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THE DEVELOPMENT OF MODERN COPYRIGHT LAWS IN THE SADC REGION: THE CASE OF BOTSWANA
BY
John Kiggundu
LLB (Hons) (Makerere), LLM, PhD (London), Dip.L.P (LDC), FSALS
Associate Professor, Department of Law, University of Botswana
Research Fellow, University of South Africa
I.INTRODUCTION
Botswana is a landlocked country in Southern Africa lying between 17 and 27S latitude and 20 and 30 E longitude. It is at an average altitude of 1, 000 metres. It is bordered by Namibia to the West and North, Zambia and Zimbabwe to the North and Northeast, and South Africa to the South and South East. It is a very large country with a surface area of 581,730 square kilometres but with a small population of 1,347,569. The Kalahari Desert covers a large part of the country especially in the West. The climate is hot and dry most of the year round and drought is a constant threat[1].
Botswana has a dual legal system. The received Roman-Dutch law prevails alongside the customary law of the various tribes. The court structure is also dual. The main courts administer the general law, while the customary courts administer customary law[2].
Botswana has four national principles: democracy; development; self-reliance; and unity. The principles are derived from the traditional culture of Botswana and, taken together are designed to promote social harmony. In planning national development the government is guided by form objectives: sustained development; rapid economic growth; economic independence; and social justice.
At the time of independence in 1966, Botswana was one of the poorest countries in Africa. An overwhelmingly rural population depended mainly on agriculture for a livelihood. Beef production was the mainstay of the economy in terms of output and export earnings. Apart from the railway line running through Botswana from South Africa to Zimbabwe, communications and infrastructure were barely developed. Prospects for rapid development of the economy seemed bleak, and the government was dependent on foreign aid not only for all its investment projects, but also to finance its recurrent expenditures. The last 40 years since independence have seen a remarkable economic transformation[3].
Since the 1970’s, Botswana’s mineral endowment has been central to the country’s rapid economic development. The mineral sector has underpinned Botswana’s rapid economic growth and development. The main mineral exports of the country are diamonds, copper, nickel, soda ash, salt, and small quantities of gold. Diamonds are the country’s major export. Botswana is one of the world’s leading diamond producers both in terms of quality and quantity. The country has a thriving tourist industry.
The overall goals of the Botswana government involve economic diversification, increased international competitiveness, promotion of non-traditional exports, sustainable development, and employment creation throughout the country. In order to achieve such goals, the government considers it essential to provide an enabling environment. The government achieves this through the provision of efficient support services, a sound social infrastructure and the maintenance of macro economic stability. To this end, the government is committed to increasing the private sector’s participation in the country’s economic growth. In support of a conducive policy environment, the government has pursued, as its strategy, disciplined fiscal and anti-inflationary monetary policies, a decreasing rate of corporate tax, a liberalised foreign exchange regime, and realistic interest and exchange rates politics, with a resultant strong balance of payment position[4]. Botswana is now one of the most economically prosperous countries in Africa. As part of its efforts to create a conducive business environment the government has embarked on a comprehensive programme of modernising the country’s laws especially those which directly impact on business and investment. Intellectual property law is one of those areas where the law has undergone tremendous reform.
Botswana is a member of the Southern African Development Community (SADC). This is a regional trade arrangement whose other members are Angola, the Democratic Republic of Congo, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Tanzania, Zambia and Zimbabwe.
The main objective of SADC is to achieve development and economic growth, alleviate poverty, enhance the standard and quality of life of the people of Southern Africa and support the socially disadvantaged through regional integration[5].
The laws within SADC are not homogeneous[6], but there are national as well as regional efforts to harmonise these laws. Countries such as Botswana and South Africa have made great strides to modernize their various laws especially in the commercial law area. This paper is an examination of the efforts that Botswana has made to modernize its copyright laws.
II.THE PROTECTION OF COPYRIGHT AND NEIGHBOURING RIGHTS
A.COPYRIGHT PROTECTION
The object of copyright is to protect creative individuals such as authors and artists from having their work copied or reproduced without their authorization[7]. Copyright is fundamentally different from a patent, a design or a mark in that legal protection is automatic. This means that a work protected by copyright does not have to be registered with a government agency in order to gain legal protection. Copyright law is concerned with the copying of actual words or other physical material, as opposed to reproduction of ideas. Copyright is a form of property which may be sold or licensed for use by others, typically by way of contract for the publication of the work[8].
The British Imperial Copyright Act 1911 was made operable in Botswana by Order in Council[9]. When Britain enacted the Copyright Act 1956 this too was made operable in Botswana in 1965 by Statutory Instrument[10]. When Botswana became independent in 1966, the British Copyright Act 1956 continued in force[11]. Although the concept of copyright existed in Botswana, the majority of the people never used the term “copyright” and did not even know what it meant. Most people did not even realize that Botswana had a Copyright Act[12].
The Botswana Copyright Act 1956 had numerous limitations and shortcomings. It was obscure, bulky, outdated and complicated. It was not suited to Botswana’s social and economic conditions and aspirations. Most importantly, it did not protect folkloric works, moral rights and neighboring rights. Botswana required a copyright law which would reflect its social and economic values and aspirations as well as national and international technological developments. By April 1998, Botswana had acceded to the TRIPS Agreement, the WIPO Convention 1970 and the Paris Convention 1883. In addition to these two Conventions, Botswana is a party to the Berne Convention for the Protection of Literary and Artistic Works 1886. Moreover, two other treaties were adopted in December 1996 under the auspices of WIPO, namely, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). Botswana has ratified both of them. Additionally, Botswana is a member of the African Regional Intellectual Property Organisation (ARIPO)[13]. The ratification of these Conventions and Agreements placed an obligation on Botswana to revise the laws providing for the protection and regulation of copyright so as to bring the levels of protection and type of works protected in line with international standards. These reforms were introduced by the Copyright and Neighboring Rights Act 2000[14]. This Act was recently amended by the Copyright and Neighbouring Rights (Amendment) Act 2005[15]. It is to these reforms that we now turn.
(i)Protected works
A literary[16] or artistic work[17] is not protected by copyright under the Act unless it is an original intellectual creation in the literary or artistic domain[18]. The types of literary and artistic works protected by the act include:
(a)books, pamphlets, articles, computer programmes and other writings;
(b)speeches, lectures, addresses, sermons and other oral works;
(c)dramatic, dramatic-musical works, pantomimes, choreographic works and other works created for stage productions;
(d)stage productions of works referred to in paragraph (a) and of expressions of folklore;
(e)musical works with or without accompanying words;
(f)audiovisual works;
(g)works of architecture;
(h)works of drawings, painting, sculpture, engraving, lithography, tapestry and other works of fine art;
(i)photographic works;
(j)works of applied art; and
(k)illustrations, maps, plans, sketches and three-dimensional works relative to geography, typography, architecture or science[19].
It can be seen that s.3 (2) is very inclusive.
Many musicians and playrights in Southern Africa have been ripped off for decades due to lack of copyright protection at home and abroad. Artists from abroad have come to Africa, listened to songs of local artists and then returned abroad and recorded modified versions of these songs passing them off as their own. Music producers have done the same. They come to Africa and take away with them recordings of songs by an African artists. When they return to the developed countries they reproduce the songs and make millions of dollars without paying royalties to the original composers of these songs in Africa. This is piracy. Such pirated works have raised much concern, particularly in the area of music recordings, as the authors or producers and other owners of the copyright applicable together with their nations have lost considerable amounts of revenue to pirates of copyright. The Copyright and Neighbouring Act 2000 solves this problem by expressly protecting oral works, dramatic, dramatic-musical works with or without accompanying words. Given the fact that Botswana is a party to the international Conventions referred to above, local copyright holders as well as foreign copyright holders from countries that are party to the conventions are able to enforce their copyright within Botswana, and local copyright holders are able to enforce their copyright in all other countries that are also party to the Conventions[20].
(ii)Basis of protection
A work is protected under the Act by the sole fact of its creation and irrespective of its mode or form of expression, as well as of its content, quality or purpose[21]. This means that much as the work must be an original intellectual creation, it does not have to be reduced to writing in permanent form – which is the traditional requirement for granting copyright protection. The law does not require high quality or permanent form. Oral works are therefore protected. Traditional song and dance is therefore clearly protected.
Section 6 (2) of the Act provides that copyright protection does not extend to any idea, procedure, system, method of operation, concept, principle, discovery or mere data, even if expressed, described, explained, illustrated or embodied in a work. This is a very important provision because it codifies the common law position[22].
(iii)Rights of the author
The owner of copyright in a protected work may use the work as he wishes, and may prevent others from using it without his authorization. The rights given to the author by the Act are exclusiverights. He can authorize others to use the work, subject to the legally recognized rights and interests of others[23]. There are two types of rights under copyright: economic rights[24], which allow the owner of rights to derive financial gain from the use of his work by others; and moral rights[25], which allow the author to take certain actions to preserve the personal link between himself and the work[26].
(iv)Duration of copyright
The duration of copyright has become a controversial issue in recent times. In Botswana, the period of copyright protection is the life of the author and a further fifty years after his death[27]. Where the work is a work of joint authorship, copyright subsists in the work during the life of the last surviving and for fifty years after his death[28]. Where the work is a collective work (other than a work of applied art) or an audiovisual work, copyright subsists for fifty years from the date on which the work was made, or first made available to the public, or first published, whichever date is the latest[29].
B.NEIGHBOURING RIGHTS
Neighbouring rights are the intellectual property rights provided for the protection of the legal interests of certain persons and legal entities who either contribute to making works available to the public or produce subject matter which does not qualify as “works” under the general understanding of copyright but who nevertheless express creativity or technical and organizational skill sufficient to justify recognition of their contribution as deserving protection[30]. It can therefore be seen that the protection of neighbouring rights is a crucial component in the protection of indigenous knowledge and rights since most of these ‘border’ on copyright and would not be protected in mainstream copyright law. Neighbouring rights include the rights of performers, producers of sound recordings and broadcasters. The rights of performers[31] are recognized because their creative intervention is necessary to give life, for example to musical works, dramatic and choreographic works and motion pictures, and because they have a justifiable interest in the legal protection of their individual interpretation[32]. The rights of producers[33] of recordings are recognized because their creative, financial and organization resources are necessary to make recorded sound available to the public in the form of commercial phonograms such as tapes, cassettes, CDs and Mini Discs. They also have a legitimate interest in having the legal resources necessary to take against unauthorized uses whether it be through the making and distribution of unauthorized copies (piracy) or in the form of unauthorized broadcasting or communication to the public of their phonograms. The rights of broadcasters[34] are recognized because of their role in making works available to the public, and in the light of their justified interest in controlling the transmission of their broadcasts[35].
III.THE PROVISION OF EFFECTIVE REMEDIES
One of the most fascinating aspects of intellectual property law is its ability to evolve with the times by developing new rights. Examples of rights that have been developed recently include: indigenous knowledge; plant variety protection; chip protection; and neighbouring rights. In addition to new rights intellectual property law has been able to develop new remedies and procedures to protect intellectual property rights. This is very significant because the development of new rights per se is not sufficient; it must be matched by the development and refinement of effective remedies to protect those rights. This section of the paper examines the remedies available for the protection of intellectual property rights inBotswanacopyright law and their effectiveness.
The protection of intellectual property right has become more crucial than ever before. Professor Cornish has aptly summed up the position as follows[36]:
“Those who undertake scientific and technological research, those who create and interpret works of learning, culture, embarrassment and information, those who devise the marketing of products and services - all look to legal protection against competitors, as a way of sustaining the value of their skill and labour or their investment in what is distinctively theirs. In biotechnology, computing, telecommunications and many related courts, the scale of production of new individual material is such that their case has to be conceded; rights have to be created or enhanced”.
The precise value of a right must be measured in terms of the remedies that lie for its enforcement[37]. Due to economic globalisation and the spectacular developments in information technology, new intellectual property rights are evolving very rapidly. In order to ensure proper and effective protection of intellectual property rights, the law must be very clear and precise as to the intellectual property rights to be protected; the infringing acts in respect of each right; the remedies available in cases of infringement; and the procedures for the enforcement of those rights. The remedies in the Copyright and Neighbouring Rights Act 2000 can be divided into the following categories: conservatory or provisional measures; civil remedies; criminal sanctions; measures to be taken at the border; and measures, remedies and sanctions against abuses in respect of technical devices.
A.CONSERVATORY OR PROVISIONAL MEASURES[38]
These have two purposes: first, to prevent infringements from occurring, particularly to prevent the entry of infringing goods into the channels of commerce, including entry of imported goods after clearance by customs; and second, to preserve relevant evidence in regard to an alleged infringement. Thus, judicial authorities may have the authority to order that provisional measures be carried out without advance notice to the alleged infringer. In this way, the alleged infringer is prevented from relocating the suspected infringing materials to avoid detection. The most common provisional measure is a search of the premises of the alleged infringer and seizure of suspected infringing goods, the equipment used to manufacture them, and all relevant documents and other records of the alleged infringing business activities. This remedy known as the Anton Piller order, deserves a more detailed discussion here.
THE ANTON PILLER ORDER
This is one of the most exciting recent developments in intellectual property law. The remedy was developed in Anton Piller v Manufacturing Processes[39]. In this case, the English Court of Appeal approved a procedure that is of major practical importance to some owners of intellectual property rights. Under this procedure, the plaintiff applies to the High Court in camera without any notice to the defendant, for an order that the defendant permit him and his attorney to inspect the defendant's premises and to seize, copy or photograph material relevant to the alleged infringement[40]. The defendant may be required to deliver up infringing goods[41], keep infringing stock or incriminating papers[42], and even to give information, for example, about his sources of supply, or the destination of stock passing through his lands. An injunction against infringement may be part of the order[43].
(a)Criteria for grant
The Anton Piller Order will be granted where the plaintiff:
- provides an extremely strong prima facie case of infringement;
- shows that the damage, actual or potential, to him is very serious; and
- provides clear evidence that the defendant has in his possession incriminating documents or items and that there is a real possibility that this material will be destroyed before any application inter partes can be made[44].
This remedy is important to a plaintiff who wishes to secure evidence of infringement in order to strengthen his case. Its main strength lies in the element of surprise; the defendant has no notice of the plaintiff's application. The remedy is very popular and has increased the speed and effectiveness of civil process[45]. But the remedy has its dangers: these are summed up by Professor Cornish as follows[46]: