The Protection and Licensing of Music Rights in Sub-Saharan Africa: Challenges and Opportunities

Abstract

IntroductionAfrica is a huge continent teeming with people-a vast sea of over one billion souls. Sub-Saharan Africa, which this research focuses on, boasts the majority of this population.2 All things being equal the region should have one of the biggest and most-thriving entertainment business sectors in the world. It is clear however that, to a large extent, the entertainment sectors in the region remain largely underdeveloped-at least in the conventional sense. In many instances it may be difficult to even clearly delineate an entertainment industry,3 despite a recognition of the great potential of the entertainment or creative sectors in spurring economic development in the region.4 The music industry is no exception in this regard.Even so, a lot of activity is in fact taking place, albeit largely on a low-scale, amateurish, or subsistence level with not much impact on GDP growth. Importantly, there have also been many success stories over the years. This makes the African music licensing environment at once enigmatic, interesting, and bemusing for the practitioner working in this market. Enigmatic because of the many activities in the industry that do not conform to the conventional understanding of how the industry works or how it should work; interesting because of the feeling of adventure and exhilaration arising from having to work with impassioned artist entrepreneurs delving into hitherto untapped areas; and bemusing because sooner or later the practitioner will have to face the fact that certain rough survival tactics, including the big-fish-eat-little-fish syndrome referred to by some earlier,5 may still be prevalent.6What will immediately be evident to one seeking to work in this market is the difficulty in finding any reliable information on the African music industry, both at a regional or national level. It is this lack of information that the Music in Africa project, an initiative of the Siemens Stiftung Germany and the Goethe-Institut, seeks to address.7 In this regard Edington Hatitye, Project Manager for the initiative, explained that the aim of the initiative is to foster a well-informed and African-driven music community and to facilitate an inter-African exchange, through creating an online-based portal for the dissemination of knowledge.8 Amongst others the project aims to have a directory of the various players in the African music industry, to have a section for useful resources about the industry (whether in the areas of entertainment law, the music business, music technology, or other relevant areas), and to have a section on education in which all information relating to music education and institutions will be reported. At this point, in the absence of this information this research had to depend on information gleaned from limited key players in the industry, as well as information available through research.The lack of a harmonized legal framework in the area of copyright and related rights protection on a pan-African basis, especially in the area of digital exploitation, may be another reason why the licensing of music rights in Africa poses some difficulties. Progress with regard to the African Economic Community formed in terms of the Abuja treaty of 1991 has been rather slow. This naturally affects regional integration and hampers any attempt at the harmonization of laws. The Southern and Eastern African Copyright Network (SEACONET), an ambitious non-governmental organization comprised of copyright offices, collective management organizations, rights holder organizations, and other organizations interested in copyright and related rights, was formed in 2008 with the support of a number of governments in Southern and Eastern Africa. One of the objectives of this organization is to harmonize the laws relating to copyright and related rights in this sub-region, especially in the area of enforcement and cross-border measures.9 In 2012 the organization adopted a model copyright law with rather noble ideals. …