A status report for authors and future authors in OHADA’s member states
Background of OHADA law
An articulated purpose for the OHADA Treaty was to provide the State parties with a modern, western style set of business laws and, thus, to make these State parties more attractive to foreign investors from the developed world. Currently, there are nine OHADAs statutes to wit:
- Uniform Act Relating to General Commercial Law,
- Uniform Act Relating to Commercial Companies and Economic Interest Group,
- Uniform Act Organizing Secured Transactions and Guaranties,
- Uniform Act Organizing Simplified Recovery Procedures and Measures of Execution
- Uniform Act Organizing Collective Proceedings for Clearing of Debts
- Uniform Act on Arbitration,
- Uniform Act Organizing and Harmonizing Undertakings Accounting Systems,
- Uniform Act Relating to the Carriage of Goods by Road,
- Uniform Act Relating to the Law of cooperatives.
Because the Treaty limits OHADAs jurisdiction to business matters, these statutes, called Uniform Acts, focus exclusively on business matters.
However, there is no single Uniform Act concerning intellectual property matters under the Treaty; in this case, what will be the relevant legislation to rely upon on intellectual property issues? This write-up will elaborate on such. Our main focus in this write-up is the state of copyright law in OHADA countries.
OHADA member States are seventeen in number and include: Benin, Burkina Faso, Cameroon, Central African Republic, Comoros, Congo Brazzaville, Côte-d’Ivoire, Gabon, Guinea, Guinea Bissau, Equatorial Guinea, Mali, Niger, Democratic Republic of Congo, Senegal, Chad and Togo. Each of these countries has legislations governing copyright in their respective countries; however, most of these countries have a uniform system of law regulating Copyright which emanates from OAPI through the Bangui Agreement 1977 which was subsequently revised in 1999. However, it is important to mention that the Democratic Republic of Congo is not a member of OAPI; this write-up will not focus on Comoros, Guinea Bissau and Equatorial Guinea but on the other OHADA member countries.
Copyright law in OHADA member states
Since Intellectual Property results from creative efforts through the use of the human intellect, every conceivable effort must be made to encourage innovative and inventive activity. Intellectual Property comprises of creations of the human mind and intellect. It consists mainly of two branches, one being industrial property dealing with technological inventions, industrial designs, trademarks for goods and services, utility models etc.; the other being copyright which protects literary, musical, artistic, photographic and audiovisual works, films, computer programs and software, etc., as well as related rights.
The essential idea behind a copyright is simple: artists and creators should be able to enjoy the fruits of their labor for a specified time period, after which the material becomes available for public use. Societies benefit because this incentive to create will yield a rich and varied cultural menu for its citizens. Indeed, one can say that copyright protection is a necessary ingredient for ensuring cultural wealth in our societies.
OAPI which stands for Organisation Africaine de la Propriété Intellectuelle is the only authority for all its member States. The Bangui Agreement which was revised in 1999 defines, among other things, the objectives of OAPI, among which is the harmonization of intellectual property rights in general, and in our case, copyright law in all the member States. To illustrate this, Annex VII of the Bangui Agreement 1999 sets out the provisions relating to copyright and these provisions are applicable and binding on all the member States.
Each Member State of OHADA has laws governing Intellectual Property in general and Copyright in particular to wit:
- Law N°005/PR/2003, of May 2nd 2003, on the Protection of Copyright, Neighboring Rights and Folklore Expressions for the Republic of Chad,
- Law N°91-12 of June 10th 1991, on the Protection of Copyright, Folklore and Neighboring Rights for Togo,
- Law N°2008-09 of January 25th 2008, on Copyright and Neighboring Rights for Senegal,
- Ordinance-Law N°86-033 of April 5th 1986, on the Protection of Copyright and Neighboring Rights for the Democratic Republic of Congo,
- Ordinance N°93-027 of March 13th 1993, on Copyright, Neighboring Rights and Folklore Expressions for the Republic of Niger,
- Law N°08-024 of July 23rd 2008, on the Literary and Artistic Regime of the Republic of Mali,
- Law of July 25th 1996 on Copyright for Ivory Coast,
- Law N°2000/011 of December 19th 2000, on Copyright and Neighboring Rights for the Republic of Cameroon,
- Law N°043/APN//CP of August 9th 1980, on Copyright and Neighboring Rights for Guinea,
- Law N°1/87 of July 29th 1987, instituting Copyright and Neighboring Rights in Gabon,
- Law N°24/82 of July 7th 1982, on Copyright and Neighboring Rights for Congo Brazzaville,
- Ordinance N°85.002 of January 5th 1985, on Copyright for Central African Republic,
- Law N°032-99/AN of December 22nd 1999, on the Protection of Literary and Artistic Works for Burkina Faso,
- Law N°2005-030 of April 5th 2006, relating to the Protection of Copyright and Neighboring Rights in the Republic of Benin.
Each of these legislations applies to each of the countries in which it belongs. This means that a person or an author in Cameroon will be guided by the Copyright Law of his country. However, with the harmonization of Copyright Law through the Bangui Agreement, one might be confused as to which law applies; the Bangui Agreement or the National law? To answer this question, it is worthy to mention that rights relating to the fields of intellectual property in general, and in our case copyright, as provided for in the Annexes of the Bangui Agreement, shall be independent national rights subject to the legislation of each of the Member States in which they have effect. This simply means that the provisions of the Bangui Agreement ought to be read together with the national legislations of each Member State.
Furthermore, Article 4(1) and (2) of the Bangui Agreement stipulate that:
The Annexes of the Bangui Agreement contain respectively, the provisions to be applied in each Member State concerning Literary and Artistic Property. The Bangui Agreement and its Annexes shall be applied in their entirety to every Member State that ratifies or acceded to it.
Normally, once a States ratifies a law, that law takes precedence over the national legislation. Therefore, this means that all the signatory member states of OAPI/ Bangui Agreement have agreed that the Agreement is the national law governing their copyright system. Therefore, legislation in each country should conform to the Bangui Agreement. What then happens when there are lacunae or when the two laws i.e. Bangui Agreement and national legislation are not uniform? Or if they are uniform in some points and not in others? Where does that leave an author, how will he be able to know which law applies to his context and which should he rely upon?
The limits of harmonization of copyright in OHADA countries
Although these countries have national laws regulating copyright, these laws should comply with the regional agreement they ratified and to this effect, it is possible to note the gaps of harmonization between these national laws and the regional frame.
Concerning photographic works, the majority of OHADA member States recognize their protection if the work is artistic or documentary. However, this requirement is not found in the Bangui Agreement which has been ratified by most of these countries.
Furthermore, not all OHADA Member States protect all types of work: for example, Congo in its legislation does not provide protection of software while Ivory Coast does; also, the Bangui Agreement protects databases as copyright while the legislations of the countries do not. This therefore shows a gap between the national laws which are not effectively harmonized on the one hand, and the non harmonization with the regional body they ratified on the other hand.
Moreover, concerning those who benefit from commissioned and audiovisual works, legislations from some of the member states stipulate that a work created as a commission or under a contract of labour belongs to its creator whereas the Bangui Accord 1999 in its Annex VII stipulates it belongs to the employer.
In addition, under the Bangui Agreement, the protection of a copyright lasts for the author’s lifetime and 70 years after his death; this is not the same in all of the countries. In Togo for example, the term of protection of a copyright survives during the lifetime of the author and 50 years after the end of the year of his death. We see here no uniformity with the regional organization.
Concerning the sanctions, Annex VII to the Bangui Agreement contains a list of persons empowered to take legal action. It states the acts of infringement and includes provisions relating to penalties. On certain specific points, it refers to national codes of civil procedure. Before turning to the question of regional provisions, it is worth raising the question of the applicability of such criminal penalties in domestic law, in the absence of explicit national legislation.
Generally speaking, the regional text refers to the “relevant provisions” of national criminal codes and national criminal procedure codes. However, it contains numerous details on the nature of the penalties – which should be sufficiently dissuasive– and on the possibility for the competent judge to double the penalty in some cases and to order the confiscation of receipts, as well as the publication of the sentence. All these provisions are not necessarily to be found in the various national legislations. Regarding the dissuasiveness of the penalties, one might also question the conformity of certain national laws with the provisions of the regional text.
However, numerous differences between the legislations of OAPI Member States can only be explained by the fact that a number of national texts have not been revised since the adoption of the new version of Annex VII to the Bangui Agreement
However, OHADA Member States have made an effort of harmonization as to the protection of moral rights. The scope and content of protection of moral rights have the same attributes and the same duration of protection. Also, these legislations are harmonized with the Bangui Agreement.
Furthermore, as to the content of protection, all OAPI Member States protect moral rights, to such an extent that one may speak of a high degree of harmonization in this respect. In all Member States the legislation provides for the same attributes and the same duration of protection. It may thus be said that the spirit of the regional instrument, as far as moral rights are concerned, is to be found in all laws of OAPI Member States.
Although there are some efforts of harmonization between domestic laws and the Bangui Agreement 1999, there are so many gaps between them. The fact that domestic laws are not in total harmony with the Agreement may cause confusion to new writers as to what law and what legislation will apply to them. However, it is important to note that the Bangui Agreement since it is ratified by the member states; therefore has superiority over domestic laws which have to comply with it.