Annemarie Schüllenbach
The saying goes, “Times of great calamity and confusion have been productive for the greatest minds. The purest ore is produced from the hottest furnace. The brightest thunderbolt is elicited from the darkest storm.”
We are acutely aware that our country, the region and indeed the rest of the world, are experiencing an economic slowdown; and economists are hesitant to predict the exact moment of a future turnaround. However, it is during such trying times, that humanity makes its greatest discoveries and inventions. This is the natural response of the human-race to any occurrence which threatens its existence or progress. It is therefore not a secret, that the solution to our prevailing economic difficulty, lies with the people and is a product of the intellect of people.
A people that has created the space to imagine, invent, create and innovate, will never cease to grow and advance. It is with this understanding that the Government of Namibia has identified intellectual property as a stimulus for economic growth through the creation of distinctive and unique value in products and services. Competitiveness is an essential element for survival on the global playing field; and intellectual property is a tool through which competitive advantage is created.
Unfortunately, the legal frameworks and guidelines that govern the protection of intellectual property rights in Namibia, are often underdeveloped, under-utilised or outdated. One such instrument, is the current Copyright and Neighboring Rights Protection Act, 1994 (Act No. 6 of 1994).
The need to re-focus attention to the creative industry in Namibia
Intellectual property refers to creations of the mind such as inventions; literary and artistic works; and symbols, names and images used in commerce. Intellectual property is generally divided into two categories, namely: Industrial Property includes patents for inventions, trademark and industrial designs; and Copyright.
Copyright is a form of intellectual property law which protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. In Namibia, the protection and promotion of copyright in Namibia is administered in terms of the Copyright and Neighboring Rights Protection Act, 1994 (Act No. 6 of 1994).
There are two types of rights under copyright, namely moral rights (which protect the non-economic interests of the author) and economic rights (which allow the rights owner to derive financial reward from the use of their works by others).
Copyright protection is vital for the development and promotion of the creative industry. Creative industries refer to the markets centred on the creation and exploitation of intellectual property products, which consist of original works, and incorporate intellectual creativity, diverse cultural and customary traditions from local communities.
The creative industry includes, but is not limited to: advertising; design; film; video and photography; fine art illustrations; game development; handicraft; the phonogram industry; performing arts; publishing; software, computer games and electronic publishing; and radio & television. The creative industry is becoming an important building block for the knowledge-based economy (creative economy), particularly, with the emergence of the 4th Industrial Revolution, characterised by a fusion of technologies that is blurring the lines between the physical, digital, and biological spheres. The 4th Industrial Revolution is an era of dynamic transformation; where creativity, innovation, technology, digitization, robotics and knowledge are fast becoming credible means of fostering prosperity.
The creative industry, according to Namibia’s Fifth National Development Plan (NDP5), contributes 0.65% of the total employed population. To this end, the Government has set a goal, in the NDP5, to increase the number contribution of creative industry to employment from 0.65 percent to two percent by 2022.
With the appropriate support infrastructure, Namibia’s creative industry holds the potential for inclusive socio-economic development. Therefore, it is imperative that the policy, institutional, legislative and regulatory frameworks are pragmatic to create an appropriate environment for the development and prosperity of the creative industry.
Challenges
Copyright protection and promotion is an important legal framework in the creative industry. In Namibia, the protection and promotion of copyright is administered in terms of the Copyright and Neighboring Rights Protection Act, 1994 (Act No. 6 of 1994). As expected, 25 years later, the landscape of the creative industry has evolved and advanced significantly, propelled by the digital era, introducing opportunities and challenges which were not anticipated in the current Copyright Act.
While the landscape of the creative industry, both local and international, has evolved; the legal structures, which governs ownership and use, has not adapted accordingly. Following preliminary engagements held with various copyright stakeholder, several omissions and gaps in the current Copyright Act were identified:
Empowerment of law enforcement agencies
Although the act touches on infringement and what action the court can take, it is silent on the duties of the customs and police officials.
Applied Art
The applied arts are the application of design and decoration to everyday objects to make them aesthetically pleasing. The term is applied in distinction to the fine arts which aims to produce objects which are beautiful or provide intellectual stimulation. This type of art is not adequately covered in the act.
Technology
The act does not cover the aspects of technology and the digital era, such as: Internet enforcement of Copyright Rights; the transition from analog to digitalisation; Internet piracy; online infringement; cross-border infringement; digital disputes – ‘Right of Making Available’; the media’s use of copyrighted works; digital media; streaming sites such as Netflix; downloading of copyrighted works; and mechanical rights in digital works, databases, software and Artificial Intelligence.
Audio-visual Works
Audio-visual works are not covered in the act. Only cinematograph films are covered.
Public Transport
The use of music in the public transport industry is not regulated.
Ringing tones
The use of ringing tones, i.e. for cell phones, is not covered in the current act.
Use of Images
The use of images of public personalities, such as athletes, without their consent is also not covered in the act.
Treaties
Namibia has signed a number of copyright related treaties but have not yet ratified nor domesticated them, namely:
Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled;
WIPO Copyright Treaty (which provides for the protection of works and the rights of their authors in the digital environment);
WIPO Performances and Phonograms (which provides for the rights of two kinds of beneficiaries, particularly in the digital environment: (i) performers [actors, singers, musicians, etc.]; and (ii) producers of phonograms [persons or legal entities that take the initiative and have the responsibility for the fixation of sounds]);
Beijing Treaty on Audiovisual Performances (provides for the intellectual property rights of performers in audio-visual performances).
Publishing
The current act does not adequately protect authors or publishing houses, in particular with regard to the conditions of a publishing contract, publishing business, duration of a publishing contract and termination of the publishing contract.
Review of fines
The current fines in the act ( the first fine of N$12 000.00 and second fine of N$20 000.00) are not sufficiently deterrent for infringers.
Levies
There are no levies in the current Copyright Act. Levies should be introduced on the importation of jukeboxes/CDs/DVDs (as another measure to deter infringement).
Exceptions and Limitations
While the current Act provides for general exceptions, the are no specific exceptions and limitations with respect to Education and Research, Libraries, Archives, Museums and for Persons who are blind, visually impaired or otherwise print disabled.
Orphan Works
These are works that are protected by Copyright but the author cannot be identified or found.
Resale Rights
The current legislation does not provide for resale rights.
Private copy levy
The issue of private copy levy is not addressed in the current law.
Satellite broadcasters
Satellite broadcasters based outside Namibia, but operating in the Namibian market, are not regulated in the current act.
Modernising the act to fit the Namibian landscape
Evidently, the current legal landscape of copyright is limited in its response to the existing dynamics of the creative industry; particularly with regard to the current digital era, accompanied by new technologies that reproduce and distribute human expressions. Therefore, there is a need to review the current Copyright legal framework, with the view of developing a new legal framework which is responsive and supports the development and promotion of the creative industry as a key driver in a knowledge-based economy.
Furthermore, there is a need to review the rationale and policy objectives for the copyright legal framework and align it to the national development agenda as provided for in Namibia’s NDP5.
To this effect, the Business and Intellectual Property Authority of Namibia (BIPA), through its Department for Intellectual Property Registrations, is facilitating a review of the current copyright legal framework. The review is aimed at developing a new legislation which will serve the national development agenda and the industry; and which is aligned to international best practices. The rationale behind the review of the existing copyright legal framework is to:
ensure that the legal framework supports, promotes and is aligned to the national development agenda of Namibia;
ensure that the legal framework is responsive to the industry needs and users;
ensure that the legal framework is inclusive to cover technological advancements;
ensure that the legal framework is aligned to regional and international instruments and best practices;
to effectively utilise the flexibilities available under international law on copyright exceptions and limitations.
Key roleplayers in the creative industry agree that the proposed copyright law in Namibia should be informed and influenced by cultural traditions, social values, and socio-economic conditions. Given the potential of the industry and widespread inequalities in income distribution and standards of living in the country, the primary objectives of the copyright law include the following:
to provide authors and artists with effective means of commercialising their creativity;
to ensure that authors and artists receive appropriate rewards and fair attribution;
to encourage the production and dissemination of artistic and intellectual works for the good of the general public;
to promote civil and well-informed democratic discourse;
to ensure the preservation and integrity of traditional cultural expressions;
to ensure that all Namibians have access to educational materials; and
to promote a vibrant and diverse culture.
The proposed copyright law is intended to achieve an appropriate balance between incentivising the creation of new works and providing the public with access to those works.
Building the industry – and the Namibian economy.
The creative industry is increasingly becoming essential contributors to socio-economic development in Namibia. During the 2018/2019 financial year; the Namibian Society of Composer and Authors of Music (NASCAM) – who represents one segment of the creative industry – distributed over one million Namibia Dollars as royalties to its members for the music played.
In the light of the financial benefits of copyright protection, an appropriate copyright system can significantly enrich the culture of a country. It has the ability to accelerate the production of music, films, graphic arts, and other cultural products, from which all residents of the country derive substantial benefit. It can furthermore ensure that the artists who produce such products are fairly compensated for their efforts. Finally, it can help preserve important cultural artifacts.
Reforms to Namibia’s copyright law will promote economic development by incentivising the creation of copyright-protected works, while also maintaining the affordability and accessibility of socially beneficial copyrighted works for ordinary consumers – including textbooks and other educational works. An updated legal framework will create an environment that attracts investment in cultural and knowledge-based industries, while promoting dissemination of the copyrighted products.
*Annemarie Schüllenbach is the Manager for Marketing & Corporate Communication at the Business and Intellectual Property Authority (BIPA).