By Chief Editor

• Oct 28, 2022
• 0 Comments

Kwabena Frimpong Mensah[1]

1.  INTRODUCTION

With increased activity in the creative industry, a common but persistent concern amongst industry members is the rights they have in relation to their work and if there is any protection for these rights which they can take advantage of. The discussions around this concern recently hit the airwaves after one Kirani AYAT, a Ghana-based artiste, accused the President of the Republic of using parts of his musical work in a promotional video without his consent and any form of compensation. The Ghana Tourism Authority (GTA), which was responsible for making the said video, in response to this grave allegation, claimed that the agency it contracted to create the video had obtained all the rights to use the musical works of Kirani AYAT.[2] In an interview on Asaase radio on Tuesday, 27^th September 2022, Mr. Akwesi Agyeman, the CEO of the GTA, stated that the Authority had validly acquired the intellectual property. He further stated that Kirani AYAT’s work depicted several important aspects of Ghanaian culture; for which reason, the artiste was to have first obtained permission from the National Folklore Board, failure of which fell foul of the law and granted the Authority the right to use Kirana AYAT’s work. Mr. Agyeman ended the interview by claiming Kirani Ayat should have been grateful his work was used in promoting Ghana. It thus came as a shock when the agency contracted by the GTA in a press release stated that its contractual relations with the GTA were limited to the rollout of “Discovery Bands”. The agency maintained that it had neither been contracted to make the offending video nor obtained or claimed to have obtained any rights to Kirani AYAT’s work.

As the allegations and counter-allegations continue to fly, certain key things stand out and should be of interest to every person in the creative industry; these things are,

1. What are the rights creators of work have?
2. Can the rights attached to the creative works be acquired by another person?
3. In instances where a creator’s rights are breached, is there any remedy available to the creator asides the public “naming and shaming”?
4. Are there instances where a creator’s work could be used without the owner's authorisation?
5. How does a creator legally incorporate aspects of Ghanaian culture into his work?

This article seeks to answer these questions and provide the members of the creative industry with some insights into how they can fully benefit from the fixed expression of their ideas and talents.

2.  COPYRIGHT PROTECTION IN GHANA

Copyright is a fundamental right granted to creators of literary and artistic works to enable them receive financial reward and recognition for their creative efforts. This right exclusively empowers creators to have control over their works; only they or their heirs and successors-in-title can authorise or prohibit the use of their works by others.[3]

2.1.  What Works are Protected under Ghanaian Law?

In Ghana, copyright is administered by the provisions of the Copyright Act 2005, Act 690 (the Act). For a work to be protected by copyright in Ghana, the work must be original in nature, fixed in a medium of expression and created by a citizen or person ordinarily resident in Ghana.[4] To register a work for copyright protection, the author must deposit two copies of the work with the copyright office.[5]

In defining what is original, the Act provides that a work is original where it is produced by the independent effort of the author.[6] The Act further provides a list of work that is afforded copyright protection in Ghana; these are a) literary works; (b) artistic works, (c) musical works, (d) sound recordings, (e) audiovisual works, (f) choreographic works, (g) derivative works, and(h) computer software or programmes.[7] Copyright protects works and expressions, and not merely ideas[8].

A work receives copyright protection the moment it is created; this means a work does not necessarily have to be registered before it is afforded this right.[9] However, it is advisable to have creative works registered. Copyright does not apply, however, to works which are in the public domain. A work is said to be in the public domain where the copyright protection has expired or where the owner of the work has renounced his rights to the work.[10] Where an author has renounced his rights, the renunciation must be in writing and should be made to the public.[11]

2.2.  What Rights do Copyright Holders Have?

Copyright holders are entitled to two main rights; moral and economic rights. In determining who is entitled to these rights, there is the presumption that the person named as the author is the owner of the protected work unless the contrary is proven.[12]

Moral Rights refer to the right to be known as the author of the copyright-protected work; this includes the right to have the author's name mentioned in any dealings in respect of the work and to prevent the modification of the work in any manner that harms the author’s reputation.[13] The moral rights to any copyrighted work cannot be assigned in whole or in part to any other person.[14] They exist for the duration of the creator’s lifetime and, after the creator’s death, continue to exist and be enjoyed by the author’s successors.[15]

On the other hand, economic rights allow right owners to derive financial reward from the use of their works by others.[16] The learned author Andrew Amegatcher in his book ‘Ghanaian Law of Copyright’ on page 26, describes economic rights in this manner,

“Economic rights are the rights of exploitation of the work and the resulting right of receiving remuneration therefrom. The creation of a work will not itself generate income for the author. It is the exclusive right it gives to the author to exploit his work . . . and to receive appropriate remuneration which makes copyright a commodity which can be bought, sold or transmitted to others by will. The economic exploitation of one’s work involves the author in many forms of licencing agreements.”

The rights owner has the exclusive right to do the following (a) the reproduction of the work in any manner or form, (b) the translation, adaptation, arrangement or any other transformation of the work, (c) the public performance, broadcasting and communication of the work to the public, (d) the distribution to the public of originals or copies of the work by way of first sales or other first transfer of ownership, and (e) the commercial rental to the public of originals or copies of the work[17]. These economic rights subsist for the life of the rights holder and a period of 70 years after their death.[18]

Unlike moral rights, the rights owners may transfer their economic rights in whole or in part to others.[19] The transfer of the economic rights may be by an assignment – where the economic rights are sold to another party; by testamentary disposition – willed to a party; by a licence – permission granted to another person to do some act in relation to the protected work for a period of time or by the operation of law.[20]  The Act requires that all assignments of copyright in protected works be in writing and signed by the rights owner or its appointed agent.[21]

The duration of the economic rights depends on the nature of the work created. However, economic rights in copyright-protected works generally exist from the date the work is first made, published or made known to the public, whichever date is later.[22]

2.3.  The Rewards of a Copyright Holder

The financial reward available to rights owners is in the form of royalties. A rights owner becomes entitled to royalties whenever there is a public performance of copyrighted work via any medium.[23]  The creator of the work is not responsible for collecting the royalties himself. This function has been delegated to collective administrative societies by the Act. The collective administrative societies, on the creator’s behalf, collect and distribute all royalties and other remuneration due the creator from the use of his work.[24] There are presently three collective administration societies in Ghana; the Ghana Music Rights Organisation (GHAMRO), which acts on behalf of music rights holders; the Audiovisual Rights Society of Ghana (ARSOG) which acts on behalf of audiovisual rights holders and CopyGhana, a Reprographic Rights Organisation which acts on behalf of literary rights holders.

The most known collective administrative society in Ghana is GHAMRO which acts on behalf of musicians. The Organisation has been in existence since 2011, collecting and distributing royalties to its members. Sadly, the Organisation has been beset by internal and external problems which have hindered its proper operation. Internally while there have been wranglings over the proper persons to run the organisation, the Organisation has continued to cry out for help to acquire the right equipment to properly monitor the songs that are played[25]

Collective administrative societies have the following powers as stated in Regulation 29 of Copyright Regulations 2010 LI 1962:

1. receive royalties and other monies to which its members are entitled,
2. take measures that the society considers appropriate for the collection of royalties and any payments to which members of the society are entitled,
3. enforce the rights of its members by

• entering into contracts and reviewing contracts in respect of the works of its members,
• either acting alone or with other appropriate institutions to seize works which infringe the rights of its members, cause the arrest of persons who infringe on the rights of its members, and institute legal action against persons who infringe on the rights of its members.

An author must be a member of these collective administrative societies to enjoy these benefits.

2.4.  Remedies Available where there is a Breach of Copyright

The most important part of copyright laws is the remedies available to authors when their rights are infringed upon. The Act defines any act that is done contrary to the moral or economic rights of the author as an infringement of the author's copyright.[26]This list includes the reproduction, distribution, imitation, performance, public exhibition or extraction of any work without the authorisation of the rights holder and circumventing any technological protection measure applied by the author.[27]

When a dispute about the possible infringement of a person’s copyright, the Act provides means by which the parties may negotiate and settle the issue. The parties may use the alternative dispute resolution methods provided or resort to litigation to resolve the dispute. The Act provides that the parties may negotiate a settlement[28]; where that fails, the parties may report this dispute to the Copyright Administrator to mediate a settlement between the parties.[29] If the mediation is unsuccessful, the parties may resort to litigation in court.[30] The use of the word “may” means this provision is optional and not mandatory.

The Act also provides for the parties to submit their dispute to the Copyright Office created under the act for settlement. The Copyright Office has the power to investigate and redress copyright infringement cases and settle copyright disputes where those disputes have not been reserved for settlement by the Copyright Tribunal.[31] The existence of this tribunal is to facilitate the quick settlement of copyright issues and reduce the caseload of the High Court in this respect. The writer hopes that the players in the creative industry will use the tribunal to settle their copyright related disputes.

Should a settlement be reached at any of these forums, the parties would not have to resort to the courts for a dispute to be resolved. The problem with the current state of the law in this respect is that it allows the parties to go forum shopping. It is in the interest of the parties and society that there is finality when it comes to adjudication of disputes. Where a party chooses to take any of the options available save for mediation, the decision given should be final and bar the parties from seeking redress in the other forums. Thus, where mediation breaks down, the parties can refer their disputes to court for redress.

The Act criminalises copyright infringements and prescribes punishment for persons convicted of copyright infringement. Where a person is found to have infringed the rights of an author/rights holder, the offending person is liable to pay a fine of not less than 500 penalty units (presently GHS6,000) and not more than 1000 penalty units (presently GHS12,000) or a term of imprisonment for not more than 3 years or in some instances the payment of the fine and imprisonment.[32] Where the infringement is a continuous one, the offending party is also liable to pay a fine of not less than 25 penalty units (GHS300) and not more than 100 penalty units( GHS1200) for each day the infringement continues.

In addition to the punishment stated above, the court may also make an order for the infringing party to pay all monies received from the unauthorised use of the protected work to the rights owner and for the disposal of all the infringing work.[33]

After exhausting the criminal aspect of copyright infringement, a rights owner may also commence an action in the High court for any of the following reliefs;

1. an injunction to prevent a person from infringing on his copyright or restrain said person from continuing with his acts that have infringed on his copyright;
2. damages for the infringement of his rights
3. and where the infringing works are imported or produced for export, an order to have the customs division of the Ghana Revenue Authority detain the goods.[34]

2.5.  Defences to Copyright Actions

There are defences available to users of copyrighted work when faced with a claim for copyright infringement. These defences, when applied, may absolve the user from any liability that may arise. The Defences available are stated as follows:

1. where the work is in the public domain – A work may be said to be in the public domain when the period of copyright protection has expired, or the owner has publicly renounced his rights to the work. In such an instance, no person can claim copyright for the copied work.
2. Innocence- where the user can prove that his work was independently created and not copied. The test for originality is that the work is from the original thought process of the creator.
3. Statute of Limitation- where the claim for copyright is not brought within the legally prescribed period. In Ghana, an action to recover damages for copyright infringement cannot be brought after six years after the infringement happened[35]
4. Fair Use/Fair Dealing- Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances, such as for teaching or research purposes, public education, public commentary, and satire or parody.

3.  FAIR USE OF COPYRIGHTED WORK

Another issue that arose from the AYAT - GTA issue was whether the GTA could use the copyrighted work of Ayat without his permission. If the GTA could use the copyrighted work without AYAT’s permission, then on what basis was Ayat making his claim?

The general rule is that before a person can use the copyrighted work of another, the person must first have obtained the permission of the rights holder to use the work and paid some compensation(royalty) for the use of the work. There are, however, instances under the various copyright laws where copyrighted work may be used without the consent or authorisation of the rights holder. These instances are known as fair use or fair dealing. Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.[36]

In its most general sense, fair use is any copying of copyrighted material for a limited and “transformative” purpose, such as to comment upon, criticise, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defence against a copyright infringement claim. If an individual’s use qualifies as fair use, it would not be considered an infringement.[37]

The doctrine of fair use is seen in various copyright laws worldwide. Article 9(2) of the Berne Convention for the protection of literary and artistic works to which Ghana is a signatory states as follows,

“It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author”.

Section 107 of the United States Copyright Act, in a similar nature, states as follows,

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright”.

Under Sections 40,41, 42, 113(e) and 113(f) of the Australian Copyright Act 1968 (Cth), fair use is applicable in the following instances:

1. research or study
2. criticism or review
3. parody or satire
4. reporting news
5. enabling a person with a disability to access the material
6. professional advice by a lawyer, patent attorney or trade mark attorney

Ghana is no different from the jurisdictions stated above and has also enacted for itself instances for the permitted use of copyrighted work. Section 19 of the Act provides as follows:

“The use of a literary or artistic work either in the original language or in translation shall not be an infringement of the right of the author in that work and shall not require the consent of the owner of the copyright where the use involves:

(1) The exclusive personal use of an individual

(2) Use in teaching, educational institutions, professional training or public education

(3) In reporting news of fresh events or new information[38]”

Fair use, however, is not an absolute defence against copyright infringement. The various enactments above provide a test for using others' copyrighted work without permission, as is the practice worldwide. For instance, Section 107 of the United States Copyright Act provides a guideline on what should be considered before usage is deemed fair usage. The said Section states:

“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.”

In Ghana, the test, as provided by the Act, is whether the extent of the use is beyond what is justified for the purpose it is being used[39]. It follows to reason that where the quantity of the work used exceeds what is justified, the defence of fair use will not avail to the infringer.

4.  THE POSITION OF THE GHANAIAN COURTS

The courts have regularly exercised these rights to protect rights owners. For example, in the case of EPHRAIM DOE CHURCHILL GAKPETOR V DRIVER AND VEHICLE LICENSING AUTHORITY (DVLA) & PICOLO CONCEPTS LTD UNREPORTED SUIT NO: CM/IPR/0432/2018 dated 23^rd February 2022, the Commercial Division of the High Court coram: Justin Kofi Dorgu awarded damages against the Defendants for the use of the Plaintiff’s song “Aleke” in their advertisements without his authorisation. The Plaintiff, in this case, a musician known as “Ephraim”, stated that he had made a song “Aleke” which featured Sarkodie. He claimed that the song had enjoyed massive airplay and was well known. He stated that sometime in May 2018, his attention was drawn to the fact that the 1^st Defendant (DVLA) was using his song as the soundtrack to advertise the new biometric driver’s license. This, he claimed, was done without his consent and authorisation. He thus claimed damages for the infringement of his copyright.

The Defendants, in their statement of defence, alleged that:

1. DVLA engaged and paid the 2^nd Defendant (Picolo Concepts) to provide a specific media service for public educational purposes, and further that DVLA played no role in the production of the advert.
2. DVLA did not know or had reasonable grounds to know that by engaging the 2^nd Defendant to perform a service professionally involving the education of the public, the 2^nd Defendant’s conduct would become the subject of an alleged infringement of Plaintiff’s intellectual property claim.
3. DVLA could not be held liable for the production of the advert by the 2^nd Defendant as it was not responsible for the conduct of the 2^nd Defendant because it had performed its obligations as far as the contract with the 2^nd Defendant was concerned.
4. They had no way of confirming whether the work in question was submitted for registration to actively and legally shroud the Plaintiff with ownership.
5. Since the use of the Plaintiff’s song was for public education, there was no need to seek the consent of the Plaintiff.
6. The Plaintiff’s economic rights in his supposed work, if at all, were not unfettered or wholesome. The reportage of current events, which involved only short excerpts of the sound recordings or audiovisuals, did not form part of the economic rights of the Plaintiff.

The defence put forward by DVLA and Picolo Concepts Ltd raised certain issues for determination of the court. The issues being:

1. Whether the Plaintiff needed to have registered his work before being afforded copyright protection.
2. Whether the use of the Plaintiff’s work was fair.

The Court in answering the first question, the court stated as follows[40],

“From the records, it is not in doubt that the Plaintiff did not comply with the law in registering with the copyrights office or patenting the song “Aleke” from which the 2^nd Defendant took the excerpt. I will dismiss this type of defence outright because the Plaintiff is not suing under the Copyright Act not any infringement of his copyright. His relief is for damages for Defendants’ unlawfully using his song as a soundtrack for their advert” He continued “Quite apart from that, Section 39(4) of Act 690 quoted by the Learned Lawyer for the 1^st Defendant in his written address provides; Copyright protection of a work shall not be dependent on registration. In general copyright protection is attained automatically the moment the work is created. Since protection does not depend on registration, a creator does not need to register his or her work”.   

The Court then wholly rejected the defence of fair use and found that the main aim of the Driver and Vehicle Licensing Authority was not public education but a regulatory body that generates income for the government. The defence of fair use could not avail to the Driver and Vehicle Licensing Authority because the Authority derived commercial benefit from using the copyrighted work. The Court, on page 11 of its judgment, stated,

“It is also not wholly true that the main aim object of the 1^st Defendant is public education. Public education may be part of their mandate but essentially, it is a regulatory body that generates income for itself and the government. Their functions are not pro bono and that they cannot hide behind the assertion that the advert was meant for public education and avoid the consequences of their tortious acts”.

5.  THE USE OF FOLKLORE IN CREATIVE WORKS

As part of the litany of reasons the GTA refused liability for the unauthorised use of Ayat’s work was that part of his work featured aspects of Ghanaian Culture. The GTA argued that the use of Ghanaian culture required the approval of the National Folklore Board. As such, the failure of AYAT to obtain the approval of the National Folklore Board[41] was contrary to the Act and deprived his whole body of work of the protections under the Act. The presumed reasoning behind this stance was that since AYAT did not own the copyright in Ghanaian culture, he could not make a claim against the GTA when he had infringed on another’s copyright.

To use works of folklore for commercial purposes, an author must apply to the National Folklore Board and pay a prescribed fee.[42] A person commits an offence if they reproduce, sell, translate, adapt or distribute works of folklore within the Republic or outside without the authorisation of the National Folklore Board. A person convicted of such an offence is liable to pay a fine of not less than 150 penalty units (presently GHS1,800) and not more than 1000 penalty units (presently GHS12,000) or a term of imprisonment of not more than 3 years, or both.

In 2019, after the release of the hit blockbuster, “Black Panther” by Marvel Studios, the National Folklore Board intimated that it had begun preparing for legal action for copyright infringement against Marvel Studios because Marvel Studios used Kente and Adinkra symbols in the film without approval from the Board.[43] This move by the Board shows how jealously the Board protects the country's folklore. The most important questions in this current scenario are, (a) what constitutes folklore? and (b) what forms of cultural expression are vested in the President of the Republic?

Folklore can be many things, a simple story, musical instrument, drawing, handicraft or even melody. Under Section 76 of the Act, folklore is defined as

 “the literary, artistic and scientific expressions belonging to the cultural heritage of Ghana which are created, preserved and developed by ethnic communities of Ghana or by an unidentified Ghanaian author, and includes kente and adinkra designs, where the author of the designs are not known, and any similar work designated under this Act to be works of folklore”

To better understand what is protected by folklore it is important to break it down to its component parts. The definition of folklore states it protects artistic and literary works.

A literary work per the Act includes the following[44]:

• novels, stories or poetical works;
• plays, stage directions, film scenarios or broadcasting scripts;
• textbooks, treaties, histories, biographies, essays or articles;
• encyclopaedias’, dictionaries, directories, timetables, anthologies, databases or compilation of data or other material, whether in machine-readable form, which by reason of the selection or arrangement of contents constitutes intellectual creations;
• letters, reports or memoranda;
• lectures, addresses or sermons; and
• computer programmes, whatever may be the mode or form of expression;

The Act also defines Artistic works to include the following:

• painting, drawing, etching, lithograph, woodcut, engraving, print, fashion design and wood design;
• photography not comprised in an audiovisual film;
• map, plan or diagram;
• sculpture;
• work of architecture in the form of building or model; or
• work of applied art, whether handicraft or produced on an industrial scale;

The definition of folklore as provided by the Act gives the impression that, like all things copyright, the cultural heritage should be in a fixed medium of expression before it meets the criteria for protection, and this is bolstered by the inclusion of kente and adinkra symbols which are found on fixed mediums, i.e., cloth in the definition of folklore. This assertion is further supported by the fact that to be afforded protection under the Act, the work must be found in a fixed medium of expression and may be reproduced with the aid of a machine or any device.[45]

In light of this definition of folklore and the works protected under folklore, could it be said to be an infringement of folklore if an author incorporates persons dancing to traditional tunes in an audiovisual work? Would it also mean that authors are prevented from showing aspects of their own culture in their works unless they make payment to the National Folklore Board as alluded to by the CEO of the GTA?

To the writer, the answer to both questions should be a resounding no. Folklore seeks to protect cultural heritage in fixed mediums capable of reproduction. Further, the definition of the works protected under folklore are explicit and do not cover what was shown in AYAT’s music video. Thus, Kirani AYAT’s work does not fall under the ambit of the works for which permission from the National Folklore Board is needed. It would not be a defence to any claim for copyright infringement against the GTA to refer to the absence of permission from the National Folklore Board.

Applying this to the present tussle between Ayat and the GTA, it is the writer’s opinion that the defence of fair use would not be available to the GTA. It is admitted that the promotional video was made to inform the public of the #visitGhana drive in December, and this, per the provisions of the Act, falls within the purview of a new invention. However, the nature of the video is to attract people from the diaspora to visit Ghana for tourism purposes, the GTA stands to make substantial income for the government from the success of the #visitGhana drive, and this changes the nature of the promotional video from one that informs to a commercial one. Once it is commercial in nature, the defence of fair use cannot hold, and the GTA would be deemed to have infringed on the rights of AYAT.

6.  CONCLUSION

Creators of literary and artistic work are blessed with various rights by virtue of their creations which they must guard jealously. The copyright laws of Ghana provide several means by which the author may protect his work from being exploited without his consent and Authority. These laws are in force and only require that creatives take advantage of them.

After all the huffing and puffing by the GTA and its officials, the only thing that stands out clearly is that the GTA has infringed on the rights of Kirani AYAT. It is the writer’s opinion that the option available to the GTA now is to use any of the Alternative Dispute Resolution Methods prescribed in the act to reach a settlement favourable to both parties to avoid further embarrassment. The silver lining in all this is that people in the creative arts industry will begin to appreciate the need to be abreast with the copyright laws in the country to avoid situations like this.