9th April 2018

Korieh Duodu argues that it is time to refashion the protection of journalistic endeavours through the law of copyright, and for Africa to pave the way by tearing up the 19th century rulebook in favour of a system that gives real protection – and value – to journalism in the digital age. Doing so will strengthen the profession, at a crucial time when its role in increasing accountability and tackling corruption across the African continent cannot be over-emphasised.

It is, of course, impossible to generalise about the experience of African journalists. A writer in Ethiopia or Gambia may have more pressing concerns than whether someone is copying their articles. Africa’s patchwork of states neighbour those that engage in human rights abuses against journalists next to others enjoying diverse and free media. A common denominator, nevertheless, is the challenge journalists face in seeking to monetise their work, in the digital age of rampant abuse of copyright.

One key issue that has not been sufficiently analysed is the almost complete breakdown in literary copyright recognition, protection and enforcement across the African continent. Quite apart from the blatant and unethical copying of one journalist’s work by another, a more sinister force is at play. In Ghana, for instance, articles published in mainstream newspapers (particularly those that publish online) are systematically harvested by free news ‘portals’. Generally, the newspaper publisher receives no license fee for this. Even if syndication fees are paid, they are not shared with the journalist. Such portals may even suggest it is a ‘favour’ for a journalist to see their articles there, with the increased readership and exposure.

This devaluing of journalism is compounded by two additional problems: a lack of sufficiently robust training in intellectual property laws and ethics for those coming into the profession, and – as importantly – the near-impossible task of enforcing copyright laws. The legal systems in Africa often do not lend themselves to commercial enterprises looking for swift and effective court action.

Cases generally take too long to be heard, may be open to influence by bribery, and may result in the winner being out of pocket. Remedies such as court-ordered damages and injunctions may also be completely ineffectual, since a rogue web publisher can simply close down any local company and continue to run their website offshore.

Secondly, while the copyright laws across Africa do not appear to be the problem, they are archaic and designed for the near-bygone era of print publishing (as is copyright law worldwide). Africa’s copyright protection regime is based on the 19th Century colonial legal systems inherited from the English and French, as modernised by the Berne Convention (of 1886) and incorporated into many African countries laws under the 1994 World Trade Organisation’s (WTO’s) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs).

In Access to Knowledge in Africa: The Role of Copyright, an impressively detailed survey of the copyright laws of eight African countries, namely Egypt, Ghana, Kenya, Morocco, Mozambique, Senegal, South Africa and Uganda, the authors conclude that all of these countries (and most in Africa) do indeed adhere to the important aspects of the Berne Convention.

But the authors also recognise that “In most study countries, case law with respect to copyright in general
and access to learning materials in particular, is sparse. Copyright litigation is uncommon.” This is indeed spot on. What use is a legal regime for copyright protection, if it fails to provide effective protection for those most in need of it?

A key consequence of the problem with lack of copyright enforcement is that journalists do not get paid for their work. This has a knock-on effect on their integrity. A journalist will not attend a press conference unless they
are paid privately (or, to put it colloquially, bribed) by the ‘beneficiary’ of the press coverage. This leads to a skewed market where those journalists wishing to act with integrity will struggle to make ends meet. Worse, for the societies these journalists serve, there is a dearth of truly independent journalism, since he who pays the piper, calls the tune.

Ghana is a perfect example. Having been celebrated as a thriving multi-party democracy where a free press is apparently the norm, two important deficiencies to the country’s progress have been recognised. The country has experienced a rapidly worsening record for corruption, while at the same time critical journalism is deteriorating both in its quality and in its value as a way of making a living.

How we begin to address the problems

Naturally, better paid and better trained journalists are more likely to resist the temptations of bribery and other unethical behaviour. But to have better-paid journalists, the business model of media publishing needs an overhaul. There are too many anecdotes of failed pan- African publications, set up with substantial investment and producing glossy issues for a year or two, before financial mismanagement led to a swift decline. It is essential to get the finances of publishing right, in an age where revenues are increasingly based on page views of advertisements, rather than paid-for print circulation.

Of course, journalists can also do more to help themselves. Journalists should insist on more robust representation by their journalistic unions and associations as well as by royalty collecting societies, to ensure that traditional ways of licensing and sharing the profits from original journalistic content are recognised and protected.

But the above measures have been tried before, without particular success. The critical additional step that
needs to be taken is for publishers and journalists to take advantage of developments in digital publishing to wrestle back control of their content, through effective digital rights enforcement. If this is done in addition to improved co-ordination amongst journalists and publishers to protect their rights, a major shift in the value of journalistic content could be achieved.

Africa boasts one of the most creative and innovative tech environments worldwide, and it is time for the media to consider digital remedies to this problem, in the same way as the music industry had to, and as Google does with Youtube. The issues are wide-ranging and complex and require further research.

Nevertheless, the end result ought to be that technology similar to that which Youtube uses to detect breach of copyright, is deployed to detect and flag websites that infringe literary copyright. In the same way as digital certificates allow for browsers to detect ‘trusted’ and secure content online, a website that copies content without proper acknowledgment or licensing should – like a website likely to send you a virus – be flagged as lacking copyright integrity. With some co-operation and co-ordination, infringing websites could be blocked by browsers through a regulated system of blacklisting.

At the same time, publishers should work with digital advertising centres such as Google Adsense to develop an advertising regime that provides an equitable split of advertising revenues not just to websites that pull in large numbers of viewers, but those who have contributed content to those websites. Again, digital certificates could detect copying and require payment for authorised use. Companies that fail to co-operate should have their advertising revenues stripped.

In other words, there is a need for a thoroughly modern approach to a thoroughly modern problem. While copyright laws and the courts will still be relevant to certain situations, this should only be in exceptional circumstances.

Until the modern approach is thrashed out, here are some practical recommendations for journalists who regularly face problems with copyright infringement:

  1. Each work should be marked with a separate copyright notice, warning against unauthorised use and identifying the author as the copyright holder and the date of first publication.
  2. Where there is a persistent culprit and multiple journalists and publishers are having their rights infringed, a class action should be considered. This would ensure greater judicial scrutiny. A highly publicised damages award could operate as a significant deterrent.
  3. In countries where persistent problems are experienced, journalists and publishers should come together with collecting societies, lawyers and academics to discuss the operation of the law and its limitations, and how to use innovation to effect change.
  4. Where a work is likely to be syndicated widely, the journalist should try to negotiate a higher fee with the publisher for first use, taking into account any further royalties the publisher will earn from syndication and the fact that the journalist will earn nothing more from the piece.
  5. Journalists should use the power of their pens to address this issue, naming and shaming the obvious culprits alongside taking legal action.

Accountability through a strong free press is essential to development in Africa, and the world over. Without a rm and innovative approach to copyright protection, we risk viewing apparently thriving African democracies through the blinkered lens of a ‘free press’, while a media ‘free-for- all’ takes place under the surface, with quality journalistic content paying the price.

Korieh Duodu is a lawyer qualified in England and Ghana. He is the principal of Egality Law.


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