Kenya Shares Lessons With Botswana on Protecting Copyright and Neighbouring Rights

This week I spoke with visiting representatives from the Copyright Office of Botswana which is under their Registrar of Companies and Intellectual Property (ROCIP) and compared notes on the administration and enforcement of copyright and related rights in our respective countries.

The Botswana’s Copyright Office is in fact still in its infancy. It has only four members of staff who are meant to cater for the entire country. The Industry Property Department is slightly better with about 15 members of staff. Out of the four employees in the Copyright Office of Botswana, only 2 of them have special training in Intellectual Property courtesy of the Franklin Pierce Center. Meanwhile the leading national institution for tertiary education, the University of Botswana (UB) doesn’t offer any programmes on Intellectual Property.

Therefore the challenges of adminstration and enforcement of copyright in Botswana are colossal. There is only one Collective Management Organisation (CMO) which collects royalties and license fees for all the various copyright holders. This CMO is called the Copyright Society of Botswana and it leans quite heavily on the Copyright Office of Botswana for support.

The following are some of the lessons the Botswana Copyright Office could learn from Kenya as they grow and develop their capacity:

1. Fused v.s Diffused IP Offices: Currently the Botswana’s ROCIP administers the two main IP legislations singlehandedly namely the Copyright Act and Industrial Property Act, in addition to the Companies Act and the Business Names Act. However this fused system in Botswana has proved time and time again to be counterproductive as there is always a tendency to prioritise industrial property over copyright. This is especially true since trademarks and patents are percieved to be bring in more revenue to the government than copyright. However the reality in most African countries is that copyright works are the most dominant within the IP sector, not to mention their function as a public good. Therefore it is important for the Copyright Office of Botswana to aggressively lobby for a diffused IP system where each IP law is administered and enforced by different statutory bodies accountable to different ministeries.

2. Autonomy: When the KeCoBo started off, it was a unit under the Registrar-General’s Office but it later became a Department alongside the the Registrar-General’s Office but still within the Attorney General’s Office. Now with the enactment of the Copyright Act of 2001, KeCoBo was finally given recognised as a statutory body and it is presently delinking from the A-G’s Office altogether. The Copyright Office of Botswana would be well-advised to follow suit and aim to delink itself from the ROCIP as this would greatly enhance its operations and allow it to grow independently.

3. Multiple Revenue Streams: Copyright administration and enforcement is a very costly affair. Combatting soaring levels of piracy nationwide, creating awareness of copyright law, supervision of CMOs among other key functions require a sizeable budget. Therefore KeCoBo cannot solely rely on the amount it receives from the Exchequer every financial year to fulfil its entire mandate and still cover its operation costs. So far, KeCoBo has come up with 4 additional revenue streams. Firstly, the Copyright Act provides that KeCoBo shall recieve half of the fines that infringers are senteced to pay by the courts. Secondly, KeCoBo recieves a prescribed fee for licensing each CMO. Thirdly, KeCoBo recieves fees when it invites for tenders. Finally, KeCoBo recieves revenue from the sale of the authentication device known as the Anti-Piracy Security Device (APSD). Therefore the Copyright Office of Botswana must also look into ways of supplementing the monies it receives from the National Budget in order to ensure that it is able to fully carry out its mandate.

4. Authentication of Copyright work: Botswana’s Copyright Act, like Kenya’s, recognises the importance of requiring authentication for copyright holders of sound recordings and audio-visual works intending to offer them for sale. The Botswana Copyright Office only issues a hologram whereas its Kenyan counterpart issues both a hologram and a barcode sticker. The importance of issuing a barcode together with the hologram is because the barcode contains certain crucial information about the copyright holder and the registered work in question. Therefore the barcode must affixed on the outside cover of the work to allow copyright inspectors during their field inspections to quickly scan them off the shelves using barcode readers so as to ensure that there is a match between the affixed stickers and the work. Another practice at the Botswana Copyright Office that must be discouraged from continuing is that officers directly handle cash obtained from sale of the holograms. Whereas KeCoBo requires that all purchases of the authentication device be done through bank deposit as opposed to cash transactions in order to ensure proper transparency and accountability.

5. Enforcement and Training tips: In order to cut on high running costs, the Botswana Copyright Office can use KeCoBo’s strategy of engaging members of the national police force as Copyright Inspectors and have them seconded to the Office. The Inspectors would bring their experience and expertise in law enforcement and criminal investigations to assist the Copyright Office in conducting raids and investigating alleged cases of copyright infringment. In regards to training, there are a wide number of free online courses in Intellectual Property offered by WIPO and the USPTO. Furthermore, the Copyright Office of Botswana must endeavour to forge closer ties with these international bodies so as to benefit from the numerous study trips and training opportunities both regionally and internationally.

In sum, the Copyright Office at Botswana’s Registrar of Companies and Intellectual Property must utilise this unique opportunity to study all the best practices from KeCoBo and also globally so as to start laying down the necessary legal and policy framework to ensure its own progressive growth and future success.

PS: Something I should’ve noted was that Botswana should strongly consider having a web presence and the same has been emphasised by Afro Leo in the Afro-IP’s on-going series of visits to the official IP websites of African states.

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