Wednesday, 27 February 2019

Tony Kakooza

Uganda’s Movie Collecting Society to be disbanded

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.

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Tuesday, 5 February 2019


Congrats to our own Leo, a new IPKat

It appears to have so far gone unrecognised on this blog, but one of our very own is the first African correspondent over on the insanely busy extraordinary IPKat blog. See the announcement, here. Fittingly, Chijioke Okorie blogs on Afro IP as a lady leo, and is now perhaps the biggest cat on the block in Europe?


We look forward to reading more great posts on IPKat, now with more of an African perspective. 
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Wednesday, 30 January 2019

Afro Leo

Read all about it! IP Briefs latest

The South African Institute of Intellectual Property Law's 6th issue of its IP Briefs edited and compiled by Dr Madelein Kleyn is out. You can read it all here. In this issue:

Vanessa Ferguson, the SAIIPL president for 2019, outlines the focus of SAIIPL for the current year, having take the reigns from Debbie Marriott who presided over the Institute in 2018. Morne Barradas' piece then assesses how and why patent assets can become valuable to a business. 

There is an interesting article from Nordely Wright on the steps that one can take to protect confidential information when dealing with the Competition Commission. This is followed by Amanda Lotheringen's holistic approach to training law enforcement agencies that are so vital to protecting IP rights. 

The issue goes abroad and obtains a view from Professor Charles Gielen, former partner of the eminent firm NautaDutilh NV, on the Court of Justice decision of the EU on the technical function exclusion in design law, reviewing the Doceram decision (the first case to deal with it). 

Getting local again, Thapelo Montong, the bright patent lawyer at Adams & Adams, contemplates inventorship in the age of artificial intelligence and concludes that under current patent laws, all inventions from superhuman AI machines could well be free and open to the public, at least until antiquated patent laws undergo reform.

There is news too that Wend Wendland, the respected policy strategist and capacity builder, and trainer, has gone online to share his experience and advice in a new blog "Multilateral Matters" which is featured on the IP Unit website of the University of Cape Town. 

This post brought to you by Afro Leo.
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Tuesday, 29 January 2019

Darren Olivier

Update: Brexit implications for Africa

Nick Youngson CC BY-SA 3.0 Alpha Stock Images
The UKIPO has been helpful in providing regular updates on what would happen to intellectual property rights of those with interests in the UK post Brexit, in the event of a no-deal. The latest update published recently sets out the various rights and explains what would happen to each:

  1. - Continued protection of registered trade marks and designs in the UK
  2. - Continued protection of unregistered Community designs
  3. - Correspondence addresses and confidentiality for UK trade marks and designs

The implications are, generally, that existing EU rights would remain in force and that provisions for a separate right covering the UK would be created, with minimal administrative burden. Despite these assurances though, many EU rights holders have already seen fit to re-file or at least reconsider their portfolio as it applies to the UK. The uptick in national UK national filings shows the trend and African rights holders would do well to consider the same approach.

The debate and uncertainty over Brexit is tedious yet remains captivating and crucially important for anyone with trade, business or personal interests in Great Britain. Most countries and many citizens of Africa fall into that category, and even on the continent's most southern tip it is also a potentially very emotive topic.  Only the bold or mischievous raise the topic at dinner tables. It is treated with the same trepidation as religion, abortion and politics for the topic has the same capacity to interrogate fundamentals.

When Great Britain catches a cold, Africa gets pneumonia, as the saying goes. GB is one of Africa's most important trading partners. Any slight, let alone momentous (even if temporary), change to the economic climate in GB affects Africa.

This truth underlines the concerns raised by South Africa's trade minister Rob Davies in a recent BusinessReport news article in which he warns of the potential devastating impact a no-deal Brexit would have on the South African economy. Highlighting the wine industry which produces 40% of its export for the UK market, he explains that the European Partnership Agreement reached with Europe in 2016 saw South Africa's duty free quota to Europe increase from 48 to 110 million litres. The implication, it appears, is that this progress in trade for South Africa would be jeopardised. This is despite, British High Commissioner Nigel Casey's assurances in late November last year.

In the same article Dawie Roodt and Mike Schussler, both leading economists, warn that if Brexit is disruptive, even a small contraction in the British economy would be hard felt in South Africa, citing exchange rate fluctuations and trade implications. However, Schussler admits admits that the effect if difficult to predict, and impossible to influence.

For earlier posts and commentary on Brexit implications for IP owners in Africa, click Afro-IP posts herehere and commentary on CNBC Africa here.

Posted by Darren Olivier

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Thursday, 24 January 2019

Chijioke Ifeoma Okorie

A trip around Copyright Society of Nigeria (COSON) and its governance issues

Afroleopa has been rather busy of late, but is still very committed to fulfilling her promise to keep readers abreast of events in COSONIA. So, here is a miscellany with a brief round-up of the current events and issues.

Account frozen but spending continues
Afroleopa has heard that despite the freezing order, it appears to be that COSON continues to have access to its bank accounts as the Okoroji-led Board continues to disburse funds for its expenses.

Some corporate members of the Copyright Society of Nigeria (COSON) approached the court and claim to have secured an order freezing the accounts of COSON. This is in a bid to stop the allegedly ousted Chairman, Chief Tony Okoroji and his board members from spending the society’s monies while the suspension of COSON licence remains in place. Afroleopa had wondered about the possibility of the Nigeria Copyright Commission (NCC) procuring a freezing order on COSON’s bank accounts in order to lend (more) efficacy to its suspension order.

Extra-ordinary General Meeting held
Back in November 2018, COSON announced that it would be holding an Extra-Ordinary General Meeting (EGM) in December 2018. Special resolution proposed to be passed the meeting were to distribute the sum of N81,520,000 (approximately $224,000) amongst members and to ratify  “legal and security measures taken by the Board and Management in the last one year to protect the society from instability and disintegration”.

If COSON’s tweets are anything to go by, the meeting held as scheduled and the proposed resolutions were passed despite calls that the meeting was illegal given the suspension of COSON’s licence.

No revocation of license despite fears
Back in June 2018, AfroLeopa attended a press conference co-convened by the president of the Association of Music Business Professionals (AM.B-Pro), Mr. Edi Lawani under the auspices of Concerned Stakeholders’ Forum. The majority of the music artists and COSON members, who spoke at the event, expressed fears that the suspension of COSON’s licence may be commuted to a revocation based on Regulation 20 of the CMO Regulations. Regulation 20 (2) of the CMO Regulations stipulates that a suspension order from the NCC may be commuted to a revocation of licence if the collecting society fails to comply with the directives that led to its suspension in the first place.  

COSON’s license has not been revoked.

New Director-General appointed for the Nigerian Copyright Commission
Last week, newspapers reported that Mr. John Asein has been appointed the Director-general of the NCC. Prior to his appointment, Mr Asein was the director of the Nigerian Copyright Institute, the training and capacity building arm of the NCC. He takes over from the previous Director-General, Mr. Afam Ezekude.

With a change in leadership of the NCC, there may be a change in direction towards ensuring adherence to good corporate governance principles within COSON and in other collecting societies in Nigeria. Mr. Asein will be the first in-house Director-General at the NCC in decades.

Some thoughts
It seems to Afroleopa that the NCC’s regulation of COSON lacks compellability. COSON has repeatedly flouted NCC’s orders with no apparent consequence. As Afroleopa has repeatedly stated on this blog, this affects not only COSON; it also affects its members, other collecting societies and the general copyright community. A situation where a sector regulatory authority cannot compel compliance from regulated entities cannot bode well for the sector.
Scouting collecting societies...

Just last week, the Federal Government unveiled the Corporate Governance Code applicable to all public companies. This would include collecting societies where they are public companies. The Code notes that several industry regulators such as the Nigerian Communications Commission (for telecommunication sector), the Central Bank of Nigeria (for the banking sector), and the National Insurance Commission (for the insurance sector) had developed corporate governance codes for companies operating in their sectors, in response to challenges in their respective sectors. The Code further states that the Financial Reporting Council will monitor implementation through the sector regulators.

In the circumstances, it would be helpful for the NCC to be primed to ensure the implementation of the Code by collecting societies. Also, the NCC may either develop an appropriate code of corporate governance for collecting societies or formally adopt the Code of Corporate Governance unveiled by the Federal Government.
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