Copyright law: How best to incentivise creativity?

By Charity Njanji | Aug. 9, 2024

File pic: In most African territories the creator of any work automatically holds the copyright in that work.

THE role of copyright is to protect the rights of creators, enabling them to earn a living from their original work.

For the intellectual property system to work optimally, that work must also be easily and affordably accessible. This is a delicate balance to strike, especially in Africa.

Africa, with its deep history and many vibrant cultures, is a continent with a rich source of art, music, writing and other creative work. In the modern economic environment, every creative worker has a right to not just earn a living, but to also thrive from it.

This is the objective of copyright law, which aims to protect the rights of creators and rights holders and enables them to earn income from their work. Equally important, it prevents other people from using their work without their agreement.

In most African territories the creator of any work automatically holds the copyright in that work.

But protecting that copyright is not so straightforward.

In the digital era, it has become easier than ever to copy, download, scrape, pirate, repackage and otherwise steal the work of others and profit from it.

It then becomes the responsibility of justice and law-enforcement authorities to enforce the legal protections that naturally accrue to the holders of these copyrights in their own intellectual property.

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This theft of copyright material — also called content piracy — is a threat to all content industries and the creators themselves.

Supporting the fight against this threat are a range of cybersecurity technologies that have been developed to trace, arrest and prosecute the criminal syndicates that profit from content theft.

Cybersecurity business Irdeto, for instance, protects more than six billion devices and around 7,2 billion streams every month.

It deploys its proprietary technology to monitor infringements and has already detected 4,5 billion illegal streams and sent out 280 million notices on behalf of rights holders.

The fight against content piracy is critically important, but in Africa piracy often happens because of access challenges. Where people cannot obtain — or afford — certain types of content, they will sometimes try to pirate it.

One Irdeto survey found that over a period of three months users in five major African territories made 17,4 million visits to the top 10 piracy sites.

A delicate balance has to be struck: content must be viable and lucrative for creators but also affordable and accessible for users.

Lawmakers across the planet are working hard at this issue. Big Tech companies often call for free access and “fair use” of copyright material, arguing that free, or low-fee access benefits humanity, especially the poor.

But it is fact that if users can access content without paying for it, content creators lose the incentive to create any work at all. This ultimately harms society, as fewer books are written, fewer films and series are produced and less music is recorded.

Some lawmakers have come up with a hybrid solution, where use of copyright material is allowed under certain circumstances — such as in the case of Nigeria’s Copyright Act, and South Africa’s long-delayed Copyright Amendment Bill.

Examples of such circumstances include using copyright material for research, for review or for reporting purposes, as well as for scholarship, teaching and education.

It is also true that being exposed to exciting new content is what inspires young people to become creators themselves.

This applies to filmmaking, literature, music, design, and a host of other creative fields. All creative ideas are themselves inspired by earlier work.

It is, therefore, vital that creative industries in Africa — and the regulators, lawmakers and law enforcers who manage them — find that elusive balance.

Artists, authors, creators and production crews must continue to share their joy, their insights, their intrinsic value with as many people as possible.

But at the same time, those creators must be able to live from the proceeds of their work and go on to create more — to the ultimate benefit of all African people.

It is food for thought for us all.