Protecting Copyrights and Neighbouring Rights in the Music Industry in Southern Africa: A Need for Regulatory Convergence
| Author | |
| Date | 01 November 2018 |
| Published date | 01 November 2018 |
| Pages | 585-615 |
| DOI | 10.3366/ajicl.2018.0250 |
South Africa has made strides in protecting the intellectual property rights (IPRs) of music copyright holders through the enactment of the Copyright Act 98 of 1978 as amended.
On the other hand, intellectual property, as an intangible form of property, is able to transcend borders and this is especially the case with music. To this end, South African music is particularly consumed in Botswana, Lesotho, Mozambique, Swaziland and Zimbabwe and vice versa because of shared languages in these countries. The question then becomes: to what extent are South African music copyright owners or holders protected beyond South African borders especially in the above-mentioned countries? This research therefore seeks to compare copyright laws in South Africa and the countries mentioned herein, specifically focusing on the rights of copyright owners and the limitations on such rights and remedies in cases of infringement. From an analysis of the laws in these countries, the research will then call for the harmonisation of laws with the aim of protecting copyright owners not only in South Africa but in Southern Africa under the auspices of the Southern African Development Community (SADC).
This research and its primary goal (harmonisation of copyrights) will be beneficial to copyright owners in Southern Africa. Often, and especially in South Africa, we tend to focus on harmonisation and enforcement of IPRs with the Western world, forgetting that South African music is consumed in Southern Africa and not in Brussels. Similarly, music from the above-mentioned countries is often produced in South Africa given that South African production companies are well established in comparison to those of its neighbours, and copyright holders in the countries in question are mostly members of South African collecting societies since many of these countries do not have collecting societies. Therefore, the call for harmonisation will not only benefit South African copyright owners but also the rights holders from the region.
Music entails literary works (the words), musical works and sound recordings. These are therefore the kinds of copyright works that will be discussed in this article. Audio-visuals will not be discussed here but will be discussed in the next series.
Whereas there are many facets of copyrights that are necessary for the protection of music copyright holders and performers, this research focuses on the following core requirements: requirements for the vesting of copyright; the content of the copyright; limitations to exclusive use of copyrights; copyright infringement; and remedies.
All the countries discussed are parties to the 1886 Berne Convention for the Protection of Literary and Artistic Works, the oldest member being South Africa, which acceded to the Convention in 1928, followed by Zimbabwe in 1980, Lesotho in 1989, Swaziland in 1998 and Mozambique as recent as 2013.
The requirements for the vesting of copyright protection under the Berne Convention are that the work must fall under Article 2, of which the works in discussion (literary works, musical works and sound recordings or phonograms) are covered. With regard to material fixation, the Berne Convention leaves it upon member states to prescribe whether or not the works shall be protected unless they have been fixed in some material form.
The discussion below will group South Africa, Swaziland and Zimbabwe together and Botswana, Lesotho and Mozambique together because of the similarities in their laws.
For these three states, these requirements must be satisfied in order for the work to be granted copyright protection.
The three states protect musical works, literary works and sound recordings provided they are original. The originality threshold is very low unlike under patent law where the work must reflect human ingenuity.
The work must exist in material form except for broadcasts or programme carrying signals.
The work must be authored by a qualified person, who can either be a South African citizen or resident or a person domiciled in South Africa,
These countries require literary works, musical works and sound recordings to meet the following requirements.
The work must be original, and quality is not relevant.
The work must be authored by a qualified person, who can either be a national or resident of Lesotho, Botswana or Mozambique respectively.
This section outlines the nature of copyright protection that is given to copyright holders in the respective jurisdictions. The protection gives the copyright holder a monopoly to perform certain acts to the exclusion of everybody else who does not have authorisation.
At the Berne Convention, the copyright owner in respect of literary and artistic works has the following exclusive rights:
the right of translation;
the right of reproduction in any manner or form.
the right of public performance of their musical works by any means or process and the right of communication to the public of their musical works;
the right to authorise broadcasting and rebroadcasting of their works and communication to the public by wire or wireless means;
the right of authorising public recitation;
the right of adaptation.
In South Africa and Zimbabwe and to a certain extent Swaziland, the owner of copyright in respect of literary and musical works has exclusive rights to do or to authorise the following actions:
reproducing the work in any manner or form;
publishing an unpublished work;
performing...
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