It is commonplace to find many events and performances being organized in Ghana during Christmas. Some musicians also choose the festive season to release their new works. It is also during this time that a lot of stage plays and comedies are shown in theatres. The question is whether or not authors of works such as plays, poems, music and performers such as actors, dancers, etc. are aware of some of their basic rights in respect of their works and performances. A lot of times, after these festive activities, the media is littered with pieces of news regarding brawls between event organizers and performers, as well as authors, sometimes over copyright issues as well as over very minor issues which could have been forestalled had the parties involved known of the implications of their actions beforehand.
An author has been defined by the Act as a person who creates a work, and in the case of cinematographic work or sound recording means the person by whom the arrangements for the making of the work or recording is undertaken. In this definition it is realized that an author is defined to include any person who develops work recognized under the act as eligible for copyright and protection under the Copyright Act of Ghana.
An author, co-author or joint author of work such as literary work, artistic work, musical work, sound recording, audiovisual work, choreographic work, derivative work and computer software or programme is entitled to the copyright and the protection afforded to that work under the Copyright Act of Ghana . It must be noted that copyright does not extend to ideas, concepts, procedures, methods or other things of a similar nature. Before the works stated above would be eligible for copyright, the work ought to be original in character in that it must be the product of the independent effort of the author . Furthermore, it must have been fixed in a definite medium of expression now known or later to be developed with the result that the work can directly or with the aid of a machine or device be perceived, reproduced or otherwise communicated. Again, for a particular work to be eligible for copyright, it must have been created by a citizen or a person who is ordinarily resident in the Ghana and first published in Ghana. However, if the work is one which was first published outside Ghana, then within 30 days after publication outside Ghana it must be subsequently published within the country. Finally, if work would be eligible for copyright under the Act, it has to be work in respect of which Ghana has an obligation under an international treaty to grant protection.
The artistic quality, the purpose of the author in creating a particular work or the manner or form of expression of the work does not in any way affect its eligibility for copyright.
Rights of the author of a protected copyright work
By law, the author of a protected copyright work has the exclusive economic rights in respect of the work, to do or authorise the reproduction of the work in any manner or form, the translation, adaptation, arrangement or any other transformation of the work, the public performance, broadcasting or communication of the work to the public, the distribution to the public of originals or copies of the work by way of first sales or any other first transfer of ownership and the commercial rental to the public of originals or copies of the work.
In addition to the economic rights stated above, the law affords the author of protected copyright work the sole moral right to claim authorship of the work and in particular to demand that the name or pseudonym of the author be mentioned when any of the acts in respect of his or her economic rights are done in relation to the work, and to object to and seek relief in connection with a distortion, mutilation or any other modification of the work where that act would be, or is prejudicial to the reputation of the author or where the work is discredited by the act.
It is very important to note that, where a person has been employed to create any of the work listed as being eligible for copyright protection, the economic rights of the work as identified above would vest in the employer, in the absence of a contract to the contrary. This implies that the terms of the contract, if any, would prevail over any other arrangements. It may be surmised from the above that the employee who authored the work, in the course of his employment would have to insist on a contract to the effect that he would want the economic rights thereof to vest in him, if he so wishes.
The owner of copyright has the right to transfer his or her economic rights as stipulated under the Copyright Act to another person either in whole or in part. The law would usually not permit an owner of a copyright to transfer his or her moral rights under the Copyright Act to another person. However, if there is any contract requiring that to be done then it shall be limited in scope to the use provided for in that contract.
Since copyright work may be deemed as property, it can be the subject matter of a testamentary disposition, such that one may transfer his or her right to another person through a will. Moreover, ownership of copyright may also be transferred to another person by assignment or by operation of law. All these may be made or granted in respect of an existing work or future work.
For a transfer of a copyright by assignment to have effect, it ought to be in writing and signed by the owner of the copyright or by the person authorised by the owner of the copyright for that purpose.
In the case of a joint authorship of a work, an assignment or a license for the work shall be subject to the authorization of the joint authors.
Duration of copyright
In the case of individuals , the economic rights of an author are protected during the life of the author and seventy (70) years after the death of the author unless the contrary is stated in the Copyright Act and where the work is jointly authored, the economic rights of the authors are protected during the life of the last surviving author and seventy years after the death of that author.
Where the copyright in a work is owned by a public corporation or other body corporate, the term of protection shall be seventy years from the date on which the work was made or first published, whichever date is later.
For work published anonymously or under a pseudonym, the economic rights of the author are protected until seventy years after the date on which the work was made, first made available to the public or first published, whichever date is the latest. It must be noted however that if the identity of the author is known or no longer in doubt before the expiration of that period, the rights of the author shall be protected during the life of the author and seventy years after the death of the author.
In the case of an audiovisual work, the economic rights of the author are protected until the expiration of seventy years from the date of the making of the work, or where the work is made available to the public during that period with the consent of the author, until the expiration of seventy years from the date on which the work was made, first made available to the public, or first published, whichever date is the later.
In the case of a sound recording, the rights of the author referred to in section 5 are protected from the publication of the sound recording until the expiration of seventy years after the year of publication or, if the sound recording has not been published from the fixation of the sound recording, until the expiration of seventy years after the year of fixation.
The moral rights of authors under the Act exist in perpetuity and these rights are enforceable by the author, during the lifetime of the author, and after the author’s death, by the author’s successors whether or not the economic rights vested in the author are still vested in the author or the successor in title of the author.
Performance and the protection of the rights of performers
The Copyright Act also protects the rights of performers against other persons in respect of their performance. A performance according to Act 690 is the presentation of work by such actions as dancing, playing, reciting, singing, delivering, declaiming or projecting to listeners or spectators. This implies that stage dramas which involves acting, cultural performances, choral Programmes and live band musical programmes, poetry and spoken word, painting or drawing on stages to spectators or viewers would all qualify as performance provided that they constitute original work by the performer. A performer therefore would mean the actor, dancer, musician, singer and other persons who act, sing, deliver, declaim, play in or otherwise perform literary or artistic works or expression of folklore.
Without the authorization of a performer, a person shall not broadcast or communicate a performance of the performer directly or indirectly to the public except where the broadcast or communication to the public is made from a previously authorised fixation or where the transmission is one that has been authorised by the broadcasting organisation which transmits the first performance.
Without the authorization of a performer, a person is also prohibited from arranging the fixation of a performance not previously fixed on a physical medium, exercising the right of reproduction of the fixation in any manner or form, providing the first public distribution of the original or a copy of the performance of the purpose of direct or indirect commercial advantage irrespective of the ownership of the original or copy rented or making available to the public a fixed performance by wire or wireless means, in a way that members of the public may access it from a place and at a time individually chosen by them . A cursory read of the act seems to suggest that people who, for instance, take videos of performances and without authorization of the performer post them on various social media platforms so as to make them available to the general public are in a way infringing on the rights of performers under the Copyright Acts.
A performer has the exclusive right to authorise or prohibit the re-broadcasting, rental and distribution of a fixation of the performance, the fixation of the performance, the reproduction of a fixation of the performance or the communication to the public of the performance. The exclusive right of a performer to authorise or prohibit the above acts may however be limited where the performance has been lawfully fixed on audiovisual or audio recording media which may be broadcast without the consent of the performer, if the recordings have been published subject to the payment of equitable remuneration to the performer.
It is expedient for performers to note that where the performance by the performer was given under a contract of employment or service, the extent and conditions under which the employer of the performer may use the performance or authorise others to use it shall be determined by reference to the nature of the contract of employment or service unless agreed otherwise.
In the case of a group participating in choral, orchestral, or stage performance, the consent of the elected representative of that group shall constitute ample authorization for the activities of a person which may be authorised or prohibited by the performer.
Fixation as used severally above means the embodiment of sounds, images, or images and sounds or of representations made from them from which the sounds, images or images and sounds can be perceived, reproduced or communicated through a device.
Duration of protection of Performers’ rights
The rights of a performer in respect of the performance are protected for a period of seventy years starting rom the end of the calendar year in which the performance was fixed on a physical medium or in the absence of such a fixation, from the end of the calendar year in which the performance took place.
The performer subject to the economic rights of an author of a protected work and any existing contract of employment or service between an employer and a performer, a performer has the right to enter into a contract with a person on the terms and conditions, that the performer considers appropriate for the use of the performance by another person.
In addition to the rights as stated above, a performer has a moral right to require to be identified with the performer’s live oral performances and performances fixed in phonograms and to object to a distortion, mutilation, or any other modification of a personal performance which would be prejudicial to the reputation of the performer. These moral rights are independent of his or her economic rights and may be exercised even after the transfer of the economic rights
Registration of works
The Copyright Act by section 65 establishes a Copyright Office which is headed by the Copyright Administrator appointed by the President in accordance with the advice of the Legal Services Board given in consultation with the Public Services Commission.
The Administrator is enjoined by law to open and maintain registers in which shall be registered associations of authors, works and productions and a publisher of work within Ghana may submit the work for registration by the Copyright Administrator after its publication and may deposit two copies of the best edition at the Copyright Office.
The purpose of registration is to maintain a record of work, publicize the rights of the owners and to give evidence of the ownership and authentication of intellectual property. note ought to be taken of the fact that copyright protection of a work is not dependent on the registration of the work.
In spite of this fact, it is always advisable to register because an individual whose name is indicated as the author on a work is presumed to be the author of the work in the absence of a proof to the contrary. This implies that in case any legal issue arises as to the ownership of the right to some work, the registration would serve as prima facie evidence as to ownership or authorship unless it is proved otherwise.
Offences in relation to copyright and the rights of performers under the Copyright Act
Where a person performs an act which infringes upon a copyright or related rights protected under the Copyright Act without any license or authorisation from the person whose rights are protected or the agent of the person whose rights are protected under the Act, and the person knows or has reasonable grounds to know that his or her action induces, facilitates or conceals an infringement of such rights, the person commits an offence and will be liable on summary conviction to a fine of not more than one thousand penalty units and not less than five hundred penalty units or to a term of imprisonment of not more than 3 years or to both.
If the offence is a continuing one, the person convicted shall be liable to pay a further fine not less than 25 penalty units and not more than 100 penalty units for each day during which the offence continues.
The Act makes provision for the payment of compensation in addition to any punishment imposed by the Court in respect of an offence under the Act. The court is therefore empowered at its discretion to order that the sums of money arising out of the offence be paid to the person entitled to those sums and that the reproductions, duplication, extract, imitation and any other material involved in the infringement, and the implement or device used in the infringement be forfeited and disposed of as the court may direct having regard to the circumstances relating to the infringement.
Civil remedies
Apart from the fact that criminal charges may pressed an offender under the Act, a person whose rights are in imminent danger of being infringed or are being infringed upon may institute civil proceedings in the High Court for an injunction to prevent the infringement or prohibit the continuation of the infringement, or for the recovery of damages for the infringement.
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