effectiveness of copyiught law in uganda: case study …
TRANSCRIPT
EFFECTIVENESS OF COPYIUGHT LAW IN UGANDA: CASE STUDY OF UGANDA
PERFORMING IUGHTS SOCIETY.
BY
NAMUSISI DORAH
LLB/46947 /152illU
A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE
REQUIREMENTS
FOR THE A WARD OF THE DEGREE OF BACHELOR OF LAWS AT
KAMPALA INTERNATIONAL UNIVERSITY
APRIL 2019
DECLARATION
I NAMUSISI DORAH declare that this work is my original production; it has neither
been submitted nor published for any other degree or purpose to any other university or
institution of learning before.
All rights in this production are reserved to the author. No part of this production may be
reproduced, stored in retrieval system or transmitted in an form or by any means,
electronic, mechanical, photocopying or otherwise without my prior permission
Signature .. ~ ..................... : ....................... .
Date .... ~ .$. ~ (N!R.lt., .. .t ~.{~ ................. .
Submitted with my consent
Supervisor: Ms Jane Francis Nanvuma
Signature ~-....................... ~:\:: ................................. .
... . . ~t:~ L.:~,~'.L . . Date •
All rights reserved. No part of this dissertation may be reproduced, stored in any
retrieva l system or transmitted in any form or by any means, e lectronic, mechanical,
photocopying, recording or otherwise except for scholarly purpose without the prior
written permission of the Author or of Kampala international University on behalf of the
Author.
© Namusisi Dorah
KAMPALA INTERNATIONAL UNIVERSITY ,
ABSTRACT
This study seeks to determine the effectiveness of copyright law in the music industry in
Uganda. The Study applied the purposive sampling technique in singling out in order to
have a more efficient sample and reduce random sampling error. Data collection was done
by using structure and unstructured questionnaire. The research further showed that there
is a co-relation between effective copyright protection and the growth and development of
the music industry in Uganda; There are various factors that affect the industry and these
include: - lack of awareness of copyright law in Uganda, ineffectiveness of UPRS to
enforce the law; weak coordination's among enforcement agencies and lack of the anti
piracy-security device in the country. Strong copyright protection in the music sector will
encourage people to be involved in this industry by affording them the opportunity to
improve their returns, creating valuable employment and thereby increasing government
earnings. The study recommends that, the Government of Uganda need to put policies and
incentives which encourage local creators and discourage piracy of pirated works. A
further research be under taken since Uganda needs to reform its copyrights to bring them
in line with its obligations under various international instruments; therefore, the research
should provide invaluable insight into adequacy or otherwise of present copyright Act, in
particularly in terms of need to address new forms of copyright infringement engendered
by technological advancement.
ii
ACKNOWLEDGEMENT
In the most serene spirit I thank the Almighty God for giving me the strength, courage,
wisdom and good health throughout this research.
I thank my supervisor and lecturer Ms Jane Nanvuma for the tireless effort and time he
readily availed in supervising my research. I must confess this research would not have
been a success without his treasured advice and insights. The timely and helpful feedback
from my supervisor was a great tool of encouragement in overcoming the challenges that
threatened the success of this research. Thank you for being a friend and for your priceless
assistance am exceedingly gratified and honored to have had you supervise my research. I
learnt so much from you and I will forever be indebted to your diligence and help. I surely
cannot thank you enough.
I thank the Intellectual Property Office under the Uganda Registration Services Bureau.
Notwithstanding the challenges I faced in obtaining information from the Registry, the
little information I obtained was very helpful.
I am grateful to the Kampala International University Library (KIU) staff for the
assistance in locating relevant library material for my research. Special thanks go to the
staff in the law section who afforded me the liberty to look at as many books and
materials as I could find. In the same spirit, I want to thank the KIU Law Faculty for all
the support I received during this tiring exercise. I am grateful for the introductory letters
that enabled me collect the field data I needed.
With a humble heart, I want to thank Ms Jane Nanvuma whose outstanding and diligent
practice of law inspired this research. Ms Jane Nanvuma lectures in my later years of law
school inspired my appreciation and desire to pursue commercial law and hence
undertaking this research. Thank you for being my unsung inspiration.
fo my special class mates, I want to say thank you for the brotherly love and
;ncouragement. You have been a second family to me in all my four years of law school. I
1ad a lot to learn from each of my class mates and indeed life time is not too long to live
iii
with friends. Thank you for being special to me. You were an instrumental hidden
supporting hand in this research.
Last but not least, I want to thank all my lecturers, the IOU Administration and
Departments alike for all the support I received and for the favorable academic
environment at the campus where I compiled most of my research work. Thank you KIU.
God bless you all.
iv
DEDICATION
This research is dedicated to my beloved parents Mr. Mwanje Deogratious and my darling
mother Mrs. Ednah Namugenyi, there are no words that can fully express my gratitude for
all your love, support, care and prayers. Thank you for all the moral and financial support
and much more that I cannot even tell. You are the best parents in the world.
Special dedication goes to dearest Buyinza Nicholas and Bwiza Johnson. Your special
words of encouragement were big inputs in making this research a success.
In a special way I want to dedicate this research to Mrs. Namugenyi Ednah and Buyinza
Nicholas who are very special me, and whose life achievements have been an inspiration
to me. Your advise will always indeed be priceless but yet most beneficial.
I also dedicate this research to all my friends and family. The list would be endless if I
were to list all your names. God bless you all.
v
TABLE OF CONTENT
DECLARATION .............................................................................................................. i
ABSTRACT .................................................................................................................... ii
ACKNOWLEDGEMENT ............................................................................................... iii
DEDICATION ................................................................................................................. v
LIST OF TABLES ........................................................................................................... x
LIST OF ABBREVIATIONS AND ACRONYMS ......................................................... xi
LIST OF LEGISLATION ............................................................................................. xiii
CHAPTER ONE .............................................................................................................. I
INTRODUCTION ........................................................................................................... I
1.1 Background of the Study ............................................................................................ l
1.2 Statement of the Problem ........................................................................................... 5
1.3 Objectives of the Research ......................................................................................... 6
1.4 Research Questions .................................................................................................... 6
1.5 Significance of the Study ............................................................................................ 7
l.6Theoretical Framework ............................................................................................... 7
1.7 Justification .............................................................................................................. I 0
1.8 Literature Review ..................................................................................................... 10
1.9 Delimitation ............................................................................................................. 15
1.10 Limitation .............................................................................................................. 15
1.11 Structure of Research ............................................................................................. 16
::::1-!APTER TWO ........................................................................................................... 12
'NTELLECTUAL PROPERTY IN UGANDA .............................................................. 12
VI
2.1 Legal Framework in Uganda .................................................................................... 12
2.2 Institutional Framework ........................................................................................... 13
2.2.1 Uganda Performing Rights Society ........................................................................ 13
2.2.2 Uganda Registration Service Bureau ..................................................................... 14
2.2.3 The Uganda Police ................................................................................................ 15
2.2.4The Court ............................................................................................................... l5
2.2.5 Uganda Revenue Authority (URA) ........................................................................ 16
2.3 Works protected and requirement ............................................................................. 16
2.3 .I Works not protected .............................................................................................. 17
2.3.2 Rights protected .................................................................................................... 17
2.3.3 Duration of protection ........................................................................................... 17
2.3.4 Limitations to economic rights .............................................................................. 18
2.3.5 Ownership of copyrights ....................................................................................... 19
2.3.6 Rights of performers .............................................................................................. 19
2.3. 7. Limitations of rights of performing artists ............................................................ 20
2.3.8 Rights of phonogram producers ............................................................................. 20
2.3.9 Rights of broadcasting organizations ..................................................................... 20
CHAPTER THREE ....................................................................................................... 22
RESEARCH METHODOLOGY ................................................................................... 22
3.1 Introduction .............................................................................................................. 22
3.2 Research Design ....................................................................................................... 22
3.3 Data Collection Methods .......................................................................................... 23
3.3.1 Primary Data ......................................................................................................... 23
3.3.2 Secondary Data ..................................................................................................... 23
VII
3.4 Population ................................................................................................................ 24
3.5 Sample Selection ...................................................................................................... 24
3.6 Ethics of the Research .............................................................................................. 24
3. 7 Summary .................................................................................................................. 24
CHAPTER FOUR .......................................................................................................... 25
DATA PRESENTATION, ANALYSIS, DISCUSSION, AND INTERPRETATION ..... 25
4.1 Introduction ......................................................................................................... 25
4.2 Data Analysis ........................................................................................................... 25
4.2.1 Descriptive Findings .............................................................................................. 26
4.2.2 Gender Composition of the Respondents .......................................................... 26
Table 4.1: Gender distribution ................................................................................... 26
4.2.2 Age Distribution .................................................................................................... 27
Table 4.2: Age Distribution ............................................................................................ 27
4.2.3 Findings as per study objectives ....................................................................... 27
4.3.1 Public awareness of Copyright and Related Rights in the music industry ......... 28
4.3.1.1 Public awareness on Copyrights and Related Rights ........................................... 28
Table 4.3 Public Awareness on Copyright and Related Rights in the music industry ...... 28
4.3:1.2 Economic Importance of Copyright and Related Rights Protection ..................... 31
Table 4.4 Economic Importance of Copyright protection ................................................ 31
4.3.2 Effectiveness of Copyright protection in the music industry ............................. 32
4.3.2.1 Effectiveness of implementation Copyright and related rights law in Uganda32
4.3.2.1 Lack of effectiveness of copyright protection in Uganda ..................................... 33
+.3.3 Enforcement Measure on Music Industry ......................................................... 35
viii
4.3.4 Recommendations for Effectiveness Enforcement of Copyright in the Music
Industry 38
4.4 Summary .................................................................................................................. 39
CHAPTER FIVE ........................................................................................................... 40
SUMMARY, CONCLUSION AND RECOMMENDATIONS ...................................... 40
5.1 Summary .................................................................................................................. 40
5.3 Conclusion ............................................................................................................... 41
5.4 Recommendations .................................................................................................... 43
5.4.1 Legislative recommendation .................................................................................. 44
5.4.2 Judicial Recommendation ...................................................................................... 45
5.4.3 Other recommendations ......................................................................................... 46
REFERENCES .............................................................................................................. 47
APPENDIX !QUESTIONNAIRES ................................................................................ 48
PART 1: PERSONAL AND GENERAL INFORMATION ............................................ 48
PART II: THE LEVEL OF AWARENESS ON COPYRIGHT MATTERS IN THE
MUSIC INDUSTRY ...................................................................................................... 50
PART 1!!: EFFECTIVENESS OF COPYRIGHT PROTECTION .................................. 55
PART IV: ENFORCEMENT MEASURE IN THE COPYRIGHT MUSIC .................... 58
PART VI: SUGGESTION AND RECOMMENDATIONS FROM RESPONDENTS .... 65
ix
LIST OF TABLES
Table 4.l:Gender distribution ....................................................................................... 26
Table 4.2: Age Distribution .......................................................................................... 27
Table 4.3 Public Awareness on Copyright and Related Rights in the music industry .... 28
Table 4.4 Economic Importance of Copyright protection .............................................. 31
X
LIST OF ABBREVIATIONS AND ACRONYMS
ARIPO African Regional Intellectual Property Organization
BERNE CONVENTION Berne Convention for Protection of Literary and Artistic works
UPRS
URSB
CNRA2006
CD
CMO
UK
DVD
GOP
ICT
IP
IPRs
LDCs
NCC
PEAP
TRIPs
URA
Uganda Performing Rights Society
Uganda Registration Service Bureau
Copyright and Neigbouring Rights Act 2006
Compact Disc
Collective Management Organization
United Kingdom
Digital Video Disc
Gross Domestic Product.
Information and Communication Technology
Intellectual Property
Intellectual Property Rights
Least Developments Countries
Nigeria Copyright Commission
Poverty Eradication Action Plan (PEAP)
Agreement on Trade Aspects on Intellectual Property Rights
Uganda Revenue Authority
XI
SHS
KIU
USD
VCD
Vs
WCT
WIPO
WIPOCOS
WPPT
Ugandan Shillings
Kampala International University
United State of America Dollars
Video Compact Disc
Versus
WIPO Copyright Treaty
World Intellectual Property Organization
WIPO Collective Society Database
WIPO Performances and Phonograms Treaty
xii
LIST OF LEGISLATION
The Copyright and Neighboring Rights Act (Act No. 19 of2006)
The Copyright and Neighbouring Rights Regulations, 20 I 0
FOREIGN LEGISLATION
The United Kingdom Copyright Act, 1709 (United Kingdom)
The United Kingdom Copyright Act, 1911. (United Kingdom)
INTERNATIONAL INSTRUMENTS
The Agreement on the Creation of the African Regional Industrial Property Organization
(ARIPO), I 979
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) (Annex
IC of the Marrakesh Agreement Establish the World Trade Organization), 1994
The Berne Convention for the Protection of Literary and Artistic Works of 1886 as
revised at Paris in 197 I
The Universal Copyright Convention I 952 as revised in I 97I
The WIPO Convention, I967.
The WIPO Copyright Treaty, 1996 [WCT]
xiii
CHAPTER ONE
INTRODUCTION
This chapter will give the background of the study, the statement of the problem, the
main objectives, and research questions and the purpose of study, Delimitation of the
study. This chapter will also present the significance of study, limitation of the study,
definition of terms and finally the conclusion of chapter one will be given.
1.1 Background of the Study
Countries that have good laws, proper administrative and legal mechanisms as well as
policies that are supportive as well as balanced in terms of protecting creativity are
likely to have vibrant copyright based industries and higher rate of economic growth
(ProfBakibinga 2016)1
Intellectual property (IP), very broadly, means the legal rights which results from
intellectual activity in the industrial, scientific, literary and artistic fields. · Countries
have laws to protect intellectual property for two main reasons. One is to give statutory
expression to the moral and economic rights of creators in their creations and such rights
of the public in access to those creations. The second is to promote, as a deliberate act of
Government policy, creativity and dissemination and application of its results and to
encourage fair trading which would contribute to economic and social development.
Generally speaking, intellectual property law aims at safeguarding creators and inventors
of intellectual goods and services by granting them certain time-limited rights to control
the use made of those productions. Those rights do not apply to the physical objects in
which the creation may be embodied but instead to the intellectual creation as such.
Intellectual property is traditionally divided into two branches, "industrial property" and
1 Intellectual property in east Africa 2016 by Professor DJ Bakibinga
"copyright". (World Intellectual Property Organization, Intellectual Property Handbook
(2008)2
In the global economy, copyright protection creates the basis for entire industries such as
those in music, publishing, music, broadcasting, and software, and has an impact on
many other business activities. Thus copyright is powerful tool for economic growth,
creating jobs and stimulating and trade. (World Intellectual Property Organization, the
Guide on surveying the economic contribution of the copyright-based industries
Copyright is one of the main branches of intellectual property. It applies to every
creation in the literary, scientific and artistic domain3 in whatever mode of expression".
The expression "Literary and Artistic works" understood for the purpose of copyright
protection, as including every original work of authorship, respective of its literary or
artistic merit. The International conventions do not limit the modes or forms of
expression, which are protected by copyright law. Literary and artistic works include
books, music, plays, choreography, paintings, sculptures, computer programs and
database4. Copyright protects the owner of property rights in literary and artistic works
against the unauthorized use of works by third parties. (The Guide)
Closely associated fields of rights are 'neighboring rights" or "related rights" which
provide rights similar or identical to those of copyright although sometimes more limited
and of shorter duration. The beneficiaries of related rights are; performers, of sound
recordings, and broadcasting organizations.
The unauthorized commercial of copyright works (otherwise known as copyright
piracy) is a major challenge in the industry at both the national, regional and
'\VIPO, Intellectual property hand book 2008 3 Article 3 of Berne Convention
Section 4 of the CNRA 2006 Ladbroke (football ltd) v William hill (football ltd) 1964 WLR 273 at 29 SectionS of CNRA 2006
See Creation Records v News group (TRL 29.4.97)
4 Article 14 of the TRIPS agreement
2
international level. This undermines legitimate, business to the extent that international
companies often withdraw from the market and investment adversely affecting the local
industry. For this reason, the power to stop infringing copies from entering a market is of
paramount importance and provisions which make this possible are an essential feature
of modern copyright law. Much attention has been given in this subject. A1iicle 51-60 of
the TRJPS Agreement covers issues of enforcement including the border measures,
administrative provision, criminal and civil sanction and remedies.
The International obligations and compliance requirements as provided in the
International legal instrument (Berne convention, Agreement on Trade Aspects on
Intellectual Property Rights, World Intellectual Property Organization, and African
Regional Intellectual Property Organization) have to a large extent shaped the local laws
and regulations on intellectual property, through the enactment of the Copyright and
Neighboring Rights Act which establishes the Collecting societies such as Uganda
Performing Rights Society being a Collective management organization that promotes
and protect the interest of authors5. Under Uganda law, Copyright is recognized as a
property right which vests in the authors of original literary, dramatic, musical and
artistic works, sound recordings and music.
UPRS works as a collective management organization of copyright and neighboring
rights. Its function among others is to promote, protect copyrights and neighboring
rights, maintaining registers of works and members search for, identify, publicize and
give evidence of ownership in case of dispute on infringement, create copyright
awareness and advice on copyright and related matters.
As a collecting management society, UPRS is tasked with eliminating of copyright
piracy-infringement in musical, cinematographic, literary and artistic works. To do so it
carries out inspections, raids, and seizure of pirated copies as well as destroying such
5 Part vii of CNRA 2006
3
materials and filing cases against copyright infringers. As per rep01t of UPRS6, that
UPRS in collaboration with the policy force, conducted antipiracy raids targeting
copyrighted works The unexpected raids were conducted in Makindye-katwe, Ggaba
and Yamaha Centre. A good number of infringed works in the form DVD, VCD, VHS
were captured.
UPRS's functions are implemented through the CNRA regulations 2010, The CNRA
2006.
The Ugandan music industry is comprised of the broadcasting, concetis, theatrical and
interactive industries and has been heavenly influenced by Jamaican and Nigeria music
and to a lesser extent, American music.
Piracy of copyrighted material is an ongoing problem. As UPRS restructures, it monitors
usage in the public ream and collection royalties from public audience7• Thus means the
market in the pirated music cannot be accurately tracked or measured. It is nevertheless
assumed to represent a significant loss both to music makers and to the Revenue
authority annually.
However in a bid to uphold creativity and innovativeness for the development of the
musical or creative industries and their economic, social and political contributions to
the country, there is need to create a conducive environment for artist to survive. It
therefore is essential for collaboration between the government and the different right
holders in the music industry. It is however important to note that the rights of artists in
the music industry have been highly prejudiced in an environment where the
unauthorised commercial use of copyright works is prevalent.
Although the existence of a collective society of Uganda (UPRS) has been noted and its
efforts to fight the unauthorised commercial use of copyright works, pirates have
continued to execute their duties to the detriment of the music industry, producers and
6http://uprs.ug/wp-content/uploads/20 16/02/U ganda-P erforming -Rigl1t -Society-Reports-and-FinancialStatements-For-Year-Ended-31st-December-20 17.pdf 7 UPRS V MTN Uganda civil suit no287 of2006-2012
4
distributors have also been affected. Volume of pirated music discs have continued to
increase on the market which means that consumer are making use of the informal
channel to access musical works, hence no remuneration can be recognized to the very
people that are supposed to be legal beneficiaries.
Furthermore, the high rate of unemployment within the country and the low incomes
within the general populace has led people opting to the cheap illegal copies of
copyright works. Some opportunists have taken advantage of this situation to supply the
illegal works. This has also been exacerbated by use of internet which provides for more
avenues for illegal distribution.
Therefore, the research examines new measures which will reduce the unauthorized
commercial use of copyright works in light of the development of the creative industry
(music sector) in Uganda.
1.2 Statement of the Problem
The absence of anti-piracy measures for musical, audiovisual works have adversely
affected the rights of copyright owners and the Government is losing a lot in revenues.
This is due to the fact that "pirates" pay neither copyright royalties, nor government
taxes. Piracy is an illegal activity and does not contribute to the legitimate growth of the
economy.
Despite the enactment of the Copyright and Neighboring Rights Act8 and the
establishment of UPRS, copyright infringement is on the increase day to day. On the
other side enforcement mechanisms are weak and the structures do not support effective
copyright protection. Research for ULR on copyright9 noted that piracy of copyrighted
material is an ongoing problem. As UPRS restructures; it monitors usage in the public
realm, when music is presented to a public audience. This means that the market in
pirated music cannot be accurately traded or measured. It is nevertheless assumed to
represent a significant loss both to artists and to the revenue authority annually.
'No 19 of2006 9 Report of efficacy of copyright law 2005 by Uganda law reform commission
5
It is clear that in Uganda in recent years, there are has been an increasing acts of piracy
infringement on music industry, the copies of illegal works found all over the major
cities of Uganda for commercial gain. the UPRS in collaboration with the Police force,
conducted (surprised raids) anti infringement raids targeting copyrighted works. The
unexpected raids were conducted in Kampala, where by infringed works captured in the
form of DVD, VCD, VHS and CD were about (63860) in Yamaha centre, (1000 )in
Ggaba,(2230),Katwe (200),Kawempe (IOOO)and Nakawa (1620)
From the above report the problem seems to be on the implementation and enforcement
of what has been stipulated by the law.
Uganda is having more than I OOdistricts which UPRS obliged to strengthen its efforts on
conducting anti-infringement activities but the repmt shows that since 2009, UPRS has
only covered few districts. This research seeks to examine the level of copyright
protection in Uganda as it relates to the music industry
1.3 Objectives of the Research
The main objectives of this research are to:
I) To examine the level of awareness of copyright and related rights in the
music industry
2) To examine the effectiveness of Copyright protection in the music industry.
3) To analyze enforcement measure on the Music industry.
4) To make recommendations for effective enforcement of Copyright in the
music industry.
1.4 Research Questions
The main research questions are:
I) What is the level of Copyright and related rights awareness in the music
industry?
2) How effective is the copyright protection in the music industry?
3) What are the challenges faced by the music industry in Uganda?
4) How can copyright be used to enhance the music industry in Uganda?
6
· 1.5 Significance of the Study
The results of the study will be of great benefit to the following:
Musicians: The study is to motivate the musicians to know the importance of Copyright
in the music industry.
This study will provide more information on copyright and its related rights as it relates
to the music industry especially on how to utilize copyright and related rights for the
benefit of industry.
Researchers: The study will help researchers to understand the various enforcement
mechanisms in relationship to the effectiveness of copyright law in Uganda. Researchers
will be able to understand level of copyright awareness in Uganda.
Policymakers: the results of this study will help policy makers to make appropriate
policy decisions concerning Copyright protection and related rights in Uganda which
will solve copyright infringements.
Enforcement bodies: The study will encomage a more comprehensive mechanism
administration and enforcement of copyright and related rights for the music industry.
The protection mechanism desired in this study will provide information which may be
used to facilitate and coordinate the stakeholders such as police, judges and Uganda
Revenue Authority, to create conducive environment for music industry to grow with
fairness thus attraction to more investors.
The study will be of help to strike the balance of enjoyment between the stakeholders
and users since the mechanism induced will definitely create the legitimate trade of
protected musical works.
1.6Theoretical Framework
The focus of this project is the need to remedy the injustice occasioned to original music
artistes due to wanton breach of their copyright by unscrupulous merchants. Uganda
relies heavily on written law to drive its economy and our Judicature Act is categorical
that any unwritten rules of culture and customs are only applicable to the extent that they
are not inconsistent with the written law and not repugnant to morality and justice.
7
The Ugandan economy Jeans towards a capitalist model of free market where citizens
are free to indulge in market enterprise for individual gain. Subject to payment of the
relevant taxes, the individual entrepreneur retains all the profit. It is upon the
government to put in place measures to ensure that the general social security and
economic welfare of its citizenry is secured. Thus, under our system, an individual ought
to derive "Maximum benefits from his/her sweat."
Intellectual Property Rights (IPRs) Theories Generally
A number of theories have been propounded to lay the grounds for justification of IPRs.
There are four perspectives that currently dominate theoretical writings on intellectual
property: Utilitarianism or Consequentialist; Deontological or Natural Rights Theory;
Personality Theory; and Social Planning Theory. For the purposefulness of this research,
I will concentrate mainly on Natural Rights Theory and the Utilitarianism Theory.
The Natural Rights Theory
The Natural Rights Theory explains that a person has a natural right to their creation
irrespective of the consequences. In view of this, an inventor is rewarded for working
hard. What a person produces with her own intelligence, effort and perseverance ought
to belong to her and no one else. English philosopher, John Locke, propounded this
theory. The theory can be summarized as follows
)> God gave the earth to people in common.
)> Every person has a property interest in their own person.
)> Every person owns their own labour.
)> Whenever a person mixes their labour with something in the common they make
it their property.
)> The right to private ownership is conditional upon a person leaving in the
common enough and as good for the other commoners.
A person cannot remove more out of the commons that they can make use of (the "non
waste" condition).
8
It has been argued that in the context of intellectual property, propettization of ideas can
be justified by the following propositions:
• Production of ideas requires a person's labour;
• These ideas are appropriated from a "common" which is not significantly
devalued by the idea's removal; and Ideas can be made property without
breaching the non-waste condition.
Based on this proposition a person who labours upon resources that are either un-owned
or "held in common" has a natural property right to the fruits of his or her effotis and
that the state has a duty to respect and enforce that natural right. Consequently a music
artist has the natural right to recoup the fruits of his/her labour.
Locke's theory builds upon the primacy of personhood that promotes the notion of the
inseparability of the creator from their creation. The inventors or creators are hence
entitled to their works or creations as a matter of right and this right is not contingent
upon any law. It is universal and inalienable and the State is under an obligation to
protect and enforce it. However, by its definition this rationale is immediately limited by
one problem: if a person has a right to receive a reward for his inventions, how should
we measure the amount of the reward?
John Locke Theory is widely thought to be especially applicable to the field of
intellectual property particularly in music, where the pertinent raw materials (facts and
concepts) do seem in some sense to be "held in common" and where (intellectual) labour
seems to contribute so importantly to the value of the finished product (song). Therefore,
the musicians have a natural right to the fruits of their efforts and the state has a duty to
respect and enforce this natural right.
According to this theory, the acquisition of property through labour is legitimate if and
only if other persons do not suffer thereby any net harm. "Net harm" for these purposes
would include such injuries as being left poorer than they would have been under a
regime that did not permit the acquisition of property. In this case the musicians are
entitled to reap maximum benefits from their labour.
9
1.7 Justification
Copyright and its related rights are essential to human activity by giving creators
incentives in the form of recognition and fair economic. Under the system of rights
creators are assured that their works can be disseminated without fear of unauthorized
copying or piracy. This is in turn helps increase access and enhances the enjoyments of
culture, knowledge and all over the world. The widespread sale of illegitimate
copyrights works on the Uganda markets is denying authors of literary and attistic works
of their exclusive economic rights. 10
This research seeks to examine the effectiveness of copyright law in protection of rights
within the music industry.
1.8 Literature Review
The WIPO Guide on surveying the economic contribution of the based industry
categorizes copyright as one of the main branches of Intellectual property law which
applies "to every production in Literary and Artistic domain whatever may be the mode
or forms of its expression" as provided under article 2 of the Berne convention 11.
Further, the expression, are to be understood for the purpose of copyright protection as
including every original work of authorship, irrespective of its Literary or Artistic merit.
The international convention does not limit modes or forms of expression, which are
protected by copyright Jaw.
However, the study by "the Guide" does not address the effectiveness of copyright
protection of copyrighted works particularly music industry. The central feature of "the
gu ide" is relevant to this study since is focused on the protection of the works
irrespective of its form or mode of expression as required by law.
Similarly the Copyright and Neighboring Act 2006 (Uganda Law protects original works
irrespective of their quality or quantity 12.
10 Section 9 of the CNRA 2006 11 Article2 of the Berne convention 12 Section 4 ofCNRA 2006
10
Thus the research intends to use this literature to assess the effective copyright
protection mechanism on the music industry in Uganda.
Sherman, B and Bently, L 13Def1nes 'copyright' as the term used to describe the area of
intellectual property law that regulates the creation and use that is made of a range of
cultural goods such as books, songs, music and computer programs. Copyright gives the
owner of copyright exclusive rights in relation to use and dissemination of works. The
study by Sherman and Bentley did not specifically address the issue of copyright
protection mechanism. However, its relevance to this study lies in the fact that it has
focused on substance of copyrighted works and deals with fundamental copyright
principles.
Davis J14.Insisted that the introduction of digital technology and the internet has posed
new challenges to traditional Copyright protection. It has enabled private individuals to
publish, reproduce and communicate copyright works to vast audiences without
resorting to publishers (distributors). The study Davis specifically addresses the issue of
challenges on copyright protection which is realm of this study. However, his study did
not examine copyright protection mechanism in Uganda. Therefore this research will
seek to examine challenges on copyright protection Uganda.
Whale, R. F15traced the origin of copyright in common law and the countries which
engaged in protection of the copyright. He talks about law which governs copyright and
evolution of copyright. The author suggested looking at enforcement of law in
determining the effectiveness of copyright protection. Thus the research will gain from
this previous study by closely relating to Nigeria.
"Intellectual Property Law, Fifth Edition, Lionel Bently, Brad Sherman, Dev Gangjee, and Phillip Johnson September 20 18
14Intellectual Property Law Core Text, Fourth Edition, Jennifer Davis, May 2012
"Whale on Copyright (Intellectual Propeiiy Guides) Paperback- October 30, !997
by R.F. Whale (Author), Professor Jeremy Phillips (Editor),
l l
" .
Prof. DJ Bakibingu(2006)on his study of Intellectual Property Right protection in
Uganda 16, he examines the state of IPR protection in East Africa. Using descriptive
analysis method, Bakibinga argues that the rationale for affording protection to IPR is
inter alia to encourage reward creative works to nurture technological innovation and to
ensure fair competition. He further argues that lack of clear policy on IP and other trade
matters to take care of WIPO/WTO related issues have brought hardship in
implementation of IP laws. He suggests that, it is impotiant to ensure that the structure
of our IP systems is well suited to nurture and encourage innovation.
It is years now since the study was taken, but Prof Bakibinga did not specifically address
the issue of copyright protection mechanism in Uganda. Its relevance to this study is the
focus on the protection of IPRs in general which stimulates works to spur technological
innovation.
Furthermore his study explains that the lack of effective Intellectual Property protection
in Uganda warranted significant improvement, adoption and enlargement of legal
administration and enforcement framework as well as human capacity. Other Intellectual
property implementing agencies such as the police department; URA and the judiciary
need adequate preparation in order to be able to curb infringement of Intellectual
Property rights. Finally the author suggests that extensive training is required to raise
awareness of intellectual Property laws. Furthermore Prof. He also noted that the
effectiveness of laws depends on the level of their enforcement. Uganda's intellectual
property law goods reference tools and potential instrument for protecting people's
rights. The relevant intellectual property laws are in place but due to institutional
weakness, they are not fully and systematically enforced.
This study will concentrate on the effectiveness copyright law in Uganda. The study will
emphasize the importance of improving, adopting, and enlarging the legal administrative
" Intellectual Properly Law in East Africa, D. J. Bakibinga, R. Kakungulu-Iviayambala
12
and enforcement, institutional mechanism as well as -human capacity as machinery for
protecting copyright works against infringement.
Copyright Legal Bainbridge (2001, p.3) argued that, intellectual property is concerned
with the legal rights associated with creative effort or commercial reputation and
goodwilL It is very wide and includes literary and artistic works, films, computer
programs, inventions, designs and marks used by traders for their goods and services.
Therefore, this study will concentrate on musical works as the case study is Uganda
Performing Rights Society.
WIPO (2006), using works based on copyright and related rights owned by others for
commercial purposes may enhance the value or efficiency of your business, including
enhancing its brand value. For example, playing music in a restaurant, bar, retail shop or
airlines, adds value to the experience of a customer while using a service or while
visiting a business outlet. In most countries, prior permission of the copyright and
related rights owner must have obtained by means of a license to use the music for a
specific purpose. Understanding copyright and related rights laws will enable you to
know when authorization is required and how to go about obtaining it. Obtaining a
license from the copyright and/or related rights owners to use a work for a specific
purpose is often the best way to avoid disputes that may otherwise result in potentially
time consuming, uncertain, and expensive litigation.
The WIPO publication on Intellectual Property for Business Series (4) emphasized the
need for users of public performance to get a prior permission from the owner of
copyright and related rights for the usage of works. Basically it is difficult for an
individual author to visit different premises, even across the border to monitor and
permit usage. In case of Uganda some of these challenges have been addressed with the
establishment of UPRS. Establishment of a collective society and monitoring the usage
of public performance by issuing a license, collecting royalties accrued from the usage,
is a copyright protection mechanism. As, this publication did focus on the musical
works, therefore research intends to use this publication as it relates to the study.
l3
Prof. Sterling A. noted that as far as traditional hard copies of sound recordings and
musical works are concerned, piracy has for many years been a serious problem. It is
estimated that the global market for unauthorized audio and audiovisual works mns into
billions of dollars per annum: in addition, there are huge losses sustained through
unauthorized file-sharing. With digitization and the internet, the challenge of piracy has
increased. Once copyright protected material is placed on the internet without
authorization; the control of its dissemination is, in many respects, at present difficult.
Consequently, extensive efforts are being made to introduce technical control and copy
prevention devices which will enable right owners to prevent the massive loss of
revenues and of control of market exploitation which is implicit in authorized electronic
dissemination of protected material.
The study by Prof. Starling has tried to show that, piracy for many years has been a
serious problem especially in the traditional way which affected musical and other
copyrighted works. And that with the advent of digitization the situation is worse.
Therefore, the researcher will use this material to show the importance copyright
protection mechanism in digital platform on musical works and keep in pace with the
development of new technology such as internet and computer networks.
Survey of copyright piracy in Nigeria (2008)17
Effective enforcement of intellectual property laws is key to curbing piracy,
consequently, the position and the role enforcement agencies like police, customs, and
officers or relevant government agencies is critical. In most developing countries, these
offices are faced with various challenges which hamper effective delivery on their
mandates. The challenges include; poor understanding of the issues involved, poor
training, poor funding of enforcement activities, and absence of working tools either to
aid detection or in the conduct of post-arrest operations. Sometimes, the enforcement
officers are prioritizing other serious crimes to the detriment of the copyright industry. A
17The challenges of the Nigerian copyright commission ( NCC) in the fight against copyright piracy in Nigeria by Mary Imelda
14
disturbing attitude also exists in the minds of the public and sometimes in the judiciary
and in laws enforcement agencies that pimcy is a low level mischief with the little real
consequence. This is not only misconceived, but also quite dangerous, especially when
viewed against the backdrop of clear linkages between organized crime and piracy.
Perhaps the most challenging problem for law enforcement agencies is their ability to
distinguish pirated from genuine products. In the past, poor quality and packaging of
works were indicators of piracy. However, with advancement in technology, pirated
copies increasingly look as good as originals both in packaging in content quality. This
underscores the need for greater collaboration between industry expetis and the
enforcement agencies in the areas of training and information sharing.
In the case of Nigeria, some of these challenges have been addressed with the
establishment of Nigeria Copyright Commission as the agency responsible for copyright
matters. The commission monitors and facilitates enforcement of copyright law, and in
particular, formulates policies and strategies to combat copyright piracy in the country.
The survey by the Nigerian Copyright Commission on Piracy's findings has some
similarities with Ugandan environment. Much attention is given to the collaboration
between law enforcement agencies like police and other relevant government agencies.
This study seeks to find the real situation of effectiveness of copyright law in Uganda
especially in relation to the music industry.
1.9 Delimitation
The scope of this study is limited to the Republic of Uganda. The study will only focus
on the effectiveness of copyright law in Uganda specifically in the music industry. This
is because other studies on the branches of copyright were done before.
1.10 Limitation
The research was limited to the copyright law effectiveness; time was not enough,
limited material, resources and finances. There are constraints which the research faced
in obtaining the relevant literature and data from the selected institutions and right
15
holders. Some questionnaires were not returned on time. Office works also made it to be
difficulty on making follow up.
Therefore, this study was to examine the copyright law effectiveness in Uganda. More
emphasis was placed on the institutional framework, general anti-piracy efforts and the
impact of the music industry. This study also looked into the strength and weakness of
the implementing agencies.
1.11 Structure of Research
This research is divided into five Chapters. Chapter one covers the introduction and
background of Copyright matters in the Republic of Uganda. It provides the statement of
the problem, objectives of the study and the research questions, guiding the study,
significant of the study, justifications, literature review; introduction, relevant books,
articles and legal instruments, delimitation, limitation and the structure of the research
study.
Chapter two covers the Intellectual property in Uganda; legal framework, institutional
frame work.
Chapter three discusses the Research methodology, research design, and method of data
collection, sample selection, study population and ethics of research.
Chapter four presents findings, analyzes and discusses them. Finding based on the
effectiveness of copyright protection mechanism in the music industry.
The fifth chapter summarizes the findings, conclude the study and makes necessary
recommendations. References, appendices and questionnaires are attached at the end of
dissertation.
16
CHAPTER TWO
INTELLECTUAL PROPERTY IN UGANDA
The term Intellectual Property (IP), is defined as one's idea, invention or process that is
derived from one's mind or intellect. (IP) therefore, is the kind of property that results
from fruits of mental labour.
It can be presented from two perspectives: industrial property on the one hand,
consisting of inventions (patents), brands, industrial drawings and designs, and
geographic indications; and copyright on the other hand, comprising of literary and
artistic works such as novels, poems and plays, films, musical compositions and art
works composed of drawings, paintings, photographs and sculptures, as well as
architectural creations.
2.1 Legal Framework in Uganda
In April 1994, Uganda signed the agreement establishing the World Trade Organization
(WTO) and ratified the same in October 1994. By 31st December 1994, Uganda had
fulfilled all the conditions necessary to become a founder member of the WTO. Article
XVL4 of the Agreement establishing the WTO provides that each member state shall
ensure that its laws and regulations are brought into conformity with its obligations
under the Agreements. Some of the obligations, rights and benefits, can only be accessed
and taken advantage of with the correct legal framework in place.
Uganda's Constitution was adopted in 1995; it's fomih since independence in 1962. It
does not contain any provision that specifically recognizes and guarantees protection to,
IP rights. The provision that comes closest is Article 26 of the Constitution, which
prohibits deprivation of private property. It reads in part: "No person shall be
compulsorily deprived of property or any interest in or right over property of any
12
description [ ... ]." The language is broad and general and provides the basis for
Uganda's legislation on IP rights and their regulation.
In Parliament, a number of its internal offices are involved in shepherding bills through
the requisite formal three readings, hearings and consultations with the concerned
Ministries and relevant stakeholders. After the third reading when the bill is passed, it
then becomes an Act of Parliament, but still necessitates the assent of the President (who
does not exercise veto powers over legislation). The Legal and Legislative Services of
Parliament is one such office and among others, it ensures that the final draft of the
legislation reflects all amendments that may have been made by the Members of
Parliament during its deliberation in plenary.
Currently, Uganda has the following principal IP laws:
(i) Copyright and Neighboring Rights Act (2006)
(ii) Industrial property act 2014 Uganda
Rules and regulations for the implementation of these laws are in place
2.2 Institutional Framework
2.2.1 Uganda Performing Rights Society
UPRS is a collecting management society, capable of suing and being sued on behalf of
its registered members, works as a collecting management organisation for collective
administration of copyright and neighbouring rights of musicians. Its functions amongst
others are to promote, protect copyright and neighbouring rights, maintain works and
collect royalties, search for, identify, publicize and give evidence of ownership in case
of dispute on infringement, create copyright awareness. These functions are
implemented through the CNRA18, The Copyright and Neighbouring Rights
Regulations.
18 Part vii of CNRA 2006 13
Authors entrust public performance and broadcasting rights to UPRS and UPRS acquires
rights of foreign societies through reciprocal agreements. They may also entrust other
economic rights since it is one of the oftice recognized for the administration of
copyright. UPRS administers the entrusted rights by licensing and monitoring the use of
the said works, collects fees and distributes royalties to the right holders. The
distributions of royalties are made to members and non-members but the royalties may
only be collected once the right holder has registered himself. Distributions for foreign
repertoires are through reciprocal representation agreements.
The current system of having one office dealing with all the rights for all categories of
works lead to neglecting other rights probable that UPRS may abuse its monopoly power
UPRS needs more help to manage all the rights. Members may not have much say on the
decision making process because decisions will be made by the government. So there is
a need to establish more collective management societies.
2.2.2 Uganda Registration Service Bureau
The URSB is responsible for the registration of copy right in Uganda. 19
An application for registration is made to the Registrar of Copyright and an application
fee ofUGX. 50,000 paid. A copy of the work for which protection is sought must be
attached e.g. Books, CD, DVD
The application is then published in the Uganda Gazette for 60 days
If no objection is made to the registration of the said right, a certificate of registration
will be issued to the applicant. No fee is charged for registration certificate
The registrations of works is done by URSB. Registration is not a prerequisite for a
work to be protected by copyright, but rather a process of maintaining registers. The
same register is used as an evidence of ownership in case of dispute. For one to become
"Part viii of the CNRA 2006
14
a member, he/she has to submit his/her work in a concrete form, documents or contract
as per creation of the said work, filling the forms and lastly paying fees.
2.2.3 The Uganda Police
The provisions of the law provides for the remedies of injunction, right of destruction
and similar measures upon acts of infringement>0, collectively all such remedies are
provided for by the court of law, however upon it enforcement such remedies are
brought into action by the enforcement body, whereby in this instance, the role of the
police comes into hand.
Henceforth, the police have not been directly provided for towards the protection of
Copyright in Uganda, however subject to the provisions of the Act it may be observed
!hat the Police as institution have been impliedly provided for under the act.
Furthermore, subject to the Constitution of the Uganda asserting towards the protection
of property,21 the role of the Police comes into hand, as the Police are entitled towards
enforcement of law.
2.2.4The Court
The Copyright and Neighboring Rights Act establishes a right to any person whose right
is in imminent danger of being infringed or have been infringed to institute proceedings
in the commercial court for injunction or payment of any damages suffered in
consequence of the infringemene2, such a provision of law therefore establishes the role
of a court as an institution for protecting artists' rights. 23
20 Section 45 of CNRA 2006 21 Article 26 of The 1995 constitution of Uganda 22 Section 45(1) ofCNRA 2006 23 A1iicle 139(1) of The 1995 Constitution of Uganda
15
2.2.5 Uganda Revenue Authority (URA)
The Uganda Revenue Authority (URA) which is as a result of the Uganda Revenue
Authority Act. In carrying out its statutory functions, URA is regulated by laws, and is
responsible for administering impartially various taxes of the Central Government.
The Uganda Revenue Authority is another institution governing the protection of
Copyrights in Uganda as it collects Value added tax on musicians as per Value Added
TaxAcf4•
2.3 Works protected and requirement
Original literary and artistic works by the sole fact of their creation irrespective of their
form of expression, their quality and the purpose for which they were created are
protected. These include books, pamphlets and other writings, including Computer
programs; lectures, addresses, Sermons and works of the same nature; dramatic and
dramatico25 - musical works musical works (vocal and instrumental), whether or not
they include accompanying words; choreographic works and pantomimes;
cinematographer works, and other audio-visual works; works of drawing, painting,
architecture, sculpture, engraving, lithography and tapestry; photographic works
including works expressed by processes analogous to photography; works of applied art,
whether handicraft or produced on an industrial scale, illustrations, maps, plans, sketches
and three dimensional works relative to geography, topography, architecture or science.
Derivative works such as translation, adaptations, arrangements and other transformation
of literary, and artistic works, collection of literary and artistic works, such as
encyclopaedia anthologies; collection of expressions of folklore and compilation of data
or data bases which, by reason of selection and arrangement of their contents constitute
intellectual creation; and works inspired by expression of folklore are also protected as
original works.
24 Value Added Tax Act cap 349 25 Section 5 of CNRA 2006
Article 2 of the Berne Convention.
16
. '
2.3.1 Works not protected
These include laws and decisions of courts and administrative bodies, official
translations; news of the day published, broadcast or publicly communicated by any
other means; any idea, procedure, method of operation, concept principle, discovery or
mere data, even if expressed, described explained, illustrated or embodied in a work. 26
2.3.2 Rights protected
The author has the moral rights to claim authorship of his work; to object to and to seek
relief connection with, any distribution, mutilation other modification of, and any other
derogative action in relation to his work.
The exclusive economic right is to carry out or to authorize the following acts in relation
to the work reproduction; distribution; rental of the original or a copy of an audio-visual
work, a work embodied in a sound recording, a computer program, a database, or a
musical work in the form of notation, irrespective of the ownership of the original or
copy concerned; public exhibition; translation; adaptation; public performance;
broadcasting; other communication to the public of the work; importation of copies of
the work. The right of rental does not apply to the rental of computer programs where
the program itself is not the essential object of the rental.27
2.3.3 Duration of protection
The economic and moral rights shall be protected during the life of the author and for
fifty years after his death. For joint authorship of a work, the economic and moral rights
shall be protected during the life of the last surviving author and fifty years after his
death. In the case of a work published anonymously or under a pseudonym, the
economic and moral rights shall be protected for fifty years from ·the date on which the
work was either made, first made available to the public or first published, which ever
" Article I 0 BERNE of Convention Section 6 of CNRA 2006
27 Section 9, 10 of CNRA 2006
17
date is the latest, provided that where the author's identity is revealed or is no longer in
doubt before the expiration of the period, then the general rule for protection applies. 28
In the case of audio visuals work, the economic and moral rights shall be protected for
fifty years from the date on which the work was either made, first made available to the
public, or first published, whichever date is the latest.
2.3.4 Limitations to economic rights
The use of a protected work, either original or a translation, shall be permissible without
the authors' consent and the obligation to pay remuneration for the use of the work under
specific circumstances. In the case of any work except, computer programs and
architectural works, that has been lawfully published the production, translation,
adaptation, arrangement or other transformation of such work exclusively for the user's
own personal private use provided that such reproduction does not conflict with the
normal exploitation of the work and does not unreasonably prejudice the legitimate
interest, of the author.29
Mentioning the source and the name of the author or quotations from such work in
another work, provided that such quotation, are compatible with fair practice and their
extent does not exceed that justified by the purpose, including quotations for newspaper
articles and periodicals in the form of press summaries.
The utilization of the work by way of illustration in publications, broadcasts, programs
distributed by cable, or sound or visual recordings for teaching, to the extent justified by
the purpose or the communication for teaching purposes of the work broadcast or
distributed by cable for the use in schools, education, universities and professional
training, provided that such use is compatible with fair practice and that the source and
the name of the author are mentioned in the publication, the broadcast, the program
23 Section 13 of CNRA 2006 Article 12 of TRIPS Agreement
29 Section I 5 of CNRA 2006 Article 13 of TRIPS agreement
18
distributed by cable or the recording. The distribution by cable is done without gainful
intent.
2.3.5 Ownership of copyrights
The ownership of a work in the first instance is by the author or authors who created the
work, authors of a work of joint authorship shall be co-owners of the said rights30. In
respect of audio-visual work, the original owner of the economic right shall be the co
author of the audio-visual work who, in the absence of proof of the contrary, shall be
presumed to be the author of the scenario, the author of the dialogue, the composer of
the music specifically created for the audio-visual work, the director, provided that he
has exercised actual supervision and made an actual intellectual contribution to the
creation of the work. The author of pre-existing works included in, or adopted for, the
audio-visual in, or adapted for, the audio-visual work shall be assimilated to the co
author ofthe audio-visual work.
2.3.6 Rights of performers
The performer have the exclusive to carry out or to authorize the broadcasting or other
communication to the public of his performance; the fixation of his unfixed
performance, in any manner or form 31; the first making available to the public of a
fixation of his performance, or copies thereof, through sale or other transfer of
ownership: the rental to the public or public lending of a fixation of his performance, or
copies thereof, irrespective of the ownership of the copy rented or lent; the making
available to the public of his fixed performance, by wire or wireless means, in such a
way that members of the public may access them from a place or at a time individually
chosen by them, thus economic rights. While on the side of their moral rights; the
performer has the right to object to any distortion, mutilation or other modification of his
performances that would be prejudicial to his reputation and to claim to be identified as
30 Article 7bis of Berne Convention 31 Chapter II of the WIPO
19
the performer of his performances, except where omission is dictated by the manner of
the use of the performance.
2.3. 7. Limitations of rights of performing artists
The Ugandan Act refers these uses as 'free uses' whereas a work can be used without
prior consent or obligation to pay remuneration. The uses can either be in the original or
in translation form except for computer programs and architectural works. These uses
include all economic rights subject to the personal free use meeting the three step tests.
2.3.8 Rights of phonogram producers
The producer of a sound recording shall have the exclusive right to carry out or to
authorize in relation to his sound recording the acts of direct or indirect reproduction in
any manner or form; the making available to the public by sale or other transfer of
ownership, of the original or copies that has not already been subject to a distribution
authorized by the producer; rental to the public or public lending of a copy of the sound
recording, irrespective of the ownership of the copy rented or lent; the making available
to the public of the sound recording, by way of wireless means, in such a way that
members of the public may access it from a place or at time individually chosen by
them. 32
2.3.9 Rights of broadcasting organizations
Broadcasting organization have right to carry out or to authorize the rebroadcasting of its
broadcast; the communication of its broadcast; the fixation of its broadcast; the
reproduction of affixation of its broadcast except if the use are related to using short
excerpts for reporting current events to the extent justified by the purpose of providing
current information; reproduction solely for scientific research; reproduction solely for
32 Article 14 ofWIPO 20
the purpose of face-to-face teaching activities, except for performances and phonograms
which have been published as teaching or instructional materials.33
33 Section 32 ofCNRA 2006 21
3.1 Introduction
CHAPTER THREE
RESEARCH METHODOLOGY
This chapter presents the methodologies and procedures that were used in conducting
this study by discussing the research design, study population, sampling method, data
collection instruments and method of data analysis relating to this study. The study used
the qualitative research method.
Denzin &Lincoln (1994i4, define qualitative research as a multi-method in focus
involving an interpretive, naturalistic approach to the subject matter. The implication is
that qualitative researchers interpret phenomena in terms of the meaning people bring to
them.
O'Niell (2007) viewed qualitative research as a research that focuses in giving meaning
to what is happening and why it is happening; he further asserts that unlike quantitative
methodology in which the researcher knows clearly what he is looking for and only aims
to classify features, counting them and constructing statistical models in an attempt to
explain what is observed, qualitative method aims at giving a complete description
which is the objective of the study.
According to Crasswell, (1994 )35 qualitative research places more emphasis on
understanding through looking closely at people's words, actions and records. He further
asserts that qualitative methods examine the patterns of meaning which emerge from the
data are often presented in participants own words.
3.2 Research Design
This research aimed at finding out and analyzing the effectiveness of copyright law in
Uganda; A case study of UPRS. The reasons for adopting case study are as follows; the
same is fairly exhaustive method thus enables the researcher to focus his study deeply
34 Denzin, N. K., & Lincoln, Y. S. (1994). Handbook of qualitative research. Thousand Oaks,
35 Creswell, J. W. (1994). Research Design: Qualitative and Quantitative Approaches
22
and thoroughly on different aspects of a research phenomenon. Furthermore, it is
flexible in respect to data collection method. Finally, it saves both time and cost.
Neuman (1999)36 define research design as the structure, program and strategy upon
which hypothesis will be evaluated. The function of a research design is to ensure that
the evidence obtained enables us to answer the initial questions as unambiguously as
possible. It reduces the ambiguity of much research evidence.
3.3 Data Collection Methods
3.3.1 Primary Data
The method of collecting data was interviews and participant observation. The
interviews were semi structured so as to get balanced information from the sample
population.
The researcher used different tools to enable him get information including
questionnaires which guided the interview process. The study examined the
effectiveness of Copyright law in Uganda for the music industry. For the purpose of this
study, both primary and secondary data information will be used.
The researcher visited relevant institutions in Uganda to get more information.
3.3.2 Secondary Data
The researcher used desk research to analyze documents. Secondary data collection
methods provided useful additional information to primary data that enabled the
researcher to answer the research question. For this purpose, the researcher identified
relevant articles books, reports, electronic sources from the library and documents to
supplement the information gathered from the primary data.
36Social Research Methods: Qualitative and Quantitative Approaches
23
3.4 Population
The population of this study is from Uganda as it was easy for the researcher to get
access to the stakeholders and relevant institutions during data collection hence it was
cost effective.
The researcher went to the UPRS and interviewed the officers and few members of the
public. The research interviewed and issued questionnaire to stakeholders of copyright
and few number of the public.
3.5 Sample Selection
According to Luck and Rubin (I 999) 37 a sample is a subset of population under study.
During the data collection stratified sampling was used for the qualitative method as it
ensured the right population to the study is interviewed.
The study targeted 40 respondents to give opportunity and ensure coverage of
information from the targeted population. The sample was selected based on the
population size, time and financial factors. That is UPRS for copyright and related
matters.
3.6 Ethics of the Research
The researcher adhered to the ethics of the research by obtaining permission to carry out
the research from all relevant institutions, right holders and the ethical questions were
used to get information for the research.
3.7 Summary
This chapter contains the research methodology that was used to obtain relevant data. It
was done through the research design employed in sampling technique, population, data
collection methods, and ethics of research.
"Marketing research paperback- June 30, 1999 By Davidj. Luck (author), Ronald s. Rubin (author)
24
CHAPTER FOUR
DATA PRESENTATION, ANALYSIS, DISCUSSION, AND INTERPRETATION
4.1 Introduction
In this chapter represents the findings of the study on the effectiveness of Copyright law in.
Uganda: A case study of UPRS. The discussion and analysis of the findings address the
research questions and objectives ofthe study.
4.2 Data Analysis
Neuman (1999f8 state that data analysis involves examining, sorting, categorizing,
evaluation, comparing, synthesizing and contemplating the coded data as well as
reviewing raw and recorded data.
Kothari (2004)39 defines data analysis as the computation of certain measures along with
searching for patterns of relationships that exist among data groups.
The main research questions are:
I. What is the level of copyright and related rights awareness in the music industry?
2. How effective is the copyright protection in the music industry?
3. What are the challenges faced by the music industry in Uganda?
4. How can copyright be used to enhance the music industry in Uganda?
38Social Research Methods: Qualitative and Quantitative Approaches (4th Edition)W. Neuman, William
Lawrence Neuman
39Kothari, C.R. (2004) Research Methodology: Methods and Techniques. 2nd Edition, New Age
International Publishers, New Delhi.
25
The research has shown the sample size in relation to the research objective in the tabular
form to elaborate the findings through statistical package for social science (SPSS) for
data analysis.
4.2.1 Descriptive Findings
The findings of the research are presented below.
4.2.2 Gender Composition of the Respondents
The respondents were selected on the basis of gender balance between male and female.
Table 4.1: Gender distribution
Frequency Valid Percent Cumulative Percent
Male 21 52.5 52.5
Female 19 47.5 100.0
Total 40 100.0
Source: F1eld data, (20 19)
The table reveals that 21(52.5%) respondents were male while 19(47.5%) were female.
This suggests that the study was not biased.
The male respondents surpassed the female respondents because male respondents
where more willing answer the research questions.
Most female respondents were busy as many of them were occupied with home
activities however they tried to participate, in spite of those activities.
26
4.2.2 Age Distribution
The respondents were asked to indicate their age. Table 4.2 presents the findings.
Table 4.2: Age Distt•ibution
Frequency Valid Percent Cumulative Percent
below 20 years 7 17.5 17.5
between 20-40 years 18 45.0 62.5
between 41-60 years I I 27.5 90.0
above 60 years 4 10.0 100.0
Total 40 100.0
Source: Fteld data, (20 19)
The respondents' age distribution in Table 4.2 shows that 7(17.5%) respondents were in
the age below 20 years, while 18( 45%) of the respondents were in the age range of 20-
40 years, 11(27.5%) of respondents were between 41-60 years, while 4(10%) were
above 60 years old.
In this study, respondents' age variable was assessed and the results reveal that all of!he
respondents were mature enough to participate into the study though the majorities were
post-adolescents and adolescents age group, which are the most characteristics of the
employees in these years. The study found it important to include respondents of
different age range in the study since are involved directly in the music industry.
4.2.3 Findings as per study objectives
In this section, the findings of the study are discussed as per the objectives of the study.
The study objectives were:
27
(i) To examine the level of awareness of Copyright and related rights in the
music industry.
(ii) To examine the effectiveness of Copyright protection in music industry.
(iii) To analyze enforcement measures in the music industry.
(iv) To make recommendations for effective enforcement of Copyright in the
music industry
4.3.1 Public awareness of Copyright and Related Rights in the music industry
The first objective of the study sought to examine the extent of awareness of Copyright
within the music industry.
4.3.1.1 Public awareness on Copyrights and Related Rights
Respondents were asked to rate the public awareness on Copyright. Table 4.4 presents
the findings.
Table 4.3 Public Awareness on Copyright and Related Rights in the music industry
Frequency Valid Percent Cumulative Percent
Excellent 2 5.0 5.0
Good 10 25.0 30.0
Fair 13 32.5 62.5
not aware 15 37.5 100.0
Total 40 100.0
Source: Field data, (20 19)
Findings in Table 4.4 shows that 15(37.5%) of the respondents ranked not aware of
Copyright, of which 13(32.5%) ranked were fair while I 0(25%) ranked on good and
2(5%) said it was excellent.
From the above statistics, it is clear that the level of awareness is quite low at an average
of 3 7.5% across the target.
28
However, during field work, since the researcher was using semi structured
questionnaires, it was observed that there is lack of public awareness on the importance
of abiding copyright law. Copyright awareness is lower as not many people are aware or
at least understand that there are copyright laws which prohibit unauthorized
reproduction and distribution. The findings indicated that most stakeholders in the music
industry (Mobile sellers, producers, distributors, artists and musicians among others) are
not aware of the requirements to adhere to copyright law and are openly involved in
doing business in pirated musical works. The users of musical works do not understand
that the works are illegal. As Prof Bakibinga put it, the public at large is not much
informed of the laws governing their rights to their intellectual property, intellectual
property is a new concept in the country, although people are involved in creations of
works of art, such as literary works, folklore, and other culture production and events, in
most cases these are done without awareness of the law protecting the rights on such
creations. More recently, some sections of the society have become aware of IPR's in
Uganda. Performing artists such as musicians have recently been making efforts to
impress upon the government enhance the administration and enforcement to protect
their works from copyright infringement.
Thus, the researcher finds that in Uganda there is abuse of musical works but the owners
or creators are not aware, whenever they are aware they do not take any legal procedure
against exploitation of their works. Most of right holders do not take reasonable
precaution to protect their rights. This is due to lack of public awareness on the
importance of copyright law. The education given by UPRS to the general public on the
copyright matters is insufficient. On the other side the education regarding IP is given to
the University level and bad enough since the course itself is not mandatory just option.
From the interviews with UPRS the researcher noted that the factors that contributed to
level of awareness said that this include: (a)Low level of understanding of intellectual
property laws within the public;(b) low level of capacity building in the Judiciary,
Revenue Authority and National Police;(c) low level of awareness trainings for
enforcement agencies like the National Police; (d) The CMO is not autonomous; (f)
Lack of adequate legal mechanism and coordination to combat pirated musical works;
(g) absence of UPRS in entire districts of Uganda; (h) Shortage of UPRS staff, since its
29
establishment in 1985, UPRS has employed 20 members of staff only. It has to cater for
right holders countrywide, yet their office is centrally placed in Kampala. Twenty
members of staff are not enough to enable UPRS to create awareness within; (i)
Insufficient Staff Training. The staff cannot afford to train its staff using its own
resources; Q) in adequate funding; UPRS has not been given the necessary funds to
sensitive its members and general public in order to create copyright awareness in
Uganda and perform its functions of promoting and protecting the interests of right
holders such as fighting against piracy, assessment, collection and distribution of
royalties;(k) Lack of Transport Equipment, despite the fact that UPRS has to serve the
whole country, the Society has only a few wheel drive vehicle. Authors, composers and
creators are scattered all over the country to serve the right holders in a country with a
size 40 millions of Ugandans and bad roads, UPRS needs more vehicles.
On the other side the respondents from UPRS were of the view that the CMO of Uganda
should be reinforced in order to enable it to perform its functions properly. This includes
proper staffing, staff training, adequate funding and provision of sufficient and reliable
transport equipment's. if the Government would set aside more funds for the
development of UPRS's activities in the financial year 2019/2020, UPRS among other
things would continuing advocated of Copyright Law so as to impatt knowledge and
awareness to the artists, public, police, journalist, distributor, local government,
promoters, video library owners, internet cafes and stationeries.
When asked on the role of UPRS towards the subject of awareness, the respondents from
UPRS said that one of their role is to promote and protecting the interest of; authors,
performers, producers, translators, and publishers, and in particular to collect and
distribute any royalties or other remuneration accruing to them in respect of their rights.
They went further saying that with the availability of fund they do offer awareness
creation on copyright matters, assessment and among others.
Therefore, to hold back this challenges; the respondents from UPRS offered the
following suggestions that; Education should be given to the public through seminars,
workshops, advettisement, public lectures so as to bring awareness and sensitization on
the copyright matters in Uganda. Subject to the availability of fund, UPRS should
30
continue among other things, with the awareness creation on copyright issues,
assessment, collection and distribution of royalties for public performance from
establishment which use copyrighted works in their commercial businesses, elimination
of Copyright infringement in the musical works, through inspections raids, and seizure
of pirated copies as well as destroying and filling cases against copyright infringers.
4.3.1.2 Economic Importance of Copyright and Related Rights Protection
Respondents were asked to rate the important of Copyright protection in the economic
rights. The following table 4.5 presents the findings.
Table 4.4 Economic Importance of Copyright protection
Frequency Valid Percent Cumulative Percent
very important 10 25.0 25.0
Important 19 47.5 72.5
not important 6 15.0 87.5
no idea 5 12.5 100.0
Total 40 100.0
Source: Field data, (20 19)
From the above statistics, it is clear that more than 72% understood the economic
importance of copyright and related rights in the music industry.
However, about 25 respondents were of the opinion that limited protection of rights
contributes to the low level of production. This would discourage the creators to
concentrate on creating more since the protection would cover every aspect of utilization
of rights. It was observed practically that, the copyright and Neighboring Act of Uganda
is silent on electronic protection and there is still no specific remedy for the
infringement. Therefore, non-incorporation of the provision on electronic infringement,
the researcher found that a single individual with an internet connection would secure
any financial gain and on the other side cause significant loss to copyright owners
31
(music). New forms of exploitation are constantly being invented and the opportunities
seem almost boundless. This position of digital aspects is not covered under the Act of
Uganda. From this observation it would be extremely difficult to enforce the current
copyright Act on digital aspects since it less covered the exploitation resulting to the
digital technology.
Therefore, the only solution to this problem is to create a new and modern legislation
that will cover the aspect of digital technology
4.3.2 Effectiveness of Copyl'ight protection in the music industry
The second objective of the study sought to examine the effectiveness of Copyright
protection in the music industry. This question was analyzed by looking into the level of
effectiveness of Copyright and related rights law in Uganda and the reasons for lack of
effectiveness of implementation Copyright and related rights law in Uganda
4.3.2.1 Effectiveness of implementation Copyright and related rights law in Uganda
Respondents were requested to assess the .level of effectiveness of implementation of
Copyright and related rights law in Uganda. On the first place they viewed that the
effective use of copyright protection is critical for the music sector when used would
enhance the music industry in Uganda.
In the Republic of Uganda, the implementation of the copyright and related rights law is
done by UPRS, Judiciary, Uganda Revenue Authority, Uganda police.
On synchronization of effectiveness implementation of copyright laws in Uganda,
participants were of the view that there is a need to reinforce coordination among other
law enforcer agencies like police, on fulfillment of its duties on protecting copyright
infringement. These agencies still need a lot of sensitization of prosecution of copyright
crimes in the music sector. Other viewed it as a challenge since the legislation vested the
power and mandate to the CMO (UPRS) for the administration of copyright matters in
Uganda. But the CNRA 2006 does not say explicitly the role of other institutions that
can collaborate with UPRS in the protection copyright matter in Uganda. Thus while
there is this gap of mention other institutions in the legislation to cooperate with each
32
other in copyright protection, in that case, there is a need for the law to be amended and
explicitly state the position for said institutions to work together ensure that copyright
works of music are well protected.
4.3.2.1 Lack of effectiveness of copyright protection in Uganda
In discussing this point, the majority of the participants who have heard it believed that
the law is good enough but that its enforcement has not been effective. They advocated
for public awareness and greater enforcement of the law. In addition, Prof DJ
Bakibinga20 1640said that effectiveness of the laws depends on the level of their
enforcement. Uganda's intellectual property laws provide for a strong basis for effective
protection but enforcement is not effective.
However, it was observed that issues and challenges that contributed to the lack of
effectiveness enforcement of copyright protection in Uganda are as follows: (a)
inadequate campaigns by UPRS, (b) Insufficient of UPRS and (c) No proper guidelines
for UPRS on its activities. (d) Weak enforcement of copyright and related rights (e)
Technological developments have made copyright material easier to access and
reproduce, and more difficult to protect. This has brought shortcomings in the copyright
law due to the lack of having provisions for the protection of emerging latest
advancements in the field of science and technology that is internet related infringement.
(g) The CMO administers different rights for different categories of works at the same
time UPRS lacks sufficient resources to support these functions. (h) Lack of new
technological means of enforcement. (i) Lack of knowledge of the copyright law. (j)
Shortcomings in the copyright law like not having provisions for the protection of
emerging latest advancement in the field of science and technology. (k) CMO Need to
employ experts in IPs. (I) Sometime, the enforcement officers are faced with other
serious crimes and invariably, piracy or any other form of copyright infringement may
not be treated as priority crime, especially where these other crimes require more urgent
action and available resources are lean. And (m) Law enforcer's agents' in their inability
to distinguish pirated from genuine products.
40 Intellectual property in EA by Professor D.J Bakibinga 33
However, on the procedures to address the above challenges, the participants from the
institutions agencies offered the following suggestions: (i) Uganda should, as first
commit to implement commonly accepted international treaties obligation such as the
TRIPS Agreement and the WIPO Internet Treaties to ensure that the IP laws are up- to
date and more effective in dealing with emerging IPRs challenges as posed by the
development of digital technologies. (ii) Eftlcient collaboration among enforcement
agencies like the Police, UPRS, Judiciary among others. (iii) Increasing enforcement
activities through inspections and anti-piracy; raids, arrest and seizure; prosecution; and
the provision of mechanism for alternative dispute resolution and mediations.
(iv)Introduction of awareness campaigns on the registration of Authors and their works
for the prima facie evidence and documentation purpose. (v) To have adequate financial
resources and human resources to perform the duties as stipulated in the Uganda ACT 41 (vi) Public Awareness which involves embarking on a sustained and aggressive anti
piracy public awareness program using a multi-media approach, namely electronic- print
and outdoor awareness campaigns. (vii) The majority of participants canvassed stiff
penalties like imprisonment and fine for copyright infringement. (viii) There is a need
for UPRS to redefine its operational modalities to allow for timely and prompt responses
to reports of piracy infringement. (ix) More public awareness on the activities of UPRS.
(x) Better funding of UPRS. (xi) Producers of music works should improve on the
quality of their products and also make them readily available and affordable. (xii)
Regular anti-piracy operations on and closure of known sources of pirated products.
(xiii) UPRS should consider the adaption of security devices/measures to identify
genuine music products. (xix) Need to establish UPRS presence in all regions of
Uganda. (xiv) Grants should be made available to producers of musical works to boost
production and availability of works. (xv) Copyright works should be subsidized.
The respondents from UPRS were of the opinion that in order to have thorough
collaboration with other agencies such as the Judiciary; that the judicial authorities
should be given the authority to order to prevent infringement of copyright and to
preserve relevant evidence.
41 CNRA 2006 34
When asked if on the issue of collaboration with other enforcement agencies, the
respondents from UPRS said that since UPRS is a CMO, therefore it is tasked with the
elimination of Copyright piracy- infringement of Copyright in Musical works, therefore
to do so UPRS carries out inspections, raids, and seizure of pirated copies as well as
destroying these works and filling cases. against copyright infringers. All these activities
are performed with the help of police force and judiciary.
4.3.3 Enforcement Measure on Music Industry
In order to enforce copyright in Uganda, some measures with regard to general
obligations, civil and administrative procedures and remedies, provisional measures,
border measures and criminal procedures have been taken. When asked this question,
respondent f1·om UPRS said that the CNRA 2006 provides for civil remedies. The Civil
Judicial procedures concerning the enforcement of copyright have been made available
to the right holders. Act42 provides that "any person whose rights under this Act are in
imminent danger of being infringed may institute proceedings in commercial court"43 for
an injunction to prevent the infringement and payment of damages suffered in
consequences of infringement, where as any object was made in violation of this Act
shall be subjected to seizure. Additionally, they said that in compliance with the
Criminal Procedures requirement as provided in Art. 61 of the TRIPS, the Copyright Act
in Uganda provides for offences and legal sanctions. The remedies available in the ACT
include a monetary fine of not exceeding more than I 00 Currency points or
imprisonment for a term not exceeding four yenrs or both44, for the first offence if the
infringement was on commercial bases. For each subsequent offence a fine not
exceeding ten million shillings or to imprisonment for a term not exceeding five years or
both. Respondents from UPRS also said that the above sanctions and penalties are less
deterrent. With the said punishment, people will still do infringement activities of music
works.
42 Section 45 of CNRA 2006 43 Section 45(1) ofCNRA 2006 ·H Section 50 ofCNRA 2006
35
The failure to impose deterrent criminal penalties in the unauthorized commercial use of
works cases, lengthy delays in bringing and completing civil infringement cases,
ineffective border measures and the lack of availability of deterrent civil damage are
some of the major challenges to copyright protection. Civil enforcement has always been
cumbersome, costly, and time consuming and without deterrent impact on the market of
copyright products. UPRS has relied on civil enforcement, given the difficulties with
civil enforcement; mediation session required by civil procedme facilitated the
resolution of quite of a few cases. Thus the civil sanction should be revisited and made
more punitive. It is also observed that the absence of anti-piracy measure for musical,
literary works and computer programs have adversely affected the rights of copyright
owners and the Government is losing a lot of revenue.
Respondents from the UPRS were of the opinion that the implementation of the
antipiracy security device would go a long way in the helping cmb the unauthorized
commercial use of copyright protected works. It is notable that even with the regulations
on the antipiracy measure namely, the Copyright and Neighboring Rights Regulations,
20 I 0 the industry is still reeling in high level of illegal use of works as the provisions
have not been fully implemented. When asked, respondents from UPRS said that they
receive minimum support for enforcement from the Government hence making it
difficult to work with the other agencies that have been mentioned in this regulation to
offer collaboration with UPRS.
Respondents from the UPRS suggested the following factors affecting the enforcement
of copyright in the music industry; (a) lack of understanding of music as business both
the Government and community; (b) lack of music policy in Uganda to guide and enable
sector development from economic perspective; (c) lack of formalized administrative
framework to manage all aspect of music production, from Author to producer, artist,
the studio, and distributors, lack of specialization, thus people involved do not take it as
a professional sector some take it as trial. (d) In the Republic of Uganda, there is less
cognition of the potential of music as a significant and dynamic contributor to the
nation's economy; (e) lack of a National Strategic Action Plan to supp01i the music
industry in Uganda; (f) lack of adequate music education and skills training
opportunities at all level experience; (g) lack of viable "value chain " in Uganda from
36
ideas to producers to distributors, from pre-production to production to post- production;
(h) Trust issues between stakeholders. It seeks to accredit music rental outlets and music
producers through registration with UPRS, in order to regulate activities in the industry;
and ensure that music producers benefit from the rent of their music. Operators of video
library rental outlets are expected to rental out only movies which are packaged in the
prescribed manner as a rental copies and have tax stamps from the Uganda Revenue
Authority for registered and legitimate DVDs. This will help in enforcement.
4.3.3.4 Government helps in Promoting Copyright Protection
The researcher through interviews found out that the Government has not been able to
quantify the problem of piracy in the music sector and other Intellectual Property
infringement as to be able to take affirmative action to curb the infringement of
copyright and other related rights. The Government of Uganda does not have any
tangible input of musical works to the development of the country hence gives no
priority to IP matters and concentrates the priority to other aspects. When asked, the
respondents from UPRS said, that government priority is given to the development of
industries other than Intellectual propetty matters. This has to large extent contributed to
the lack of intellectual property policy. There is no channel under the National Planning
initiative on intellectual property as it has been in other sectors for example Poverty
Eradication Action Plan (Bona bagagawale) and other standard planning mechanism
through which funding would have drawn. Therefore, IP should be visibly fixed in any
country guiding principle as one the most important sector to socio-economic growth.
The respondents from UPRS further said that generally speaking, Uganda is not being
able to conform to the provisions of the of the TRIPS Agreement, as laid down in Article
41-61. Despite passing the Copyright and Neighboring Rights Act, 2006 which
establishes the CMOs, the enforcement of the said law leaves a lot to be desired.
Fourteen years of trying to enforce the said law have revealed that there are many
challenges and gaps. The law provides for civil procedures and remedies as well as civil
sanctions. A part from having the law in place, nothing has been done on provisional
measures as laid down in article 50, special requirements for border measures as in
Article 51 and dispute prevention and settlement as provided in Article 63 of the TRIPS
37
Agreement. The absence of Anti-piracy measures for musical; audiovisual works and
computer program have adversely affected the rights of copyright owners45•
4.3.4 Recommendations for Effectiveness Enforcement of Copyright in the Music
Industry
The fourth object objective is proposing strategies for effective enforcement of copyright
in the music industry. The respondents from the UPRS were of the view that UPRS is
the CMO in Uganda which manages different categories of musical works does not have
enough resources to support all of its functions and also lacks government support to
execute its duties sufficiently. Therefore as the stakeholders from the music industry the
offered the following suggestions: (a) that UPRS should have adequate financial
resources and human resources to perform the duties as stipulated in the Uganda Act46.
(b)The Government should, commit to implement international treaties obligations such
as the WIPO Copyright Treaty (WCT) and the WIPO performances and Phonograms
(WPPT). (c) Updating the regulations to fit address the digital challenges; (d) public
education on copyright matters. (e) Effective cooperation between enforcement agencies
like police judiciary, customs among others; (f) involvement of right holders in the raid;
(g) Adoption of anti piracy mechanism device such hologram, encryption, watermark and
that UPRS should insert warning notices against piracy at the beginning of every song
produced in Uganda; (h) UPRS should have regular review meetings with the
Stakeholders especially on issues that affect the interests of stakeholders directly; (i)
UPRS should create facility in its website for stakeholders to post information on music
infringement and pirate operation.
When asked this question the respondents from UPRS said, As it's the only CMO on
musical works to, other CMOs should be created so that to avoid the abuse of dominant
position as UPRS being the only office dealing with copyright in musical works
throughout Uganda. They also suggested that UPRS should increase the enforcement
activities through inspection and anti-piracy; raids, arrest and seizure, prosecution, and
45 Article 50,51,63 of TRIPS Agreement 46 Section 58 ofCNRA 2006
38
the provision of mechanism for alternative dispute resolution and mediation; the
Copyright and Neighboring Rights Act 2006 should be reviewed so as to include
effective enforcement actions against any act of infringement of intellectual property
rights; proper staffing, staff training, adequate funding and provision of sufficient and
reliable transpott equipment.
When asked on the way they do handle the infringement of musical works, the
respondents from the UPRS said, the police have been mandated to carry out
inspections, raids and seizme with the assistance of officials from UPRS, since the most
usually applied music law in Uganda is the copyright and neighboring rights Act NO. 19
of2006
4.4 Summary
This chapter was dealing with presentation, data analysis, and discussion, description of
findings and interpretation of data.
39
CHAPTER FIVE
SUMMARY, CONCLUSION AND RECOMMENDATIONS
5.1 Summary
There is a lack of effectiveness of copyright law in Uganda due to the following reasons;
weak enforcement of the law, No national IP policy; limited awareness campaign both to
the public and the enforcement agencies like the police and UPRS. These agencies lack
the knowledge and capacity to make copyright enforcement effective; there is no
effective coordination among the enforcement agencies. The Government does not
provide clear policy on copyright and related rights; the Government does not finance
UPRS. There is a need for the revision of copyright legislation and the provision of
proper management and administrative structure on copyright and related rights;
provision of proper remedies for infringement of copyright and related rights; weak
enforcement of the law; no guidelines for UPRS operations'; insufficient of UPRS;
majority of the participants canvassed stiff penalties like imprisonment and fine for
piracy; weakness of the law enforcement is seen as significant, it is the reasons for
current level of copyright piracy in Uganda. Copyright law is not effective; majority of
the participants who have heard of it believed that the law is good enough but that its
enforcement has not been effective. They advocate public enlightenment and greater
enforcement of the law. Also the condition of accessing knowledge is one of the
challenges observed since the public is in need of getting knowledge from different
works. Government quantification of copyright protection has been less since it focuses
only to other aspects rather than the area of intellectual propetty in general. Therefore, in
order for UPRS and other law enforcers to measure and control piracy it needs the
government support in its operation.
The researcher observed also that Nigeria Copyright Commission has taken into
consideration the initiative to introduce the hologram scheme since !O'h September,
1999. This regulation 1999 prescribing the use of hologram stamps in relation to sound
recordings distributed for commercial purpose in Nigeria. The hologram stamps are
required to be affixed to products by Nigerian producers at the point of production and
40
by importers of sound recordings, before the products are released into the channels of
commerce. All producers and importers of sound recordings in Nigeria are required
under the regulation to apply the NCC for annually renewable accreditation. The study
also finds that technological advancement brought difficulty to track and deal with
violations in some platforms. It was observed that the burden in the copyright protection
is left to the right holders although IP laws may provide for civil procedures largely the
standing to institute legal proceeding rest with the right owner.
Also it was assumed that the low level of awareness and knowledge on copyright to the
public led to copyright infl-ingement of the author's work. It is the finding of the
researcher that the public who are greater users (consumer) of copyrighted works and
inclusive the owners lack knowledge of copyright and its aspects. Thus people are
continuing infringing copyrighted works as if it is legal without proper consent from the
original creators or owner.
The researcher observed that the technological developments ( digitization of
copyrighted works) are the major challenge to the protection of copyright and related
rights and therefore creates difficulties in enforcement of the law since the law itself
does not cover this aspect. Also civil remedies are not satisfactory as well as I sanctions
to perpetrators of copyrighted works are less fierce to stop the infringement of copyright
in the music sector. This is one of the factors which brings inefficient for UPRS to
execute its duty properly.
5.3 Conclusion
The study has attempted to assess the effectiveness of copyright law in Uganda,
specifically in the music industry. Logically from the findings outlined in the foregoing
chapter, the results of the analysis clearly showed that there is a positive relationship
between the challenges brought up and the protection mechanism of copyrighted musical
works. It is also true that strong copyright protection in the music sector will encourage
people to be involved in this industry by affording them the opportunity to improve their
returns, thereby increasing government earnings. The effective protection of the music
works will encourage investors to invest in this sector, in turn creating valuable
41
employment for the creators of music works. For instance, many engage in importing
materials used in music production (carriers or empty DVD's) thus creating a value
chain that contributes to economic growth.
However due to ineffectiveness of institutional mechanisms; weak enforcement of the
law; inadequate awareness of copyright protection and proper guidelines for UPRS
operations; lack of coordination among the enforcement agencies and weak coordination
of artist has made the UPRS (and other agencies) that given the mandate for the
administration and protection of copyright and related right to prove
enforcement of the law.
failure on
Also the literature review has supported findings of this study. The effectiveness of the
laws depends on the level of their enforcement. Uganda's intellectual property laws are
good reference tools and potential instruments for protecting peoples' rights. The
relevant intellectual property laws are in books but due to institutional weakness, they
are not fully and systematically enforced. (D.J Bakibinga 2016)
Thus ine1Tectiveness of copyright laws is a direct consequence of poor enforcement and
weak regulatory framework and strategy from relevant agencies.
How best to address the challenges in Uganda; that there should be reform on copyright
administration fi·ame work; Awareness programs to the public and enforcement agencies
like police and judiciary; the use of technical measure like encryption and decryption;
effective cooperation enforcement agencies like Uganda Revenue Authority, police,
UPRS. Judiciary among others, stakeholders; sensitization; Government to be actively
involved, copyright education to the public, Reform of the Uganda Act to accommodate
new developments; Having a national IP Policy; To have room and sight for everyday
advancement in science and technology; To have adequate financial resources and
human resources to perform the duties as stipulated in the Uganda Act, Updating the
Regulations to fit the advancement of technology; And enacting new Regulations to
cater for other rights.
42
Countries that have good laws, proper administrative and legal mechanism as well as
policies that are supportive as well as balanced in terms of protecting creating are likely
to have vibrant copyright based industries and higher rate of economic growth.
In the absence of effective operating guidelines, copyright infringement remains
uncontrolled while key challenges remain in the efforts to prosecute pirates'
infringement.
5.4 Recommendations
Copyright and neighboring Act is the main legal instrument dealing with copyright in
Uganda. It operates land in hand with evidence, civil procedure Act and civil procedure
rules. From the research this evident that these legal instruments are inadequate and
therefore require amends to conform with modern technology and emerging trends in
intellectual property regimes.
Similarly, in order that Uganda performing right society remains relevant in playing a
central role in copyright enforcement and protection of musical works, it's imperative
that its rote be evolved in light of emerging trends in ICT development, it's evident from
research that a lot needs to be done for UPRS to effectively carryout its duties and
realize its mandate. The Act requires amendment to vast more power in UPRS so as to
carry out its mandate in addition UPRS needs to spread out across to country so as its
presence felt at grass root level. This should go hand in hand with hiring of more
enforcement officers and streamlining the judiciary through special training of officer in
intellectual property matters as part of the wider copy right protection.
In a nut shell UPRS needs to be restricted so as to bring on board the wider public
support and involvement in copyright protection and enforcement. This is the way of
freeing the society of copyright infringement.
For copyright infringement to be addressed effectively in Uganda, It will require
interventions that result in early wins that can generate quick intangible results and
contribute the restoring of public confidence and legitimacy in government institutions
while these institutions are being transformed. The recommendations in this project are
aimed at those objectives. They are skewed towards law enforcement measures that can 43
be introduced in the short to medium turns. The recommendations are made with full
appreciation that law enforcement responses should only constitute one element in wider
range of tools and strategies used to counter copyright infringement.
At this juncture, it's apparent that copy right infringement has contributed greatly to low
income returns to the creators of music and to government of Uganda.
Indeed, due to evaluation of digital technology the opportunities and ability to infringe
on copyright has increased tremendously, this has left the individual artist at mercy of
these unscrupulous elements.
Uganda has fairly adequate legal and institutional framework that provide for protection.
The basic legislation in Uganda is the copyright and neighboring Right47 Act. The major
collecting authority in Uganda is UPRS48• Notwithstanding the gains achieved by the
Act the study shows further measures need to be employed to tackle the ever challenges
of copyright infringement. The measures should target improving legislative framework
as well as strengthening enforcement mechanism. Simultaneously a public awareness
campaign should be employed to sensitize Ugandans and invite their participation and
eradication of copy right infringement. Its appreciated that a lot of recommendations
have been made in the field of music copy right protection and hence one which will
emerge from this study should be treated as supplementary and not exhaustive.
5.4.1 Legislative recommendation
In order to effectively regulate collecting society through licensing and supervision the
CNRA should be amended giving more power to UCC to carry out the supervisory and
enforcement.
The sanctions and penalties imposed under the CNRA 2006 need to be deterrent
currently the Act provides for custodial sentences but with alternative of fines. Since
piracy has created lucrative markets (90% of Ugandan music is pirated) the penalties
47 CNRA 2006
"Part vi of the CNRA 2006 44
imposed on the offenders should be deterrent. Its recommended that any fines imposed
on first offenders should be commences late of the value of goods pirated a part from
first offenders the other convicted offenders should be given a mandatory custodial
sentence which is big enough to be deterrent. In order to afford uniformity in sentencing
the act should provide for minimum sentences rather than maximum sentences.
5.4.2 Judicial Recommendation
Given that intellectual property is great contributor to economy, intellectual property
rights should be protected by having an effective legal regime. In view of the increase
practice in the field of intellectual property, the chief justice needs to subsidize a
division within the commercial division of high court of Uganda to deal with intellectual
property.
Priority hearing and determination should be afforded for cases involving international
trade. This would encourage foreign direct investment in matters relating to intellectual
property. The division of intellectual property if created could formulate rules of practice
that would ensure expeditious resolution of disputes within the division.
Through the judicial service commission, the court should reduce the public and civil
society on judicial procedures.
The court should also maintain a data base of judgment and vital information relating to
intellectual property cases and intemational jurisprudence. This would ensure the
doctrine of precedence and stare decisis are adhered too and no conflicting decisions are
issued on similar facts and principles of law.
Courts handling intellectual property matters should be specialized. The presiding
officers in such court should be properly trained in such matters. The law development
should undertake the role of training magistrates and judges to provide over intellectual
property division.
45
5.4.3 Other recommendntions
Whereas UPRS enjoys the monopoly as collecting society, it is hardly known to
Ugandans, as part of public awareness it may be imperative to devolve the services of
the society to the country, consequently UPRS should establish office in every part of
country and such branch officers should be given adequate fund to operate.
Presently a tribunal for dispute resolution on copyright is not constituted. In a view of
need to establish jurisprudence in this areas and expediency of dispute resolution, there
is need for urgent constitution of the same.
The government should come into allocate funds to UPRS in order to enhance its
administrative and enforcement and capacity such funds are important as for training of
requisite personnel such as investigators. Such finances are to fund necessary
infrastructure and human resource.
46
REFERENCES
Cresswell, J. (1994) Research Design: Qualitative and Qualitative and Quantitative
Approaches, London: Sage
Creative Expression: An Introduction to Copyright and Related Rights for Small and
Medium-sized Enterprises. Intellectual Property for Business Series Number 4
Davis J. (2005)Intellectual Property Law, 2'"1 Ed, Oxford University Press Inc: New
York.
Denzin. N. K and Lincoln Y.S (1994) Handbook of Qualitative Research. Thousand
Oaks, CA: Sage Publication
"
Dr.Marisella (20 12) "The Role of Copyright in Economic Development: A Review ji·om
Kenya"
Neuman W.L. (1990), Social Research Methods: Qualitative and quantitative
Approaches: Boston Ally and Bacon Publishers
Nigeria Copyright Commission,(2008) Survey of Copyright Piracy in Nigeria.
0' Niell. J. (2010), Market Deliberation and Environment, London Routledge
Professor Adrian Sterling (20 13) Copyright Law: A general Overview of National,
International
Sherman, B. And Bentley L. (2009) Intellectual Property Law, 3rd Ed OXFORD
University Press Inc~ New York
WIPO (NO) Guide on Surveying the ecvnomic contribution of the Copyright based
industries; WIPO publication, Geneva.
Whale, R.F. (1971) Copyright Evolution, The01y and Practice; Longman group Ltd
47
APPENDIX !QUESTIONNAIRES
KAMPALA INTERNATIONAL UNIVERSITY
SCHOOL OF LAW
BACHELOR OF LAW (LLB)
RESEARCH TOPIC: EFFECTIVENESS OF COPYRIGHT LAW INUGANDA:
A CASE STUDY OF UPRS
Dear Respondent
I am conducting this interview as part of my study to enable me find out the
effectiveness of copyright law in Uganda: A case study ofUPRS.
The study is conducted in partial fulfillment of the requirement for the Bachelor degree
in law at Kampala International University,
Instructions: Please fill in the space provided or tick in the box the answer
corresponding most closely with your opinion or situation.
PART I: PERSONAL AND GENERAL INFORMATION
I. Name of the
respondent. ......................................................................... .
2. Gender
(a) Male D
(b) Female D
3. Age of the respondent.
(a) Between 20 Years D
(b) Between 20-40Years D
(c) Between 41-60Years D
(d) Above 60 years D
48
4. Education qualification
(a) Primary 0
(b) Secondary 0
(c) Certificate 0
(d) Diploma 0
(e) Degree 0
(f) Postgraduate 0
(g) PhD and Above 0
49
PART II: THE LEVEL OF AWARENESS ON COPYRIGHT MATTERS IN THE
MUSIC INDUSTRY
5. Are you aware of Copyright protection mechanism
(a) Aware of Copyright protection but not read to use it 0
(b) Aware but there is no effective mechanism for protection 0
(c) Aware and able to use it 0
(d) Don't know, not aware of Copyright protection
(e) Do not provide incentives
(f) Does the perception of copyright at all levels (household,
Government, Religious in Institutions and other key
stakeholders)
(g) Is there any mechanism to control infringement in the music
works
Have you taken any step to legally protect and declare your music works 111 UPRS
(a) Yes 0
(b) No 0
If Yes, Was It by
Design/planned 0
Accidentally 0
50
If No, Why? Please indicate the reasons for not protecting your copyrighted works
(a) High application Cost D
(b) Inadequate or absence of effective enforcement mechanism D
(c) It needs complicated procures to protect copyright D
(d) I don't see the relevance ofiPRs protection to my business D
(e) Other reason (Please
specify ...........................................................................
6. How would you rate your awareness of copyright?
(a) Very important
(b) Good
(c) Fair
(d) Not aware
7. Do you know what constitute Copyrights?
(a) YES
(b) NO
51
8. If yes, would you include the followings to be among the branches of copyrights?
Strong Agree Agree Neither Agree
nor Disagree
(a) Musical
(b) Literary
(c) Dramatic
(d) Comedy
9. How was your creativity commercialized?
Through
(a) Own exploitation
(b) Assignment
(c) Licensing
(d) Others (Please
Disagree Strongly
Disagree
0
0
0
specify) ......................................................................................
I 0. How important are copyright protection in the economic rights?
Very Important Not Important Have no idea
Important
(a) Reproduction 0 0 0 0
(b) publishing 0 0 0 0
(c) Public 0 0 0 0 performance
(d) Translation 0 0 0 0
(e) Recording 0 0 0 0
(f) Distribution 0 0 0 0
(g) Music making 0 0 0 0
52
11. Please express your degree of agreement or disagreement with the following
statements. (Relevance of Copyright system to your music industry.)
Strongly Disagree Neither Agree Disagree Agree/Di
sagree (a) I am aware of all Copyright D D D D
matters (b) Copyright has contributed to the 0 0 0 0
value of my business by generating more income.
(c) Copyright protection has helped 0 0 0 0 my business to offer a unique and superior works over my competitors.
(d) I know the value of the economic 0 0 0 0 contribution of copyright-based industry in Uganda shillings or any other currency.
(e) The value of my Copyright has 0 0 0 0 helped me to invest more in my business
(f) I can use my copyright as 0 0 0 0 collateral to finance my business.
(g) I have developed various 0 0 0 0 marketing strategies for commercializing my IP.
(h) Copyright is the crucial element 0 0 0 0 of my Business plan.
(i) Before distributing copies in the 0 0 0 market or exporting we always comply with copyright requirements
G) I have never copied 0 0 0 0 product/services of others without any agreement
(k) I know some of my competitors 0 0 0 0 who copied/infringes my copyrighted works but I don't know what to do.
53
Strongly Agree
D
0
0
0
0
0
0
0
0
0
0
!2. Do you agree on the easy of differentiating pirated products from originals?
VCDs I. Very easy
2. Not easy
3. Difficulty
DVDs I. Very easy
2. Not easy
3. difficulty
13. How do you assess level of effectiveness of the copyright law in Uganda?
(a) very effective
(b )effective
( c )not so effective
(d)not effective
(e)un decided
54
PART III: EFFECTIVENESS OF COPYRIGHT PROTECTION
14. Copyright protection mechanism in Uganda is seen as incentive to authors to create
works that in turn be used to spur economic growth, Do you agree?
(a) Yes
(b) No
15. IfNo what can be done to ratify the situation?
a) Strongly disagree Disagree Neither Agree Strongly
Agree/Disagree Agree
b) Government should
provide clear
policies on
copyright and
related rights
c) The revision of
Copyright
legislation
d) Provision of pmper
management and
administrative
stmcture on
copyright and
related rights
e) Create an enabling
environment for the
development of
copyright based
industries.
f) Provide proper
55
remedies for infringement for copyrighted rights
g) Provision of proper licensing schemes
h) The introduction of a hologram to be inserted into the original works.
i) Facilitate the administrative institutions to administer, managed and enforce copyright.
j) Encourage public private partnership especially within the industry organization.
k) To ensure training and awareness creation in relation to the importance of copyright and related rights in economic developments.
56
16 Copyright creates a system where by the Copyright owner is granted the exclusive
rights to use or exploit his work, do you concur with the said statement?
(a) YES
(b) NO
17. How important is copyright protection in Uganda?
(a) Very important
(b) Impotiant
(c) Most important
18. Do you agree the followmg pomts to be the reasons for lack of effectiveness of
copyright law in Uganda?
1. Weak enforcement of law
2.Inadequate campaign
3 .No Guideline for UPRS
4.Insufticient of UPRS
57
PART IV: ENFORCEMENT MEASURE IN THE COPYRIGHT MUSIC
19. How would you rate the accessibility of the public of the public registering their
works?
(a) Easy
(b) Difficulty
(c) Very difficulty
(d) Not accessible
20. Does accessibility of registering copyright works stimulate protection and motivate
creativity
.LI --c-a)_v_E_s----------------~------------------~ (b) NO
2l.Please indicate the following scale the extent to which you think your industry would
need government advice when considering issues involving copyright matters
(a) Always (b) Usually ( c )Sometimes (d)Rarely (e)Never
20. Has your distribution company ever sought advice in Copyright protection?
YES /NO/I DONTKNOW
58
22. Accessibility of Copyright matters requirement has strong positive result on
creativity
(a) Strong Agree
(b) Agree .
(c) Neither Agree nor Disagree
(d) Disagree
(e) Strongly Disagree
23. Please indicate on the following scale the extent to which you think your music
industry would need external advice when considering issues involving copyright
matters.
I. Always
2. Usually
3. Sometimes
4. Rarely
5. Never
24. Is easy to prosecute copyright piracy cases in Uganda?
!.Very easy
2.Easy
3.Not easy
4.Not so easy
4.Don't know
59
25. Does UPRS provides effectiveness in fighting copyright piracy
I. Very effective
2.Effective
3.Not so effective
4.Not effective at all
26. What are the main areas in terms of violation ofiPRs in the Country?
IPRs YES NO
(a) Trade/service mark
(b) Patent
(c) Industrial design
(d) Trade secrets
(e) Copyright and related
rights ..
27. Does stronger protectiOn of copynght leads to creatlV!ty m the music mdustry
Strongly Agree
Agree
Neither nor Disagree
Disagree
Strongly Disagree
28. Do you agree that a violation of copyright constitute a serious problem which
discourages creativity at different levels in the music industry?
(a) Strongly Agree
(b)Agree
(c)Neither Agree nor Disagree
( d)Disagree
( e )Strongly Disagree
60
29. What is the response of copyright office to complaints raised by copyright holders?
(a) Excellent
(b)Good
(c)Fair
(d)Not aware
30. Do you agree that UPRS helps in prom copyright protection mechanism?
(a) Strongly Agree (b)Agree (c)Neither Agree nor Disagree ( d)Disagree
(e)Strongly Disagree
31. How would you rate cooperation with stake holders of copyright works
(a) Excellent
(b) Good
(c) Fair
(d) Not aware
32. Do you agree that the Government helps in promoting Copyright protection?
(a) Strong Agree
(b) Agree
(c) Neither Agree nor Disagree
(d) Disagree
(e) Strongly Disagree
61
33. Organization on Copyright enforcement measure in the music industry (Kindly
circle the most appropriate answer)
(a) Has your industry ever conducted anti-piracy campaign in the country
YES I NO I DON'T KNOW
34. Has your music industry ever licensed out copyright works to other parties (to allow
others to use Copyright owned or controlled by your entertainment industry).
YES/ NO I DON'T KNOW
62
PART V: WHAT ARE STRATEGIES FOR EFFECTIVE ENFORCEMENT OF
COPYRIGHT IN THE MUSIC INDUSTRY
Strongly disagree Disagree Neither Agree Strongly Agree/Disagree Agree
a) Awareness campaigns
b) Amendment of CNRA
c) General antipiracy effoti
d) Coordination among the enforcement Agencies
e) Enforcement of the law on piracy
t) Funding/equipping of UPRS
g) Public enlighten campaign
h) Close monitoring of markets and industries
i) Empowering UPRS
j) Provision on subsidy for publishers to reduce cost
k) Separating a collective society from the Copyright Office
I) Introducing training programs for enforcement agencies like the judiciary and Uganda police.
m) To put IP policy in operational.
n) Effective
63
implementation of provisions related to the fight against piracy.
o) The UPRS to be autonomous
p) Training of more IP expert
q) Establishment of Tribunal to deal with Copyright Matters
r) Harmonization of Copyright law in line with the International standard.
s) Updating regulations to fit the advancement of new technology.
t) Reforming the copyright administration structure
35. Do you agree that if another association rather than UPRS take over the issue of
fighting against piracy will bring more output?
(a) Strongly Agree
(b)Agree
( c )Neither nor Disagree
( d)D isagree
(e)Strongly Disagree
64
PART VI: SUGGESTION AND RECOMMENDATIONS FROM RESPONDENTS
36. What can be done to make you full exploit IP potentials
(a) Government should establish informal training 0
(b) I will spend my own time to learn about IPRs 0
(c) Suggest any other ways
....................................................................................
37. Please give any other comments or suggestions that you feel worthwhile.
38. Do you agree to have the information in this questionnaire made public?
(a) Yes (I agree)
(b) No. (Please give reason) ................................................................ ..
"Thank you veiJ' muc!z for tlze time you spent and your patience in answering these
questions."
65