Tuesday, 30 August 2016

IP and African Music Industries: An Interview with Phil Chard - part 1


music notesLittle Leo had the wonderful opportunity, thanks to the miracle of technology, to sit down with Phil Chard from African Hip Hop Blog and Two Broke Twimbos to discuss hip hop, the music industry and IP on the continent.  We had a lengthy conversation about many aspects of intellectual property and Africa’s music industry, so this interview* will be broken down into parts.  We’ll start at the beginning with how African artists can get their content to their audiences.

Little Leo:  Welcome and thank you for being with us today.  This is an opportunity for our Afro-IP Readers to hear from people who actually use the various intellectual property systems that are in place and get a better idea of how they’re working or not working for those people and what they know about them.  You’re actively involved in the entertainment industry in a number of ways, obviously with the African Hip Hop blog, your Two Broke Twimbos podcasts; you’re a writer, you’re an innovator.  Are you also a musician yourself?

Phil Chard:  You could say that.  I mainly executive produce.  I do A&R for the artists that I manage, project directions, promotion.

L: What else would you like our readers to know about you?

P: You seem to have done most of your research; that’s pretty much it.  I’m a pretty open book.  My passion is just trying to get African stories out there.  That’s the goal that I’m pushing for the next five years.  My five-year plan is get as many African stories out there being told by Africans.  Basically telling African stories with an African narrative and then finding African solutions to African problems.  That’s the main key.

L:  What methods are you using to get African stories told by Africans out to Africans?

P:  For example, now with music distribution going digital, trying to figure out the best way to reach individuals who don’t have the access to iTunes or Google Play or whatever it may be.  They might have access to WhatsApp Bundles, so WhatsApp has now become a distribution platform for music.

L:  So not looking just at the standard internationally-pushed music platforms, but looking at other platforms and other things that can be used as platforms?

P:  Yeah, what we’ve realized is gone are the old days where you force the audience to consume content the way you want them to consume it.  You have to figure out how they’re consuming content and tailor your distribution model to fit their needs.  Because if you aren’t doing it, someone else will.  I’m pretty sure right now there’s a sixteen-year old kid somewhere who knows a lot more than I do, who could easily do more than what I’m doing and probably could do.

L:  I know some people who would say you have a better handle on the situation than the major labels.

P:  [laughs]  Well it’s all about perspective, right.  I mean you look at what the American labels have done in Africa; it’s been an absolute disaster for the past five years.  Just a litany of artists—I’m not going to mention names, but if you do some light research, you’ll find a long list of African artists who signed to American labels which have these subsidiaries in Africa who have nothing but complaints and horror stories about mismanagement and being shot down and about not having their projects green lit and creative stifling; it’s just a mess.

L:  That’s something I’d like to ask you more about.  We hear about labels coming into the continent and creating subsidiaries and then also hear about artists who signed to labels in the States and then start collaborating with American artists.  It sounds like in general, you see that as a bad thing, but then you’ve also said “if you have an African label, it’s not doing anything for you.”

P:  Not quite.  I was speaking in generalities.  If you’re looking at an independent artist in 2016, if as an artist you have already assembled a team that can do your promotion, that can help manage your funds and help get you bookings, there’s no need for a label anymore.  Look at an artist like Cassper Nyovest.  Cassper Nyovest was smart enough to create his own label.  He literary had two big hits {“Doc Shebeleza” and “Gusheshe”} and those two big hits garnered him 21 awards in a year.  And all that fame then helped him generate upward of US$150,000 in show money, which at the time was unheard of for a hip hop act.  So off that, he built his own infrastructure.  Now he’s got a guy named Spike who’s his road manager.  He’s got T-Lee who’s his manager.  He’s got his friend Carpo, who’s his hype man on stage.  He’s built a whole team around it and he’s started his own label, Family Tree.  He’s got his boy Sebastian, his former manager, who’s also managing the other acts on his label, who’s also his videographer and photographer.  He’s created a label for himself; there’s nothing that any other label can offer him.  And as opposed to what other artist are doing, he’s doing his own distribution as well.  Other artists who have their own labels, they’ll go to Sony or Universal and say “ok, we’ve got our album, distribute it on our behalf and then we’ll give you 15%” or whatever it is they offer as distribution rate.  He’s doing everything himself.  And both his albums have gone platinum.  So if you’re smart enough and you’re thinking in that line, there’s really not much a label can do for you in Africa.  Where a record label shows its value is when you want to go outside of Africa, which is why the Davido deal made so much sense.  {Davido signed to RCA Records in July.}  The selling point that they gave to him was “you’re good in Africa, but you’re not good in the West and that’s where we have our distribution channel, so we’re going to push you there.”  But we have to see how productive that relationship will be.

We’ll break here and return to the conversation later to discuss music-making as a career.

*The conversation has been edited for clarity and reading ease; it is not an exact transcript.

Tuesday, 23 August 2016

INTA's Building Africa With Brands gets closer - a few places left sign up!




In just over a week INTA comes to Africa's Cape Town to run a two day conference entitled "Building Africa With Brands". The full program can be obtained here and Afro Leo understands that there are still a few places left, so sign up! (see "5 Reasons Why You Need To Be At INTA's Building Africa With Brands Conference 1-2 September Cape Town)". This blog supports the event and will be there to cover it.

"The Building Africa with Brands Conference will give you the unique opportunity to meet with African and international brand owners, government officials, and legal experts from around the world, who recognize the importance of the African market to their businesses.
The Conference will provide attendees with unique access to brand owners and provide the perfect setting for an exchange of ideas, opinions, expertise, and best practices on important issues facing those doing business in Africa. Hear firsthand from those who have successfully transformed African brands into global brands, as well as the lessons that multinational companies have learned from doing business in Africa.

Sessions include:
  • Brand creation, protection, and enforcement strategies in developing economies
  • The importance of IP in economic growth and foreign investment in the region
  • Challenges and opportunities in Africa from a brand owner’s point of view
  • Developing and implementing the right IP strategy for your company
  • Traditional knowledge, legacy rights, geographical indications
Attendees will:
  • Get tools and tips on building your brand in Africa
  • Learn how to add the value of your IP to your balance sheet
  • Better navigate the regulatory landscape
  • Hear from experts about growing a brand across borders
  • Learn from experts about digital marketing and how Africa has embraced a mobile world
  • And much more!
Attendee justification toolkit (.pdf)"

Tuesday, 16 August 2016

CLEARVU Opposition Decision

The latest in the trade mark battles between security fence competitors, Cochrane Steel and M-Systems, are the findings in the opposition brought by M-Systems against the Registry's acceptance of Cochrane Steel's CLEARVU trade mark without any disclaimers or endorsements in respect of CLEAR, VU and/or CLEAR VIEW. M-Systems also claimed that the mark should not have been accepted because it described the intended purpose of a fence, namely one that provides a clear view, and that the evidence on file did not support a finding that the mark had acquired a secondary meaning.
 
Readers will recall that market leader Cochrane Steel has consistently attacked its competitor M-Systems' online advertising campaign which had bid on its CLEARVU trade mark as a keyword. The matter was brought before the High Court, the Advertising Standards Authority and the Supreme Court of Appeal. Cochrane Steel was unable to persuade any of the tribunals that there was anything wrong with M-Systems' campaign and in the end created Africa's first SCA case on keyword bidding. These decisions are reported on here, here and here.
 
The opposition decision, handed down on Thursday last week, ruled in favour of M-Systems insofar that:
  • there is some validity in the submission that the word CLEARVU is "descriptive of the characteristics of steel fencing" (para 38);
  • the mark should have been accepted endorsed with disclaimers and endorsements (para 52).
However, the judge also held in favour of Cochrane Steel that their mark CLEARVU was distinctive of other goods in the specification which meant that it could be accepted for fences notwithstanding that the word the descriptive nature of the word (para 38). Accepting that she may be incorrect in this conclusion (para 40), the judge held that the mark had, in any event, acquired a secondary meaning through use (para 50) allowing it to be registered.
 
On the issue of costs, despite upholding the Opponent's opposition in respect of the endorsements, the judge ordered that costs be borne by them. Both parties have until the end of the month to appeal the decision.
 
The conditions to be endorsed against the registration of the mark are that:
 
"The registration of this mark shall give no right to the exclusive use of the word “clear” and “view “separately and apart from the mark; and
 
The trademark registrant admits that the registration of this mark shall not debar others from the bona fide descriptive use in the course of trade of the words “clear view” and “view”."

Monday, 15 August 2016

Adams & Adams Africa Network Meeting 11 August 2016 (part 2)

 
Following on from Friday's post on the third annual AAANM,  the country reports were ably presented by Mohamed Eldib (North Africa), Brenda Matanga (Southern Africa), Dr Saudin Mwajake (East Africa) and Olusola Ogundimu (West Africa) and enabled a whistle-stop tour of Africa. Some of the developments and interesting points include:
  • OAPI's accession to the Madrid Protocol has resulted in a substantial number of increased filings
  • Nigeria is undergoing a substantial data capture program under the auspices of WIPO
  • Nigeria's new cybercrime legislation has jail penalties, and regulates cybersquatting
  • There are several high profile copyright cases pending before the courts in Nigeria involving COSON, FRCN, NNPC and NNPG. A recent copyright case involving MTN was settled.
  • Lesotho is expecting copyright regulations to come into force soon
  • Mozambique's new IP code came into force in December
  • Malawi is expecting a new IP Policy
  • South Africa's Copyright Amendment Bill and Makate knowhow case were highlighted
  • Swaziland also has pending IP legislation to look out for
  • Zambia's has new design legislation
  • Egypt has mechanisms protecting against counterfeiting using smartphones
  • The Creative and Cultural Industries Bill has provisions for promoting free trade of goods within the EAC, and for protecting IP
  • Kenya has new legislation dealing with Plant Varieties - Seed & Plant Varieties Act CAP 326
  • KECOBO is busy lobbying to strengthen copyright legislation with proposals for CMOs and copyright transfer verification processes for the transfer of copyright
  • In Kenya an offensive trade mark includes a trade mark containing another
  • Several recent copyright cases have been published in Kenya and there has been an interesting constitutional decision involving tobacco regulations
  • Ethiopia's overhaul of its IP regime is 2012 is still receiving commentary
  • Uganda has legislation on GIs and the new IPA 2014 is still under review
  • A number of cases have come out of Rwanda and Uganda recently including one on image rights (Uganda)
  • Tanzania's IPA includes provisions on knowhow and they are seeking ways to protect plant varieties
  • Ghana is still considering draft legislation to implement the Madrid Protocol as well as a national IP policy and plant breeder protection
  • There is no design protection in Ghana except through ARIPO
  • The Gambia published a National IP Policy in April
  • In June Liberia's IP Act was approved by the House of Representatives
Many of these developments have and will continue to be reported on by Afro-IP. Indeed, thanks to Brenda Matanga for crediting this blog in her research for her talk.
 
The day was followed by a cocktail evening and the second day was dedicated to meetings between attorneys in the firm and their country representatives. Really a worthwhile meeting this - well done Simon and Menzi for arranging.

Posted by Darren
 

Friday, 12 August 2016

Adams & Adams Africa Network Meeting 11 August 2016 (part 1)

 


This is the third annual AAANM. It is not normally covered by this blog because it is an internal meeting of Adams & Adams’ network of agents across Africa. With permission and because the meeting has evolved, I now blog on this rare and perhaps even unique occasion that gets people from across Africa networking and speaking on African IP issues.
 
The meeting, chaired by Simon Brown and arranged by Menzi Maboyi, is held over two days. The first day (yesterday) brings together thoughts, ideas and updates from the various regions and countries in Africa. The full agenda and list of speakers can be obtained here and here. This is a short summary of some of the interesting aspects that came out of the meeting. You can gain some other insights through those that tweeted. Look out for @AfroIP, @AdamsAdamsLaw, @DarrenTOlivier, @LitaQamata and @BrendaMatanga.
 
John Kani, a well known African playwright, director and author, kicked off proceedings with a rousing call to action for Africans to stand up and be counted, and for those in the audience to direct their thoughts into ensuring that intellectual property preserves the cultural heritage of Africa. There were a number of impressive aspects of John’s address. Notable for me was that it addressed all African countries, ethnicities, cultures, colours, races, genders, religions, political aversions as one – this is where we stand, this is what is happening … now do something. And, use IP to help us. Far from the usual divisive bickering and anti-IP rhetoric that is so depressing. His address thoroughly deserved its standing ovation.
 
Break-out sessions followed. For obvious reasons I can only comment on the one I moderated which was on GIs, effectively served up on a plate by the keynote speaker. If there is one current form of IP in use that is particularly framed to, amongst others, preserve heritage, it would be GIs. Dr Saudin Mwajake (Tanzania) and Chris Kiige (ARIPO) delivered excellent mini presentations to start conversations (reps from Egypt, Madagascar, South Africa, Tanzania, Zanzibar and Zimbabwe) aimed at educating about GIs, analysing motivators (which are more than cultural heritage), the different models, the challenges and the disputes. An hour crunched in no time at all.
 

The annual case law review was articulately delivered by Lita Miti-Qamata. Readers may recall her from #SandtonDiscussion fame and her half hour session covered cases in Uganda, Kenya, Nigeria, South Africa and Zambia. Her final slide summed it up:

 
 
Stephen Hollis and Gregory Sadyalunda took to the stage on WIPO’s efforts to automate Africa’s Registries. By 2015 WIPO had successfully helped automate Registries in 22 countries in Africa. Highlighting some of the challenges to future automation, Gregory noted Social and Culture barriers as the most significant – “linguistic barriers, lack of service orientation, lack of awareness, lack of external pressure, lack of popularity for e-commerce and online services in general”.  Stephen focussed on the availability searches through IPAS warning to pay attention to the search algorithms for more accurate results.

 Part 2 covers Registry and Regional Updates.

 

Tuesday, 19 July 2016

What's happening with Quentin?

Thanks you for all your responses to this post after a street sleeper wore the placard below. This is a short update on what's happening..

His name is Quinton, not Quentin. Quinton comes from the Cape and is in his late 20s. He has been on the streets since 2009. His credit record is clear and he has no convictions but he is scared of sleeping rough and it is very cold this time of year. The response to help him has been remarkable, and Quinton has responded well too. I have read this update to him and have his permission to send this update. In fact he is very grateful to all those who have assisted him.
 
Through Ali Gregg at The CEO SleepOut he was introduced to Lucky (an ex street sleeper who now runs Homeless Talk) and has become one of their vendors. Lucky describes Quinton as "respectful" and gave him the thumbs up to take him on with the first 10 newspapers "mahala" (free). They are worth R7 each and new copies cost R3 each.
 
Quinton was involved in a road accident a few years ago. His attorney who works on contingency before the road accident fund also vouched for him.  
 
Shelters are extremely difficult to get into, especially if you are above 20 and male. At this time of year they are overcrowded and would not take him. Quentin had a list of over 30 names given to him by The Salvation Army and Girls & Boys Town but they were all full at the time. Eventually, he went from shelter to shelter and finally got into one in Hillbrow late Friday a week ago, and then only for several nights. He then slept rough again and this afternoon secured shelter, after an interview, for three months. Shelters costs between R10- R15 per day.
 
In yesterday's Hope Talk drive he was given newspapers to sell to raise money. Hope Talk is a special edition Homeless Talk activated as a result of The CEO SleepOut event by Caxton Publishers, and where he is able to sell papers and retain all the proceeds. They are R10 each. Some are also being sold for him in the reception at Adams & Adams to assist him.
 
Quinton is also helping to wash cars as part of Abreal's enterprise development program after an interview. He will get training and earn something from that. Enough to put a roof over his head and get a blanket in addition to some daily needs. The receptionist at the local gym took pity on him and allowed him to have a shower. He said it was great "to feel like a man". The Steve Biko Foundation have also offered to assist mentor him.
 
Angela Meuwsen who assists with the creatives on both The CEO SleepOut and Empathy book projects has spent some time with him on his designs especially after the initial quote for 100 long sleeve T shirts came back too expensive. He is adjusting them to reduce the cost of printing which should help him sell them at a more affordable price. He has entered the Adams & Adams pro bono program for clearance searches and a trade mark.
 
Ultimately he wants to become sustainable through his own creativity.
 
This is the story of Quinton over the last two weeks. There is still a long way to go but there has been a tremendous outreach to assist him. Ultimately though it will be up to him. He knows that.
 
Thanks for all the responses.
 
Darren
 
 
 
 
 





Friday, 8 July 2016

Mozambique's New Industrial Property Code Adjusts Important Deadlines



Thirty courtesy of Markussipiske, Pixabay
Mozambique’s new Industrial Property Code came into force on March 31.   Afro-Leo was busy hunting to hibernate for the winter; oh wait, that's bears... Anyway, Afro-Leo is sometimes a little behind, but that doesn't change a thing about the new IP Code for Mozambique.  This law replaces both the Industrial Property Code of 2006 and Decree no. 47/2015 on Appellations of Origin and Geographical Indications.
Unfortunately, the law is currently only available in Portuguese, which is not one of the languages in this dilettante's collection.  With the help of Google Translate and a few write-ups on the law, Little Leo was able to work out that many of the changes are procedure and deadline changes. 
General observation: when in doubt, assume the deadline is 30 days.  The time period for submitting outstanding information on an application was increased to 30 days from 15 days.  (Article 11.)  The time for the new ability to appeal provisional refusals is 30 days.  (Article 18.) -- It is now possible to receive a provisional refusal and provide additional documentation to address the grounds for refusal for patents, utility models, industrial designs and trademarks.  (Articles 104, 70, 115 and 132, respectively.)  
The trademark opposition period has been lowered to 30 days.  (Articles 130, 159 and 197.)  There is a new opposition period for industrial designs, which gives 30 days in which to file an opposition(Article 113.)  The timeframe for filing patent oppositions, however, is still 60 days from publication in the Bulletin of Industrial Property.  (Article 68.) 
There is also a new appeal process, with a 30-day deadline for filing, beyond the Industrial Property Institute itself; rejections may be contested to the Minister of Industry and Commerce and from there to the Administrative Tribunal.  (Articles 19 and 20).  The IP Bulletin will now be published monthly, which is nearly every 30 days, so it sticks with the pattern.  (Article 239) 
 
 
 
 
 
 
 
 
 

Monday, 4 July 2016

Guest Post: AFRICA – A land of opportunity to brand holders and counterfeiters alike

In this guest post, Vanessa Ferguson unpacks some of the key considerations and strategies for dealing with counterfeits on the African continent: 

Africa has seen a vast increase in investment and growth over the past 50 years and many companies have already mobilized to capture this emerging demand. 

With the growing investment, Africa is being increasingly targeted as a market for counterfeit goods and merchandise as a result of the escalating urban populations’ growing demand for many goods not widely available, as well as the lack of means to buy them. 

Whilst the demand is growing for branded goods, and the instances of infringing and counterfeit goods are on the increase, the various Intellectual Property Rights protection measures available to brand holders differ from country to country and remain largely inadequate in most African countries and vary from region to region.  As a result, a “one size fits all” anti-counterfeiting strategy cannot be easily applied or adopted in covering the key regions and territories in Africa. 

Furthermore, the market structure in Africa differs substantially from first world markets, such as Europe and America, and, as such, the best practices developed and applied in these territories cannot necessarily be adopted and applied in Africa with the same results and consequences. 

A key understanding of Africa and its nuances is important in establishing an effective anti-counterfeiting strategy .  Although modern trade is growing, this is still small and under developed outside of South Africa.  The most common and popular trading channels in Africa are the simple table top or small “spaza” shops, which are individually owned and managed by local entrepreneurs, set up on the side of the road or in local markets in order to capture the passing trade.  These businesses are supported and supplied by an equally efficient network and well-developed informal distribution structure.   Furthermore, informal cross-border trade is important to Africa and more than 43% of Africans are involved in informal cross-border trade, which contributes a large portion of the economic growth, job creation and job security.  

As a result, counterfeit goods are increasingly being sold, transported and distributed across African borders using these well-developed and largely uncontrolled informal trade routes. 
 
An effective African anti-counterfeiting strategy should therefore not only be focused on the countries of relevance to the brand holders, but also the neighbouring territories, taking into account the retail structure, main trade channels and distribution routes in Africa. 

As an initial step, brand holders should ensure that their primary trade marks are registered - not only in the main countries in which their goods or services are provided -but also in neighbouring territories.  Without the existence of a registered trade mark, it is almost impossible to act against counterfeiters in Africa, especially in those territories where common law rights or protection of well-known trade marks is not recognised.  Copycat infringement is on the increase, where infringers will adopt a label that is a colourable imitation of the original label.  As such, consideration should be given to the registration of the labels for the primary products to provide statutory protection against the use of a similar label or get-up. 

Although Customs remains an important and critical element to an effective anti-counterfeiting strategy, the relevance and success of actions by customs differs from region to region in Africa.  Unfortunately not all territories have established Customs practices focused on the registration of brands and detention of suspect counterfeit goods and it is only possible to record brands with Customs in a handful of countries.  Where formal customs recordal procedures are available, such as in South Africa, Mauritius, Ethiopia, Morocco, Tunisia & Egypt, brand holders should record their brands.   In other territories, an informal strategy can be adopted for the identification and to support the notification of suspect counterfeit goods.  This has been proven to be effective in key African territories including Namibia, Zambia, Mozambique, Kenya, Tanzania, Uganda, Rwanda, Ghana and Nigeria. 

A strategy focused primarily on customs recordals and actions alone is not sufficient or recommended in Africa, particularly due to the inconsistencies in inspections and measures to stop counterfeits at the ports, airports and borders differ from region to region.  In each region it is necessary to assess and work with local police services and regulatory bodies, for example NAFDAC in Nigeria and the Anti-Counterfeiting Agency in Kenya, that have the capacity and infrastructure to tackle counterfeit goods in the region.

Steps should also be taken by brand holders to formalise and strengthen their own distribution channels in the region and across borders.  Based on the demand for products, the informal distribution channels and methods are strong and well-entrenched in Africa, facilitating the trade in counterfeit and parallel goods.  Brand holders should firsthand build up understanding and knowledge of these distribution and retail channels in order to infiltrate and effectively act against key counterfeit role players.  Such investigations and actions, however, take time, money and patience.  A long-term approach, with consistent supported actions against retailers and suppliers alike, should be implemented, with a view to obtaining or extracting information on the source and supply of these goods.

In each territory, brand holders should adopt a zero-tolerance approach to anti-counterfeiting and take action to the full extent of the law in the respective regions.  In such cases, where appropriate and feasible, brand holders should institute criminal or civil proceedings against known and identified offenders, especially in the case of repeat offenders or where other extenuating circumstances justify the spend and time taken in bringing these matters to finality. The continued prosecution of offenders will not only build up a valuable precedent of case law, but will also send a clear message to the market of the severity and consequences of dealing in counterfeit goods.

Saturday, 2 July 2016

Big Win for Copyright and Artists in Tanzania

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.

News sources for the case:
Mwananchi
The Citizen
Daily Nation
Hat tip to African Hip Hop Blog and their Podcast for discussing the story

Friday, 1 July 2016

Request: Can you help Quentin?

Dear all

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.

Quentin has no email or street address (in fact he has many). He has his identification number but no id book. He is armed with his koki pen and his drawings, a brand, his personality and a spark but as far as I am aware those are his only assets. No doubt he has an interesting, perhaps shocking and tragic story too. It is difficult to not want to help him turn his ideas and creativity into sustainable income and help alleviate the conditions he finds himself him. Indeed, I think that you will agree, it is our obligation as people, to try to help him do that.

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.

Thank you

Darren




Tuesday, 28 June 2016

Djibouti’s Accession to the PCT

On June 23, 2016, WIPO welcomed the accession of the 150th Member State to the Patent Cooperation Treaty (PCT) when the Minister Delegate to the Ministry of Economy and Finance in charge of Trade, SMEs, Handicrafts and Tourism, Djibouti, Hassan Houmed Ibrahim deposited his States’s instrument of accession to the PCT.  The Treaty will enter into force for Djibouti on September 23, 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

What would BREXIT likely mean for IP in Africa?

On a limb .. pondering Brexit
Britain ranks very high on the trading partner lists of most African countries (especially Commonwealth influenced countries) as does the EU so how could a Brexit affect the continent from an IP perspective? A few thoughts.
  • 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

IP policies in Africa no. 22: Ghana - update

Launch event 21 January 2016 source
In June 2014, I reported on Ghana's progress towards the development of a national IP policy with the assistance of  the Swiss Federal Institute of Intellectual Property (here).  Their work has come to fruition and Wayne Meiring reports on Managing IP (here) that the country published its policy in early 2016 which will be implemented from September 2016 - 2020.  However, the full text of the NIPPS document is not publicly available.
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For further information see:
Government of Ghana Ghana's Intellectual Property Rights Launched
Ntrakwah & Company - Abena Ntrakwah-Mensah Ghana launches a National Intellectual Property Policy