DEDICATION
To my family, the Kamtchoum family.
i
CERTIFICATION
This dissertation of SOB KAMWA FRANCOIS (Sm16A365) entitled “PROTECTION OF
COPYRIGHT IN CAMEROON” submitted to the Department of English Law, Faculty of
Laws and Political Science, University of Buea, in Partial Fulfilment of the Requirements for
the award of the Bachelor of Laws (LL. B) Degree in English Law, is the original work of the
candidate.
Signature ______________________________
Date:
HOD
PROFESSOR SONE PATIENCE (Ph.D.)
DEPARTMENT OF ENGLISH LAW
FACULTY OF LAW AND POLITICAL SCIENCE
UNIVERSITY OF BUEA
Signature ______________________________ Date: ___________________
SUPERVISOR
DR. SUNKAM ACHILLE (Ph.D.)
DEPARTMENT OF ENGLISH LAW
FACULTY OF LAW AND POLITICAL SCIENCE
UNIVERSITY OF BUEA
ii
ACKNOWLEDGEMENT
I am grateful to the Almighty God for his care and protection throughout my studies in the
University of Buea.
My sincere gratitude goes to my supervisor Dr. Sunkam Achille for the patience and careful
supervision of this work. Without his intelligent and wonderful criticisms and corrections, this
work will not have been realised.
I want to acknowledged my eminent Lecturers of the English law Department namely;
Professor
Fonyam, Professor Irene Samalang, Professor Alvine Boma, Professor. Sone Patience, Dr.
Ekome Emmanuel, Dr Monkam, Dr Ojung, Dr Owona, Barr Tchana, for the knowledge they
have impacted in me throughout my study in the University of Buea.
To my father without whom none of this would have been possible, my gratitude also goes to
my late mother and step-mother, my siblings: Audrey, Henri, Ingrid, Maria, Julian, J.Claude,
Monika and my entire family, may God continue to protect you.
To all my friends, “La Bergerie” and in particular Tonfeu Alexis, may God continue to bless
you all.
iii
ABSTRACT
This project deals with the protection of Copyrights in Cameroon. Although the Government
has enacted laws regarding protection of copyrights, the study reveals that enforcement and
implementation of these laws are not wholly effective. This is due to deliberate disrespect of
the law, a situation that is encouraged by weak enforcement mechanisms. The general research
question was “how are Copyrights protected in Cameroon”. Specifically, the research sought
to determine the substantive and institutional framework for the protection of Copyrights and
the shortcomings to the implementation of Copyrights in Cameroon. This study reveals that
Copyrights in Cameroon are protected by substantive mechanisms as well as institutions, and
both provide a good legal framework for the protection of Copyrights in Cameroon; however,
ineffective enforcement of the copyright law has contributed to Copyright infringement and
poor living conditions of artist nationwide. The study therefore recommends that the state
authorities should implement Copyrights consistently. It should be consistent in the sense that
actions in the field by organs like National Committee for Fight Against Piracy should be
continuous. This will help in that the continuous seizure of the counterfeits and equipments
used to produce them will stop the violation. Mass education and the creation of awareness,
especially for the actors of this sector as well as those consuming Copyrighted products.
iv
TABLE OF CONTENT
DEDICATION ............................................................................................................................ i
CERTIFICATION ..................................................................................................................... ii
ACKNOWLEDGEMENT ........................................................................................................ iii
ABSTRACT .............................................................................................................................. iv
TABLE OF CONTENT ............................................................................................................. v
LIST OF STATUTES ............................................................................................................... ix
CHAPTER ONE
GENERAL INTRODUCTION
1.1 BACKGROUND OF THE STUDY ................................................................................ 1
1.2 CONCEPTUAL DEFINITION OF KEY TERMS .......................................................... 2
1.3 SCOPE OF STUDY ......................................................................................................... 5
1.4 STATEMENT OF THE PROBLEM ............................................................................... 8
1.5 RESEARCH QUESTION .............................................................................................. 10
1.5.1 GENERAL RESEARCH QUESTION ....................................................................... 10
1.5.2 SPECIFIC RESEARCH QUESTIONS ...................................................................... 10
1.6 RESEARCH OBJECTIVES .......................................................................................... 10
1.7 METHODOLOGY ........................................................................................................ 10
1.8 JUSTIFICATION OF THE STUDY ............................................................................. 10
v
1.9 SIGNIFICANCE OF THE STUDY ............................................................................... 11
1.10 THEORETICAL FRAMEWORK ............................................................................... 11
1.11 SYNOPSIS ................................................................................................................... 13
CHAPTER TWO
SUBSTANTIAL PROTECTION OF COPYRIGHTS IN CAMEROON
2.1. The Effective Mechanisms of Substantial Protection of Copyright in Cameroon ........ 15
2.1.2 Protection Under the Intellectual Property Law ..................................................... 17
2.1.2.1 Obligation of Authorization ................................................................................. 17
2.1.2.2 Mandatory Recognition of Authorship or Paternity of a Work ........................... 18
2.1.2.3 Exclusive Right of Alteration or Modification .................................................... 19
2.1.2.4. Right to Remuneration ........................................................................................ 20
2.1.2.5 Right to Information............................................................................................. 21
2.1.2.6. Exclusive Right to Disclosure ............................................................................. 23
2.1.3 Penal Protection .......................................................................................................... 23
2.2 Shortcomings to the Substantive Protection of Copyrights in Cameroon ..................... 25
2.2.1 Piracy ...................................................................................................................... 25
2.2.2 Forgery .................................................................................................................... 26
2.2.3 Digital Copyright Infringement .............................................................................. 28
2.2.4 Lack of Public Awareness ....................................................................................... 30
vi
CHAPTER THREE
THE INSTITUTIONAL PROTECTION OF COPYRIGHTS IN
CAMEROON
3.1 Effectiveness of Institutional Protection ........................................................................ 32
3.1.1 Ministry of Arts and Culture ................................................................................... 32
3.1.2 The Role of Courts or Tribunals ............................................................................. 33
3.1.3 National Police and Customs Services.................................................................... 34
3.1.4 Collective Management Bodies .............................................................................. 35
3.1.5 African Intellectual Property Organisation ............................................................. 37
3.1.6 WORLD INTELLECTUAL PROPERTY ORGANISATION (W.I.P.O).............. 40
3.2 Shortcomings to the Institutional Protection of Copyright in Cameroon ...................... 43
3.2.1 MISMANAGEMENT OF COLLECTIVE MANAGEMENT BODIES................ 44
3.2.2 THE ROLE OF THE STATE OF CAMEROON ................................................... 45
3.2.3 Ignorance of the Masses .......................................................................................... 47
CHAPTER FOUR
RECOMMENDATIONS AND CONCLUSION
4.1 RECOMMENDATIONS ............................................................................................... 48
4.2 CONCLUSION .............................................................................................................. 49
BIBLIOGRAPHY .................................................................................................................. 51
vii
LIST OF ABBREVIATIONS
ADPIC
“Aspects des Droits de Propriété Intellectuelle qui Touchent au Commerce”
ADR
Alternative Dispute Resolution
CCJA
“Cour Commune de Justice et d’Arbitrage”
CD
Compact Disc
CD-ROM Compact Disc-Read Only Memory
CMC
Cameroon Music Corporation
DVD
Digital Versatile Disc
E.G
Example Given
FCFA
“Franc Communauté Financière d’Afrique”
ICT
Information and Communication Technologies
ISP
Internet Service Provider
IP
Intellectual Property
IPR
Intellectual Property Right
MFN
Most-Favoured-Nation
OHADA
“Organisation pour l’Harmonisation en Afrique du Droit des Affaires”
OAPI
“Organisation Africaine de la Propriété Intellectuelle”
SOCAM
“Société Camerounaise de l’Art Musical”
SOCILADRA “Société Civile des Droits de la Littérature et des Arts Dramatiques”
SOCIDRAP
“Société Civile des Droits Audiovisuels et Photographiques”
TRIP
Trade Related Aspect of Intellectual Property
TV
Television
UN
United Nations
US$
United States Dollar
WCT
World Intellectual Property Organisation Copyright Treaty
WIPO
World Intellectual Property Organisation
WTO
World Trade Organisation
viii
LIST OF STATUTES
Domestic Statutes

Law No. 2000/011 of December 19, 2000 on Copyright and Neighbouring Rights.

Decree No 2001/956/PM of November 1, 2001 implementing Law No 2000/11 of December
19, 2000 on copyright and neighbouring rights.

Constitution of the Republic of Cameroon.

Cameroon Penal Code.
Regional Statutes

Bangui Agreement of 02 of March 1977, revised on the 24 of February 1999.
International Statutes

THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC
WORKS 1886.

WIPO Copyright Treaty 1996 (WCT).

AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY
RIGHTS 1995 (TRIPS AGREEMEN.
ix
CHAPTER ONE
GENERAL INTRODUCTION
1.1 BACKGROUND OF THE STUDY
Intellectual property, very broadly, means the legal rights, which result from intellectual
activity in the industrial, scientific, literary and artistic fields1. Intellectual property law aims
at safeguarding creators and other producers of intellectual goods and services by granting
them certain time limited rights to control the use made of those productions. Intellectual
property is traditionally divided into two branches, “industrial property” and “copyright” 2
Copyright is a property that arises from the human intellect. It is a product of human creation.
The rationale for protection of copyright is to stimulate and promote further creativity.
Copyright also ensures certain minimum safeguards of the rights of Creators over their works
thereby rewarding creativity. Most importantly, the protection provided by the copyright to
artist, creates an atmosphere conducive for creativity that induces the artist to create more 3 as
well as motivating other aspiring artist to join the industry and create more literary and artistic
works.
Copyright plays an essential role in any developed society. If society is to recognize, creativity,
innovation and imagination, then copyright is the principal tool by which we accord such
recognition. This is economically expressed by the award of a range of exclusive rights that
1 Eduardo Borensztein, Jose De Gregorio, and Jong-Wha Lee (1998) “How Does foreign
Direct Investment Affect Economic Growth?” Journal of International Economics 45, 115135.
2 James Frankel (2009) the teacher's Guide to Music, Media, and Copyright Law,
Technology Institute for Music Educators, New York.
3 David Moser & Cheryl Slay (2012) Music Copyright Law, Course Technology, Cengage
Learning, and Boston,MA.
1
grant the creator or authors the power of control and the right of commercial exploitation of
their works4.
Every time you listen to music on the radio, you are listening to the result of several contracts
involving copyright. The list is endless. Whether you are a musician, a manager, a publisher, a
record company executive or an entertainment industry lawyer, your income is based largely
on copyright. For the above reasons, it is necessary to spend quality time in understanding the
basics in order to maximize rewards resulting from copyright5.
1.2 CONCEPTUAL DEFINITION OF KEY TERMS
In order to understand this study, an explanation of its key terms is required. They include;
Intellectual Property
The Oxford Advanced Learner’s Dictionary defines intellectual property as an idea, a design,
that somebody has created and that the law prevents other people from copying6.
Again, according to the World Intellectual Property Organization, intellectual property refers
to creations of the mind: inventions; literary and artistic works; and symbols, names and images
used in commerce. Intellectual property is divided into two main branches, Industrial property
and Copyright7.
Industrial property refers to intangible property such as inventions, industrial designs,
trademarks, which is afforded protection under national and international property laws8.
4 James Frankel (2009) The Teacher's Guide to Music, Media, and Copyright Law.
5 David Moser & Cheryl slay (2012) Music Copyright Law.
6 Oxford Advanced Learner’s Dictionary 8th edition.
7 World Intellectual Property Organization, WIPO Publication No. 450(E) ISBN
978-92-805-1555-0.
8
Www . BusinessDictionary.com visited on the 26th of May 2019.
2
Article 1(3) of the Paris Convention for the Protection of Industrial Property has defined
industrial property as; industrial property shall be understood in the broadest sense and shall
apply not only to industry and commerce proper, but likewise to agricultural and extractive
industries and to all manufactured or natural products, for example, wines, grain, tobacco leaf,
fruit, cattle, minerals, mineral waters, beer, flowers, and flour9.
Industrial Property includes patents for inventions, trademarks, industrial designs and
geographical indications.
Copyright
According to the Black’s Law Dictionary (2nd Edition), Copyright is the right of literary
property as recognized and sanctioned by positive law. A right granted to the author or
originator of certain literary or artistic productions, whereby he is invested, for a limited period
with the sole and exclusive privilege of multiplying copies of the same and publishing and
selling them.10
Article 2 (1) of the Berne Convention for the Protection of Literary and Artistic Works of the
9 September 1886, defines Copyright as; the expression “literary and artistic works” shall
include every production in the literary, scientific and artistic domain, whatever may be the
mode or form of its expression11.Moreover, the Bangui Agreement of 2
nd
March 1977, as
th
revised on the 24 of February 1999, provides that; Copyright is the right that protects literary
and artistic works such as writings, musical works, works of art (painting, sculpture)12.
9 Paris Convention for the Protection of Industrial Property of March 20, 1883.
10 Black’s Law Dictionary (2nd Edition).
11
Berne Convention for the Protection of Literary and Artistic Works of the 9 September
1886.
12 Bangui Agreement of 2nd March 1977, as revised on the 24th of February 1999.
3
th
Again, according to Law n°2000/011 of 19 December 2000, in its Article 3(2), Copyright
shall relate to the expression through which ideas are described, explained and illustrated. It
shall cover the distinctive features of works, such as the plan of a literary work insofar as it is
materially linked to the expression13.
It should be noted that copyright protects works, that is, the expression of a conception, not
ideas. Works are protected by the mere fact of creation regardless of their merit or destination.
No deposit is required contrary to the prevailing rule of industrial property24.
CREATOR
According to Article 7(1) of Law n°2000/011 of 19th of December 2000; the author shall be
individual who created a literary or artistic work. The author shall equally be the individual
who designed the work and initiated its realization by an automatic process. Article7 (2) is to
the effect that, the author of a work protected by virtue of this law shall be the holder of the
copyright in the said work14.
WORK
The Black’s Law Dictionary (second Edition) defines a work as, expressing human mind
in language, images, sound, signs, symbols and media.15
According to the World Intellectual Property Organization, the literary and artistic creations
of authors and artists are usually referred to as “Works”16.
13 Law n°2000/011 of 19th December 2000 on Copyright and
Neighbouring Rights.
14 Ibid.
15 Black’s Law Dictionary (2nd Edition)
16 World Intellectual Property Organization, WIPO Publication No. 450(E)ISBN 978-92805-1555-0.
4
Furthermore, Article 5 of the Bangui Agreement of 2nd March 1977, as revised on the 24th of
February 1999, provides that; this annex apply to literary and artistic works, hereinafter referred
to as “Works”, which are original intellectual creations in the literary, artistic and scientific
fields.17 In addition, Article 4(1) of Law n°2000/011 of 19
th
December 2000 provides that; a
work shall refer to a creation not only in its original form, but also in its derivative or composite
forms18.
Forgery, Piracy and Infringement
Article 80(a) of Law n°2000/011 of the 19th December 2000, the following shall constitute
forgery: any exploitation of a literary or artistic work done in violation of this law, through
performance, reproduction, transformation or distribution by any means whatsoever19.
Forgery is defined by the Black’s Law Dictionary (2nd Edition) as, the falsely making or
materially altering, with intent to defraud, any writing which, if genuine, might apparently be
of legal efficacy or lay foundation of legal liability.20
Piracy refers to the manufacture, sale of copies in contravention of rights protected by
Copyright.21
1.3 SCOPE OF STUDY
The scope of the study gives us the range, which the study will cover. At the thematic level,
the study focuses on the protection of Copyright in Cameroon, which is governed by local,
regional as well as international legislation.
17 Bangui Agreement 1977.
18 Law n°2000/011 of 19th December 2000 on Copyright and Neighbouring Rights.
19 Ibid.
20 Black’s Law Dictionary (2nd Edition)
21 WIPO Committee ON MEASURES AGAINST COUNTERFEITING AND PIRACY.
5
At the local level, we have Law No. 2000/011 of December 19, 2000 on Copyright and
Neighbouring Rights. This law governs copyright and neighbouring rights in Cameroon and
Decree No.2001/956/PM of November 1, lays down the procedures for implementing it.
Duration of copyright protection covers the two attributes, the moral attribute and the
patrimonial attribute. The economic rights (patrimonial attributes) of the author last all his life
and fifty years after his death that follow. By virtue of Section 14 (4) of the above-mentioned
law, moral attributes are perpetual, inalienable and imprescriptible.22
At the regional level, we have the Bangui Agreement of 1977. Adopted on 2 March 1977, the
Bangui Agreement constitutes the revision of the Libreville Accord of 13 September 1962.
This Agreement serves as national law for its 17 member States. It was revised on 24th February
1999 in order to bring OAPI's legislation in line with international conventions, including the
TRIPS Agreement.23 The adoption of this uniform legislation has created a uniform system of
intellectual property rights protection with a common administrative procedure for all the
member states.
At the international level, we have the Berne Convention for the Protection of Literary and
Artistic Works 1886. The Berne Convention was developed by Victor Hugo and was accepted
and enacted into legislation in 1886 in Berne, Switzerland, which lends the convention its
name. The inception of the Berne Convention was born out of the necessity for copyright
legislation and regulations to be able to be interpreted and applied at an international level, and
most importantly, between countries.24 The Berne Convention is based on three basic
principles, one of these principles is the principle of national treatment. It is to the effect that,
22 Section 14 of Law No. 2000/011 of December 19, 2000 on Copyright and Neighbouring
Rights.
23 Available at: http://www.oapi.int ( Last visited on the 12 June 2019).
24 Available at: http://Copyright.Laws.com (Last visited on the 10th June 2019).
6
works originating in one of the Contracting States must be given the same protection in each
of the other Contracting States as the latter grants to the works of its own nationals.25 Again,
we have the principle of automatic protection. According to this principle, protection must not
be conditional upon compliance with any formality.26 The third principle is the principle of
independence of protection. It provides that, protection is independent of the existence of
protection in the country of origin of the work.27
Again, we have the WIPO Copyright Treaty 1996 (WCT). This is a special agreement under
the Berne Convention that deals with the protection of works and the rights of their authors in
the digital environment.28 Any Contracting party must comply with the substantive provisions
of the 1971 (Paris) Act of the Berne Convention for the Protection of Literary and Artistic
Works (1886).29 Moreover, the WIPO Copyright Treaty mentions two subject matter to be
protected by copyright:
(i) Computer programs, whatever the mode or form of their expression30; and
(ii) Compilations of data or other material (databases), in any form, which, because of the selection
or arrangement of their contents, constitute intellectual creations.
Moreover, we have the Agreement On Trade-Related Aspects Of Intellectual Property Rights
1995 (TRIPS AGREEMENT). This is a multilateral agreement administered by the World
Trade Organisation (“WTO”) that came into effect on 1st January 1995.31 The aim of TRIPS is
set out in its Preamble, and includes ‘reducing distortions and impediments to international
25 Article 2(6) of Berne Convention for the Protection of Literary and Artistic Works 1886.
26 Article 5 of the Berne Convention for the Protection of Literary and Artistic Works 1886.
27 Ibid.
28 Ben Sihanya (2003) Constructing Copyright and Creativity in Kenya: Cultural Politics and
the Political Economy of Transnational Intellectual Property.
29 Available at: http://www . wipo.int (Last visited on the 10th of June 2019).
30 Article 6 of the WIPO Copyright Treaty 1996.
31 World Trade Organisation, ‘Overview: the TRIPS Agreement’, accessed 26 February 2016.
7
trade’, promoting effective and adequate protection of Intellectual Property Rights (“IPRs”),
and ‘ensuring that measures and procedures to enforce IPRs do not become barriers to
legitimate trade’32. The TRIPS Agreement covers all legally recognized intellectual property
rights. One of the features of the TRIPS agreement is Standards. Regarding standards, in the
area of copyrights and related rights, the TRIPS Agreement specifies that each Member shall
accord to the nationals of other Members treatment no less favourable than that it accords to
its own nationals with regard to the protection of intellectual property.33
In Cameroon, the application of regional and international laws is justified by the general rule
provided for in the Constitution at its Part VI, dealing with treaties and international
agreements. Here, it contains in Article 45 that: Duly approved or ratified treaties and
international agreements shall, following their publication, override national laws, provided the
other party implements the said treaty or agreement.34 To this effect, ratified treaties take
precedence over national laws were there is a conflict. However, both laws are to be used as
complementaries, to fill and complete others in cases of legal vacuum.
1.4 STATEMENT OF THE PROBLEM
Cameroon has an elaborate legal regime that safeguards intellectual property rights. In
Cameroon, intellectual property is provided under article 17 of the Universal Declaration of
Human Rights, which is part of the Cameroonian constitution. Moreover, Cameroon has
ratified various international conventions and agreements that advocate for the protection of
intellectual property rights for instance the Bangui Agreement of 1977. There is also a wellestablished institutional framework for safeguarding intellectual property rights in Cameroon.
32 World Trade Organisation, ‘Module 1: Introduction to the TRIPS Agreement’ accessed 26
February 2016.
33 Article 3 of the Agreement On Trade-Related Aspects Of Intellectual Property Rights 1995.
34 Law No. 96-06 of 18 January 1996 to amend the Constitution of 2nd of June 1972.
8
However, protection of the copyrights works in Cameroon requires urgent consideration. The
continued infringement of the rights of authors of various works in Cameroon has exposed
various weaknesses in the domestic law and in the implementation of the already existing laws
by the enforcement agencies. These legal frameworks specify the rights and duties of authors,
the enforcement agencies and their roles including the role of the Competent Authority in
dealing with the infringement of the intellectual property rights of various copyright owners35.
In Cameroon, recent reports by Voice of America show that international trade in fake and
counterfeit goods did cost the government about US$2billion in 2013. This figure does not
include home-made and consumed counterfeit goods. The hardest hit areas are in movie CDs
and media items, cookware and pharmaceutical drugs, textiles and footwear apparel. Cameroon
is a leading destination of pirated musical products and counterfeited works of all sorts in
Central Africa;36 and as a result, the “artist” in Cameroon is bound to live in miserable
conditions.
Therefore, it has been realized repeatedly that the copyrighted works of authors have suffered
greatly due to inefficiency of the implementation mechanisms. This has been the main aim of
this study, to look into the source of the problem and to recommend ways in which the available
legal instruments can be made effective37.
35 David Gikunda Miriti, Are Authors of Musical works adequately protected under Kenya’s
Copyright Law ?A Research Project Paper Submitted in Partial Fulfilment of the
Requirements for the Degree of Master of Laws (LL M) of the University of Nairobi,
November 2017.
36 International Journal of Management and Computing Sciences (IJMCS) Vol. 5, Number
5-6 January - June 2015 ISSN 2231-3303.
37 David Gikunda Miriti, Are Authors of Musical works adequately protected under Kenya’s
Copyright Law ?A Research Project Paper Submitted in Partial Fulfilment of the
Requirements for the Degree of Master of Laws (LL M) of the University of Nairobi,
November 2017.
9
1.5 RESEARCH QUESTION
1.5.1 GENERAL RESEARCH QUESTION
The main research question is;
How is Copyright protected in Cameroon?
1.5.2 SPECIFIC RESEARCH QUESTIONS
These are;
-What are the substantive and institutional protections of Copyright in Cameroon?
-What are the shortcomings to the implementation of Copyright in Cameroon?
-What recommendation are proposed for a better enforcement of Copyright in Cameroon?
1.6 RESEARCH OBJECTIVES
This research addresses three (3) research objectives. These are;
-To identify the laws governing Copyright in Cameroon and the mechanisms of protection.
-To analyse the problems faced by Copyright in Cameroon.
-To recommend solutions to better enhance the protection of Copyright in Cameroon.
1.7 METHODOLOGY
In the framework of the identification of the legal issues above-mentioned, we used a
qualitative research method for this research as indicated hereinafter. We used primary and
secondary data sources. Primary sources including; local legislation, regional laws and
international laws, and as concerns secondary sources we used; books, journals, newspaper
articles, cases and internet sources.
1.8 JUSTIFICATION OF THE STUDY
The study of this topic comes because of the fact that the copyrights authors of literary and
artistic works are not sufficiently safeguarded in our society, making them unable to make a
living out of their works.
10
This study is an opportunity to propose solutions for the improvement of the legal regime
governing the literary and artistic industry in Cameroon, thereby making it more prosperous
and attractive.
Equally, writing on Copyright will create awareness in the society as concerns the calamities
of piracy and counterfeit. This will permit the society to be aware of the effects of piracy and
counterfeit on the economy of the Country.
1.9 SIGNIFICANCE OF THE STUDY
As far as the legal interest is concerned, the findings of this study will help the legislator to
improve the copyright regime in Cameroon.
More so, this study will enable the principal protagonist of the sector to be aware of their rights
and obligations. This is important especially as concerns performance and publishing contracts,
which sometimes tend to be against the interest of the authors.
Moreover, Countries have laws to protect copyrights property for two main reasons; one is to
give statutory expression to the moral and economic rights of creator for their creations and the
other is to promote, as a deliberate act of government policy, creativity and encourage fairtrading. This contributes to economic and social development.38
1.10 THEORETICAL FRAMEWORK
Thinkers like Immanuel Kant and Hegel believe that possession of property itself is a part of
personality. My personhood is incomplete unless I am capable to possess property. Copyright
protection could be understood as something naturally aligned with the personality of an
38 David Gikunda Miriti, Are Authors of Musical works adequately protected under Kenya’s
Copyright Law ?A Research Project Paper Submitted in Partial Fulfilment of the
Requirements for the Degree of Master of Laws (LL M) of the University of Nairobi,
November 2017.
11
author. These thinkers are deontologists, contrary to teleological theorists, or consequentialists,
they underline the importance of autonomy and free will.39
These thinkers will not go into the direction of utility; instead, they do believe that one is
entitled to have private property naturally since it is part of my free choice to have as an
autonomous being. Probably copyright is no exception of it. Author is entitled to have his name
and right to exploit his work since “control over property is essential for the development of
personality.”40
In Hegelian sense, “Property is the first embodiment of freedom and so is in itself a substantive
end.”41 Analogically, copyright is the first embodiment of freedom since it is one of the various
kinds of property. Thus, both metaphysical thinkers shall defend copyrights‟ protection on the
ground of autonomy and freedom.
Again, the Fairness theory of Copyright is based on the premises that the law ought to give
authors what they deserve; in other words, hard work should be rewarded and authors should
retain control of the fruits of their labours. For example, exclusive rights afford creators a
limited monopoly and the opportunity to profit from their work. Further application of this
theory might involve fair compensation for contributors to composite works and increase
protections for factual works. This theory is particularly influential in Common law countries.42
The Welfare theory of copyright proposed by Friedrich Hegel promotes the interests of society
as a whole and favours the greatest good for the greatest number of people. This system
balances incentives to create with mechanisms to make works widely available for the benefit
39 Santosh Kumar & Mrityunjaya Kumar, Natural Rights Theory of Copyright Protection
AD VALOREM: Volume 3: Issue I: January- March 2016: ISSN: 2348-5485.
40 Available at: https://www.marxists.org/reference/archive/hegel/works/pr/property.htm
(last visited on June 02, 2019).
41 Ibid.
42 Available at: http://library.osu.edu/blogs/copyright/2014/05/09/theories-of-copyright/ (last
visited on June 02, 2019).
12
of all (e.g. exclusive rights and eventual expiration of those rights). Welfare theory’s emphasis
on the collective good contrasts with the individual-centric rewards of the fairness and
personality theories, and differs markedly in its attitude towards intellectual property as a
necessary evil that is required to facilitate greater production of public goods. Copyright reform
motivated by the welfare theory might remove copyright protection for those works, which
would be produced in “optimal” quantities anyway. For example, advertisements are created
to market other products rather than for any independent value. Advertisements would
therefore continue be produced with or without copyright protection.43
The Culture theory contends that the law should cultivate a just and attractive culture. This
theory tends towards paternalism, as it presumes to encourage works for the betterment of
humankind rather than limiting the scope to those works for which there is a current demand.
Like welfare theory, cultural theory is prospective: the law should prompt individuals to behave
in ways that will create a better society in the future. Cultural areas where copyright policies
may be the most influential include diversity, art, education, and democracy. Thus, copyright
reformers motivated by the culture theory might seek to identify and ameliorate barriers
imposed by copyright law on educational uses of copyrighted material.44
1.11 SYNOPSIS
This research is divided into four chapters. Chapter 1 is the introduction consisting of the
background to the study, the statement of problem, research questions and objectives,
methodology, significance, justification, scope of the study, this synopsis of chapters and the
definition of key term.
43 Ibid.
44 Ibid.
13
Chapter 2 is devoted to an examination of the legal framework governing Copyright in
Cameroon as well as the mechanisms of protection of the said rights. These will include local,
regional and international laws and protection mechanisms. Chapter 3 will consist of the
problems faced by Copyright in Cameroon. These problems will be examined at the level of
the individual creator or author, literary and artistic industry and at the level of the economy of
Cameroon.
Finally, Chapter 4 summarizes the research work, draws the adequate conclusions and presents
some recommendations.
14
CHAPTER TWO
SUBSTANTIAL PROTECTION OF COPYRIGHTS IN CAMEROON
This chapter constitutes of an appraisal of the substantive protection mechanisms of Copyright
in Cameroon. This section of the work provides an answer to the first and second specific
research objectives. Within this chapter, the protection mechanisms found within the local,
regional and international levels will be examined. In the second part, as an answer to the
second research question, the shortcomings faced by these mechanisms will be analysed.
Research shows that growth is closely interrelated with the capacity to generate innovation and
commercialize innovative products. Intellectual property rights play an important part in the
realization, development and progress of innovative capacity. This is particularly vital to the
emerging economies, like that of Cameroon. This importance is also as regards the actors of
the copyright sector in Cameroon, they are usually unable to make a living from their works.
Intellectual properties are becoming strategic elements for value creation by undertakings.
They are increasingly becoming significant in attracting investment and encouraging the
growth of innovative sectors in the economy hence the need for a good legal framework to
govern it.45
2.1. The Effective Mechanisms of Substantial Protection of Copyright in Cameroon
These refers to protection mechanisms that are found within the law and tend to directly protect
those who benefit from the support of the law, by criminalising certain acts which when carried
out injure the interest of these beneficiaries.
45 Ben Sihanya (2002) “Integrating innovation and intellectual property into Kenya's
Constitution,”.
15
This protection is provided at the local, regional and international levels. This is because of the
enactment of regional and international conventions, agreements, treaties just to site a few.
These mechanisms of protection have been gathered into main headings. This is because all
the laws governing Copyright in Cameroon almost have the same provisions as far as protection
is concerned, thus doing a law-by-law analysis will be a repetition.
2.1.1. Civil Protection
Civil protection here has to do with the compensation of Copyright holders as a result of the
violation of the said rights. This comes up mostly under contracts entered into for production
or publication. For instance, in case of transfer of business that may seriously jeopardize the
material and moral interests of the copyright owner, he shall have the right to obtain
compensation, even by way of termination of the contract.46
In case of violation of or threat to violate the rights provided in this law, the natural persons or
corporate bodies who own such rights, may request a judicial police officer or a bailiff to
establish the said infringements and, if need be, seize, on the authorization of the State Counsel
or competent judge, the forged copies, the illegally imported copies and objects and the
equipment used or to be used for performance or reproduction, and set up to commit such
forbidden acts.47 The president of the court ruling in chambers may, if he upholds the petition
of the garnishee(claimant), order the respondent to pay damages that the author may claim.48
Where the proceeds from exploitation due the owner of a copyright and neighbouring rights
46
Section 46(2) of the Law No. 2000/011 of December 19, 2000 on Copyright and
Neighbouring Rights.
47
Section 85(1) of the Law No. 2000/011 of December 19, 2000 on Copyright and
Neighbouring Rights.
48
Section 86(2) of the Law No. 2000/011 of December 19, 2000 on Copyright and
Neighbouring Rights.
16
have been seized, the president of the civil court with jurisdiction shall order the payment of
some amount or specific quota of the amount seized, to the author for subsistence.49
2.1.2 Protection Under the Intellectual Property Law
2.1.2.1 Obligation of Authorization
Exploitation of a work by any person other than the author may not be allowed without the
author’s written authorization or that of his rightful claimant in writing including any electronic
devices.50 The author of a work shall enjoy, in particular, the exclusive right to perform or
authorize the following acts: reproduction of his work; translation of his work; adaptation,
arrangement or otherwise transformation of his work; distribution of copies of his work to the
public; performance of his work in public; communicate his work to the public.51 Again, under
the Berne Convention, the reproduction of works, in any manner or form shall be subject to the
authorization of the author.52 Under a publishing contract, the publisher may not, free or against
payment, transfer the benefit of the publishing contract to a third party without obtaining prior
authorization from the copyright holder.53 In case of transfer that may seriously jeopardize the
material and moral interests of the copyright owner, he shall have the right to obtain
compensation, even by way of termination of the contract.
Again, except it is granted to a collective management body, an authorization to exploit all of
an author’s future works shall be null and void.54 The organization of shows shall be subject to
49
Section 88 of Law No. 2000/011 of December 19, 2000 on
Rights.
50 Section 22 of Law No. 2000/011 of December 19, 2000 on
Rights.
51 Article 9 of the Bangui Agreement 1977.
52 Article 9 of the Berne Convention 1886.
53 Section 46 of Law No. 2000/011 of December 19, 2000 on
Rights.
54 Section 22 of Law No. 2000/011 of December 19, 2000 on
Rights.
17
Copyright and Neighbouring
Copyright and Neighbouring
Copyright and Neighbouring
Copyright and Neighbouring
the obtention of an authorization by the organizer from the Copyright holder.55 Therefore, this
protection mechanism protects Copyrights holders to the extent that any reproduction (copy),
alteration or adaptation, publication, performance without the written authorization of the
author shall be illegal. Besides, authors of literary and artistic works protected by the Berne
Convention shall enjoy the exclusive right of making and of authorizing the translation of their
works throughout the term of protection of their rights in the original works.56
However, this mechanism is limited in that, there are instances wherein works could be used
without prior authorisation of the author57, for instance where the work has been published with
the authorization of the author, the author may not prohibit private performances done
exclusively in a family circle, performances made free of charge for educational or religious
purposes and in the enclosures reserved for that purpose, reproductions and transformations in
one copy for strictly personal and private use, excluding any collective use or any exploitation
for profit.58
2.1.2.2 Mandatory Recognition of Authorship or Paternity of a Work
The author shall be the individual who created a literary or artistic work. The author of a work
protected by virtue of this law shall be the holder of the copyright in the said work.59 The author
of a work has the right to claim authorship of his work, in particular the right to have his name
affixed to copies of his work and, wherever possible and in the usual manner, in relation with
any public use of his work.60 The Berne Convention goes forth to provide that the right of
55 Section 41(3) of Law No. 2000/011 of December 19, 2000 on Copyright and Neighbouring
Rights.
56 Article 8 of the Berne Convention 1886.
57 Section 29 of Law No. 2000/011 of December 19, 2000 on Copyright and Neighbouring
Rights.
58 Article 10 of the Berne Convention 1886.
59 Section 7(1)(2) of Law No. 2000/011 of December 19, 2000 on Copyright and Neighbouring
Rights.
60 Article 8 of the Bangui Agreement of 1977.
18
authorship recognition granted to the author of a work shall, after his death, be maintained, at
least until the expiry of the economic rights, and shall be exercisable by the persons or
institutions authorized by the legislation of the country where protection is claimed.61
However, the Copyrighted work might not bear the name, pseudonym or mark of the Copyright
holder if agreed.62
2.1.2.3 Exclusive Right of Alteration or Modification
An author shall enjoy the exclusive right to adapt, arrange or otherwise transform his work.63
Moral implications shall confer on the author, independently of his patrimonial rights and even
after the transfer of such rights, the right to defend the integrity of his work by objecting
especially to its deformation or mutilation.64 Authors of literary or artistic works shall enjoy
the exclusive right of authorizing adaptations, arrangements and other alterations of their
works.65 This is to the effect that, the author has the exclusive right of modification or alteration
of his work, thus he can oppose any distortion, mutilation or other modification of his work or
any other action derogatory to it where such action might be prejudicial to his honour or
reputation.66
Notwithstanding the provisions of Article 9 of the Bangui Agreement, the lawful owner of a
copy of a computer program may, without the consent of the author and without payment of
separate remuneration, make an adaptation, alteration or modification of the program on
61 Article 6bis of the Berne Convention 1886.
62 Section 43(2) of the Law No. 2000/011 of December 19, 2000 on Copyright and
Neighbouring Rights.
63 Article 9 of the Bangui Agreement 1977.
64 Section 14 of the Law No. 2000/011 of December 19, 2000 on Copyright and Neighbouring
Rights.
65 Article 12 of the Berne Convention 1886.
66 Article 8 of the Bangui Agreement 1977.
19
condition that such copy or such adaptation be necessary for the use of the computer program
for the purposes for which the program was obtained.67
2.1.2.4. Right to Remuneration
Exploitation of a work by any person other than the author may not be allowed without the
latter’s written authorization68, and the author’s remuneration shall be proportional to the
proceeds derived from exploitation. Where a fixed amount of remuneration is determined in
violation of the rule provided above, such remuneration shall be 20% of the proceeds from
exploitation.69 The organization of shows shall be subject to the obtention of an authorization
and to the payment of royalty by the organizer.70 The show organizer may not transfer the
advantages of his contract without the written consent of the copyright holder.
Again, as regards Resale Royalty, authors of graphic and three-dimensional works, and of
manuscripts, shall have an inalienable right, to be remunerated for any sale of such work or
manuscript by public auction or through a dealer, whatever the conditions under which the
transaction was carried out by the latter.71 Moreover, authors shall be due remuneration for
each kind of exploitation. When the public pays a price to receive a specific and specifiable
audio-visual work, the remuneration shall be proportional to that price, taking into account
possible digressive rates, which may be granted by the distributor. The producer shall pay it to
the authors.72 In addition, Copyrights owners also enjoy a “Droit de suite” in Works of Art and
67 Article 18 of the Bangui Agreement 1977.
68 Section 22 of the Law No. 2000/011 of December 19, 2000 on Copyright and Neighbouring
Rights.
69 Section 24 of the Law No. 2000/011 of December 19, 2000 on Copyright and Neighbouring
Rights.
70 Section 41(3) of the Law No. 2000/011 of December 19, 2000 on Copyright and
Neighbouring Rights.
71 Article 10 of the Bangui Agreement of 1977.
72 Section 51(3) of the Law No. 2000/011 of December 19, 2000 on Copyright and
Neighbouring Rights.
20
Manuscripts. This is a Right to an interest in re-sales. The author or his legal claimants, shall
with respect to original works of art and original manuscripts of writers and composers, enjoy
the inalienable right to an interest in any sale of the work subsequent to the first transfer by the
author of the work.73
It should be noted that, when the business, in case of receivership or liquidation of assets, is
managed by a receiver or liquidator, the latter shall be bound by all the obligations of the
publisher. In addition, in case of sale, the buyer shall be bound by the obligations of the
transferor.74 Thus, the subsequent owner of a business that was in a contract with a Copyright
holder shall be bound to bear the previous obligations of the business, amongst which
remunerating or paying Copyright holders.
Notwithstanding the above provisions of the law, there are certain limitations on this pecuniary
right as regards reproduction for private purposes. Article 11 of the Bangui Agreement provides
that; it shall be permitted, without the consent of the author and without payment of
remuneration, to reproduce a lawfully published work exclusively for the private use of the
user.75
2.1.2.5 Right to Information
Another mechanism protecting the Copyright holder is the right to information. This is very
important especially as regards key aspects of the business that are managed by producers or
publishers. The law in an effort to protect the Copyright holder provides that, publisher shall
73 Article 14ter of the Berne Convention 1886.
74 Section 45 of the Law No. 2000/011 of December 19, 2000 on Copyright and Neighbouring
Rights.
75 Article 11 of the Bangui Agreement of 1977.
21
be bound to provide the copyright holder with all evidence as to the exactness of his accounts,76
failing which he may be obliged to do so by the courts.77
Again, where the contract makes no provision for special terms and conditions, the copyright
holder may, at least once a year, require the publisher to produce a statement indicating the
number of copies manufactured in the course of the financial year and specifying the date and
circulation, as well as the number of copies in stock.78
Unless otherwise agreed upon or contrary to practice, the statement referred to above shall
indicate the number of copies sold by the publisher, the number of copies that have become
unusable or damaged through chance or unforeseeable circumstances as well as the amount of
royalties owed or paid to the copyright holder.79
The producer shall, at least once a year, provide the author and co-authors with a statement of
receipts earned from exploiting each mode of the work. He shall, at their request, provide all
proofs to ascertain the correctness of accounts, particularly the copies of contracts by which he
transfers all or part of the rights at his disposal.80 In addition, an entertainment promoter shall
be required to inform the author or his representatives of the exact program of public
performances and to furnish to them a certified statement of his takings.81
76 Section 44(1) of the Law No. 2000/011
Neighbouring Rights.
77 Article 42 of the Bangui Agreement of 1977.
78 Section 44(2) of the Law No. 2000/011
Neighbouring Rights.
79 Section 44(3) of the Law No. 2000/011
Neighbouring Rights.
80 Section 52(1) of the Law No. 2000/011
Neighbouring Rights.
81 Article 45 of the Bangui Agreement of 1977.
22
of December 19, 2000 on Copyright and
of December 19, 2000 on Copyright and
of December 19, 2000 on Copyright and
of December 19, 2000 on Copyright and
2.1.2.6. Exclusive Right to Disclosure
The moral attributes provided by Section 14 of the Law of 2000, constitute major substantive
protection mechanisms due to the prerogatives they confer to authors. They confer on the
author the prerogative of disclosure, according to which the latter has the exclusive right to
decide on the disclosure and to determine the processes and the manner of disclosure of his
work. This goes a long way to protect the author in that no other individual has the right to
disclose the work of an author except the author himself.82 Again, the author has the exclusive
right to put an end to the dissemination of his work.83
Notwithstanding assignment of his right of exploitation, an author shall enjoy a right to
reconsider or of withdrawal, even after publication of his work, with respect to the assignee.
However, he may only exercise such right on condition that he indemnify the assignee
beforehand for any prejudice the reconsideration or withdrawal may cause him.84
2.1.3 Penal Protection
The Penal Code of the Republic of Cameroon is provided by Law N°2016/007 of the 12 July
2016 and enacted by Decree No. 2016/319 of 12 July 2016.85 This code provides for measures
intended to protect Copyright holders. Certain actions are hereby criminalised and any
individual violating these laws exposes himself to an imprisonment sentence, a fine or both.
Any exploitation of a literary or artistic work done in violation of this law, through
performance, reproduction, transformation or distribution by any means whatsoever or the
importation exportation, sale or putting up for sale of forged objects; shall constitute Copyright
82 Section 14 of the Law No. 2000/011 of December 19, 2000 on Copyright and Neighbouring
Rights.
83 Ibid.
84 Article 8 of the Bangui Agreement 1977.
85 Cameroon Penal Code.
23
infringement.86 Again, the violation of the right of disclosure, the right of authorship or the
right to respect of a literary or artistic work shall equally constitute infringement. 87 Also, the
fraudulent neutralization of effective technical measures used by owners of copyrights or
neighbouring rights to protect their works against unauthorized acts shall also constitute
infringement.88 Moreover, the unauthorized removal or alteration of any electronic information
relating to the copyright regime and the distribution, importation for distribution, unauthorized
communication of originals or copies of works, performances, video grams, phonograms,
programmes, while knowing that the electronic information relating to the copyright regime
has been removed or altered without authorization, shall constitute infringement. 89 The
manufacturing or importing, with the intention of selling or renting or setting up equipment,
material, device or instrument entirely or partially designed to fraudulently record programmes
broadcast where such programmes are reserved for a specific public that receives them in return
for a fee paid to their operator or his legal representatives shall be considered as violation of
Copyrights.90
Infringement of Copyrighted work shall be punishable by imprisonment of from 5 (five) to 10
(ten) years or a fine of from 500,000 to 10,000,000 CFA francs or both such imprisonment and
fine.91 In any case, the court may order the confiscation of forged copies, the equipment used
to commit the offence as well as proceeds derived therefrom. 92 The equipment used by the
86 Section 327 of the Cameroon Penal Code.
87 Section 327(c) of the Cameroon Penal Code.
88 Section 327(h) of the Cameroon Penal Code.
89 Section 327(1)(k)(L) of the Cameroon Penal Code.
90 Section 327(1)(g) of the Cameroon Penal Code.
91 Sections 327(1) of the Cameroon Penal Code.
92 Section 327(4) of the Cameroon Penal Code.
24
forger and forged copies may be destroyed and the publication of the judgement as provided
for by Section 33 of this Code.93
2.2 Shortcomings to the Substantive Protection of Copyrights in Cameroon
Despite the plethora of laws governing Copyrights in Cameroon, there are nevertheless
numerous shortcomings to the protection of Copyrights. The infringement of copyright occurs
when; a person other than the copyright owner, assignee or licensee carries out, or causes to be
carried out, any act that is covered by copyright, without the authorization of the right holder.94
Infringement also refers to the dealing with copyrighted material in a manner that is
inconsistent with the copyright owner’s proprietary interest. 95 The abuse of copyrights over
time has led to the impoverishment of artists in Cameroon and a reduction in the production
quality of the Copyright industry.
2.2.1 Piracy
Piracy refers to the manufacture, sale of copies in contravention of rights protected by
Copyright.96 If one takes into account the field of musical production, including the recording
of sound and / or image, music piracy includes several distinct and fundamentally different
forms of counterfeiting appeared at different times. Originally, piracy was essentially defined
in two forms: Copying pre-existing recordings without the consent of their legitimate producer,
Clandestine recording ("Bootleg") of the live performance of an artist during a concert or radio
broadcast. These forms of piracy are now known as "traditional piracy". In addition to these,
93 Section 327(5) of the Cameroon Penal Code.
94 WIPO (2016) “Understanding copyright and related rights,”
95 “Harmonisation of Copyright within the East African Community: An Analysis of the
Kenyan and Tanzanian Copyright Legislation” submitted by Telesphory D.B Magogo, in
partial fulfilment of the requirements for the LLM degree in the Faculty of Law of the
University of the Western Cape.
96 WIPO Committee ON MEASURES AGAINST COUNTERFEITING AND PIRACY.
25
there are new forms of piracy that have emerged with the advent of Information and
Communication Technologies (ICTs).97 The pirate copy usually has a look different from the
original recording, or a look that resembles the original recording as much as possible. This
form also covers the unauthorized recording of an artist's performances (live from a public
concert) for reproduction and subsequent sale. CDs, DVDs and, to a lesser extent, cassettes,
are the main media for this form of piracy or counterfeiting of musical works.98
In addition, piracy of Broadcast Signals and Cable Piracy appeared in Cameroon a few years
ago. This is a way of distributing TV images in households, which allows subscribers to receive
on their small screens and inexpensively, images from many foreign TV channels. While we
were still enjoying the technological prowess and ingenuity of some cable companies, many
abuses were reported in this new way of doing things. Indeed, it is reproached cable companies,
whose role is exclusively to distribute TV images, to have all poured into the production today.
They do television without prior authorization from the relevant authorities. It should be noted
that all these programs broadcast, or at least most of these come from pirate CDs, bought
generally on the roadside.99
2.2.2 Forgery
Forgery is the act of creating a work with a deliberate intent to deceive. These works are usually
presented falsely as an original product. This could concern copies of existing works of an
artist(falsification) or newly created works in the style of the artist as a consequence of which
97“Piraterie ou contrefaçon des oeuvres musicales: facteurs explicatifs, modes opératoires et
impact sur les artistesmusiciens à Yaoundé” by Joel Christian NKENG à NKENG,
University of Yaoundé 1 -Masters 2 in Sociology 2010.
98 Ibid.
99 Ibid.
26
the work can be misattributed to the artist.100 Both situations are considered a forgery and an
infringement to Copyrights.
According to the Law of 2000 on Copyright and Neighbouring rights, forgery is an act of
violation of Copyright committed on work subject to the latter, by a natural or moral person or
group of persons. Such acts include; unauthorized import and export, just to site a few.
Some of the actions that amount to forgery within the law are: any exploitation of a literary or
artistic work, through performance, reproduction, transformation or distribution by any means
whatsoever; any infringement of moral rights through violation of the right of disclosure, the
right of authorship or the right to respect of a literary or artistic work; any infringement of the
right of authorship and the right of integrity of a performance; the importation, exportation,
sale or putting up for sale of forged objects; manufacturing or importing, with the intention of
selling or renting or setting up equipment, material, device or instrument entirely or partially
designed to fraudulently record programmes broadcast where such programmes are reserved
for a specific public that receives them in return for a fee paid to their operator or his legal
representatives; the fraudulent neutralization of effective technical measures used by owners
of copyrights or neighbouring rights to protect their works against unauthorized acts; carrying
out the following acts, knowingly or, for civil sanctions, having good reason to believe that this
act will lead to, enable, facilitate or conceal infringement of a right provided for in this law.
This is provided by Sections 80 to 81 of Law No. 2000/011 of December 19, 2000 on Copyright
and Neighbouring Rights.101
100 Available at www.stchtingconstant.nl Last visited on the 4th of August 2019.
101 Law No. 2000/011 of December 19, 2000 on Copyright and Neighbouring Rights.
27
Other acts, which may amount to infringement of copyright when not fairly done, include: the
inclusion of the copyright work in another work without acknowledging the source and the
name of the author or quoting the work without acknowledging the source and author of the
quotation; utilisation of the work by way of illustration in publications, broadcasts, programs
distributed by cable, or sound or visual recording for communication purpose without
acknowledging the source and author; and utilisation of the work for teaching purposes
provided that such use is incompatible with fair practice and that the source and the name of
the author are not mentioned. In these activities to amount to copyright infringement the
defendant’s conduct must be seen to be inconsistent with or contravening the reserved right.102
Again, other forms of copyright infringement include non-payment of dues to owners of
copyrighted material, which has been blamed on the failure to pick by the artistic industry in
Cameroon, with many works being pirated and artistes getting marginal returns. These include
the making of copies music albums, books mostly within colleges and universities that are
among the most common forms of copyright theft in Cameroon.
2.2.3 Digital Copyright Infringement
The Black’s Law dictionary defines the word digital as; Data sent by code, which is
representing data in binary code. It is faster than analogy. 103 The Cameroonian lawmaker has
legislated on digital Copyright infringement. Sections 81(1)(g) paragraph one and two of the
Law of 2000 provides that, the following shall also be considered forgery: the unauthorized
removal or alteration of any electronic information relating to the copyright regime; the
distribution, importation for distribution, unauthorized communication of originals or copies
of works, performances, videograms, phonograms, programmes, while knowing that the
102 Law No. 2000/011 of December 19, 2000 on Copyright and Neighbouring Rights.
103 Black’s Law Dictionary (second Edition).
28
electronic information relating to the copyright regime has been removed or altered without
authorization.104
The rapid development of new technologies has opened up new opportunities for Copyright
infringement, mainly through the internet. Many types of copyright abuse occur on the Internet.
The major problem is that when a piece is copied from the Internet to a permanent medium
such as floppy or hard disk, there is no payment made to the original creator of the work. This
lack of revenue could deter producers of works from developing and posting their pieces where
there is no return on their investments. A related problem exists when parties illegally duplicate
copyrighted material off the Internet and sell it to others without giving back any revenue to
the original copyright owner.105
Another problem with the Internet is that it is a collection of digital information processors
from around the world. The remote logon (i.e., file-transfer-protocol) and telnet features of the
Internet allow users in one geographic location to access and copy materials in other geographic
locations very far away. A conflict arises because the Internet allows an author in one
jurisdiction to create a work in another jurisdiction.106
Often, parties can illegally manipulate a copyrighted work on the Internet, such as an image.
Because these works are digital, it is very easy to alter published material with the use of other
graphically oriented software. Consequently, a problem of authentication occurs which may be
summed up by the question, "How much of a copyrighted work is used in another author's work
to call it a copyright infringement?" This problem enlarges on the Internet due to its inherent
104 Law No. 2000/011 of December 19, 2000 on Copyright and Neighbouring Rights.
105 “COPYRIGHT INFRINGEMENT ON THE INTERNET AN INTERNATIONAL
PROBLEM” By Sanjiv G. Patel The Ohio State University June 1996.
106 Ibid.
29
ability to allow users to download, copy, manipulate, and redistribute the copyrighted works
without economic loss to the infringers.107
2.2.4 Lack of Public Awareness
There is little public awareness or understanding of the Copyright laws in the country. Existing
laws are not readily accessible even to the educated class. Copyright holders are usually
ignorant about the various laws existing for their protection; therefore, this ignorance ease the
violation of their rights. The average person is also ignorant of touted benefits of Copyright
protection. Meaningful public education at the grass roots level must form a critical component
of Copyright enforcement in Cameroon.
107 Ibid.
30
CHAPTER THREE
THE INSTITUTIONAL PROTECTION OF COPYRIGHTS IN
CAMEROON
This chapter constitutes of an appraisal of the institutional protection of Copyrights in
Cameroon. This section of the work provides an answer to the first and second specific research
objectives. Within this chapter, the protection given to Copyright by the institutions at the local,
regional and international levels, created for this purpose will be examined, as well as the
problems encountered by these institutions.
Copyright protection and enforcement in Cameroon involve several institutions playing both
individual and coordinated roles in day-to-day protection, administration; awareness creation;
enforcement; and dispute resolution. This section will analyse the effectiveness and the efficacy
of each institution in carrying out its assigned role. Subsequently, the problems faced by these
institutions in the protection of Copyrights will be examined.
Recently, advocates representing copyright industries have been making a case that copyright
is a major contributor to Cameroon’s economy and an important job creator for workers. In
case there were any doubts, a new study released by the International Intellectual Property
Alliance (IIPA) showed that, for the first time, the core copyright industries; the creators and
producers of copyrighted materials like; music, computer software, books, newspapers, films
and television programming added over $1 trillion in value to the global economy in 2012.108
Of course, that is only part of the story the other is that these important industries and the
108 Chris Dodd 2014“Copyright: A leading force for jobs, innovation and growth,” at
http://www.huffingtonpost.com/chris-dodd/copyright--a-leading-forc_b_4302882.html
(accessedon21/10/2015).
31
millions of creative workers whose jobs are based on copyright continue to face a major threat
from piracy and other forms of infringements. If we want copyright to continue to be a vibrant
job producer and economic generator, we need to do more in strengthening and protecting its
businesses and workers, even as important new digital business ventures emerge to provide an
ever-increasing array of online movies, television shows, music and other creative products for
consumers.109 Such reasons form the justification of this study.
3.1 Effectiveness of Institutional Protection
3.1.1 Ministry of Arts and Culture
The Cameroonian State, through its Ministry of Culture, has undertaken to lend a hand to artists
in their fight against piracy. Decree No. 2005/177 of May 27, 2005 organizes the missions of
the Ministry of Culture. Its missions include the development, implementation and evaluation
of government policy on cultural promotion and development, as well as national integration.
In this respect, the fight against Copyright infringement is primarily the responsibility of this
ministerial department, since the promotion and development of the national culture is only
possible in a healthy environment; which is not yet the case in Cameroon. This ministerial
department has a national jurisdiction.
To mark its commitment to the fight against piracy, the Ministry of Culture has created a
National Committee for Fight Against Piracy which aims at defining the actions to be taken,
to curb the persistence of this phenomenon and especially to use the means of the state to lead
this fight against counterfeit. This Committee has often been seen getting involved with the
artists on the ground, thus participate in the protection of Copyrights,
109 213 Franziska Ellen Schulze (2014) “Resale of Digital Content such as Music, Films or
eBooks under European Law,”
32
However, it must be acknowledged that the action of the National Committee against Piracy
has not been satisfactory so far. One hardly hears about it, except generally to denounce its
inertia. It is for this reason that some initiatives are taken by the artists themselves to overcome
the phenomenon.110
3.1.2 The Role of Courts or Tribunals
The effectiveness of the protection of literary and artistic property rights goes hand in hand
with the judicial system, which must show through its acts of retaliation. This is the ultimate
measure in the protection of authors. It is when the harm suffered or intended to be suffered is
considerable that the legal protection of literary and artistic property rights is implemented with
a view to sanction violations of these rights.111
According to Article 84 and 85 of the Law of 2000 on Copyright and Neighbouring Rights, the
President of the competent Tribunal has the power to order the suspension of any production,
the seizure of counterfeit copies or the suspension of any communication to the public not
authorized by the owner of the infringing work. The court may also order the closure of the
establishment in which the forgery is operated when it is actually organized in accordance with
Article 64(4) of the Bangui Agreement112.
The seizure or foreclosure can be done in case of suspicion also. In fact, in intellectual property
law in general and in literary and artistic property law, any plaintiff may ask the judicial police
officer, the seizure without material apprehension of the copies constituting an unlawful
110 “Piraterie ou contrefaçon des oeuvres musicales: facteurs explicatifs, modes opératoires et
impact sur les artistesmusiciens à Yaoundé”, by Joel Christian NKENG à NKENG, University
of Yaounde 1, 2010.
111 The Effectiveness of the Protection of Literary and Artistic property rights, by Mathieu Fredy
Avah, University Cheikh Antta Diop, Dakar- Masters in Notarial and Processual Economic Law
2011.
112 Article 64 of the Bangui Agreement.
33
reproduction of his work. At this level, the bailiff only lists and describes the copies he has
discovered during his descent on the court ordered by the judge113.
3.1.3 National Police and Customs Services
Where copyright infringement has occurred or is justifiably suspected, rights-holders may
initiate criminal investigations and prosecutions by lodging a complaint with the police. Section
85(1) of the Law of 2000 on Copyright and Neighbouring rights provide that; in case of
violation of or threat to violate the rights provided in this law, the natural persons or corporate
bodies or their legal representatives who own such rights, may request a judicial police officer
or a bailiff to establish the said infringements and, if need be, seize, on the authorization of the
State Counsel or competent judge, the forged copies, the illegally imported copies and objects
and the equipment used or to be used for performance or reproduction, and set up to commit
such forbidden acts.114
Since most police officers do not receive training in enforcement and prosecution arising from
the infringement of intellectual property, they may not be able to effectively carry out the
procedures and actions required to prosecute such cases effectively. This training includes
proper assessment of complainant rights, proper investigation of infringing actions, proper
seizure and custody of evidence, and drafting non-defective charge sheets.115
As regards the role of customs officers in the enforcement of the law at the borders, Specific
measures to enforce copyright law at the borders provided for in Section 90 of Law No 2000/11
113 Article 85 of Law No. 2000/011 on Copyright and Neighbouring
rights,19/12/2000.
114 Ibid.
115
WILLIAM OYANGE AUMA, COPYRIGHT IN THE DIGITAL AGE: AN
ASSESSMENT OF KENYA’S LEGAL AND INSTITUTIONAL FRAMEWORK FOR
THE PROTECTION AND ENFORCEMENT OF COPYRIGHT, UNIVERSITY OF
NAIROBI SCHOOL OF LAW.
34
on copyright and neighbouring rights of copyright. When the owner of copyright or related
rights suspects the import or export of goods that violate his rights, he may request the Minister
responsible for Customs or the President of the Court to have the customs authorities suspend
the implementation of free movement of such goods. This will require a guarantee or equivalent
insurance imposed to protect the defendant and prevent abuses. The judge or the Minister in
charge of customs may require a surety for the plaintiff. The importer or exporter and the
applicant are informed of the suspension of the movement of goods within five days of the
decision of the suspension.116
However, the customs services are limited in that, they cannot order the destruction of the
seized goods. Again, customs services are not empowered to act ex-officio in cases relating to
the copyright, they must wait to be seized.117
3.1.4 Collective Management Bodies
Collective management is the exercise of copyright and related rights by organizations and
societies representing the interests of the owners of such rights. These organizations or societies
are usually referred to in national copyright laws as licensing bodies.118 The law of 19
December 2000 lays down the principle of collective management, it regulates the creation of
the bodies responsible for such activity and subordinates their creation to numerous conditions
laid down by the law and its implementing decree of 1st November 2001.119
116 Section 90 of Law No 2000/11 of 19 December 2000 on Copyright and Neighbouring
rights of copyright.
117 UNESCO; OBSERVATOIRE MONDIAL DE LUTTE CONTRE LA PIRATERIE,
CAMEROUN.
118 COLLECTIVE MANAGEMENT OF COPYRIGHT AND RELATED RIGHTS, By
Alhaji Tejan-Cole, Deputy Registrar, BELIPO.
119 “Bulletin du droit d’auteur, Juillet-Septembre 2004; LES ORGANISMES DE GESTION
COLLECTIVE AU CAMEROUN”, by Dr Christophe Seuna.
35
Cameroonian legislation has laid down conditions relating to the organizations’ activities.
According to Section 77 of the law of 2000, they can perform any act of collective management,
such as the authorization to use the works, the collection and distribution of royalties, the
judicial defence of rights. The legal formula allows organizations to practice not only collective
management stricto sensu (negotiation of the conditions for the exploitation of works,
authorizations for the operation, collection and distribution of royalties), but also, as social and
cultural activities in favour of its members (social protection, training, etc.).120 Cameroonian
legislation thus allows these organizations to assume the traditional collective missions.121
Indeed, few copyright owners can personally manage their rights, for example by negotiating
directly the performance on stage of a play, publishing a novel or the recording of a musical
composition. The majority of the incumbents, unable to control all uses of protected works,
need management by one or more organizations that can contact users, negotiate operating
contracts, collect and distribute royalties and, where appropriate, institute legal proceedings.122
Cameroonian legislation provides, in some cases, a right to remuneration in collective
management is compulsory. This remuneration is collected and distributed between them by
the said organisms. According to a breakdown approved by the Minister of Culture,
remuneration for copying are managed by SOCILADRA (for printed works), CMC (for
phonograms) and SOCIDRAP (for videograms).123
Collective management organizations are subject to an operational control which, in the interest
of the owners and users of the works, can be explained by the legal monopolies enjoyed by the
120 Section 77 of the Law No 2000/011 OF DECEMBER 19 2000, on copyright and
neighbouring rights.
121 “Bulletin du droit d’auteur, Juillet-Septembre 2004; LES ORGANISMES DE GESTION
COLLECTIVE AU CAMEROUN”, by Dr Christophe Seuna.
122 Ibid.
123 Ibid.
36
organizations and by the fiduciary position they assume in favour of the holders. This law
requires that the basic texts of collective management organizations be subject to the approval
of the Minister of Culture.124
3.1.5 African Intellectual Property Organisation
The African Intellectual Property Organisation known by its French acronym “OAPI” was
created by the Bangui Agreement Relating to the creation of an African Intellectual Property
Organisation (February 24, 1999, Bangui, Central-African Republic). This constituted a
revision of the Agreement Relating to the creation of an African and Malagasy Office of
Industrial Property (March 2, 1977).125
The law regulating intellectual property practice in Cameroon is the Bangui Accord of
02/03/1977 as amended on 24/02/1999. This law is essentially an agreement between 16 west
and central African countries (Benin, Burkina Faso, Cameroon (headquarters), Central African
Republic, Congo, Côte d’Ivoire, Equatorial Guinea, Gabon, Guinea Bissau, Guinea Conakry,
Mali, Mauritania, Niger, Senegal, Tchad and Togo) to create a regional IP system, to wit “The
African Intellectual Property Organization (AIPO) most commonly known and called by its
French acronym, “OAPI”. The immediate fallout of this regional approach is that an IP
registered in OAPI is covered and protected in all 16-member countries with a total population
of more than 100 million.126
Under the OAPI, copyright is concerned with the protection of literary and artistic works.
Copyright is therefore a property right, which subsists in various works, for example literary
works, artistic works, musical works, sound recordings, films and broadcast.
124 Section 78 of Law No 2000/11 of 19 December 2000 on Copyright and
Neighbouring rights of copyright.
125 Available at: www.wipolex.wipo.int (Last visited on the 5th of July 2019).
126 Available at: www.hg.org (Last visited on the 5th of July 2019).
37
Copyright gives the owner of a work that is protected by copyright the exclusive right to do
certain things in relation to the work, these include but are not limited to making a copy,
broadcasting or giving a public performance. Anyone else who does any act restricted by
copyright without the permission of the copyright owner may be subject to legal action taken
by the owner of the copyright for copyright infringement. However, ownership of copyright is
alienable and it can be transferred to another or a licence may be granted by the owner to
another, permitting him to do one or more specified acts with the work in question.
Copyright does not protect an idea; it is the expression of an idea that is protected that is to say
a tangible form – painting, book etc. International protection of copyright works is affected
mainly through two international conventions that is, the Berne Copyright Convention and the
Universal Copyright Convention. The United Kingdom is a member of both conventions. Both
conventions lay down minimum standards of protection to be attained and reciprocity of
protection between member countries.
The conventions have been responsible for the high level of harmony that now exist on the
world stage. Therefore because of agreements under the conventions it is possible for a foreign
citizen to take legal action in an OAPI member state for copyright infringement occurring there,
as if he or she was a citizen of that state. The author of copyright is the person who creates the
work in which copyright subsists, however, for some type of works, the author is the person by
whom the arrangements necessary for the creation of the work are undertaken that is to say, an
employer.127
127 Available at: www.Nguandco.com (Last visited on the 5th of July 2019).
38
3.1.5.1 The High Commission of Appeal (“Commission Supérieure de Recours”) of the
African Intellectual Property Organisation
Three bodies contribute to the achievement of objectives of the OAPI: the Council of Directors,
the Directorate-General and the High Commission of Appeal.128 The High Commission of
Appeal shall be composed of three members selected by the drawing of lots from a list of
representatives designated by the member States, each State having designated one
representative.129
The High Commission of Appeal is responsible of deciding on the applications for review of
decisions of the Director-General of the Organization in the allocation of securities, including
those relating to oppositions and requests for restoration.130
On receipt of such an appeal, the Commission applies the common rules of procedure arising
from the uniform protection regime. One of the characteristics of this Commission is that she
rules first and last spring; a construction that is not free from criticism. This is, as have noted
some authors, a violation of principle of double degree of jurisdiction which does not
necessarily guaranteeing legal safety that seeks any justiciable.131The High Commission of
Appeal, does not intervene in jurisdictional matters, only in the context of remedies in review
of the General Director's decisions132, thereby giving the opportunity to Copyright holders to
have their cases re-examined and a possible judgement in their favour.
128 Article 25 to 33 of the Bangui Agreement.
129 Article 33 of the Bangui Agreement.
130 Article 33(2) of The Bangui Agreement.
131 François-Xavier Doudou, pp. 46 à 47.
132 French Review of Intellectual Property, June 2018, n ° 67 The achievements of
intellectual property in Africa -the role of OAPI, Paulin EDOU EDOU.
39
3.1.6 WORLD INTELLECTUAL PROPERTY ORGANISATION (W.I.P.O)
The WIPO was formally created by the convention establishing the World Intellectual Property
Organisation, which entered into force on April 26, 1970, having its headquarters in Geneva,
Switzerland. Under this Convention, WIPO seeks to “promote the protection of intellectual
property throughout the world.” It became a specialized agency of the UN in 1974133.
World Intellectual Property Organization (WIPO) is an international organization designed to
promote the worldwide protection of both industrial property (inventions, trademarks, and
designs) and copyrighted materials (literary, musical, photographic, and other artistic works).
The aims of WIPO are twofold. First, through international cooperation, WIPO promotes the
protection of intellectual property. The organization now administers more than 20 intellectual
property treaties. Second, WIPO supervises administrative cooperation between the Paris,
Berne, and other intellectual unions regarding agreements on trademarks, patents, and the
protection of artistic and literary works. WIPO’s role in enforcing intellectual-property
protections increased in the mid-1990s, when it signed a cooperation agreement with the World
Trade Organization. As electronic commerce grew through the development of the Internet,
WIPO was charged with helping to resolve disputes over the use of Internet domain names134.
As part of the United Nations system of specialized agencies, WIPO serves as a forum for its
Member States to establish and harmonize rules and practices for the protection of intellectual
property rights.135
Many industrialized nations have intellectual property protection systems that are centuries old.
Among developing countries, however, many are in the process of building up their copyright
133 Available at: www.jagranjosh.com (Last visited on the 5th of July 2019).
134 Available at: www.britannica.com (Last visited on the 5th of July 2019).
135 Available at: www.centralawyers.com (Last visited on the 5th of July 2019).
40
legal framework and intellectual property systems. With the increasing globalization of trade
and rapid changes in technological innovation, WIPO plays a key role in helping these systems
to evolve through treaty negotiation; legal and technical assistance; and training in various
forms, including in the area of enforcement. WIPO works with its Member States to make
available information on intellectual property and outreach tools for a range of audiences –
from the grass-roots level through to the business sector and policymakers – to ensure its
benefits are well recognized, properly understood and accessible to all.136
3.1.6.1 WIPO Arbitration and Mediation Center
Based in Geneva, Switzerland, with a further office in Singapore, the WIPO Arbitration and
Mediation Center was established in 1994 to offer Alternative Dispute Resolution (ADR)
options for the resolution of international commercial disputes between private parties. The
WIPO Arbitration and Mediation Center is a neutral, international and non-profit dispute
resolution provider that offers time- and cost-efficient alternative dispute resolution (ADR)
options. WIPO mediation, arbitration, expedited arbitration, and expert determination enable
private parties to efficiently settle their domestic or cross-border intellectual property and
technology disputes out of court.137
To facilitate the resolution of intellectual property disputes, the WIPO Arbitration and
Mediation Center: Helps parties submit existing disputes to WIPO procedures in cases where
they had not previously agreed on a WIPO clause; Assists in the selection of mediators,
arbitrators and experts from the Center’s database of over 1500 neutrals with expertise in
intellectual property disputes; Sets the neutrals’ fees, after consultations with the parties and
136 Ibid.
137 Available at: www.wipo.int (Last visited on the 4th of July 2019).
41
the neutrals, and administers the financial aspects of the proceedings.; Liaises with parties and
neutrals to ensure optimal communication and procedural efficiency; If the parties wish,
arranges for meeting support services, including hearing rooms and caucus rooms. Where the
procedure is held at WIPO in Geneva, the rooms are provided free of charge. A charge is made
for any other support services that may be required. This charge is separate from the Center’s
administrative fee138.
Alternative dispute resolution (ADR) procedures offer several advantages:
A single procedure. Through ADR, the parties can agree to resolve in a single procedure a
dispute involving intellectual property that is protected in a number of different countries,
thereby avoiding the expense and complexity of multi-jurisdictional litigation, and the risk of
inconsistent results. Party autonomy. Because of its private nature, ADR affords parties the
opportunity to exercise greater control over the way their dispute is resolved than would be the
case in court litigation. In contrast to court litigation, the parties themselves may select the most
appropriate decision-makers for their dispute. In addition, they may choose the applicable law,
place and language of the proceedings. Increased party autonomy can also result in a faster
process, as parties are free to devise the most efficient procedures for their dispute. This can
result in material cost savings. Neutrality. ADR can be neutral to the law, language and
institutional culture of the parties, thereby avoiding any home court advantage that one of the
parties may enjoy in court-based litigation, where familiarity with the applicable law and local
processes can offer significant strategic advantages.
Confidentiality. ADR proceedings are private. Accordingly, the parties can agree to keep the
proceedings and any results confidential. This allows them to focus on the merits of the dispute
138 Ibid.
42
without concern about its public impact, and may be of special importance where commercial
reputations and trade secrets are involved.
Finality of Awards. Unlike court decisions, which can generally be contested through one or
more rounds of litigation, arbitral awards are not normally subject to appeal.
Enforceability of Awards. The United Nations Convention for the Recognition and
Enforcement of Foreign Arbitral Awards of 1958, known as the New York Convention,
generally provides for the recognition of arbitral awards on par with domestic court judgements
without review on the merits. This greatly facilitates the enforcement of awards across
borders.139 Therefore, the alternative dispute resolution proposed by the WIPO is enforceable
in Cameroon as a result of the ratification of the United Nations Convention for the Recognition
and Enforcement of Foreign Arbitral Awards of 1958, which was ratified on the 19th of
February 1988.
3.2 Shortcomings to the Institutional Protection of Copyright in Cameroon
Notwithstanding the cumbersome institutional protection available to Copyrights in Cameroon,
there are however some shortcomings to the said protection.
One primary reason for Copyright infringement is a major misconception about a very
important component of copyright theory, namely the notion of property. Copyright is a form
of property which is called ‘intellectual’. The fact that it is not tangible, renders it difficult for
laymen, but also for legislative, administrative and executive authorities, to fully realise that
its unlawful appropriation is a crime. In fact, as Hettinger (1989, p 32) argues, most of us have
undoubtedly done something considered piracy by owners of intellectual property. Copyright
139 Available at: www.wipo.int (Last visited on the 4th of July 2019).
43
infringement is an abuse in which most of us play a part, enjoying music, software, videos and
books with scant consideration of their origins or their legality.140
3.2.1 MISMANAGEMENT OF COLLECTIVE MANAGEMENT BODIES
The field of copyright is a very important sector in the cultural industry of a country. However,
in Cameroon, this industry is characterised by instability, poor governance, corruption, and
many other unhealthy behaviours. The situation of copyright and related rights in Cameroon
has been a matter of serious concern for many years. All Cameroonian copyright collective
management organs have plunged into turmoil and uncertainty. The case of the CMC, later
SOCAM, is a perfect illustration of the malaise that has taken hold of these structures and really
paralyse their functioning. Power battles, litigious management and collection problems
punctuate the life of these societies.141
Indeed, approved in September 2003 by the care of Manu DIBANGO’s moral authority, the
CMC will almost immediately become entangled in internal quarrels. The management of the
then executive team is strongly contested by a faction that will eventually take over, when the
guardianship of this body, that is the Ministry of Culture, identifies serious management
mistakes. Faced with such a situation, Ferdinand Leopold OYONO, then Minister of Culture,
was pushed to sanction the then executive, even if it earned him unfortunate accusations of
interference in the internal affairs of collective rights management societies. The guardianship
140 “COPYRIGHT AND CHALLENGES TO COPYRIGHT: THE CASE OF PIRACY' AND
PRIVATE COPYING”, Thesis submitted for the degree of Doctor of Philosophy at the
University of Leicester by Konstantinos I. Daramaras.
141 “Piraterie ou contrefaçon des oeuvres musicales: facteurs explicatifs, modes opératoires et
impact sur les artistesmusiciens à Yaoundé” by Joel Christian NKENG à NKENG, University
of Yaoundé 1 -Masters 2 in Sociology 2010.
44
of the CMC has therefore decided to suspend the approval it had granted. According to the
Minister;
“In eighteen months, from September 2003, when the company was founded, to February 2005,
the audit notes that the CMC has received 284 million FCFA of copyright royalties and
reserved to rights holders 44 million FCFA. This is without prejudice to other sums valued at
more than 50 million FCFA, collected directly from various users of intellectual works, and
not to the special deposit account created by the government to secure the resources of the
community. This is not acceptable, whereas the texts and regulations in force command the
allocation of 70% of these sums to the beneficiaries, and 30% to the functioning of the societies
of authors. The audit report also shows that these resources were allocated to other incongruous
expenses such as the rental of a seat at 10 million FCFA, the purchase of 3 computers at 13
million FCFA, air tickets and tutti quanti.”142 Then the episode of withdrawal of accreditation
at the CMC on May 12, 2008. In the wake of this administrative act, a new copyright collective
management society, SOCAM, is created and a new General Assembly elective programmed.
There followed mediatico-legal battles where protagonist quarrels once again prevailed over
the rest.143
3.2.2 THE ROLE OF THE STATE OF CAMEROON
The situation of copyright and related rights in Cameroon inspires pity. The distress is pitiful
to the extent that Arnaud, G., an author, emphasizes that: "I have never visited any country
where copyright is also scorned, ignored, and where the artistic professions are also despised
by a power which otherwise knows to show a formidable police force as soon as its own
142 Ferdinan Oyono, Minister of Culture, Cameroon, interview realised by DIFCOM (Group
Jeune Afrique), 2005, p.2.
143 “Piraterie ou contrefaçon des oeuvres musicales: facteurs explicatifs, modes opératoires
et impact sur les artistesmusiciens à Yaoundé” by Joel Christian NKENG à NKENG,
University of Yaoundé 1 -Masters 2 in Sociology 2010.
45
survival is threatened "144. Thus, the state seems to have abandoned the fight against piracy in
the hands of the artists themselves, while it should not be totally theirs. This laxity would denote
a kind of tacit encouragement on the part of the public authorities, and piracy would thus have
become a sort of outlet for a crisis to which these authorities have no relevant solution to
propose. In a country, when there is a crisis, it is incumbent on the state authorities to take the
necessary measures to restore order and peace in the face of a serious threat to society. The
inefficiency of the efforts put in place by the public authorities to eradicate this scourge can be
explained by the misapplication or even the lack of effective application of the law on the
protection of copyright, but also the virtual in-existence of means repression against the
perpetrators of piracy. Cameroon's copyright legislation is not sufficiently protective. There is
a considerable gap between social practices (ahead of the law) and the law as it is practised in
Cameroon. The laxity and complicity of some public officials in these mafia activities are not
to be neglected, because they also partly explain this state of affairs. Even if in recent years in
Cameroon, the official speech refers to actions taken in favour of the fight against piracy, even
if the Ministry of Culture created the National Committee of Fight against
Piracy, it is still true that between the speeches, the texts and the acts, there is like a constant
gap. Policy makers are sometimes the first to transgress its own prescriptions. If not, what is
the true content of the slogan pompously taken up in the official speeches of the Cameroonian
authorities, and which speaks of the "Cultural Renewal"? Is not this an empty slogan? Can we
logically talk about Renewal in a context where nothing changes for ages? Is it not just a way
to lull artists to sleep and give them the impression that the state is concerned about their fate?
Overall, is the Cameroonian authorities' rhetoric about piracy not a demagogic speech? It is
fashionable to answer this question in the affirmative, because we still have the fresh memory
144 Arnaud G., “Le pays qui chantes ses fables”, in Cameroun: la culture sacrifiee,
Collection Africultures, n°60, Juillet-Septembre, Paris, Ed. L’Harmattan, 2004.
46
of this kitchen of duplication of audio cassettes destroyed publicly in Bafoussam in 1994, and
which belonged to a Police Commissioner in office in the same city, or this store of pirate
musical works discovered in Limbe and whose owner was the son of an influential member of
the government in the 1990s.145
3.2.3 Ignorance of the Masses
There is little public awareness or understanding of the Copyright laws in the country. This
goes a long way to hinder the efforts or work done by these different institutions. Existing laws
are not readily accessible even to the educated class. Copyright holders are usually ignorant
about the various laws existing for their protection; therefore, this ignorance ease the violation
of their rights. The average person is also ignorant of touted benefits of Copyright protection.
Meaningful public education at the grass roots level must form a critical component of
Copyright enforcement in Cameroon.
145 Jean-Francois Channon, “Lutte contre la piraterie: Que peut Ferdinand Oyono?”, Le
Messager, 6th February 2005 Edition.
47
CHAPTER FOUR
RECOMMENDATIONS AND CONCLUSION
4.1 RECOMMENDATIONS
•
The state authorities should implement Copyrights consistently. It should be consistent in the
sense that actions in the field by organs like National Committee for Fight Against Piracy
should be continuous. This will help in that the continuous seizure of the counterfeits and
equipment’s used to produce them will stop the violation.
•
To effectively protect creative works generated by the entertainment industry, the government
together with private initiatives should create awareness and educate the masses on the
importance of Copyright protections and the consequences of violations. This will help in
preventing infringements.
•
It is also recommended that, the Cameroonian government should identify and litigate against
all infringers of its Copyright. This will send out a clear message that Cameroon is not a
conducive environment for illicit trade. This will help in that; those perpetrating violations will
be deterred to continue.
•
The Capacity of Collective Management Bodies should be improved. These bodies should
enhance their capacity to maximize emerging opportunities for revenue arising from all the
various form of digital communication of works to the public. They should have the ability to
negotiate with and efficiently collect royalties from commercial online services. These bodies
should also strengthen their lobbying and negotiation efforts for better terms for their members
under compulsory licensing schemes.
•
A structured training programme should be put in place within the training curriculum of the
National Police Service and Customs services to produce a certain quota of specialized officers
48
or a specific unit of officers capable of carrying out specialized investigative and enforcement
roles.
•
The government should also seriously address the numerous factors that undermine effective
enforcement of laws in the country including corruption, lack of coordination among the
responsible agencies, lack of accountability, and lack of resources.
•
Moreover, in order to address the problem of the wide spreading of copyrighted content
violation on the internet, the web content companies should be allowed to “attack” peer-to peer network operators, also prevent web users from visiting web sites considered as
“dangerous” for copyright.146
• The developing of a legal system based on licenses that force web users to provide internet
service providers (ISPs) with lump sums in payment for the download of protected content.
More precisely, ISPs could disconnect web users who repeatedly download copyrighted
content from the Internet.147
4.2 CONCLUSION
From the discussion so far, it can be observed that there is a good legal and institutional
framework for the protection of Copyright in Cameroon. As already pointed out, these
frameworks constitute of local, regional and international laws and institutions protecting
Copyright, we can site; Law No
2000/011 of December 19 2000, on copyright and neighbouring rights; Bangui Agreement of
02 of
March 1977; Berne Convention for the protection of Literary and Artistic Works 1886;
Universal
146 The Copyright Protection Problem: Challenges and Suggestions Conference Paper ·
January 2009 DOI: 10.1109/ICIW.2009.84 · Source: DBLP.
147 Ibid.
49
Copyright Convention 1952. • Trade Related Aspects of Intellectual Property Rights 1994;
Convention establishing the WIPO 1967; WIPO copyright treaty1996, as for institutions, we
have; the Ministry of Arts and Culture; Courts or Tribunals; the National Police and Customs
Services;
Collective Management Bodies; the African Intellectual Property Organisation; the High
Commission of Appeal (“Commission Supérieure de Recours”) of the African Intellectual
Property
Organisation; the World Intellectual Property Organisation (W.I.P.O); the WIPO Arbitration
and Mediation Center.
Nevertheless, the protection of Copyright in Cameroon is not without problems. The study
reveals that Cameroon loses billions of dollars due to infringement of various Copyright works.
One of the major problems faced by Copyright in Cameroon is piracy. The study has
demonstrated how the Cameroonian Copyright holders are incurring huge losses because of
piracy. The situation has been worsened by the advent of Information and Communication
Technologies (ICTs) that has made copying of artistic products very cheap and fast. Copyright
face other major shortcomings like; mismanagement of collective management bodies;
inefficiency of the efforts put in place by the public authorities; and ignorance of Copyright
holders and the masses.
50
BIBLIOGRAPHY
I-BOOKS
Arnaud G., “Le pays qui chantes ses fables”, Paris, L’Harmattan, 2004.
David Moser & Cheryl slay ‘‘Music Copyright Law’’, Cengage Learning PTR, 2011.
François-Xavier ‘‘Un doudou dans l’open space’’, Quasar, 2018.
James Frankel ‘‘The teacher's Guide to Music, Media, and Copyright Law’’, Hal Leonard,
New York, 2009.
II-ARTICLES
Alhaji Tejan-Cole, Deputy Registrar, BELIPO, ‘‘COLLECTIVE MANAGEMENT OF
COPYRIGHT AND RELATED RIGHTS’’, 2008.
Ben Sihanya “Integrating innovation and intellectual property into Kenya's Constitution,”,
Kenya, 2002.
Ben Sihanya ‘‘Constructing Copyright and Creativity in Kenya: Cultural Politics and the
Political Economy of Transnational Intellectual Property’’, Kenya, 2003.
Chris Dodd 2014 “Copyright: A leading force for jobs, innovation and growth,” at
http://www.huffingtonpost.com/chris-dodd/copyright--a-leading-forc_b_4302882.html
(accessedon21/10/2015).
Dr Christophe Seuna. “Bulletin du droit d’auteur; LES ORGANISMES DE GESTION
COLLECTIVE AU CAMEROUN”, Juillet-Septembre 2004.
David Moser & Cheryl Slay ‘‘Music Copyright Law’’, Cengage Learning, and Boston,MA.
2012.
51
Eduardo Borensztein, Jose De Gregorio, and Jong-Wha Lee () “How Does foreign Direct
Investment Affect Economic Growth?” Journal of International Economics, 1998, Page 45,
115-135.
Ferdinan Oyono, Minister of Culture, interview realised by DIFCOM (Group Jeune Afrique),
Cameroon, 2005, p.2.
Franziska Ellen Schulze “Resale of Digital Content such as Music, Films or eBooks under
European Law,”, 2014.
International Journal of Management and Computing Sciences (IJMCS) Vol. 5, Number 5-6
January - June 2015 ISSN 2231-3303.
Jean-Francois Channon, “Lutte contre la piraterie: Que peut Ferdinand Oyono?”, Le
Messager, 6th February 2005 Edition.
Paulin EDOU EDOU, French Review of Intellectual Property, n ° 67 ‘‘The achievements of
intellectual property in Africa -the role of OAPI’’, June 2018.
Santosh Kumar & Mrityunjaya Kumar, Natural Rights Theory of Copyright Protection AD
VALOREM: Volume 3: Issue I: January- March 2016.
The Copyright Protection Problem: Challenges and Suggestions Conference Paper, Source:
DBLP, January 2009.
UNESCO; OBSERVATOIRE MONDIAL DE LUTTE CONTRE LA PIRATERIE,
CAMEROUN.
WIPO COMMITTEE ON MEASURES AGAINST COUNTERFEITING AND PIRACY.
WIPO “Understanding copyright and related rights,” 2016.
World Intellectual Property Organization, WIPO Publication No. 450(E) ISBN 978-92-8051555-0.
52
World Trade Organisation, ‘Module 1: Introduction to the TRIPS Agreement’, accessed 26
February 2016.
World Trade Organisation, ‘Overview: the TRIPS Agreement’, accessed 26 February 2016.
II-THESIS AND DISSERTATIONS
David Gikunda Miriti,’ ‘Are Authors of Musical works adequately protected under Kenya’s
Copyright Law?’’, LL.M thesis, University of Nairobi, November 2017.
Joël Christian NKENG à NKENG ‘‘Piraterie ou contrefaçon des œuvres musicales : facteurs
explicatifs, modes opératoires et impact sur les artistes musiciens à Yaoundé”, Masters 2 in
Sociology, University of Yaoundé 1 - 2010.
Konstantinos I. “COPYRIGHT AND CHALLENGES TO COPYRIGHT: THE CASE OF
PIRACY' AND PRIVATE COPYING”, PhD, University of Leicester.
Mathieu Fredy Avah ‘‘The Effectiveness of the Protection of Literary and Artistic property
rights’’, Masters in Notarial and Processual Economic Law, Dakar, University Cheikh Antta
Diop, 2011.
Sanjiv
G.
Patel
“COPYRIGHT
INFRINGEMENT
ON
THE
INTERNET
AN
INTERNATIONAL PROBLEM”, The Ohio State University, June 1996.
Telesphory D.B Magogo, “Harmonisation of Copyright within the East African Community:
An Analysis of the Kenyan and Tanzanian Copyright Legislation”, LL.M, University of the
Western Cape.
William Oyange Auma, ‘‘Copyright in the digital age: an assessment of Kenya’s legal and
institutional framework for the protection and enforcement of copyright’’, University of
Nairobi School of Law.
53
III-WEBOGRAPHY
Http://Copyright.Laws.com (Last visited on the 10th June 2019).
Http://library.osu.edu/blogs/copyright/2014/05/09/theories-of-copyright/ (last visited on June
02, 2019).
Http://www.oapi.int ( Last visited on the 12 June 2019).
Http://www . wipo.int (Last visited on the 10th of June 2019).
Https://www.marxists.org/reference/archive/hegel/works/pr/property.htm (last visited on June
02, 2019).
Www.BusinessDictionary.com visited on the 26th of May 2019.
Www.stchtingconstant.nl Last visited on the 4th of August 2019.
Www.wipolex.wipo.int (Last visited on the 5th of July 2019).
Www.hg.org (Last visited on the 5th of July 2019).
Www.Nguandco.com (Last visited on the 5th of July 2019).
Www.jagranjosh.com (Last visited on the 5th of July 2019).
Www.britannica.com (Last visited on the 5th of July 2019).
Www.centralawyers.com (Last visited on the 5th of July 2019).
Www.wipo.int (Last visited on the 4th of July 2019).
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