The problem with African royalty collection bodies

The African Regional Intellectual Property Organization (ARIPO) recently published these findings in a survey on CMOs conducted among its member states. The survey reveals that CMOs have grown in importance globally in their work of collectively administering the mandates from the right holders by negotiating royalties, collecting royalties from users and distributing the royalties to the right holders. See full survey attached below.

It is clear from the ARIPO report that African CMOs need to have a proactive approach to information sharing, portraying the benefits of collective management to rights holders, users and the society at large.

The survey notes that while Africa has had a number of CMOs, there is little information available on their operations and understanding the impact of their work. It was within this context that ARIPO undertook this survey in collaboration with the Norwegian Copyright Development Association (NORCODE) to have an understanding of what is happening at grassroots level in so far as the administration of CMOs is concerned and to gather information on the relevance of CMOs in promoting and protecting the works of right holders within the ARIPO Member States.

In his foreword ARIPO director general Fernando Dos Santos explains that: “The findings of the survey indicate that CMOs in the ARIPO Member States are growing in numbers. It was also found that there is growth in collections of royalties and distributions. However, CMOs are also facing challenges which include insufficient or lack of awareness of copyright laws by users and the general public, users’ unwillingness to pay royalties, piracy of the copyrighted works, inadequate resources and manpower within the CMOs and inadequate availability of technologies that can be used by the CMOs.”

According to the ARIPO survey, there is a growing call for transparency within the CMOs in order to ensure that users continue to have confidence in CMOs in Africa. CMOs deal with royalties that belong to right holders. Therefore, it becomes crucial for them to be trusted by their members and other stakeholders. Transparency is measured by the type, level and ease of access to information that is availed to internal and external stakeholders, and at times the public at large. For CMOs, the information they avail to their members and the public is an important element in their existence.

It is important that all creative industries – music, text, visual and audiovisual – are served by an appropriate way of rights management. Membership in international non-governmental organizations (NGOs) is a prerequisite for successful management of national and international repertoires and exchange of rights and royalties between countries.

Among the various sources of collections, CISAC considers that remuneration for private copying can play a crucial role in the advancement of collective management in Africa. It recognizes that a number of countries have provisions on private copying remuneration in their law, but implementing legislation is still missing. The role of the government is paramount in ensuring proper legislation and implementation, including good collaboration with the customs authorities.

Implementation of resale right for works of visual art and rights in audiovisual works are important topics for African jurisdictions to consider in the area of copyright management. In addition, there must be a continued emphasis on licensing of rights online in the ever-changing technological environment.

Considering the cultural, social and economic impact that creative industries have on the gross domestic product and on employment creation, it is important that governments fully recognize the huge opportunities at hand and take active measures to facilitate and support continuous growth of creativity. Based on studies carried out in 42 countries between 2003 and 2013 and published by WIPO, the contribution of copyright industries to a country’s GDP is on average 5.2 %. The average contribution to national employment is 5.3%.

A well-functioning copyright and related rights system relies on the following three pillars: legislation, enforcement and management of rights. They are all needed to generate wealth and employment. There is a shared view among experts that although rights may exist in legislation, effective implementation of rights is often hampered by widespread resistance among users, leading to economic devaluation of rights. For creative industries that depend on copyright protection to make their full contribution to economic growth and job creation, it is necessary that intellectual property assets are paid for at market value remuneration. There is a need for governments to participate more actively and support collective management organizations (CMOs) to ensure that users respect and comply with relevant legislation.

In this regard, commentators note that the development of a Pan-African plan for copyright and collective management would create a framework for future activities jointly and separately. ARIPO is well placed for the development of such a plan. Furthermore, there appears to be need for a forum that can promote information sharing and exchange of best practices among CMOs in Africa.

This is an edited version of an article originally published on 5 September 2016 on CIPIT Law Blog