The Zambian music industry has captured pop culture to levels never seen before in the country’s music industry and has raised the debate over the importance and significance of Copyright and Intellectual Property in a bustlingly lucrative industry.
Unknown to many, the industry is regulated. This is because there are many stakeholders involved. One such stakeholder is the African Regional Intellectual Property Organization (ARIPO) which through, The Diplomatic Conference met on 27 and 28 August 2021 in Kampala, Republic of Uganda.
ARIPO has been a promoter and protector of Copyright and Related Rights, which is vital to the growth of Intellectual Property (IP) and has been a nurturer of cultural, economic, and social activities because the Creative Industry is vast and is an economic and social indicator of growth globally and Zambia is also a member of ARIPO which has 20 Member States and open to members of the African Union (AU) and Economic Commission for Africa (UNECA).
The Creative Industry includes: Media, Arts, Heritage and Functional Creations which is defined by UNCTAD as ‘ the cycles of creation, production and distribution of goods and services that use creativity and intellectual capital as primary inputs.
What are intellectual property rights?
Intellectual Property Rights can be defined as intangible assets, such as patents, trademarks and copyrights, in other words, it is the sum of patents, copyrights, trademarks, brands, registered designs, trade secrets and processes whose ownership is granted by law. These are the tools that enable the production of results.
Copyright is the expression of an idea and the medium used is considered as highly important. The product has to be original for a person to claim copyright and the owner can make copies of the work, perform, display and distribute.
The Conventions that apply:
For Zambia in particular, the International Conventions for Copyright are:
- Berne Convention on the Protection of Literary and Artistic Works
- Universal Copyright Convention (UCT)
- WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)
Copyright Legislation in Zambia
The main copyright legislation is the Copyright and Performance Rights Act CAP 406 of the Laws of Zambia. The other laws or regulations pertaining to anti-piracy measures and copyright enforcement are:
- The Authentication of Documents Act [Cap.85]
- The Copyright regulations made in terms of section 57 of the Act
- The State Proceedings Act
- The Service Commissions Act 24 of 1991
The Stakeholders are:
- The Ministry of Information and Broadcasting, which is the principal Ministry responsible for the implementation of the Copyright law.
- The Director of Public Prosecutions, who examines certain cases of alleged copyright infringement
- The Registrar of Copyright, who in addition to monitoring the activities of collecting societies and being responsible for registration of copyrights in works other than broadcasts or cable programs, arbitrates on disputes between copyright owners and collecting societies.
- The Zambia Police Services.
- The Customs Officials – the Controller of Customs who has the authority to issue a notice in the Gazette to the effect that infringing copies of the work concerned shall be prohibited imports
- The Judiciary – the High Court and Magistrates Court.
Other stakeholders are: The Registrar of Copyright, Zambia Music Copyright Society (ZAMCOPS) and Zambia Reprographic Rights Organization.
VIEWS FROM THE ZAMBIAN PERSPECTIVE:
DAVISON MUNSANDA: President of The Zambia Association of Musicians/ Entrepreneur/Consultant/ Professional DJ and Events Manager.
‘My Vision is to build a viable and sustainable industry because currently implementation of the laws is zero and left to people who have gone to school. Artists have no information and piracy is done by the artists themselves for the purpose of exposure. Consumers are not educated enough as to infringement. ZAMCOPS collects money, but there is need to implement proper methods and procedures.
I am passionate about reviewing the laws to see the industry grow in this digital era. There is need for sensitization. The Creative Industry also needs to be decentralized because the arts are not just in Lusaka. It is the view of many artists that we need to conduct our own research through Questions and Answers to gather information to move the industry to the next level. The government and other stakeholders need to come in. Music is a national identity and it may create employment for over 3 Million youths. The Creative Industry is a viable industry and leads to the development of infrastructure, Brand Development, Marketing and many financial vehicles that can lead to revenue collection.’
JORDAN MUYEMBI retired musician and Executive Producer focusing on other artistic projects.
‘Artists are not so aware of the copyright laws in Zambia, therefore they are being taken advantage of by various industries. We need more sensitization.
There are times when an artist will actually think he is being done a favor by using his song e.g in a film series. Not knowing that they can benefit from their work because they own the rights to the song.’
BOMBSHELL real name Bwalya Sophy Chibesakunda, one of Zambia’s leading Hip Hop artists ranked Seventh on Africa’s Top Ten female Rappers list.
‘Copyright laws are strict in Zambia which is great. However I do feel like for the industry in Zambia, a lot more can be done to further educate musicians and artists alike on what Copyright is and why it is essential for us creatives.’
TiVo SHIKAPWASHYA: Media and Entertainment Entrepreneur and Former President of The Zambia Association of Musicians.
‘In terms of the law, I think they are well articulated in the best interest of the Musicians, implantation could be the main challenge in digital space to reflect the modern times. Moving forward, there are some areas that need to be improved on and the laws have to be revisited because technology is advancing.’
KHOZYANI MOHAMED MUSA IQBAL BUPE MUWOWO: Rapper/Singer/Song Writer/Producer, CEO and co founder Ukhani studios. Communications specialist.
“ It’s only now that we have created a process that allows you to walk away with tangible copyright laws. We don’t have a system anyway near thorough enough to help artists track royalties across platforms, AND GET PAID. ZAMCOPS might as well not exist. The different forms of representation required across the range of different talents, is what ensure talent is managed, built and exposed, and that a healthy reward is reaped in return by the whole team. Systems. And not just systems but systems that work. Systems that deliver. Systems by us, for us.
Exacting the value of my creative worth has been an uphill battle but to be expected. It’s only now that we’re waking up to the need for order as an ally and aid in the natural evolution and progression of a society. We will rise. We will be the best managed and represented, I guess like with every other “Best thing”, it just takes a little time. 🙏🏾.’
The common issue in Zambia is a lack of knowledge as to the content of Copyright and related laws, making it difficult for many to make informed decisions.
Applying only to the countries that have signed it, the Berne Convention for the Protection of Literary and Artistic Works 1886 states that the duration of a copyright protection is the lifetime of the author plus 50 years after death.
Copyright does not require registration, but is automatically acquired once the product is finished.
Certain countries require registration for transparency and control in case of disputes.
There is no Copyright issue if there is no original author identified.
The value in copyright is expressed by understanding how value is generated for efficient resource allocation. It means one needs to fully understand the business model and to assess the value of future business opportunities. The Creative Industry is very volatile by nature and information has to be disseminated through proper channels.
INTRODUCTION TO THE KAMPALA PROTOCOL ON VOLUNTARY REGISTRATION OF COPYRIGHT AND RELATED RIGHTS 2021
In 2006 ARIPO administrative Council identified a need to adopt a Protocol on voluntary registration of Copyright and Related Rights under the ARIPO framework and hence approved a roadmap for the establishment of a Voluntary Registration and Notification system at ARIPO. In pursuance of the objective, a feasibility study, policy, and legal framework were developed.
Remember, ARIPO is partnered with the World Intellectual Property Organization (WIPO), The European Patent Office and Interpol, making regulation easier.
The Diplomatic Conference for the adoption of the ARIPO Protocol on Voluntary Registration of Copyright and Related Rights adopted the following Resolution:
The Diplomatic Conference, having met on 27 and 28 August 2021 in Kampala, Republic of Uganda, for the purpose of adopting an ARIPO Protocol for the Voluntary Registration of Copyright and Related Rights;
Aware of the benefits to be derived from a regional system for voluntary registration of Copyright and Related Rights;
Recognizing the need to provide to copyright holders means of presumption of ownership of rights;
Hereby resolve as follows:
- Member States should take the necessary steps to ensure a rapid ratification or accession to the Protocol.
- Call on the Administrative Council to develop the necessary implementing regulations under Article 18 of the Protocol, in order to ensure a prompt and efficient implementation of the Protocol;
- Call on Member States, Cooperating Partners and other stakeholders to provide financial and material support for the effective implementation of the Protocol;
- The name of the adopted Protocol is: THE KAMPALA PROTOCOL ON VOLUNTARY REGISTRATION OF COPYRIGHT AND RELATED RIGHTS
Once adopted, the Protocol will establish a Regional Voluntary Registration of Copyright and Related Rights and create and maintain a Regional Database for Copyright and Related Rights for the ARIPO Member States. This will benefits will be :
- enhancing an effective and efficient network between the National offices in charge of Copyright and Related Rights and the Regional office which will help to:
- facilitate the enforcement of rights.
- attract foreign direct investment .
- expand markets
- stimulating more creativity.
- Facilitate commercialization .
- effective means of presumption as to authorship and or ownership.
Right at the venue, 9 countries immediately signed and the remaining 11 promised to sign in the near future.
The Creative Industry generates approximately $2.25Trillion YES Trillion in revenue annually exceeding even the telecommunications industry. Meaning that, it paves way for other industries such as Hotel and Hospitality Industry as well as Transport and Tourism because, if well established, museums, festivals Opening red carpet events attract an array of local and foreign visitors.
Why the Protocol is important
UNESCO estimates that the Creative Industry alone employs 29 Million People and the industry is growing rapidly, therefore, the business models have to take advantage of new technology, new products and financing. This makes it very relevant because Human Capital is the biggest resource that generates talent, skill and ideas leading to a product of value. Human Capital is a very big asset that should never be under estimated, but it is difficult to evaluate. The process is: Idea, Research, Design, Develop, Test and Production.
Now imagine after going through the process of developing an idea, someone without effort decides to take your work and make it their own. Infringement is quite common and it is Primary Infringement if you copy or reproduce and Secondary Infringement when it is commercial in cases like piracy, but there are always remedies.
The law allows use without permission for research, education, public reading or recitals, for Judicial Proceedings or Criticism.
To avoid problems completely, why not just acknowledge the work of another, failure to do so may lead to legal proceedings that may be costly and time consuming. The Legal Sanctions can either be criminal or civil or both depending on the ultimate remedy the aggrieved party may seek. Ask for permission, buy the Copyright or become creative and do something no one has.
Technology has made access to the Creative Industry easier and digital platforms have become the order. Digital Platforms are used to develop the creative product. Many people use Social Media, but there is crowd sourcing and 3D printing. Streaming Platforms are generating a lot of revenue through partnership in culture and Creative Industries. Music Labels and Creative Digitalized content are now more than ever before, online.
Different countries have different methods of protecting Intellectual Property. In Zambia we have PACRA as a protection tool for Intellectual Property rights protection and that procedure has to be followed to register your product and then proceed to launch it.
Access to finance in the Creative Industry is always difficult, but those that have mastered the art of making money have created Hollywood, Bollywood and Nollywood, but Zollywood has lagged behind because this takes years of growth strategies and visionaries that are skilled in translating creative activities into business models and money making ventures to create the asset values that are attractive for investment with the minimum risk with a view of sustainable growth. Foreign Direct Investment cannot be ignored and plays a major role for the business savvy and the money makers are already enforcing the vision. So why not take out your vision board and if you are indeed a money maker, play your role and add to your investment.
Intellectual Capital can be measured by a Balanced Score Board, this tool among others, help to assess the areas of growth strategies and distributon which help in forecasting for the future. There are many financial vehicles and instruments for the distribution of investment strategies that can ultimately be a successful business outcome that will allocate risk appropriately and allocate resources accordingly. International financial players always favor business with sustainability standards. Those already engaged in the Creative Industry will actively take measures and not miss opportunities for business productivity, efficiency and profit.
The Kampala Protocol is voluntary and beyond regulatory requirements, meaning that, all the local regulations within any given Jurisdiction including Zambia have to be satisfied, but in as far as ARIPO and the International Partners are concerned, it may be a requirement for trade and regulation and essentially that becomes a de facto requirement for trade in the Creative Industry.
References:
ARIPO.org
International Trade Center
UNCTAD.org
UNESCO.org
About the Author: Wendy Chibesakunda has a Law Degree from the University of Zambia, the branch of Intellectual Property law was taught to her by Dr. Akalemwa Ngenda. Further, she holds an MBA (International Business Methods) from Texila American University and Universidad de Nicaragua School of Business, for her MBA she was under the Mentorship of Mrs. Mukwandi Chibesakunda. She is an Alumni at Texila American University where she is occasionally an author, researcher and presenter on Virtual Conferences, in a similar manner, she is an Alumna at the International Trade Center where she holds several certificates in trade. The Certificates in trade include: Block chain for Trade, Corporate Social Responsibility, Taking the Entrepreneurship Route, Market Access, Standards and Sustainability, Trade Finance, International Transport and Logistics, Competitiveness through Enterprise Sustainability and Financing Trade in Services.
Ms. Chibesakunda holds a Certificate in Business Improvements. Lean 6 Sigma, Kaizen and Problem Solving and UNCITRAL certificate for International Trade Law.
For Building Competitiveness in the Creative Industry, she was guided by Mr. Federico Manto who is a Trade Analyst, with expert knowledge contributions from Mr. Camilo Luzuriaga, Director INCINE, Ms. Jimena Sotelo, Associate Trade Advisor, ITC. Other contributors are Ms. Jeannette Kawera, Journalist, InyaRwanda and Joseph Masengesho a Tech Entrepreneur and Software Architect.
Other Certificates Other than business or trade include:
- Ideas for a Better World: Leading Change Through Policy making from the British Council.
- Development Studies, University of East Anglia.
- Understanding and Solving Poverty and Inequality, University of York.
- Successful Negotiations: Essential Strategies and Skills, University of Michigan, guided and mentored by Professor George Siedel.
- Principles of Wealth Management, Hanken School of Economics, guided and mentored by Professor Björn Wahlroos.
- Climate Change in the International Legal Regime, UNITAR
Ms. Chibesakunda has previously worked for the Law Association of Zambia in Administration and the Judiciary as a Magistrate, in that capacity, she dealt with numerous Criminal and Civil cases, Dispute Prevention and Alternative Dispute Resolution with Arbitration, Mediation, Negotiations and Avoidance in third party processes.
Ms. Chibesakunda is currently working on a Legal Document with one of the prominent lawyers in Zambia. She is also currently a part time author and Consultant at Financial Insights Zambia.
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