Enforcement of copyright in the music industry : A critical analysis of the legal and institutional framework on enforcement in Sub Saharan Africa

Abstract

It is trite to state that law without effective enforcement is of no use to those it seeks to protect. Nevertheless, it must be emphasised that for a law to be effective, there have to be corresponding institutional structures. Enforcement of copyright involves two phases. The first is formulation and enactment of law. The second phase is the implementation of legal provisions that includes interpretation of law and determination of cases by the courts, investigation of copyright violations, prevention of unauthorised exploitation of the rights and the use of sanctions and remedies provided by law. The main problem for rights holders is not so much in written law but in enforcement or lack thereof. Some creative industries in sub Saharan Africa are being threatened due to unauthorised commercial exploitation of copyright protected works. This is despite strengthening of national laws in the region. There are various reasons for the impending demise of such industries, but the crucial factor is lack of or limited enforcement. The thesis looks at the important issue of enforcement from the perspective of the music industry in sub Saharan Africa. Based on an analysis of four sub Saharan countries, namely Kenya, Nigeria, Senegal and South Africa, this thesis illustrates that despite having in place relatively modem copyright laws, these countries still experience high levels of unauthorised commercial use in respect of music. The thesis suggests that a key factor that .. promotes unauthorised commercial use is lack of effective enforcement." Through a critical analysis, based on the political, social, economic and technological perspectives, the thesis addresses three questions. First, why is copyright enforcement a problem in sub Saharan Africa? Secondly, why has the existing legal regime failed to ensure effective enforcement? Thirdly, what is an effective copyright enforcement regime? Effective enforcement of copyright, from a political, economic, social and technological perspective involves the existence of enforceable law, as well as effective enforcement mechanisms in both private and public sectors. An effective enforcement regime ensures conformity to law, involves a constant review of existing legal regimes and institutional structures (such as enforcement agencies) as well as adoption of new procedures and technologies to reduce incidences of non-compliance. The thesis concludes by suggesting proposals for policy guidelines on enforcement of music copyright in sub Saharan Africa.