As
the movie industry in Uganda continues to grow, so do the squabbles among some
of the players that feed into and out of that industry. However, as an
optimist, I can say that there does seem to be a faint light at the end of the
tunnel that keeps glowing brighter. Ordinarily, a Collecting Society is meant
to make the job of collecting royalties easier for its members. Basically, if
one cannot realistically go around collecting royalties for his or her
hard-earned work in the creative arena, then let the Collecting Society for
which he or she is a member undertake that responsibility. In return, the
Collecting Society must jealously guard the member’s copyright assigned to it; ensure
efficient accountability of funds collected; and periodic remission of those
funds to its members. All this time, the Uganda Registration Services Bureau
(URSB), which is the Ugandan government’s Intellectual Property Office, is
meant to play the role of “Big Brother” by ensuring that the Collecting
Societies and their members abide by their obligations as spelt out in the
Copyright and Neigbouring Rights Act of 2006 (CNRA). This, at least, is what some
members of Uganda Federation of Movie Industry (UFMI) explained as their
expectation from UFMI and URSB – an expectation which, in their view, was not
being fulfilled.
Early
in 2018, a group of seventeen artists in Uganda’s Movie Industry, led by Julius
Bwanika and Gerald Sserunjogi, filed a case against UFMI and URSB in the High
Court of Uganda (Bwanika Julius and Ors v. Uganda Registration Services Bureau
& Uganda Federation of Movie Industry, Misc. Cause. No. 083 of 2018). The
case was filed by way of an application for judicial review to compel a
Government Institution to abide by its duties. In a nutshell, the prayers
before Court were for URSB to fulfill its statutory obligations as a
supervisory body over Collecting Societies in Uganda and reign in on UFMI; and
for UFMI to furnish accountability over its activities as well as terminate
illegal issuance of licenses to audio-visual vendors. Opportunities for
resolving the matter through mediation were explored without success and
towards the third quarter of 2018, the parties went back to Court. On the face
of the case, it was clear that UFMI had been flouting some of its obligations
under the law (CNRA). For instance, there was no record of audited accounts; no
records on income and expenditure; no establishment of a Provident and
Benevolent Fund; and, no provision of a security device on all audio-visual
recordings under its membership. Meanwhile, URSB too, had not been cracking the
whip on UFMI.
In
its defense, UFMI argued that it has been going through turbulent times over
the past few years with a lot of infighting, disorganization and limited
operational funds. As such, it is only beginning to stabilize itself in the
murky waters of Uganda’s entertainment industry to take care of all the
concerns of its members. As part of its efforts in re-establishing itself, a
General Assembly of its members was held in January of 2018 and new Leaders
were brought on board to run the Society. The ‘elephant in the room’ over that
matter was that the Seventeen artists that instituted the Court proceedings
considered themselves as members of UFMI but were not recognized as such by the
current UFMI leaders. These Seventeen, therefore did not recognize the General
Assembly of January 2018 and were demanding for a fresh General Assembly in
which they can also come in and contest for leadership of the Society. Not only
that, they also contended that UFMI was wrongly constituting itself as a
Collecting Society for all artists in the Visual entertainment
industry and thus stifling growth and expansion of the creative industry into
other areas. As such, the argument was that Performers – inclusive of standup
comics – and producers, should not all be bundled up together under UFMI.
In
his judgment delivered in mid February 2019, his Lordship Justice Musa Ssekaana pointed out that although it
was clear that UFMI has not been able to comply with the law, blame games do
not help to resolve the current impasse between the parties. The judgment goes
on to add that the “1st Respondent (URSB) should render guidance to
the 2nd Respondent (UFMI) on how to make or amend the Constitution
that would govern and include all the members. The membership should [be][sic] open to any person who is a
stakeholder of the Film and Movie Industry. Once a person is admitted as a
member of the organization, he/she should always remain a member but is
supposed to pay annual subscription fees to activate his or her membership or
be able to take part in the affairs of the organization. . .” The judgment states
further that “it was wrong to merge a federating body with a Collecting Society
because the two institutions do totally different works and as such, cannot be
merged whatsoever. The single role of a Collecting Society is to collect
royalties and distribute them on behalf of their members. The membership for a
Collecting Society of Audio Visual Society [sic]
in this case should be restricted to either producers or performers.”
The
final nail on the UFMI coffin is when the judgment states that: “The 1st
respondent (URSB) should consider separating societies like in some
jurisdictions by having a Society for Authors, performers and Producers because
the nature of interests from the rights holders is normally different and, as
such, requiring the separation of Copyright holders and related rights holders.
This is buttressed by the fact that it is only authors, producers and
performers who are entitled to equitable remuneration as provided under Section
31 of the Copyright and Neighbouring Rights Act of 2006. The solution in this
case would be that URSB which is the one that issues Collecting Society
licenses, calls on fresh applicants with knowledge and experience in copyright
management to take on the roles of a Collecting Society for the Film Industry.”
Essentially, Justice Ssekaana was agreeing with the Petitioners that UFMI needs
to be disbanded because in its current format, it cannot play the role of
Collecting Society for different categories of artists within the movie
industry.
The
Court then granted the prayers of the applicants and ordered URSB to guide the
stakeholders in getting a competent and qualified Collecting Society for the
Film Sector in accordance with the law. This ruling on the disbandment of UFMI
thus leaves Uganda with currently only two Collecting Societies – the Uganda
Performing Rights Society for music artists and producers of audio-visual
works, and the Uganda Reproductive Rights Organization for book publishers and
authors. It will be interesting to see how the film industry re-aligns itself to
get back on track in the collective management of royalties. Hopefully, with
the help of URSB, this will be sooner than later because of the promising
nature of the film industry. In the meantime, thanks to this judgment, URSB
itself is now cognizant of the fact that it must up its game as “Big brother”
in the supervision of Collecting Societies in Uganda.
The writer is a legal
scholar and Intellectual Property law practitioner at Sipi Law Associates.
