Tuesday, 20 September 2016

Zambia's New Traditional Knowldege, Genetic Resources and Expressions of Folklore Act.

A Zambian citenge depicting a village scene.
(This is the one Little Leo has with her far from home,
so this is the one that gets pictured.)
Little Leo promised you a look at Zambia’s new TK, GR and EOF bill, so here we go.  Quite appropriate timing, too as the WIPO IGC on those very topics is going on now.  (Though Zambia is not on the list of participants.)
The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act, 2016 (Act No. 16 of 2016) came into force in June of this year.  [WIPO has it listed in their database as “…Folklore Act, 2006,” but that appears to be a typo as the Act itself says 2016 and references treaties that came into existence after 2006.]  The Act’s preamble indicates that the Act is meant to implement the ARIPO Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore, the TRIPS Agreement, and, like the new Industrial Designs Act, “any other relevant international treaty or convention to which Zambia is a State Party.”  Unlike the Industrial Designs Act, the traditional knowledge (TK), genetic resources (GR) and expressions folklore (EoF) act does not replace any existing law in Zambia; it is brand new.
Little Leo’s first thought upon hearing that Zambia had a law on EOFs was whether the Nyanja singer Angela Nyirenda’s recording of “Ching’ande,” a traditional Tonga song, on her album Malo Abwino would have required permission under this law.  Article 3 of the Act seem to answer that in the negative by excluding from the Act any use of expressions of folklore among traditional communities.  [Little Leo is rather happy as “Ching’ande” was the reason she purchased that album, even if she spent more time listening to ”Nimpepako Ma Key” and “Ubwinga.”  Amayenge and Mashombe Blue Jeans aside, there’s not a lot of recorded music available in Tonga.]

Permits Permits Permits

The main gist of the act is that permits are required for exploring, accessing and using TK, GR and EOFs.  Permits must be obtained from the Patents and Companies Registration Agency after a written arrangement is worked out with the community that holds the GR, TK or EOF.  The community is not allowed to authorize anyone to access or use without a permit.  (Art. 67.)
There are detailed rules laid out for obtaining and complying with permits.  (Arts. 32, 36, 40 and 45.)

The New System

The structure of the system seems to be somewhat akin to trademark protection.  Registration is optional but will serve as prima facie evidence in court, and the Registrar will publish an Intellectual Property Journal on protected TK, GRs and EOFs.  It does not look as though there is any opposition process as in trademarks, however.  Registration does not require public disclosure of secret TK or EOF in order to register for protection.  (Arts. 15(5) and 47(3).)  The Register will also contain records of all licenses, access agreements and other contracts related to use of GR, TK and EOFs.  Access agreements must be in writing and approved by the Agency in order to be valid.
The duties in the Act are overseen by the Registrar appointed under the Patents and Companies Registration Act.  This Registrar is a very busy person indeed.  In addition to the duties required under the Patents and Companies Registration Act, the Industrial Designs Act and who-knows-what-other-acts, the Registrar is now also in charge of administering the TK, GR and EOF act.  In this case, that means also running a lot of education programs about these topics.  Luckily, both the Patents and Companies Registration Act and the TK, GR and EOF act allow the Patents and Companies Registration Agency Board to appoint assistant registrars to help out with all these duties.  [That is quite a mouthful; Little Leo thinks there must be a fun acronym for that board.]  The Agency also has the ability to transfer the TK, GR and EOF duties to another institution if it sees fit.  (Art. 9.)

Extensive Definitions

Over a tenth of the Act is definitions.  The Act contains very detailed definitions for many terms that have proven difficult to agree upon in international settings, such as “expressions of folklore,” “holder” and “traditional community.”  The definition of traditional community is worth highlighting as it illustrates the local nature of this law:
“ traditional community ” means a human population living in a distinct geographical area in Zambia which is the creator or recognised, according to customary laws and practices, as the creator and custodian of a traditional knowledge, genetic resource or expression of folklore and the words “community” and “local community” shall be construed accordingly.
Zambia has approximately 72 local languages with 7 or so that are recognized as main languages.  The languages, and the cultures with which they go, tend to be geographically segregated.  In general terms, Bemba in the north east, Kaonde and Lunda in the north west, Nyanja and Tumbuka to the east, Lozi to the west, Tonga to the south, etc.  In other words, nearly all Zambians live in distinct geographical areas.  Lusaka and the main Bomas (towns) tend to have some people from other tribes, but for the most part, geographical areas tend to be fairly homogenous in culture.
The concept of “customary laws” contained within the “traditional community” definition is another term upon which agreement is difficult internationally, but which makes sense in the Zambian context.  In Zambia, customary laws are enforced by local courts that are integrated into the full national legal system.
It is also worth noting that the definition of Expressions of Folklore includes “any form, whether tangible or intangible, in which traditional culture and knowledge is expressed, appears or manifests…”  Many discussions in this area use the phrase “traditional cultural expressions (TCE) instead of Expressions of Folklore.  It appears that the Zambian act’s use of EoF also covers TCE.

Protections Granted

The Act has five enumerated protections listed in Art. 4(1), with the authority of holders of the relevant rights to bring legal proceedings granted in Art. 4(2).  This makes sense for four of the protections, but is a little confusing with respect to 4(1)(c), which protects “an equitable balance between rights and interests of holders and users.”  That sounds like something that would also need to be enforced by users.  The other four protections are:
·       Against infringement of TK, GR and EOF
·       Against misappropriation of TK and EOF
·       Against misappropriation of GR
·       Against improper grant of IP right over TK, GR and EOF
The Act also enumerates six benefits and rights that are granted to holders of TK, GR and EOF.  (Art. 4(4).)  [The Act says the holder may “excise the following rights,” but Little Leo is pretty sure that’s a typo and should be “exercise.”]  These rights include the option of registering TK and EOF with ARIPO and with the Zambian Patents and Companies Registration Agency.  Registration opportunities extend to those with transboundary rights in accordance with Article 5.4 of the Swakopmund Protocol.
Rights granted include both economic and moral rights.  For example, “distortion, mutilation or other modification of” expressions of folklore are prohibited.  (Art. 49.)  And, holders have the exclusive right to license what they hold, which is discussed further below.
Somewhat oddly, in the middle of all this protection and right-granting, there’s a long list of principles that seems like it would better fit in a preamble.  But, hey who says laws have to be drafted in a certain order?  It is unclear what legal effect this list of principles will have or how the items on the list will play into enforcement of rights under the Act.  Perhaps it will be used to interpret other provisions of the Act by a court.  (The 12-element list can be found in Art. 5.)

Prior Informed Consent and Benefit Sharing

Prior informed consent and benefit sharing are sort of buzz terms in GR/TK/EOF circles.  The Zambian act pays homage to both by including the terms, although somewhat unnecessarily.  All three subject matter portions of the act allow holders of the relevant items to license access to or use of the respective materials.  As discussed above, arrangements are only allowed if approved by the Agency through the permit-granting process.  So, there is no use allowed without prior informed consent, even without the sections that require prior informed consent.  (Compare Art. 17 giving the holder the exclusive right to “authorise the exploitation” of TK and Art. 18 requiring users of TK to obtain prior informed consent.)
Benefit sharing is also required, again both through the exclusive-right-to-license provisions and through explicit benefits-must-be-shared provisions.  Benefits considered go far beyond money and can be anything the holders feel would be beneficial to them.  A non-exhaustive list appears in Article 43:
(a) the license fee;
(b) upfront payment;
(c) milestone payment;
(d) royalty;
(e) research and development funding;
(f) joint ownership of intellectual property;
(g) employment opportunity;
(h) participation of Zambian nationals, the Agency or appropriate institution designated by the Agency in the research, and development based on the genetic resource or traditional knowledge;
(i) priority to supply raw materials of the genetic resource required for the production of products derived from the genetic resource;
(j) access to products and technologies derived or developed from the genetic resource or traditional knowledge;
(k) training, both at institutional and traditional community levels, to enhance local skills in genetic resources or traditional knowledge, and their conservation, evaluation, development, propagation and use;
(l) provision of equipment, infrastructure or technological support; or
(m) any other benefits as may be appropriate in relation to the genetic resource or traditional knowledge.

Exceptions and Limitations

In addition to the inter-traditional community sharing discussed above, there is also a broad exception for education, research and experimentation.  (Art. 3(3).)  Somewhat surprisingly, there are also compulsory license provisions akin to what one might find in a patent law.  In cases where GR or TK is “not being sufficiently exploited by the holder or where the holder refuses to grant access subject to reasonable commercial terms and conditions, the Minister may, in the interest of public security or public health, grant a compulsory licence to fulfill a national need.”  (Arts. 30 and 23, respectively.)  Interestingly, “the Minister” is mentioned a number of times in the Act, but it is never specified which Minister this is.

Disputes, Remedies and Enforcement

Disputes under the Act are to be heard by the Registrar, with the option to appeal to the High Court.  (Arts. 56 & 64.)  Little Leo wonders how difficult it will be to dispute the accuracy or validity of a registration granted by the Registrar, or the fairness of an agreement authorized by the Registrar, or the validity of a permit issues by the Registrar, before the Registrar.
There are also criminal enforcement mechanisms similar to those in the Industrial Designs Act.  Contravening the Act can result in up to 4 years in prison, a fine of 400,000 penalty units (~USD$12,000), or both.
Lastly, Little Leo notes the customs authorities granted in the act, mainly because many of the things she uses in her daily life that could potentially fall under the EOF umbrella, from her hand-carved and pyrographic nsima sticks that she cooks with to the citenges she wears to bike.  Customs agents are given the authority to seize GRs or “any material incorporating traditional knowledge, genetic resources or expressions of folklore that a person intends to export without the necessary permits.”  (Art. 68.)  Those permits are really important.

Monday, 19 September 2016

Anything you can think of can be 3D printed. But what about intellectual property?

SLA 3D Printer used by Rabbit
Whatever object you can think of, as long as it’s not giant-sized, can be 3D printed these days. NASA is sending 3D printers onboard spacecraft, to print spare parts if and when they’re needed. Nike is 3D printing prototypes for bespoke footwear, having partnered with IT company HP, and in the US, the first 3D printed pills have been approved by the US Food and Drug Administration.
 
3D technology is already being used for things like hip and knee replacements. Dental technicians are using them to design highly customised dental implants, bridges, crowns and dentures, and shells for hearing aids can be very accurately moulded to a patient’s ear, thanks to a 3D printer.
 
Advanced 3D printing technologies have become accessible due to the expiration of key patents held by the original pioneers of the 3D printing industry, releasing the monopolistic control over printing processes that have traditionally been confined to the industrial or healthcare fields.
 
Quick to seize the opportunity, 3D printer manufacturers like MakerBot and Ultimaker have paved the way for accessible 3D printing, and prices for these printers range from R37 500 to R84 995. A MakerBot Replicator Z18, which can build an object of up to 12 inches in width and depth, and up to 18 inches in height, is selling on Takealot.com for R133 000.
 
DionWired, meanwhile, is selling a XYZ 3D printer for 9990 ZAR, and is soon bringing out the Da Vinci 1.0 AiO, which can scan and replicate objects up to six inches high, which will retail at 14 990 ZAR.
 
The intellectual property implications, of course, are far reaching. Sized up against the rapid evolution of 3D technology, and its quickly expanding accessibility, IP laws globally are simply inadequate, and there’s a dilemma: How can designs, patents and copyrights be protected, while allowing 3D printers to positively impact society? For example, one of these impacts could be the ability of a rural clinic to 3D print a prosthetic knee for a patient, instead of waiting weeks for it to be manufactured and transported back from a laboratory.
 
Sinal Govender, an associate in the IP practice at Norton Rose Fulbright points out that emergency medical equipment, including syringes and needles, can potentially be 3D printed, which would greatly relieve the scarcity of these resources in outlying areas. “Service delivery could be taken to another level, and the costs of manufacturing and transport could be significantly reduced,” she says.
 
If you’re a designer whose protected products are being flagrantly pirated via a 3D printer, however, it’s another story. And consider the fact that guns can potentially be 3D printed, as well as illegal drugs. Like all technology today, 3D printers can be applied to positive outcomes, as well as  negative ones.
 
This illustrates the imperative to find a balance in the IP law concerning 3D printers, that serves to protect creative ideas and control the reproduction of harmful objects, but doesn’t stifle the enormously beneficial potential of 3D printing in areas like education and medicine, both rights entrenched in the Constitution, says Govender.
 
The 3D printing world involves all aspects of IP, including copyright, patents, designs, and trademarks, so it’s a complex legal landscape to navigate, and laws and regulations haven’t caught up with this new technology, either in South Africa or elsewhere.  Various industries are currently debating the issue, and we may see each industry submitting their individual concerns so that the legislation can be updated and amended.  The fact remains, all IP rights owners should be taking particular care to ensure that their IP is protected in an environment where it’s increasingly easy to infringe it,”she says.
 
We all know about theft of software off the internet. Well, 3D printing can actually manifest the product or object itself. We are only beginning to see the applications of this technology, thus the law needs to apply itself with equal fervour if creative ideas are to be protected in future, while allowing technology to change the world for the better.

Afro Zee

Saturday, 17 September 2016

Zambia Welcomes Two New IP Acts


What better to do during cold season than sit huddled inside signing IP bills into law?  At least that seems to be the case for usually-quiet Zed with the introduction of two new IP laws this past June.  The Industrial Designs Act 2016 (Act No. 22 of 2016) and The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act, 2006 (Act No. 16 of 2016) were both signed into law on June 6, 2016. [Given the large gap between 16 and 22, it seems President Lungu was busy signing quite a number of new laws.]  The updated WIPO announcement is available here.

We’ll explore the Industrial Designs Act here and save the TK, GR and TCE act for another day.  (Nkombo Little Leo wakatala na wayanda koona.)

Industrial Designs Act


The Industrial Designs Act replaces the British-era Registered Designs Act from 1958 (six years before independence).   According to the preamble, the Industrial Designs Act is meant to implement Zambia’s relevant obligations for the Paris Convention for the Protection of Industrial Property, the Harare Protocol on Patents and Industrial Designs and the TRIPS agreement, as well as “any other relevant international treaty or Convention to which Zambia is a State Party.”  WIPO, ARIPO, WTO; check, check, check.  Zambia joined these three agreements in 1965,1986 and 1995, respectively.  Some things take time.

To be fair, the 1958 Act had been amended multiple times, including in 1965, 1987 and 1994.  It already provided arrangements for utilizing the Paris Convention and provisions giving designs registered under the Harare Protocol effect in Zambia.  The TRIPS Agreement provisions on Industrial Design (Articles 25 and 26) are fairly basic protection provisions and may have already been met under the 1958 Act, but Little Leo is not going to try to analyze that.  (The 1994 amendments added penalties for falsification and deception with respect to industrial designs.)

So, if most of the treaty obligations were addressed in the 1958 Act, what’s so special and shiny about the 2016 Act?  A bunch of things.

Design Registration Now Gives Design Protection


The biggest change between the 1958 Act and the 2016 Act is that registering your industrial design in Zambia now gets you industrial design protection.  Under the 1958 Act, registering your industrial design got you copyright.  [This is where Little Leo scratches her head and says, “ndapyopyongana.”  Why would registering an industrial design “give to the registered proprietor the copyright in the registered design” as it says in Art. 14 of the 1958 Act?  And if it was a copyright, and registration was required and the term was only five years, wouldn’t that violate Berne?  Ndapyopyongana maningi.]

Interestingly enough, the old rights granted sounded more like patent rights, “to make or import for sale or for use for the purposes of any trade or business, or to sell, hire or offer for sale or hire.”  (1958 Act. Art. 14(1).)  The new act’s inclusion of the right to “reproduce and authorise others to reproduce” sounds more like copyright.   (Art. 56(1)(a).)   The new act also grants the rights to exploit and assign, and the very patent-like right to “prevent any person…from making, using, offering for sale, selling or importing.”  (Art. 56(1)(b),(d) and (c), respectively.)

The term of protection is the same at five years.

Additionally, beyond the rights outlined in the rights section, there are new offences provisions that protect holders of design rights.  Art. 89 makes it on offence for a person to “make a die, block, machine or instrument…”  Now, theoretically, this means a die, block, machine or instrument that will make goods that infringe a design right.  And that’s what Art. 89(1)(a) appears to do, “knowing that it is likely to be used for, or in the course of committing an offense against a design.”  However, Art. 89 then continues, “or (b) whether or not it is likely to be used for, or in the course of, committing an offence against design.”  Italics added.  Ndapyonpyongana alimwe.

New Protection Eligibility Requirement


The language for protection requirements has changed, but it is unclear how meaningful this difference will be.  Compare the 1958 Act and 2016 Act language:

1958 Act Art. 7(2) “new or original”

2016 Act Art. 15 “new and has individual character”

Individual character is explained in Art. 18 as “the overall impression [the design] produces on an informed user differs from the overall impression produced on such a user by an earlier design”

The 2016 Act also clarifies that the tests are measured globally, not just to Zambia.  (Art. 17.)

Opposition Period Introduced


The new act introduces an opposition period for designs, giving the public at least two months to file a written notice of opposition.  (Art. 43.)

New Exceptions and Limitations


The 2016 Act specifies exceptions beyond the innocent infringement defense and compulsory licenses available in the 1958 Act, both of which are still there.  (Arts. 66 and 81, respectively in the 2016 Act.)  Art. 59 limits design rights to industrial and commercial activities.  It then goes on to also specifically exclude acts done for scientific research, experimental use, teaching and testing.  Furthermore, Art. 61 specifies that use of a registered design is not infringement if the use is done for private and non-commercial purposes, for evaluation, research, teaching or in repairing a “complex product.”

The compulsory license options have been adjusted.  Those desiring a compulsory license must now wait until three years after the registration date.  (Art. 81)  Under the 1958 Act, compulsory licenses could be issued immediately.  (Art. 17.)   However, the conditions for receiving a compulsory license are now broader.  Under the 1958, the only reason for a compulsory license to be issued was if the design was not being applied in Zambia.  Under the 2016 Act, a compulsory license may be issued (a) if Zambian demand is not being met, (b) if refusal to grant a license is “prejudicial to the country’s establishment and development of industries or commercial activities,” (c) if a license on reasonable terms and conditions could not be obtained, (d)  in interest of public health or safety, (e) if there is IP abuse, or (f) for a national emergency.

Morality Clauses Strengthened


The exclusion of designs that violate law or morality has been greatly strengthened and expanded.  In the 1958 Act, this was covered by a savings clause buried in the Miscellaneous section of the Act (Art. 57) allowing the Register to refuse designs “the use of which would, in his opinion, be contrary to law or morality.”  The 2016 Act specifically says in Art. 16 that such designs “shall not be registered and shall be excluded from being protected.”  It also broadens the list of what’s covered to include contrary to well established natural laws, public order, principles of humanity and environmental conservation.  The Register also has the leeway to choose to refuse a design that would “encourage offensive, immoral or anti-social behaviour.”  (Art. 31(1)(b).)

New Destruction and Forfeiture Remedies Introduced


Interestingly enough, the 1958 Act does not describe the types of remedies available to a right-owner whose rights are infringed, though it does describe the remedies against groundless threats for infringement.  Being a Commonwealth country, remedies in Zambia were probably known and handled under common law rather by statute.  This seems to likely still be the case for remedies such as damages and injunctions.  However, the 2016 Act does specifically introduce forfeiture and destruction remedies. (Art. 65.)

Stronger Employee Rights


Employees are given stronger rights in their designs.  Under both the 1958 and 2016 Acts, designs done by employees for their employers belong to the employers.  However, in the 2016 Act, employees can receive equitable remuneration for designs that prove more valuable than either party imagined.  (Art. 45(1).)  The Act also clarifies that designs made by employees but not as part of their duties to the employer belong to the employee.  (Art. 45(3).)

Law Matches Other Changes


The 2016 Act brings the design law into conformity with other changes that have happened in Zambia’s IP structure since the last amendments in 1994.  For example, the law now acknowledges that design registrations are handled by the Patents and Companies Registration Agency that was established in 2010.   The creation of that agency consolidated registration duties with the new agency’s register, rather than under a specific Register of Designs.  Additionally, the registration records may now be kept electronically.  (Art. 10.)

Can’t Blame the Examiner


There is a new explicit non-warranty and non-liability clause for the decisions of the examiners.  (Art. 9.)  Presumably, this means if a court later decides that a registered design should not have been protected or if a design is registered which infringes someone else’s rights, the examiner who registered the design in question would not be liable for reliance on said registration.

Foreign Applicants Must Use Patent Agent


Foreign applications must be done through a registered Zambian patent agent.   (Art. 38.)

Criminal Penalties Enhanced


Lastly, maximum criminal penalties for contravening any provision of the act have increased from 15,000 penalty units and three years in prison (Art. 51 of 1958 Act.) to 400,000 penalty units and four years in prison (Art. 58 of 2016 Act.)  The current value of a penalty unit (per S.I. Number 41 of 2015) is 30 ngwe, or about 3 U.S. cents, meaning the current max fine is just under US$12,000.  That’s a rather hefty amount for a country with average incomes estimated at about 1/10 that (per World Vision) and average salaries barely over that (per Average Salary Survey).

Saturday, 3 September 2016

IP and African Music Industries: An Interview with Phil Chard - part 5


In our final installment of Little Leo’s chat* with Phil Chard of African Hip Hop Blog, we discuss non-disclosure agreements, international appeal and the role of the legal system in strengthening the music industry in Africa. (Part 1; Part 2; Part 3; Part 4.)
 
Little Leo:  You mentioned in this instance with the Zambian case {see end of part 3}, there’s agreements that the artists have signed maybe not fully aware of all of the rights that they were signing over.  You’ve also talked about how you’ve gone into meetings with companies where it’s being down as a pitch for your ideas but then they run with it and don’t come back to you.  How frequent are agreements in those kinds of situations?  Are people using nondisclosure agreements?  Are people in the industry aware of what’s in their agreements?  Is there a high-level of legal agreement use, or other types of practices?

Phil:  It’s really on a case-by-case basis.  There are times when companies have approached me and they have wanted to be partners in whatever ventures they were doing and they presented NDAs.  In certain instances, for example if a pitch has gone to tenders where there’s a lot of different people pitching, in the beginning signing an NDA never crossed our minds.  We were like, “Ok, since this a reputable institution and they’ve got a lot of people pitching to them, why would this happen?”

There have been other times where it was like a job interview.  I had recently left my old job and someone had suggested. “Phil, you’d actually be a perfect fit for this company A.  Why don’t you speak to this individual and just highlight what you plan to do or what value you can bring to the company and then hear what he says.”  So that’s exactly what I did.  I emailed him, he said “Ok Phil, just give me a brief idea of what you’ve done, what you can do, what you see.”  I sent him a two-pager just highlighting what I noticed inadequacies were, where I could step in and I could assist.  Thereafter, he never really got back to me.  I saw him a couple other times after that.  He basically brushed me off.  And then, I start to see them implementing changes that are very similar to the issues I had pointed out.

In such an instance, unless I can point to meeting minutes that they had that show I sent this email on this date, he suggested this change on this date, that shows that he’s taking my stuff, it really is a messy situation.  And the moment that you pursue that, you’re now making an enemy of that organization.  This industry is so small, very soon you need to work with that organization, so you’re shooting yourself in the foot.

L: A lot of times when I’m talking to people about international music and international agreements with respect to copyright and things, a big issue that comes up is, “well, artists need to decide whether to sing in their local language or to sing in English in order to get national renown.”  And it least so far, it seems African artists aren’t thinking that they need to choose that.  What is your perspective on that?

P: It’s a double-edged sword.  I think, in the beginning, especially in hip hop, a lot of African artists did that.  So, they all stuck to English and it limited their audiences a great deal.  The moment artists started realizing that “first of all I need to appeal to the people that look like me, that are from my region, that are from my area, tell them stories in their languages,” things started really blowing up.  And there’s value to having your own identity as opposed to being a carbon copy.  I’ve always said that, especially if you’re trying to appeal to Americans, Americans will not buy someone that sounds like an artist that they can get down the street.

L:  That’s true.

P: They’re looking for something original.  If you aren’t being original, then what’s your appeal?

L: I don’t want to take up much more of your time, this has been very generous of you.  Last question just to sum things up and bringing it back to intellectual property and kind of that legal aspect.  During your rant, somebody had kind of piped in and said, “well how do you sum up the industry?”  And you said, “We need more authenticity, more integration, better standards.”  How can the law or the legal system help with that?

P: Um…

L: Or can’t it?  Maybe that’s the answer.

P: In certain aspects, it can’t.  In protecting intellectual property, it’s there.  But there’s also the situation where the laws haven’t really been tested, so you can’t point to exact instances where the law failed to protect the interests of the artists or vice versa.

What definitely needs to happen is there needs to be a lot of education.  A lot of sensitization as to the value of property, as to who owns what and how those relationships work.  Like I said, consumers need to understand that pirating content is illegal, because it has become such a norm here where people who don’t have a satellite subscription are watching Game of Thrones and they don’t realize that they’re breaking the law.  The same thing with downloading albums.  There’s so many instances where, for example, an artist will release an album on iTunes---K.O.’s done this a couple of times.  

So there’s an artist called K.O. in South Africa, their policy is ‘we do not release free music. Our content is of a quality that should be paid for at all times.”  So they’ll release a song on iTunes, but fans who can’t afford iTunes don’t get it.  You’ll find instances where a fan will then download that song and then upload it to a data file host and will be proud of it and will be sharing the link and be like “dude, I’m a fan, I love you; I’m making sure everyone hears your work.”  And they have no understanding of what they’re doing.

Then on the flipside, artists also need to understand that just because the artist you’re taking your content from is American, it’s still a copyright infringement.  And their motivation behind that, I actually don’t know or understand it.  But there’s so many instances where they’re blatantly stealing melodies and music and interpolations from American artists.

And then they’ll try and pass it off as their own.  And then the same with blogs.  Almost every other week I come across a blog that’s blatantly stealing our content.  And they don’t even credit us, and they’re of the assumption that “no, I’m promoting you because I’m using your logo.”  But I’m like “that doesn’t benefit me in any manner, shape or form.”  Or even with crediting, I have my issues with that because even though you might steal my content word-for-word and then credit me properly at the bottom of the page, that doesn’t really benefit me in any manner, shape or form, because all the traffic is going to you, all the ad revenue is going to you, and I get nothing but a permalink.

I think it’s first of all educating and sensitizing the whole industry as to what’s required of them, what intellectual property actually means, and then how to enforce it.  And then once we get there, we can start gauging as to whether or not the legal side of the industry is benefiting or hindering us.

L: Alright, I think that will wrap it up.  Thank you again, so much.  Really appreciate it.
Little Leo would like to extend thanks to Phil for sitting down to share his perspectives with the Afro-IP community.  There is a lot of information here that can help those of us who strive to help people working in the continent's music industries.  Phil's ending comments reinforce that we have a lot of educational work ahead of us.
You can find Phil on Twitter at @PhilChard.
*The conversation has been edited for clarity and reading ease; it is not an exact transcript.

Friday, 2 September 2016

IP and African Music Industries: An Interview with Phil Chard - part 4


Phil Chard
Part 4 of our interview* with Phil Chard brings us fascinating discussion on making a living as a musician on the continent and the thin line, the very grey areas, between infringement and licenses in Africa.  (Part 1; Part 2; Part 3)

Little Leo:  As you move through the industry and follow it and work with it in all your various capacities—you’ve been involved for quite a while, the African Hip Hop Blog is eight years old, 2 Broke Twimbos about two/two-and-a-half, what kind of longevity do you see in the music blogging industry?

Phil:  It all depends on what their long-term goals are, if they have long-term goals at all.  A lot of the stuff that I see now, I don’t see a lot of these guys surviving much longer because their business models are predicated on either content theft in some manner shape or form, or just empty content.  And eventually the consumer is going to wise up and be like these guys aren’t giving us reputable information.  And they’re going to stop going there.  But a lot of these companies they’re run by people who actually rely on that cycle.  So everything is on a two-year cycle.  They’ll start something; it’ll reach its peak, and as it starts to dip, they’ll move onto the next thing.  They’ll replicate the business model, but just under a new brand.

L:  Interesting.  And do you see artists, producers, songwriters—and maybe the answer’s different for each of these—and other people involved in the industry, do you see people who actually are able to make a living and make a career out of the content industry?

P:  Uh, yeah, it’s very country dependent.  So, if you’re looking at the three biggest markets in Africa in terms of entertainment: they are West Africa, which is essentially Nigeria and Ghana; Southern Africa, which is South Africa; and then East Africa, which is Malawi, Kenya, Tanzania.  Those are the biggest markets.  The most developed in terms of the music industry is South Africa.  Nigeria’s coming along now.  But I’m sure, as you know, artists still aren’t getting their needle time collections.  So, that’s limiting a great amount of revenue.  But, in terms of South Africa, guys can easily earn a very, very good living.  As long as they crack a certain threshold, they can survive on shows alone.  So you’ll see a lot of artists, they’ll actually predicate their whole careers on releasing free music and then their revenue stream is the shows and then endorsements here and there and that’s about it.

L:  And that’s mainly for South Africa?

P: Even in Nigeria.  In Nigeria, artists actually hire the pirates.  I don’t know if you know this.

L: Yeah, I actually have heard of that.

P:  So, when an artist releases an album, he’ll go and sell the master copy to a pirate.  And then that works on two levels: A) they’re getting paid for their work, because if they don’t give it to them, they’re not going to get paid anything.  And B) it helps spread their music.  The music spreading and then being played in taxis and in public allows them to gain popularity, which then translates into radio interviews and radio play, which then translates into performances.  And, performances in Nigeria are huge.  Guys get invited to private shows can get upwards of US$50,000 for a show.

L:  There are some big ogas in that country who will pay a lot for those.

P: So, it’s a very lucrative business for them over there.  But, they play all sides of the fence.  So, they’ll make sure it’s available for free and then you’ll also have sites like NotJustOk.  NotJustOk, for example, that’s a website predicated on dubious copyright practices.  But they’ve now become so big that artists need NotJustOk to plug them.

L:  So when artists do that, when they’re getting paid by the pirate, selling the initial copy to the pirate to then produce and give out, or they’re trying to solicit NotJustOk to play their music, when does it turn from being a pirate infringing thing into part of the industry and part of the business model?

P:  I think that’s what it’s become now.  Which is why I’ve said it’s a uniquely African situation.  Where in the beginning, you’d find like what NotJustOk would do is: They’d get the content. They’d then download it and they’d add their tags like “downloaded at NotJustOk.”  And they’d change all the id3 tags to make it all NotJustOk.  And that was how they’d promote themselves.

Before a certain time, artists didn’t realize that there were DMCA laws that were in their favor, that they could issue takedown notices to the websites, or that their content had been stolen.  They didn’t know how to go about retrieving stolen content.  And while they were figuring that out, NotJustOk was becoming this massive behemoth.  So now they realized, “If NotJustOk doesn’t plug my stuff and I don’t have access to their 2 million readers, I’m shooting myself in the foot.  So, I’d rather give them that song for free and then bank on getting money other places.”  And NotJustOk realizes that leverage.  In some instances, if an artist wants an album review, they’ll be like, “yeah, we’ll review your album, but we’re gonna pick 3 songs to give away for free.”

L: Sort of bargaining for the publicity?

P: Yeah.  And then there are other sites that are just operating off of straight payola.  So, they won’t review an album unless you pay them for the review.

L:  How do artists then handle infringement issues on the ground?  You’ve gotten into some of what the standard practices are, but in terms of artists protecting their work, what are the basic practices?  We don’t see a lot of lawsuits.  You’ve talked a bit about these kinds of agreements like with NotJustOk and things.  What other practices do they have if they know of another artist using their music or if they learn about some new way that it’s being distributed without their authorization?

P:  In most case, it’s hard to paint it with a very wide brush because it varies from case to case.  But with the incidents that I’ve seen across the board, it’s mainly the distributors and it’s mainly the labels themselves that understand these issues that enforce them.  So, for example we used to have a very active Soundcloud page.  We’ve scaled it down somewhat because of these issues. 

Artists would send us their music and be like “You guys really have a following on your SoundCloud page.  Please post my song on your SoundCloud page and then redirect them to my download page.” Or the iTunes page or whatever it may be.  What we then find is they would give us the song and they’d email us the written agreement, but they did not inform their distributor or their distributor did not have the mechanism in place to quote-unquote give us an exception.  So then we get takedown notices from SoundCloud that this song matches this song and has been removed from your account.

L:  Right.  We actually have issues with that here in some of our industries too, where different parts of a company don’t speak to each other and marketing sends something to be put up on YouTube and then legal sends something to have it taken down.

P:  Yeah, exactly.  And most of those issues, we’ll see that those takedown notices are being issued by the distributor or by the label, it’s rarely the artist.  Artists rarely—artists just want their music, especially in Africa right now, an artist just wants people to hear their music.  They’re thinking, and they see the quarterly statements from SAMRO and SAMPRO, whatever collecting agency they’re using, and they know that what they’re earning a quarter for a great selling cd does not compare to what they can earn in a weekend from shows.  So the whole revenue stream has now shifted from selling cds to getting bookings.

L:  And there are definitely artists who are out there petitioning their governments to crack down on piracy.  Nigeria, particularly, often makes a big show of going into Alaba market and other markets in the country and confiscating all the infringing cds and burning them and stuff.  {Example from a few years ago; example from this year.}  But at the same time, artists are making deals with otherwise-pirates.  They’re also kind of flaunting this lavish lifestyle, which you talked about in your rant, how especially when they get their first contract, they go out, they live like superstars but they can’t support it.  How much do you think that kind of thing, where they’re presenting to the government that they’re poor and they need help and they can’t survive without these extra laws or this extra enforcement, but then they’re turning around and showing the public that they’re extremely wealthy, how does the public perceive that?  How much does that hurt their brand or what they’re trying to accomplish?

P:  I think it’s pretty much the same as you guys.  So, in America with what happened between Metallica and Napster.  On the one hand, Metallica and Lars were pushing this whole thing like “these guys are taking money out of our pockets, blah blah blah,” and then you flip to MTV Cribs and there’s Lars with his twenty-room mansion and you’re like “but yeah, but I’m sure you’re doing ok.”  It’s the same thing here, but it’s also a double-edged sword in that artists have adopted the culture of materialism, the American culture of materialism.  So, you’ve got to sell the dream to get people to buy into you.  And you can only sell the dream in most cases by showing a lifestyle that you don’t live.  And then, by doing that, you’re now overdrawn, so you then need to go back to the government and be like “You might have seen the Lamborghini in my video, but that’s not my Lamborghini.  But you see, I really need to pay rent, so you guys need to help me get my money from these guys.”

But in most cases, I’ll give you an example:  Zimbabwe is almost as bad as Lagos in terms of this out-and-out piracy.  There’s an interview I did on 2BrokeTwimbos with someone called Sanii Mahkalima.  He used to run an independent label in the early 2000s.  And he was talking about how they used to, independently, they used to push 100,000 copies of a product.  And in Zimbabwe, that’s a very, very, big, big number.

What they used to do was, they used to go to the flea market.  So, they’d get their cds printed at Gramma Records, a legitimate place.  They’d pay them.  They’d then take these cds, because legitimate stores like Spin-a-Long which is like your Tower Records, they weren’t accepting these cds.  They were like “No, we don’t know these names; we don’t know you guys.  We’re not taking the risk. No.”  So they’re like “Ok, fine; we’re going to the flea markets.”  So the guys at the flea markets, they’d start by leaving their cds and then collecting money at the end of the week.  But then demand got so high that guys at the flea market were like, “No, we’ll pay up front.”  And then demand got so supremely high that guys were now bartering for exclusive deals like, “I’ll take all your cds.  But you gotta promise you not going to see to anyone else at this flea market, so I’m the only person at this flea market with the cd.”  And then they’d use that, you know, to control the price or try to upsell and sell other stuff.

The government then instituted a program called Murambatsvina, but what they did is they banned flea markets and they demolished a lot of the shacks and shanty towns that were developing in the high density suburbs, which was to disperse the political opposition.  But what that also created is that now, you’ve destroyed the distribution model for all these independent artists.  All these kids that were my generation, we’d stopped buying stuff from Spin-A-Long, which was the main distributor, because they weren’t stocking the music that we liked.  We would go to the flea market, because the flea market had all the hip hop and all the urban music from America and the local stuff.  But now, because flea markets have now become illegal, we do not know where to get the stuff. 

And around that very time, which is around 2005/2006, there are guys like Dash, who would download all this music and then plaster their name all over the stuff and then distribute these cds.  So they’d start burning mp3s and on that mp3 would be like 20 albums.  You’d go to school and people were just passing around everyone’s cd, and you copied it to your harddrive.  Now you’ve got all the latest music, which you’ve got for free.  And you now know where to get it, because they put their cell number like on the artist’s tags and everything so next...

L:  Like Mike Jones.

P:  No, Mike Jones [laughs].  You know what id3 tags are right?  So literally, artists’ tags would say “Dash Mike Jones” then his cell phone number.  Album, “Dash Mike Jones” then his cell phone number.  Lyrics, just a long repetitive list of his cell phone number.  So now you know, whenever you want to get new music, you call this guy.  And then there were guys that would burn cds.  So there were guys like Dash where you would go into town and these guys would—I can’t remember the figures but it was somewhere above a dollar figure—you could get cds burned by these guys and then they’d burn you mix cds and they would charge you a nominal fee.  And then they’d download this music from the internet overnight or they’d get it from friends overseas and that type of stuff.

I actually used to do that when I was in high school.  That’s how I’d pay for sneakers when I was in school.  Like I’d buy a cd and burn it and stuff like that, before I understood it was illegal.  But now, you’ve got a whole generation of kids that were used to getting music from these sources.  So instead of paying USD$10 for a cd or whatever it may be, they’re now playing 15₵ for a burned cd, and the burned cd is an mp3, so instead of 20 songs, they’ve got 200 songs.  And that then evolved into the flashstick generation.  And that now has evolved into the internet, where there’s a whole generation of kids my age and going down, that the concept of walking into a store, especially in a country like Zimbabwe, even in like Zambia and Kenya, even in Nigeria, the concept of walking into a store and giving someone money and getting a cd that’s sealed, that’s completely foreign to them.

L: Right.  Zambia used to have Mondo Music, but it closed, gosh when did I hear about it closing?  Maybe 2008, 2010, sometime around there.  But that used to be the place to get the Zambian music, or to get any cds before Game really had come in.

P:  Yeah, so now like, even in Zambia now, you’ve got Musica, But that is predicated on South African distribution models, so local acts aren’t getting in.  The same guy that told me about this issue with the Zambian music rights {see end of part 3] told me the same thing, in Zambia, artists don’t even consider record sales.  They’re just trying to get a next big hit so they can start getting bookings because that’s how they make their money, on bookings.

L: How much are artists looking for—when you talk about performances and stuff and that being the way to make money—how much are they looking beyond their own borders, looking to the rest of the continent or looking to the rest of the world?

P:  Once again, it’s very country-by-country.  South Africa was an island upon itself up until probably about 2 years ago to be honest.  I think the only artist that actually saw a continental reach were house acts.  And South Africa’s in a very unique position because South Africa controls African media reach.  All the satellite stations are headquartered in South Africa, so they have easy access and direct access to these stations, which are then distributed to the rest of the continent.  Bongo Maffin and Oskido, saw it early.  I think Oskido was one of the first, first artists to realize the global appeal.  And he’s been doing his show in Miami for the past decade, every winter.  But in terms of hip hop acts, they had no idea that other countries existed up until last year.

L:  I’d say that matches with my somewhat boxed-in perspectives.  I live in a bubble; I’m aware of that.  But I’d say in terms of what I’ve seen filtering through and getting to me here in America, even being somebody who looks for it, I think that matches.

We’ll stop there for today.  Join us for the last installment of this interview where we’ll talk about what, if anything, the legal system can do to improve the music industry in Africa.
*The conversation has been edited for clarity and reading ease; it is not an exact transcript.