Giving to the Public Domain –WIPO Analysis includes Africa

Last month – this Little Leo has been distracted from her reading by the delicious cute little bunny rabbits outside her window – the WIPO Committee on Development and Intellectual Property (CDIP) published an analysis on voluntary copyright relinquishment.  This analysis was prepared by friendly llama, Dr. Andres Guadamuz.

In addition to being of relevance to Afro-IP readers because the report is coming from the CDIP, Dr. Guadamuz profiled two African countries in his 9-country survey.  This analysis is a sort of follow-up to the CDIP report on copyright and the public domain prepared by Professor Séverine Dusollier.  The purpose of Dr. Guadamuz’s work was to take a little dive into the idea of copyright holders voluntarily giving up their copyright.  He looked at how the two main schools of justification for copyright (economic reward vs natural right) and moral rights impact the ability to relinquish rights.  He also looked at 9 specific jurisdictions’ copyright laws, including Kenya and Egypt.

Anyone reviewing copyright on the continent is familiar with the differences spawned by the two schools of copyright thought since they come from the two countries responsible for the majority of legal systems in Africa, England and France. The French approach to copyright and moral rights raise a similar issue when contemplating the abandonment of copyright: can a person give up their unalienable rights granted them by both nature and the law?

The answer is essentially, “uhhh…..?”  It’s a very undecided question with respect to both economic and moral rights.  Some places allow giving up both, some only economic rights, some neither, and for some places, we just don’t know.

Egypt is one of the countries where the answer is not clear.  According to Dr. Guadamuz’s research, the definition of public domain and the way transfers are described suggests that relinquishing rights would not be allowed, but there is nothing specifically disallowing it.

Kenya on the other hand allows relinquishing copyright as the definition of public domain specifically includes “works in respect of which authors have renounced their rights.” [Afro-Leo would love to hear from any Kenyan IP experts on the history of how this came into the act.]  Kenyan authors wishing to renounce their rights must do so in a writing that is made public.  And, they can’t pull a fast one over on any licensees; renunciation is not allowed to be contrary to previous contractual obligations.

So what place does all this have in Africa?  Many African countries are still working to educate creators about their copyrights and how to use them.  To some extent, including the idea of relinquishing rights within this conversation may better present the full range of options to creators.  On the other hand, there could be a risk of creators relinquishing rights before they fully understand what they have.

In the US and Europe, copyright renunciation is done most often by research and educational institutions. (To the extent it can be tracked, which is mostly through the use of dedication tools and licenses.)  Educational institutions across the continent are developing stronger research programs.  There seems to be a real possibility here for the sharing of valuable research results.  But does it require the ability to put the results in the public domain?