Intellectual Property Rights and Innovation: An analysis of the current regime

By Maame Ama HAGAN

Intellectual property serves as the legal shield of innovation, ensuring that creators enjoy the rewards of their intellectual labour while averting unfair exploitation. The concept, which encompasses a broad range of creations, is not a recent development but has historical roots that trace back to 600 BCE.

Over the past centuries, intellectual property has evolved, evidenced by the current codification of intellectual property rights in legal systems worldwide.

In Ghana, the legal framework for intellectual property has undergone significant enhancement to reflect international standards. Two key legislative milestones are the Copyright Act, 2005 and the Trademarks Act 2004 (Act 664). These laws were promulgated to ensure the protection of intellectual property rights and also to encourage ingenuity.

This paper provides insight into the development of intellectual property law with emphasis on its evolution in Ghana. It further provides a critical analysis of key aspects of the Copyright Act, specifically eligibility requirements, duration of protection, and remedies available in copyright infringement cases, among others. Ultimately, this paper examines how laws are structured to establish a conducive environment for creativity and to protect creative works in Ghana.

Understanding Intellectual Property: Scope and Rationale

According to Black’s Law Dictionary, 7th Edition, page 813, Intellectual Property is the category of rights protecting commercially valuable products of human intellect.  Simply put, it refers to creations of the human mind that the law seeks to protect. Intellectual Property is considered an intangible asset and covers a range of creations, including, but not limited to, copyright, trademarks, trade secrets, patents, and unregistered designs. It is pertinent to note that, intellectual property rights do not cover abstract ideas but are limited to the physical manifestations or expressions of ideas.

The rationale behind intellectual property is, a man should own what he produces. A person who creates work or has an idea that he develops has the exclusive right to control the use and exploitation of it, and ultimately, said person is entitled to preclude others from taking unfair advantage of his efforts. Essentially, the purpose of an intellectual property right is to prevent the leakage of innovation and to safeguard every element of creativity, provided it does not affect the rights of another.

Historical Milestones in the Development of Intellectual Property

The legal safeguards for intellectual property have an illustrious history, traced back to 600 BCE when bakers in the Greek colony of  Sybaris were granted a year-long exclusivity for creating certain culinary delicacies.[1] Some historians also pin the origins of intellectual property rights on the year 1421, when the Republic of Florence issued the first recorded patent for an industrial invention issued the first recorded patent for an industrial invention to an Italian architect and engineer, Filippo Brunelleschi.[2] A three-year monopoly was granted under the patent to Brunelleschi on  manufacturing a cargo boat for transporting marble to Florence on the Arno River. As with most of his creations, the architect was reluctant to publicly disclose it out of fear that his work could be replicated. Consequently, he petitioned the city and was granted the first patent for his boat in June 1421, which became known as “Il Badalone”[3].

In the context of intellectual property law codification, the Venetian Patent Statute of March 19, 1474, established by the Republic of Venice, is considered the oldest codified patent system in the world alongside the British Statute of Anne which was the first copyright law, passed in April 1710. These enactments are acknowledged as the forerunners of modern patent and copyright laws, firmly establishing the concept of intellectual property and laying down foundational principles for modern IP laws. Nonetheless, it wasn’t until the late 20th century that intellectual property became widely accepted in legal systems worldwide.

Evolution of Intellectual Property Laws in Ghana

It is imperative to have a robust legal framework that preserves the integrity of innovations brought forward by citizens. In the light of this, ‘ ‘Ghana’s legal system has undergone substantial transformation, particularly with respect to Intellectual Property (IP) law. As the country embraces economic and technological advancements, the significance of protecting intellectual property rights has become increasingly evident by the promulgation of the Copyright Act, 2005 (Act 690); the Patents Act, 2003 (Act 657); the Trademarks Act, 2004 (Act 664); the Industrial Designs Act, 2003 (Act 660); and the Protection Against Unfair Competition Act, 2000 (Act 589). Furthermore, the Government of Ghana, in January 2016 launched a National Intellectual Property Policy and Strategy aimed at strengthening the legal framework for protecting, administrating Intellectual Property rights and promoting innovation and awareness.

Key Aspects of Copyright Protection Under the Copyright Act, 2005 (Act 690)

Copyright, one of the well-known types of intellectual property, gives the creator of an original work, or another right holder, the exclusive and legally secured right to copy, distribute, adapt, display, and perform creative work, usually for a limited time.[4] In Ghana, the Copyright Act, 2005 (Act 690) which replaced the Copyright Law, 1985 (PNDCL 110) came into force on 17th March, 2005 Act to promote the citizens’ creative talents.

The repeal does not affect any copyright or other rights that were vested in any person by virtue of that law. These rights continue to be enforceable under the new Act. Additionally, the Act provides retroactive protection to works, performances, and sound recordings made prior to the coming into effect of the Act, as long as the term of protection had not expired under the previous law or the legislation of the country of origin. Act 690 was also passed to bring the provisions on Copyright and the Copyright Office in conformity with the Constitution and to provide for related matters.

Eligibility Requirements

Certain eligibility standards which serve as the benchmark to ascertain whether a piece of work is eligible for copyright protection have been explicitly set out in Act 690. Under the Act, authors of literary work, artistic works, musical work, sound recording, audio-visual work, choreographic work, derivative work, and computer software or programs are entitled to the Copyright and protection afforded to that work.

Pursuant to Section 1 of Act 690, such work is not eligible for copyright protection unless it is original and has been fixed in any definite medium of expression with the result that the work can either directly or with the aid of any machine or device be perceived, reproduced, or otherwise communicated. It is also worth noting that, the creator’s nationality is an essential factor to be considered. For a piece of work to be eligible for copyright protection in Ghana, it must have been created by a citizen.

Nevertheless, a person who is ordinarily resident in Ghana is also deemed eligible for copyright protection. Additionally, the work must have also been first published in the Republic and in the case of work first published outside the Republic, subsequently published in the Republic within thirty days of its publication outside the Republic.

It is necessary to reiterate that, Copyright does not extend to ideas, concepts, procedures, methods, or other things of a similar nature as espoused in Section 2 of Act 690. Thus, it follows that the expression of the idea is a sine qua non for copyright protection. This principle was underscored in the case of Pearson Education Ltd v. Adzei [5]  where the apex court per Date Bah JSC held as follows:

It has been considered an axiom of copyright law, as applied in the United Kingdom of Great Britain and Northern Ireland and many other jurisdictions, that Copyright protects the expression of an idea, rather than the idea itself.

The honorable judge further relied on the judgment in the case of Donoghue v. Allied Newspapers Ltd.[6] where Farwell J expatiated the principle as follows:

“This at any rate is clear beyond all question, that there is no copyright in an idea, or in ideas. A person may have a brilliant idea for a story, or for a picture, or for a play, and one which appears to him to be original; but if he communicates that idea to an author or an artist or a playwright, the production which is the result of the communication of the idea to the author or the artist or the playwright is the Copyright of the person who has clothed the idea in form, whether by means of a picture, a play, or a book, and the owner of the idea has no rights in that product.”

Registration of Creative Work

While registration may provide various benefits to the creator such as maintenance of a record of works, publication of the rights of the owner, and evidence of ownership, it is not a precondition for copyright protection in Ghana. Section 39(4) of Act 690 provides that copyright protection of work shall not depend on the registration of the work.

Duration of Copyright Protection

As stated supra, Copyright is usually time-bound. In Ghana, with regard to the duration of Copyright in individuals, the rights of the author are protected during his/her lifetime and seventy (70) years following the ‘ ‘author’s death. Where work is co-authored, the rights of the author are protected during the lifetime of the last surviving author and seventy (70) years after the passing of that author. Where the Copyright is owned by a public corporation or other body corporate, the protection spans for a period of seventy (70) years from the date of creation or first publication, whichever date is the later. These principles are stipulated in Sections 12 and 13 of Act 690.

Permitted Use of Protected Work

It is crucial to note that the protection offered by Copyright is not absolute. To enable the general public to benefit from intellectual creations, the law establishes a plethora of exceptions. Accordingly, where a person engages in acts that are considered permitted under Sections 19-23 of Act 690, the consent of the owner is dispensable. In the following instances, the use of literary or artistic work, either in its original language or translation, falls beyond the scope of protection provided by the law and thus does not infringe the author’s rights:

(a) Exclusive personal use by an individual of work made public, including reproduction, translation, adaptation, or other transformations.

(b)Including quotations with source and author acknowledgment in another work, including press summaries, if the work is made public.

(c) Illustration in publications, broadcasts, or sound/visual recordings for teaching, Communication for teaching or educational purposes, Professional training or public education, if the work is made public.

(d) Reproduction of articles on current topics in newspapers/periodicals or broadcasts on current topics, if the article or broadcast was not expressly restricted.

(e) Reproduction or public availability of works seen or heard in reporting fresh events or new information by news media, if the use is limited to informing the public.

(f)Reproducing or communicating works of art or architecture in audio-visual works or broadcasts if the works are permanently located where they can be viewed by the public or included as background or incidental to essential matters.

(g)Political speeches delivered in public, speeches delivered in public during legal proceedings or lectures, addresses, sermons, or similar works delivered in public, if the reproduction or communication is solely for reporting new events or information.

Infringement of Copyright

Copyright infringement is the use or production of copyright-protected material without the copyright holder’s permission[7]. In Ghana, where a person engages in an act that falls outside the purview of ‘permitted ‘use’ under Section 19-23 of the Copyright Act, it amounts to an infringement. The elements a plaintiff alleging copyright infringement must prove were highlighted in the case of NMJ Entertainment & Another V. RLG Communications & 3 Others[8], where the High Court speaking Koomson J held as follows:

“It is significant to note that in matters of this nature, it is the duty of the plaintiff to prove that, directly or indirectly, the ‘ ‘defendant’s alleged infringement is taken from the work or subject-matter in which he claims copyright. This is fundamental to the whole concept of copyright. In other words, the plaintiff must show that there is a similarity between the work and the infringement. If the evidence shows that there are striking similarities between the two works, that the ‘ ‘plaintiff’s was the earlier in time and that the defendant had the opportunity to get to know the ‘ ‘plaintiff’s work, then, a court may well find copying proved in the absence of any convincing explanation to the contrary by the defendant”

Remedies Available in Cases of Copyright Infringement

A person whose rights under Act 690 are being infringed upon may initiate civil proceedings in the High Court for an injunction to prevent the infringement or prohibit the continuation of the infringement by virtue of Section 47 of Act 690. The courts have held that infringement of Copyright will be restrained even if no damage was proved or shown by the copyright owner. This principle was affirmed and applied in the case of GEORGE BOSOMPIM AND NII LANTE KUMI-BRUCE V. TV3 NETWORK LIMITED AND EVANS KUMI WADEWOR[9].

Section 47 also provides that a victim of copyright infringement may also institute a civil action for the recovery of damages for the infringement. The amount of damages awarded will depend on factors such as the nature of the infringement and the benefit accruing to the infringer, inter alia.

It is important to note that the availability of these remedies may vary depending on the intricacies of each case. The principle that proof of damages is not a requirement in cases of copyright infringement was reinforced by the appellate court in the unreported case of REX OWUSU MARFO V. JOY INDUSTRIES LTD^[10]  where Anthony Oppong JA stated that:

It therefore bears emphasis that once a case of infringement of Copyright is established, the right owner is entitled to damages per se, without proof of damages. That is not to say that if the right owner has suffered any particular special damage, he cannot sue for special damages in which case the law, both substantive and procedural, would require him to particularize and prove same specifically. The emphasis is that proof of damages in the case of infringement of Copyright is not a requirement.

Similarly, in ‘Halsbury’s Laws of England (4th Edition), Vol 9, p 612, paragraph 947, it was explained that:

“in an action for infringement of copyright, it is not necessary to give proof of actual damage; the damages are at large. However, three factors the court may consider in awarding damages in infringement of Copyright were mentioned; namely,  the court may take into consideration what the right owner would have made if he had charged for the license fee; the court may award such additional damages as it may consider appropriate when it is satisfied that efeaking would not otherwise be available to the right owner having regard to the flagrance of the infringement. Lastly, the court may consider any benefit shown to have accrued to the one violating the copyright.”

The factors to consider in awarding damages as stated above have been codified in the High Court (Civil Procedure) Rules, 2004 (C.I. 47). Order 63 Rules 8 and 10 of C.I.47 provides as follows:

8.1) Where in an action for actual or threatened infringement of an intellectual property right the infringement is proved, the Court may order the party responsible for the infringement to pay to the right holder damages which are adequate to compensate for the injury, the right holder has suffered

2) The Court may in addition to awarding damages under sub rule (1), order a person whom it has found to have infringed the property right of a right holder, to pay the costs of the right holder

10. The Court may in an action for actual or threatened infringement of an intellectual property right, having regard to the circumstances and in particular to;

(a) The flagrancy of the infringement, and 

(b) The benefit accruing to the defendant by reason of the infringement award additional damages as the case may require.

It appears clear that in awarding damages in this case the authorities are clear that the court should have had regard to the injury caused to the right holder, the license fee he would have charged or entitled to, the flagrancy of the infringement, and the benefit accruing to the violator of the copyright. 

Conclusion

In summary, Ghana’s intellectual property regime aligns with global standards and adapts to local needs. This fosters innovation by encouraging inventors to freely produce more creative works without any fear that their works could be unfairly exploited.

A consistent refinement of these laws is however necessary to keep pace with technological advancements and to ensure the adequate protection of creators’ rights. A strong legal framework for intellectual property rights not only safeguards intellectual labor but also bodes well for the country’s economic and cultural development.

Maame is an Associate at Ghartey and Ghartey Law Firm. Her areas of interest are Alternative Dispute Resolution, Intellectual Property Law and Corporate Law.

[1] https://www.mondaq.com/trademark/977124/history-and-evolution-of-intellectual-property

[2] https://www.reuters.com/article/us-moments-patent-idUSKBN0IN1Y120141104

[3] https://www.theartstory.org/artist/brunelleschi-filippo/

[4] https://en.wikipedia.org/wiki/Copyright

[5] [2011] 2 SCGLR 864

[6] [1938] 1 Ch. 106 at p. 109

[7] https://www.investopedia.com/terms/c/copyright-infringement.asp

[8] Suit No. IPR/15/13, Judgment delivered on April 6, 2017

[9] Suit No. IPR/11/2013, Judgment delivered on October 31, 2016

[10] Civil Appeal No: HI/ 34/ 2020, Judgment delivered on June 17, 2021