLEARLY HIGHLIGHTING THE NEED FOR THE CHANGE IN THE LAW

In every society, however great or small, industrialized or developing, there are people who possess more than others, the natural gift of intellectual creation. Those creators must be given some kind of protection and should as a matter of right benefit from the fruits of their labor and be able to earn their living from use of their creative efforts. (Odongo 2011) 

 Intellectual  property  law regulates  the  creation , use , and  exploitation  of mental  or  creative  labor. (Bently&Sherman 2009, 1) It refers to property rights in creations of the  mind and encompasses copyright, patents, designs, trademarks as well as a host of related rights; however the idea must be reduced to a physical object or expression of the idea. (Atwiine 2003,Bainbridge 2002) The aim of  intellectual  property is includes recognizing human  creativity as an incentive for creativity and development ,protection against unfair competition and  promoting innovation for the benefit of the greater number keeping in mind that it was created by and for early capitalism. (COMMISSION 2004)

Copyright law secures the authors protection in any ‘work’ produced where the work is an original endeavor which has not been copied from an existing work in tangible form. Uganda copyright law is the Copyright & Neighboring Rights Act, 2006 which by s.84 repealed the Copyright Act, 1964. Uganda’s laws can be understood only in the context of its historical development whose laws are most notably derived from English common law traditions. (Moses, Read  1966. V).

 Changes in copyright protection have had a close relationship with development in reproduction technologies. (Davis 2005)  Copyright is relatively new to Africa only introduced to the continent by the European Colonialist that ruled most African countries. (Kawooya 2006/2007)Early interest in copyright protection in the U.K coincided with the introduction of the printing press, the law which was designed to protect printers and publishers than creative efforts of authors. The Statute of Anne recognizing the author as the owner of copyright, gave a limited term of protection to works of 28 years while Donald v Bickett (1774) established that literary copyright was a statutory right and so of limited term rather than as common law right and of perpetual duration .The Copyright Act 1842, increased the term of protection to 42 years from publication or seven years beyond the death of the author. The Copyright Act 1911 further increased the term of protection to the life of the author plus 50 years as well as introducing reforms which aligned the UK laws with the Bern Convention and introduced protection to sound recordings. The Copyright Act 1956 allowed ratification of the Brussels Act of the Bern Convention and provided specific protection for films and television recordings.

With the advent of colonialism, by His Majesty’s Order in Council of 1902, the King of Britain, in exercise of the power conferred by the Copyright Act 1911, ordered that the Act would apply in British territories of which Uganda was a part, majorly identifying which rights were eligible for protection and who acquired such rights. (Kakooza 2001) A 1915 Ordinance supplemented the 1911 Act , scribing a punishment of imprisonment for infringement as an alternative to a fine .However it was repealed in 1963 as an obsolete law leaving the 1956 Act which by virtue of s.1 of the1915 ordinance ,read together with s.18 of the  1964 Copyright Act( Cap215), made following independence, continued to apply .The applicability of the 1956 Act as a statute of general application ceased with the land mark case of Uganda Motors Limited v Wavah Holdings Limited . The co-existence of the two laws, had inevitably led to the inadequate law of copyright till the 2006 Copyright and Neighborhood Rights Act herein after referred to as the ‘new’ Act. This can be gleaned from the paucity of case-law from which the importance of a statute can be determined.

The law was a response to the urgent  need to update the law in line with international agreements ratified, coupled with the need to bring laws up-to-date with technological, economic and other developments the world over. (COMMISSION 2004, 15). It is this fact that has led to a stark difference between the two Acts which can out rightly be noticed in their respective long titles. The comparison is as follows;

The subjective matter covered by the new Act was widened to include scientific intellectual works(s.5) and their neighboring rights and  known now or to  be known in the  future whereas the old Act merely offers protection to copyright of literary, musical( (Uganda Performing Rights Society ltd V Fred Mukubira 2005)),  artistic works, cinematograph pictures, gramophone records and broadcasts. This included in the purview of copyright law computer programs, electronic data banks and other accompanying materials. . The rival computer significantly altered traditional norms associated with copy right and brought with it digital technology which has over the years made it possible to digitize broadcast as well as the content in broadcast.  Digital means that the content that is substance of copyright may be reduced to binary digits which represent a series of ‘on’ and ‘off’ switches comprehensive to computer only. (Tabaro 2003)The old law did not make a distinction between the various pro-types associated with broadcasting viz program carrying signals, terrestrial and satellite broadcasts (Tabaro 2005) and while protecting broadcasts, it offered no protection to program carrying signals. The dichotomy between broadcast and program carrying signals as defined by H.L.E. Russ, is that in the former,  is the emitting of a signal that passes through a satellite and the latter relates to terrestrial broadcasting and the extent to which the signal so emitted has not passed through a satellite sometimes referred to as  ‘uplink ’. (Cited in Tabaro 2003) In relation to copyrights, TRIPS requires recognition of broadcasting organizations to restrict the fixation, reproduction of fixation, rebroadcasting by wireless means and communication to the public of television broadcasts of the above which is adequately covered .

The Act takes cognizance of the recent treaties which addresses peculiar issues of ownership arising from the use of computers, the internet and broadcasting and communication using equipment which possesses convergence technology. Convergence essentially means the merger of computing, broadcasting and communication technology (Tabaro 2003) or the combination of digitization and the development of the interconnecting networks of the World Wide Web. (Bakibinga 2006)

The new Act embodies a more adequate protection of economic rights than its counterpart. S.9 thereof provides for the exclusive right to or  publish, distribute, communicate  and perform the work in public in addition to broadcasting the work to the public authorize the acts above . The author is also entitled to make a derivative work, reproduce transcription into Braille accessible to blind persons and to do in relation to that work any act to be known in the future .This exhaustively and sufficiently covers within its ambit the unforeseen advances in technology which were not envisaged in the old Act.  It is however argued  that the phrase 'any known means or means to be known in the future' is largely misplaced since the  right to communicate to the public is broad based and technologically neutral, as any broadcast at present or in the future is basically a communication to the public. (Tabaro 2005)

Neighboring rights ,described as derivatives or auxiliary right implying that they depend on the existence of copyright vested in another person (Kakooza 2001) were hitherto unprotected .They are rights attached to the auxiliary role played by performers, producers of sound recording , audio-visual, for which the Act is commendable (Tabaro 2005) , and to  broadcasting companies through the fulfillment of literary or artistic works, the provision of destiny and permanence in works and  the diminishing of distance in the publication of works respectively. They do not in any way affect the copyright in a literary, scientific or artistic work from which it arose. Many copyright works can be improved or diversified into many more interesting things, for example novels into plays and movies, or a song or other musical piece used in a musical drama. The people involved in transforming pieces of work need incentives in the form of protection for them to know that they will be able to reap from their work if protection is given to them. They need to eliminate piracy, copying without authority, and to know that they can get remedies in case of infringement thus the protection of neighboring rights. This position is in tandem with the Act Broadcasting Policy that is desirous of developing a vibrant film industry through the protection of their productions. (COMMISSION 2004)

However ,S.22(1) denies the performer the right to both fixed and unfixed performances by omitting  the word 'exclusive' from the wording in section. Further S. 22(1) (b), denies a performer an exclusive right to have their performance broadcast or communicated to the public where it is made from a previously authorized fixation or the transmission has been authorized by a broadcasting company that transmitted the first performance. This is a setback in copyright law as it goes to its core. These provisions benefit the broadcasting   companies and directors of fixations at the expense of performers. The need to include the exclusivity of deriving economic benefit from communication to the public of performances of performers need not be over emphasized as it is real. (Tabaro 2005)

A vital aspect of English law inherited in the Ugandan old copyright law was that moral rights (Rome Act 1928 of Bern Convention) were non existent. It was under the Continental European Law that moral rights were found and typically, a moral right is the right to claim for the work and thus seek compensation if and where there is distortion or modification of the work in such a way that the resulting situation is prejudicial to the good name, honor and reputation of the author. Living authors as well as their heirs enjoy this right. (Kakooza 2001)Protection of the right was underscored by the provision of its existence in perpetuity regardless of whether the economic rights are still protected or not.

The 2006 Act provides for protection of folklore in S.5 (J). Folkloric works are intimately linked with identity of the indigenous community which concept is akin to custodianship (or holding in trust) rather than exclusive proprietorship.  (Akubu n.d.) However, the definition of ‘author’ by implication eliminates indigenous works when it limits authorship to a physical person. It is evident that the requirement for individual ownership and author identity are reflections of the underlying Eurocentric notion that economic benefit is the primary motivation for creativity, for which property rights are introduced to allow economic exploitation  (Tabaro 2005) . This is a weakness carried on by both Acts.

The new Act stipulates a wider scope of qualification of application than the 1964 Copyright Act. S.3 provides that the Act applies to work which, in addition to the scope of the 1964 Act to includes those created or first published by a person who is a national or resident in a country that is a party to the WIPO,ARIPO,UNESCO,WTO Organizations and the TRIPPS agreement . These treaties, for the most part advocate for ‘national treatment ‘which is fundamentally a rule of non discrimination. It is a mechanism for protection without harmonization and also prescribes a procedure of dispute resolution in case of complaint by a member against another. According to Sherman et al (2009) the globalization of intellectual property has largely been a process where by the wish list of various developed lobby groups are inscribed into public international law.

Ideas, concepts, procedures, methods or other things of a similar nature (S.6) in the new Act are not protected and the work must be in original form to be eligible for protection.S.4 (3) provides that a work is original if it is the product of the independent efforts of the author. This fortifies the originality required in the old Act which also embodied the common law position. ‘There has to be novelty or special, meritorious or ingenious from the point of view or judgment or skill (Walter v Lane) of the creator of the work in question’. (Cramp &Sons v Frank Smythson ltd; viscount Simon ) The idea concept extends to computer programs and electronic data as well with the new Act.                                       

The 2006 Act unlike the old Act provides more remedies for copyright infringement. Previously, recourse to justice could only  be had by civil action from which one could obtain damages for the loss and flagrant breaches, an injunction (Digital Solutions ltd v MTN( U) ltd 2004)to restrain further infringements in future and deliver up for disposal and destruction of articles of infringement., however its clear that the new Act envisages situations of imminent danger of  infringement and clearly provides for a forum of the commercial court to commence civil proceedings in which an order for inspection may be made  .In addition ,the damages can be obtained even without successful prosecution of the infringer .A qualification , that the infringement has to be of the whole piece of work  or a substantial part of the work, is a welcome provision to exclude inconsequential use.           In addition, criminal action is introduced in which an infringer commits an offense and is liable on conviction to a fine or imprisonment or both. Moreover, a person who enables, induces, facilitates or conceals an infringement equally attracts liability and an order for account for all sums of money received and or forfeiture of such apparatus, article or thing that is the subject matter of the offence, which was not contemplated in the old Act. The new act also attaches liability to bodies corporate through their directors while in the case of partnerships, all members are deemed liable to have committed the offense but this can be offset by proving lack of consent or connivance or that all due diligence was exercised on his /her part ,a concept not expressed in the old Act.

Under the new Act, fair use of a protected work in its original language or in a translation shall not be an infringement of the rights of the author and shall not require his/her consent. The defense of fair use as opposed to fair dealing in the old act is markedly different. Uganda of course inherited the common law doctrines and the authority of judicial precedent as sources of law (H.FMoses 1966). It is unlikely that the courts in Uganda would develop the present realm of common law which is wholly based on archaic doctrines derived from English tradition unlike the Anglo-American principles which have advanced with technology change the defenses being statutory rather than based on what may turn out to be inapplicable common law defenses in the face of new communication technologies. (Tabaro 2005) Fair dealing narrowly defines a set of action, which constitute fairness and therefore requiring no prior permission from rights –holders for use (Kawooya 2011, 2007).Other defenses include work resulting from original effort, educational use that not protected at the material time and where the copying is a permitted use. (COMMISSION 2004)Were the requirements to be very restrictive, free speech, news reporting using inconsequential or accidental inclusion would result into disproportionate penalties.

The previous Act fell short of provision for the administrative and structural mechanisms for enforcing rights of the authors of copyrighted material. (Odongo 2011)The new Act establishes the collecting societies which are required to register in accordance with the Act with the registrar of companies to attain corporate capacity and its incidences. They are mandated to promote and encourage creativity in protected fields in Uganda, promote and carry out public awareness on copyright and neighboring rights, pay royalties to its entitled beneficiary members, act as their agents and other duties under the Act.

Assignment of license or transfer of copyright o specific rights in a work in the new Act is to be done in writing and signed both parties unlike in the old Act which provided merely for the signature of or on behalf of the assignor. However ,while comprehensive in matters concerning registration, the new  Act just like the old one does not as legal requirement provide for registration of copyright to be registered  thus making them less enforceable compared to trademarks. (ATWIINE 2003)                                                                                                 In conclusion, as rightly observed, while countries such as UK and USA in most respects find little conflict between their own intellectual property regimes and the TRIPPS requirement, for many developing countries it will involve major transformation of domestic law (Davis 2005).Save for the weaknesses that it does not recognize the right to privacy and as pointed out above , the 2006 Act is a milestone in copyright law with novel provisions and all that remains is its application. While meeting or exceeding international standards in most developing countries there are disparities concerning the application of copyright laws because there are weak or emerging institutional framework and processes even where the law is strong and adequate. (Kawooya, ACA2K 2009)

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