Kirani Ayat (‘Kirani’) tweeted on 27th September, 2022 that: “The president of Ghana has used my video ‘GUDA’ in this ad to promote Ghana. I was actively reaching out to the Ministry of Tourism in 2018/19 to use this video to push tourism in the North and got a ‘NO’ in reply, yet today it’s in an ad and no one has reached out to me for permission”.
Kirani’s tweet has attracted a lot of comments:
- On 27th September, the Joy FM online platform published, ‘Kirani Ayat Calls Out Akuffo-Addo, Tourism Ministry after promo video featured shots from his ‘Guda’ visuals’.
- The Ghana Tourism Authority (GTA) issued a statement dismissing Kirani’s claims and argued that his rights to the content used for the promotional video by the president has not been infringed upon, since they obtained the right to use the contents from an agency.
- Samsal, the creative agency mentioned by GTA, has stated that the video it created for GTA is not what has been published and that it never authorised GTA to publish the content.
- BBC News Africa reported: “Ghana’s President Nana Akufo-Addo has been accused of using a musician’s work without permission or credit to advertise the country to tourists”.
The above comments raise legal issues related to copyright infringement in Ghana regarding content created by artists. This article examines regulation of copyright in Ghana and the legal issues arising in the Kirani case.
Copyright
Copyright is a right (both economic and moral) that enables creators of literary and artistic works such as writers, artists, painters, musicians, software developers and others to receive recognition for their creative work. The rights are conferred in the expression and not dependent on registration. The right entitles the author of the creative work to:
- authorise or prohibit the use of their work by others;
- claim authorship of the work and demand mention whenever used; and
- receive compensation for the use of their work.
Effective Copyright System
The essence of a copyright law is to confer rights on the author and protect his or her expression from unauthorised use. To effectively achieve that goal, an efficient copyright system must be anchored on three (3) pillars:
- Appropriate copyright legislation – the Copyright Act, 2005 (Act 690) and the Copyright Regulations, 2010 (L.I 1962) cater for this.
- Sufficiently developed system for management of rights. There are three (3) Collective Management Organisations (CMOs) at the moment, namely:
- the Ghana Music Rights Organisation (GHAMRO);
- the Audiovisual Rights Society of Ghana (ARSOG); and
- CopyGhana (a Reprographic Rights Organisation).
3. Enforcement – i.e. the system of sanctions to be applied when rights under the law are infringed.
Copyright Infringement
Infringement of copyright is the unauthorised use of copyrighted work in a manner that violates the copyright owner’s exclusive right to produce or perform the copyrighted work. Infringement includes piracy, plagiarism, duplication, distribution and exhibition in public places. Most affected works are music, audio-visual work (films, music videos, etc.), books or literary work and computer software.
Any such unauthorised use constitutes an infringement that breaches the author’s rights. Such breaches constitute an offence under the Copyright Law – which provides that offences include reproduction, duplication, extracts, imitation and importation (except for private use). A person found guilty of copyright infringement can face civil or criminal prosecution. The civil remedies available under the law include injunction, compensation, seizure, forfeiture or destruction of offending materials. In addition to civil remedies, the law provides criminal penalties for violations or infringements which include a jail-term and/or a fine.
Enforcement Measures
The system of sanctions to be applied when rights under the law are infringed are grouped as civil remedies, criminal sanctions and border measures. A person whose copyright has been violated can approach the court for redress by way of civil action. The court may grant an injunction to prevent the infringement or prohibit continuation of the infringement. Additionally, criminal prosecution can be initiated where a report is made to the relevant institution. In respect of imported goods, a report can be made to the Customs Excise and Preventive Service to detain the goods.
Legal issues Arising – The Kirani Context
The issue arising in this case is that Kirani has alleged breach of his copyright on the basis that permission was not obtained by the GTA for the use of his ‘GUDA’ video. If this allegation is true, it means Kirani can make a claim for copyright infringement. However, GTA will not be considered to be in breach where it is able to establish that it obtained the requisite permission for use of the ‘GUDA’ video.
A number of legal issues arise based on the above facts: including whether the GUDA video is protected under law; who the GUDA video’s owner is; whether permission was granted by the owner; the rights granted and the terms on which they were granted.
- Is the Material Protected Under Copyright Law?
Generally, protection of copyright is not dependent on registration. Literary work is typically protected under law unless the work has fallen into the public domain. Work that has fallen into the public domain is work with expired protection, work of authors who have renounced their rights, and foreign work that does not enjoy protection in Ghana.
From the facts available, the GUDA video has not fallen into the public domain. Consequently, its use must be subject to permission from the author.
- Identify the Owner
Identifying the work’s owner is crucial in obtaining permission. Some kinds of art, such as video content and recorded music, can involve multiple owners. The recognized organisations which currently manage copyright in Ghana are the CMOs listed above. Hence, persons who wish to use copyright work can contact the relevant CMO.
From the facts available, GTA has stated that it obtained rights from Samsal to use the GUDA video for a promotional video. The issue arising is whether the creative agency was authorised by any of the CMOs to grant GTA the right to use the GUDA video.
Rights to Use Copyright Work
Copyright holders have the right to permit others to use their work for agreed purposes. The granting of permit can be done in one of two ways:
- Assignment – transfer ownership of the copyright to another person
- Licence- grant of a copyright licence whereby another person (licencee) is allowed to use the work based on agreed terms.
Generally, licencing is the preferable method as it allows copyright holders to keep the copyright over their work.
- Identify the Rights you Need
There is a need to identify the rights needed when asking for rights to use copyright work. Each copyright owner controls a bundle of rights related to the work, including the right to reproduce, distribute and modify the work. Because so many rights are associated with copyrighted work, the rights needed must be specified.
The GTA has stated that per terms of the MoU[1] it executed with Samsal, Samsal was to “Deliver imaginative and impactful social strategies, such as content or documentaries for the use of GTA ‘as it so wishes”. It is unclear what right Samsal had that enabled it to grant GTA any rights in the GUDA video.
- Term/ Payment Negotiation
The length of time for which you are allowed to use a work is often referred to as the ‘term’. Your rights under a licence agreement will often be limited in duration. If there is no express limitation on its use, you are allowed to use the material for as long as you want or until the copyright owner revokes the permission. In reality, the copyright owner can only grant permission for as long as the owner’s copyright protection lasts. Additionally, when negotiating permission to use copyright work, payment must also be negotiated.
From the facts, Kirani did not receive payment for use of the GUDA video for the promotional video.
- Get it in Writing
Relying on an oral agreement or understanding is not sufficient. The user and rights owner may have misunderstood each other or remembered terms of the agreement differently. This can lead to disputes. It is essential that the two parties enter into a well-drafted licence agreement that sets out the license’s use.
Conclusion
We must be reminded that the original intention of copyright law is not to prevent information usage but to protect against infringement. To achieve this, there must be commitment to safeguarding the rights of both creators and the persons who seek to use their ideas. Many people who violate copyright law may do so simply out of ignorance. There is therefore a need to seek relevant advice prior to using the creative work of others. In the Kirani case, it is recommended that the parties negotiate a settlement – pursuant to which a licence agreement is entered into that specifies the consideration payable to the author and terms under which GTA can use the GUDA video.
Vera is a Partner with the Intellectual Property, Telecommunications & Technology Practice Group of AB & David Africa. She is based in the Accra office and has over 17 years of experience in assisting local and international clients on brand protection and IPRs across sub-Saharan Africa. Vera is also a Tutorial Master at the Ghana School of Law.
