Wednesday, 27 February 2019

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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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