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Opinions of Saturday, 7 November 2015

Columnist: Andrew Ofoe Amegatcher

Ghanaian Law of Copyright

There have been a number of legislative interventions in Ghanaian Intellectual property Law in recent times. An Industrial Design Act was passed in 2003. A new Trademarks Act was passed in 2004.

A revised Copyright Act was enacted in 2005. In addition to the legislative reforms, there have been a number of even more recent policy initiatives, with the drafting of a National Intellectual Property Strategy in 2012 with a view to facilitating Ghana to meet its obligations under the World Trade Organisation rules on the Trade-Related Aspects of Intellectual Property Rights. All this legislative and policy activity gives the appearance of an increase in domestic intellectual property activity in Ghana in recent times.

This is, unfortunately, not the case. Recently, the Registrar-General complained that almost 70 percent of the patent applications filed at her office are from foreigners. Less than a third of the applications are local. A search of our law reports shows that cases on intellectual property matters are rarely reported.

Furthermore, very few attorneys and even fewer law firms focus on this vibrant and potentially lucrative area of practise. For a country with a population as alive and innovative as ours, the lack of legal activity on this front is disturbing.

Apparently, a lot more work needs to be done to heighten the awareness of both the public and the legal profession about the importance and potential of intellectual property law. It is for the above reasons that Andrew Ofoe Amegatcher's book - The Ghanaian Law of Copyright - is such an important addition to Ghana's growing collection of first class legal texts. Mr Amegatcher is one of Ghana's leading experts on Copyright Law. He has been in the copyright field for several decades. He also has a vast reservoir of experience in both the theoretical and practical aspects of Copyright Law.

Intimate Knowledge of copyright

As this book amply demonstrates, he is familiar with the Copyright Law of Ghana, as well as that of many other common law jurisdictions, and he draws on this knowledge to shed light on the provisions of our Copyright Act. Mr Amegatcher also has an intimate knowledge of the international system for the protection of Copyright. Thus, a chapter of his book is dedicated to the international regime for the protection of copyright. It is a testament to the experience and foresight of the author that the first edition of this book was published over 21 years ago in 1994. The applicable law then was the Copyright Law (PNDC Law 110) which was passed in 1985.

The first edition of this book was ahead of its time. Few books existed on any subject in Ghanaian Law when it was published. Changes in the international regime for the regulation of copyright necessitated the passage of the Copyright Act in 2005. The new Act, which is discussed in detail in the second edition, seeks to bring Ghana's copyright regime in line with its assumed international obligations under the WTO TRIPs Agreement. The Act protects both the old and the new - it protects both folklore as well as computer software programmes - neither of which were adequately protected in previous legislation.

The book explains how these new protections can work in practise, using examples from other jurisdictions, as well as the author's vast reservoir of experience in copyright law. As an author on writings on chieftaincy, his explication of the protection of folklore is of particular interest. The vesting of the property rights in "an expression of folklore" in the state, regulated by a Folklore Board, appears to be a sensible attempt to address the increasing instances of aspects of our national culture being pirated and illegally exploited, especially by foreigners. However, Mr Amegatcher's concerns about the protections granted to folklore by the Copyright Act are valid, making indigenous Ghanaians pay fees for the use of their own culture appears to be unfair.

Furthermore, the author rightly highlights the geographical conundrum facing the attempts to protect our folklore - i.e. that the boundaries of Ghanaian culture is a bit uncertain. Ewe culture straddles three West African countries. The Baule of Cote d'lvoire are as Akan as the Ahanta's, and have very similar cultures. How then can Ghanaian legislation vest the cultural rights to Kente, for example, to the Ghanaian state when groups in Togo and Cote d’Ivoire also consider Kente to be a part of their culture? How does one justify the improper use of Ghanaian culture by non-Ghanaians when the geographic parameters of that culture extend beyond Ghana. It is hoped that this provision, and other such provisions in the Copyright Act, will have the benefit of judicial explication to further provide some clarity.

Derivative work

One of the few areas in which there has been a judicial decision in recent times is on the question of what constitutes a derivative work. In Ellis v Kwadwo Donkor [1993-1994] 2GLR, a thoroughly engrossing and entertaining case which came before me when I was a justice of the High Court, a question arose as to what amounts to a "derivative" work. In the 1970s, an album entitled Keyboard Africa was produced in Ghana and sold' The plaintiff, the pianist who had been involved in the recording contended that he had made an oral agreement with the defendant - the producer of the album - that the defendant should only be paid on a cost-sharing basis. However, the defendant allegedly breached this understanding and the plaintiff terminated the arrangement. The defendant, however, continued to sell the album both domestically and abroad. The defendant contended that the plaintiff could lay no claim to the copyright of the album as all but one of the songs on the album were composed by others. The plaintiff, however, argued that they were derivative works. He owned the copyright in them because they were adaptations from which qualified for copyright protection. I disagreed, holding a follows:

"The question then is this: if a musician just picks any existing music and replays it on an instrument not used on the original music, does the rendition with a different musical instrument per se amount to sufficient adaptation capable of giving rise to copyright in the new music? To my mind, the answer to this question should be in the negative. My reasons are these: derivative work is eligible for copyright although the word adaptation is not defined under Act 85 or PNDCL L70, it is

obvious that to constitute derivative work or adaptation the latter work should be clear and distinct from the original being adapted, In a musical work like the

instant case, the adaptation should indicate substantial alteration or modification completely independent of the original work. The tune or theme of the music may

or may not have been altered. But what is put forward as giving rise to adaptation should be more conspicuously different from the original work, on analysis and

comparison of the two works, the adaptation should reveal originality or innovation by the musician adapting the original music which renders the adaptation or derivative work independent from the original work.

In this decision, I had the good fortune to have the author testify as an expert witness. In his discussion of this decision in his book, the author points out that the distinction between an "adaptation" - which the plaintiff wrongly contended this work to be - and an "arrangement" is sometimes difficult to draw. The latter refers to "an adjustment of the form of expression of a musical work to special purposes, understood as meaning the adjustment of the form of expression of a musical work to special purposes according to the requirement of a given orchestra or musical instrument or actual singers voice. It mostly consists of re-orchestration or transposition in a different key and does not imply the creation of a derivative work."

This decision as can be seen from the above except, was taken under the legislative predecessor of the Copyright Act, 2005. However, relevant language from the PNDC Law 110 has largely been reproduced in the current iteration of the Act. Given that it is the practice for modern music artistes, particularly "Hip Life" and gospel music artistes, to copy freely from earlier works and pass them of as their own it is surprising that there has not been further litigation on this issue. This is a well written, comprehensive book on a subject of considerable importance to the development of intellectual property law in Ghana.