Tuesday, 19 July 2016
Friday, 8 July 2016
|Thirty courtesy of Markussipiske, Pixabay|
Monday, 4 July 2016
Saturday, 2 July 2016
Back in May, a large variety of news outlets announced a major copyright victory for two Tanzanian musicians, rappers AY (Ambwene Yessaya) and MwanaFA (Hamisi Mwinjuma), against telecom operator Tigo (MIC Tanzania Limited). According to its Wikipedia page [which reads like it was written by Tigo’s PR department], the company is owned by European-based Millicom International Cellular. The High Court’s decision in an appeal was supposed to be released on June 27, but Little Leo wasn’t able to find much on the High Court of Tanzania website, or elsewhere, in terms of a written decision from either the High Court or District Court. As also, Afro Leo would love if someone has either decision to share.
Here’s what we know based on what’s been circulating in the news. Tigo was selling AY and MwanaFA’s music to Tigo customers to use as caller tunes (called ringback tunes in America), the music that can replace the standard telephone ring a caller hears while waiting for the line to be answered. At least two songs released on the Bongo label were at issue in the case, “Dakika Moja” (“One Minute”) and “Usije Mjini,” which were both written and performed by the duo. The case was brought before Magistrate Juma Hassan in Ilala District Court (a district in Dar es Salaam) in 2012 and was decided on April 11, 2016. The court held that Tigo infringed the rights of AY and MwanaFA’s musical works. Tigo was ordered to pay Tsh 2.16 billion (about 2 to 3 million bottles of Coca Cola) in special damages and costs and another Tsh 5 billion or 25 million, depending on your source, in general damages.
Tigo’s appeal brought the story back into the news again in May. Tigo filed for a stay of execution with the High Court, arguing that the actual damage suffered by the artists was not proven and that the court should consider the benefits the artists received because of Tigo’s work to create and offer the caller tones with their songs. [Presumably that magical “promotional” benefit for which all artists should be happy to work.] Tigo also is arguing that the artists cannot prove rights to the songs because they do not have registrations from the Copyright Society of Tanzania (Cosota, which is the collecting society authorized by the Copyright Act, Art. 46 and the entity listed with WIPO as being the national copyright office).
What is unknown is which rights the court held were infringed. Ringback tunes present interesting issues here that often turn into interesting arguments. (Citations to articles in The Copyright and Neighbouring Rights Act 1999) Are the ringback tunes adaptations because they are only a part of the song? (4(1)(f).) Did (or does when the tune plays) the telecom company reproduce the work? (4(1)(a).) Is the ringback tune a public performance even though it only plays to one person at a time because it could play to anybody and does play to multiple people over the time it’s in use? (4(1)(g).) Is the telecom distributing the work by sending the ringback tone to its customer’s phones? (4(1)(b).) It would be interesting to see how the court sorted these answers under Tanzanian law. Also, was it only the musical works that were held to be infringed? What about the phonogram/sound recording rights (32(1).) or performance rights (31(c) and (f).)? We know that AY and MwanaMF wrote the songs and performed them. Did they also produce them? Are producer’s rights held by their label, Bongo Flava [likely], and was the label a plaintiff in the case?
Tigo’s registration issue is also unclear. There’s no registration requirement in the Tanzanian Copyright Act. It sounds like (see Mwananchi below) they are arguing that the artists must prove their collecting society membership in order to sue, but it is unclear from the information available whether Cosota was the (or a) plaintiff. Most of the reports make it sound like the artists themselves won the damages, but one can easily see how the press might confuse a collecting society or label winning on behalf of an artist who was infringed with the artist winning. [Of course, if it was Cosota or Bongo Flava, one would wonder why only sue for these two songs. According to The Citizen (see below), most of the caller tones in use in Tanzania belong to Bongo Flava.]
Lastly, what are those “general damages”? The reports seem pretty clear that the Tsh 2.6 billion are actual damages for the plaintiffs. But the reports interchangeably refer to the other amount (the 5 billion or 25 million) as “damages” and “fines.” Article 36(1)(b) allows the court to award exemplary damages “if the infringement is found to have been prejudicious to the reputation of the person whose rights were infringed.” Is that what happened here? The Copyright Act also has a “sanctions” provision for knowingly infringing on a commercial basis, which allows the court to impose a fine up to Tsh 5 million or 3 years imprisonment (42(1)(a).) This seems like an odd criminal remedy in a civil suit, but perhaps that is what is going on here, though neither proffered amount matches the limit. In any case, is this extra amount a fine that goes to the government or additional damages that go to the plaintiffs?
There’s a lot left to find out, but one thing is very clear—and it’s been said by the plaintiffs—having copyright upheld in court is a big win for young artists in East Africa.
Similar cases have been brought in Kenya--where Safaricom settled with JB Maina for using his works in ringtones without his approval—,and in Nigeria, where MTN is in trouble again.
Friday, 1 July 2016
This morning I was driving to work and came across a man holding up the request below. I stopped and asked him to get in, parked and took him up to our offices, offered him coffee and consulted with him. His name is Quentin, he is unemployed, a street sleeper with some initiative and a sparkle in his eye. He has sketches for clothing designs in koki pen. He also has a brand name which he wants trade marked. He was also darn hungry and we got more biscuits. That was at 8am.
At 9am, I was in a CEO SleepOut Trust meeting helping to update stakeholders partners ahead of the event on the 28th. The CEO SleepOutTM is of course an initiative aimed at raising awareness for the homeless. The timing was entirely co-incidental and obviously fortuitous for both Quentin and those at the meeting. With Quentin's permission he was introduced to the meeting and shared his ideas. Unsurprisingly, there was an immediate interest in assisting him and I am now, at 11am, spreading that call for assistance to you, our readers.
Quentin returns to our offices next Wednesday. He doesn't want handouts, he needs people who can help brings his brands, designs and story to market in the clothing sector. If you feel you can help please email me here.
Tuesday, 28 June 2016
Read more about it here.
This development is goods news for Djibouti as its patent filing system is still in early development (see Afro-IP posts here and here). One of the advantages of the PCT is that it allows designated member states to use prior art and patentability results from the international phase resulting in a less work and more efficiency in deciding whether to grant the patent at national level.
That said, it's all well and good acceding to the PCT and legislating for patent protection but implementing it and educating people how to use patents is just as important. We look forward to news of how this is effectively achieved in an economy largely dependent on its service sector and strategic location as a Red Sea transit point.
Monday, 20 June 2016
|On a limb .. pondering Brexit|
- The uncertainty caused by an exit is estimated to result in bureaucratic constipation and a slowing of trade as new agreements are forged between the EU and Britain, and Britain and the rest of its trading partners. This will not be good for African exports, possibly raising costs or restricting the market.
- An expected initial depreciation of the pound will not be good for export prices but may increase demand and would likely decrease the cost of expensive British imports. The result could see a Africa becoming a greater market for more British brands resulting in more IP filings, and at the same time reducing the profit gap for potential counterfeiters or perhaps opening a counterfeit market for more goods.
- It would become more expensive to trade with Europe (including Britain) from an IP perspective because ultimately Africa would need to treat them as two different national areas and hence add additional cost eg to protective filings or additional regulatory requirements such as customs recordals or regulatory mandates.
- Europe trade agreements with Africa would need to be reconsidered and renegotiated with Britain. This would also raise cost and uncertainty. For example, trade agreements that give reciprocal protection for IP eg geographical indications within Europe would likely take time to renegotiate with Britain resulting in higher IP filings in the UK to obtain the additional protection.
- The influence of the UK courts would also like increase again. For many years prior to Britain forming part of the EU common market these court decisions were highly influential in Africa but eventually gave way to European interpretation (though they are still highly influential). A Brexit would give the UK courts more freedom and African jurisdictions would either find themselves gravitating to them or away. Both options would create more uncertainty for interpretation of IP laws within Africa where there is still a dearth of jurisprudence.
- Britain is the home of many African businesses wanting to trade in Europe. This would begin to change, resulting in new know how transfer exchanges between Africa and Europe.For example, Africans with British passports may now be restricted to work in Britain whilst businesses may be incentivised to relocate employees (including Africans) to work in other parts of Europe.
- The nationalistic fervour that seems to be making the polls as tight as as they currently are would, it seem (possibly as self justification even), perpetuate into policy decisions and possibly law possibly making it far more difficult to trade freely with Britain or to live there. This could have an effect on everyone seeking a career opportunity including African sport stars. The transfer of knowhow would be affected.
Friday, 17 June 2016
5 Reasons Why You Need To Be At INTA's Building Africa With Brands Conference 1-2 September Cape Town
Why you need to be at INTA's first ever conference on African soil:
1. INTA is the single largest IP industry representative body on the globe meaning that a dedicated INTA conference on the African continent allows Africa and its unique issues, talent, innovation and creativity to be exposed to the largest worldwide IP network there is. This is for you.
2. The CEO of INTA, Etienne Sanz de Acebo, recently expressed the organisation's dedication to the continent at the 2016 INTA annual meeting in Orlando during his address at an invitation only meeting dedicated to Africa practitioners. This is therefore a dedicated attempt to mobilise African thought leadership and members on pan African IP issues. You need to be there.
3. The program has been designed to traverse material and speakers from across the continent, from industry and in house, and is lead and moderated by experienced practitioners. You won't be disappointed.
4. It's not just a meeting for African practitioners to mix, mingle and network with other Africans but a chance to also meet with people and organisation based outside of Africa, who have an interest in Africa, in you. These could be future clients or contacts. Attendees could be future funders. They could be academics, business people, entrepreneurs, policy makers with useful insights. They could have solutions. You won't know unless you are there.
5. Have you ever been to Cape Town at the start of spring....?
Sign up here.
Wednesday, 15 June 2016
|Launch event 21 January 2016 source|
For further information see:
Government of Ghana Ghana's Intellectual Property Rights Launched
Monday, 6 June 2016
You can sign up by clicking here for the hour discussion taking place between 8am and 9am, with breakfast and networking from 7am. There is no charge.
Friday, 27 May 2016
Monday, 23 May 2016
Many national IP Offices station IP Attachés in regions throughout the world to advocate for sound international IP policy and to help protect their respective commercial interests abroad. Learn about the valuable resources and support provided by these IP Attachés and how to utilize them as both sources of information and as allies in trademark protection and anticounterfeiting enforcement activities. Speakers will discuss:
- As a brand owner or brand owner representative, what can IP Attachés do for me?
- How do IP Attachés initiate and take part in anticounterfeiting efforts?
- What types of policy matters to IP Attachés promote?
- What types of outreach and education to IP Attachés provide to the public and to local governments?
- How do IP Attachés coordinate with their respective home offices and other government agencies?
Aisha Salem, USPTO IP Attaché for Middle East and North Africa (Kuwait)
Gerardo Munoz de Cote, Televisa, S.A. de C.V. (Mexico)
Leila Equinet, INPI French PTO (United States)
Riki Kishimoto, Ministry of Foreign Affairs (Japan)
Intermediate to Advanced Level
Lara Kayode, O. Kayode & Company (Nigeria)
Kingsley Ejiofor, The National Agency for Food and Drug Administration and Control (NAFDAC) (Nigeria)
William Mansfield, ABRO Industries, Inc. (United States)
Nick Redfearn, Rouse & Co. International LLP (Indonesia)
CM51 Where Am I? Transporting Your Trademark Career to a Different Country
- What are the unique skills that expats bring to corporations, firms and service providers?
- Transferring and applying “local” trademark knowledge to a career in a different country.
- Must one obtain a local law license to work in the trademark field in a country other than where they initially qualified?
- Ethical considerations in being subject to two separate and possibly conflicting ethical guidelines.
Kay Rickelman, Spoor & Fisher (South Africa)
Jayne Elizabeth Durden, CPA Global (United Kingdom)
Barry Gerber, Philip Morris International Management SA (Switzerland)
Walter W. Palmer, Pinheiro Palmer Advogados (Brazil)
(By invitation only)
Hoda Barakat, Hoda Barakat Legal Consultancy (United Arab Emirates)
Elie Atallah, Brand Owners' Protection Group (United Arab Emirates)
Karim El Helali, Oracle Systems Limited (Middle East)
Charles Webster, Spoor & Fisher (South Africa)
Friday, 13 May 2016
We were happy to see that Guy saw the bright side of the situation and later made a series of celebrity appearances on a number of television shows including Friday Night with Jonathan Ross.
|Copyright Lawyer: Graeme Gilfillan|
Thursday, 12 May 2016
- Indian Commerce Minister Nirmala Sitharaman gave a statement to the Lok Sabha (Lower House of the Legislature): “The Special 301 Report issued by the United States under their Trade Act of 1974 is a unilateral measure to create pressure on countries to enhance IPR protection beyond the TRIPS agreement. Under the WTO regime, any dispute between two countries needs to be referred to the Dispute Settlement Body of the WTO and unilateral actions are not tenable under this regime.”
Similarly, some law professors and civil society groups have sounded the same caution about the listing of WTO member states being a probable violation of "either the WTO’s dispute settlement understanding or GSP enabling clause." Following the filing of their Joint Special 301 Comment by Law Professors and Civil Society Groups, several scholars and activists participated at the Special 301 hearing (see here for a post hearing report by Sean Flynn and here for the transcript of the full hearing).
Two African states are listed in the priority watch list (Algeria) and the watch list (Egypt) and several others are mentioned in the 2016 report as summarized, in alphabetical order, below -
- pp 23 and 45: Algeria's promotion of local pharmaceutical products and medical devices is cited as the reason why she remains on the Priority Watch List. For a contrary view, see the AU's comments on Algeria's approach in its Pharmaceutical Manufacturing Plan for Africa: Business Plan at p41.
- p9: Burundi's becoming party to the WCT is noted.
- p53: Egypt remains on the Watch List because of her "failure to combat reportedly widespread usage of pirated and counterfeit goods, including software, music, and videos, and the failure to implement a transparent and reliable patent registration system."
- p9: Kenya receives praise for boosting her anti-counterfeiting efforts and preparing draft trademeark and copyright amendments which "strengthen IPR protection and enforcement" (see here for commentary).
- p9: Nigeria and other Sub-Saharan states are encouraged to "similarly to address the factors that undermine effective IPR protection and enforcement." Nigeria is also mentioned at p 15 where it is noted that she is "reported to have [an] ineffective or inadequate IPR enforcement system". She is also mentioned at p20 in relation to her government procurement regulations and their impact on the trade secret protection of source code. Her final mention is at p22 where her 2013 Guidelines for Nigerian Content Development in Information and Communications Technology (ICT) are cited, with disapproval, for their promotion of local production or the utilization of Nigerian material and labor across a broad range of ICT goods and services "at the expense of of foreign firms, investors, and multinational enterprises."
- p10-11: South Africa's participation with the US and Brazil in the WIPO Re:Search Consortium is lauded as enhancing access to medicines. (For fundamental reform suggestions to enhance access to medicines see here for a post on the UN's High Level Panel on Access to Medicines (HLP) hearings on Johannesburg). A note is also made of US-South Africa engagement on GI-related concerns at p24.
- p9: Tanzania's joining of UPOV 91 is noted with approval. For a robust discussion of the merits this development see Chidi Oguamanam Breeding Apples for Oranges: Africa's Misplaced Priority Over Plant Breeders' Rights (2015).
- "While generalized conclusions can offer insightful guidance, it may not be applicable at all times to all countries ... it is vital that research is undertaken in a manner that context specific, taking into account the level of development of the country under consideration, with a clear focus on its industrial profile and capabilities.” (For a full report on his comments see W New South African Trade Minister Opens WIPO Conference With Call For Appropriate IP IP- Watch, 7 April 2016.)
The U.S. is watching you.... Monday, 3 June 2013
USTR Special 301 Report - Monday, 4 May 2009
African Countries Suggested for the USTR Special 301 Report - Saturday, 21 February 2009