When court won’t stop criminals

By Ronald Musoke

Confusion over copyright law leaves Uganda’s music and movie industry in chaos

The mood inside the High Court’s Commercial Division in Kampala on Sept.8 was similar to a movie-shooting scene that has gone wrong; vitriolic statements and mean stares were flying about, and unpleasant body language spoke of silent rage.

Two contending groups in Uganda’s entertainment industry; the movie and music makers and the movie and music vendors, were awaiting a critical verdict.The makers petitioned court to enforce a copyright law that bars vendors from dealing, without paying royalties, in products they have not produced, including foreign items like Nigerian and western movies.

But the vendors contend that local artists cannot stop them from dealing in products they have not produced, such as Nigerian and western movies. The unease and hostility that exists between them was obvious, especially before the court was called to order.

“Members of the Uganda Film and Movie Industry [sit] on the left side, those who ‘burn’ [duplicate] movies [sit] on the right side,” announced a court official who seemed to have read the mood right as more members of the competing sides filed in until the courtroom was packed.

Sulaiman Kimbugwe, a former actor who is now a director at Mirax Film Company was there too. With about 10 years in Uganda’s film industry, you would expect him to know his way around the local movie scene. Instead, he sounded worried about his latest movie, ‘Evil Money’ which he finished three months ago.

“I spent Shs 17 million in putting together this movie but I am not sure whether I will recover this money because I know my movie has already been pirated,” he told The Independent.

Kimbugwe’s fears confirmed the open secret about the fate of local film ventures; the so-called “kina-Uganda”;  film directors like Kimbugwe might make them, but those who make money off them are the vendors who pirate them. A visit to one of the numerous arcades in Kampala confirms this.

Where pirates rule

Zai Plaza on Luwum Street is home to numerous movie shops. One of Kampala’s most popular movie vendors, known as Papa, has a business here. Business seems good. Papa’s shop has thousands of movie titles displayed vertically from the floor to the ceiling on each of the three walls of his shop and up to 12 young men are on hand to help the many customers pick their favourite movie titles.

There is also a DVD player in the corner of the shop where one of Papa’s boys keeps playing the DVDs the customers have selected to buy as quality is not guaranteed and customers want to ensure that they leave Papa’s shop with a DVD which will play to its entirety when they are watching it at home.

A man, possibly, in his early 40s walks in and demands a replacement because the one he took the previous day did not play anything. The boys test the DVD and he immediately gets a replacement.

At Papa’s movie shop, you can have the latest movie or series by parting with as little as Shs 1000 (about 50 U.S. cents or the price of a Coke). Everything is pirated. Most customers prefer foreign titles and Papa would possibly not mind not having Kimbugwe’s `Evil money’ in his stock. The money for the pirates is from foreign titles. It is a rarity for a customer to ask for a local movie title. Most say they are of poor quality.

That is the point that vendors like Papa were making last year when they staged a protest against the attempt by a copyright enforcement body, the Uganda Film and Movie Industry (UFMI), to stop them from dealing in pirated music and movies – including foreign works.

Ramathan Kaggwa Matovu, the Assistant General Secretary of UFMI, is a leader on the anti-piracy side. He says although the film vendors pirate mainly foreign titles, they inadvertently kick local artists out of business by depressing prices.

Matovu says because the film vendors acquire Nigerian and western movies at no cost, they reproduce and sell them as cheaply as Shs 1000. This undercuts locally produced content such as Kimbugwe’s`Evil Money’ which sells at about Shs 3000. To compound the problem, the vendors are not shy to duplicate any local work which shows promise without paying royalties.

“At the moment, there is a domination of foreign works and this influx is being done illegally,” Matovu says, “We need to protect the industry so that it grows.”

Kimbugwe backs Matovu’s view. He says part of the reason Ugandan movie directors make low budget, and therefore poor quality movies is because they have limited funds which is because they have failed to earn from their works.

Matovu says all that the film makers want is fairplay from vendors in order not to kill the local movie and music industry.

“Everybody is free to sell content as long as they have authorisation,” he told The Independent, “The idea is to ensure that the copyright law is enforced.”

But Matovu’s view is not upheld by all film and music makers. Some of them have joined music vendors who are under their umbrella association, the National Union of Creative and Performing Artists and Allied Workers (NUCPAAW). This association brings together musicians, producers, singers, dancers, actors and actresses, authors, libraries, filmmakers, designers, DJs, translators, and distributors among others. They say UFMI is overstepping its mandate.

They say although they are not opposed to the copyright law including paying royalties to artistes, they want all players to benefit. Some of the musicians and actors believe they gain popularity if their music and movie DVDs are freely played either on radio, TV, or by the pirated DVDs of vendors.

The DVD burners, who include powerful players from India, China, and Pakistan, are enamoured by easy money. The movie and music makers, who clearly do not have as much financial clout, have resorted to the law and the courts. That is the reason the two sides were in court on Sept.08. But it was not the first time the two parties have gone to court to seek the interpretation of the copyright law.

On March 15, 2012 they were in the High Court and were advised to take their issue to be mediated and settled by the Commercial Court.

But before the mediation could take place, last year, the music and movie makers, actors and actresses again staged a protest against the blatant piracy. Accompanied by police, they raided the vendors’ shops, vandalised stock, and attempted to close them.

The inspectors of UFMI stormed Zai and Majestic Plazas—the two shopping centres on Luwum Street that are synonymous with music and movie piracy.  It was a sign of the frustration that Kimbugwe and other copyright holders feel in the face of rampant piracy but it had little impact.

Weak laws, weaker enforcement

Although Uganda has a copyright law that is supposed to help Kimbugwe and others recoup their investment, its penalties for anyone caught infringing on a copyright are too flimsy.

For instance if Papa is found infringing upon any producer’s copyright, the law requires him to part with 100 currency points (approx. $770 as each currency point is equal to Shs 20,000) or face imprisonment of four years.  The vendors can easily pay the fine.

But what Kimbugwe and other owners of copyrights want is for dealers like Papa to buy rights of selling or distributing their works. They want dealers to sell only original works marked with a security hologram or a ‘Banderole sticker’. Under current law, it appears, they cannot enforce this.

The copyright law is governed by the Copyright and Neighbouring Act, 2006 and the Copyright and Neighbouring Rights Regulations, 2010 and covers the work for the lifetime of its creator (usually 70 years) plus an additional 50 years after death and the next of kin can claim compensation for rights infringed.

It makes it a crime for a person to produce, distribute, broadcast, make available to the public, sell or offer to sell, lease or rent out or make public performances or import for distribution sound recordings or audio-visual recordings in Uganda except under a licence issued by the owner of the neighbouring rights or a collecting society.

A collecting society is a body that engages in collective rights management, license copyrighted works, collects royalties to the authors and negotiates tariffs on behalf of its members.

In Uganda, there are two collecting societies; the Uganda Performing Rights Society (UPRS) for the audio bundle and the Uganda Federation of Movie Industry (UFMI) catering for the audio-visual rights.

As part of their functions, they licence works in which they hold the copyright or for which they act as agents on behalf of their members for specific uses.

They also monitor use of those rights extended to users of copyrighted works, collect revenue relating to use of the rights, distribute revenues as royalties to members for whom they act as agents, and enter reciprocal arrangements with foreign collecting societies to collect and distribute local royalties earned overseas to local rights holders.

According to UFMI’s blog, today the collecting society is managing over 5,000 film titles with which it is charged with the responsibility of protecting and managing of authors’ rights as well as collecting and delivering royalties to respective authors.

Part of the reason why the law cannot be enforced could be blamed on its being a shared duty by three government agencies; the Uganda Communications Commission (UCC), the Media Council, and the Uganda Registration Services Bureau (URSB).

Isaac Kalembe, UCC’s Media Relations Specialist told The Independent on Sept. 10 that although regulating the sector is a joint effort amongst the key government agencies, it is URSB which is mandated to regulate copyright compliance.

But there are those that say that UCC, as the regulatory body, is supposed to enforce the rights of local film makers and related artistes through censorship and banning the distribution of materials acquired illegally.

As the regulatory bodies bicker over responsibility, the vendors view the laxity in enforcing copyright law, especially over the selling of counterfeit international DVDs, to mean it is an accepted business in Uganda. That might explain the proliferation of movie shops in most urban centres. But the producers mourn the continued failure to effectively interpret the copyright law. That is why many of them were in court on Sept.08.

Court indecision

Unfortunately, the court appears to have muddled up the issue even further.

In a consent settlement, it ordered the movie and music producers to temporarily cease confiscating audio and visual copies from movie vendors. It advised them to wait for court to pronounce itself on a number of mainly technical contentious issues. Among them whether UFMI is a legally constituted collecting society, and whether the federation is a duly appointed agent to enforce the copyright law and collect royalties on foreign content, including Nigerian and western movies in Uganda.

The vendors left the court excited; the court, they say, authorised them to continue with business as usual. But the producers too were claiming victory. They said court had banned the vendors from selling anything they are not authorised to do so, including foreign content. Unfortunately, the two positions appear irreconcilable and set the stage for further confrontation.

Matovu Kaggwa says it is wrong for anyone to think that the Ugandan copyright does not protect foreign works. He says each foreign work must go through a process of getting into the Ugandan borders, let alone the Ugandan market.

Matovu is partially right – since Uganda is a signatory to the Trade Related aspects of Intellectual Property (TRIPs), a World Trade Organization agreement which in part compels member states to protect copyright holders if it is to participate in international trade.

He says UFMI is affiliated to AGICOA—a Switzerland-based non-profit organisation that tracks and distributes royalties on retransmission of audiovisual products of independent producers. In 2011, UFMI also signed an agreement with the Association of Nigerian Core Movie Producers to protect their movies here in Uganda.

UFMI is working on similar arrangement with sister organisations in Mauritius, South Africa, Egypt, and India.

“The law is going to be enforced and our inspectors will get down to work immediately,” Matovu says.

But Matovu also concedes that the internet has given birth to digital piracy where many vendors easily download movies, duplicate thousands of copies, and hit the street to mint money. As a result, the movie and music piracy which is a billion dollar illicit industry around the world has become a demoralizing vice even in Uganda. That is possibly why Matovu is also proposing a midway solution.

“As a collecting society, it is not in order for us to go into someone’s shop, gather and burn someone’s stock where they have invested millions of shillings but what we are saying is that gradually, their stock should have at least 40% of authorised content by the end of this year.”

Kimbugwe and other producers back this position. But the vendors are sticking to their duplicity. Anita Seruwagi, the General Secretary of NUCPAAW insists that consent was supposed to be reached upon putting into consideration the interests of both parties but it was breached by UFMI.

The next scene in the saga appears set. Unfortunately, it will possibly be rated ‘R’ for violence as the movie and music makers raid the pirate shops on Zai Plaza and everyone hurls foul words at the courts and police for failing to ensure the copyright law functions.