Kenya’s Copyright Act 2001, for example, protects “literary works, musical works, artistic
works, audio-visual works, sound recordings and
broadcasts,” 101 and establishes exceptions to
the rights of copyright holders.
102
Even with this
legal structure, however, DVD and software piracy is rampant in the region. Sixty percent of all
DVDs sold in South Africa and 81 percent of all
software in use in Africa is pirated. 103 Few countries have established policies to apply their
copyright laws to the Internet.
International pressure is a growing factor in
the application and enforcement of copyright
laws, particularly in cyberspace; the World
Intellectual Property Organization’s (WIPO)
“Internet treaties” are intended to compel countries to apply copyright protections to the
Internet. The WIPO Copyright Treaty (WCT) obligates countries to protect traditional works, and
the WIPO Performances and Phonograms Treaty
(WPPT) obligates countries to protect producers
and performers of sound recorders. WIPO
explains that “the treaties thus clarify, first, that
the traditional right of reproduction continues to
apply in the digital environment, including to the
storage of material in digital form in an electronic
medium. Second, they clarify that the owners of
rights can control whether and how their creations are made available online to individual
consumers at a time and a place chosen by the
consumer, e.g., at home via the Internet.” 104 Only
thirteen—including South Africa, Ghana, Nigeria,
and Botswana—of the forty-eight sub-Saharan
countries included in this overview (but not
including Sudan) are parties to these treaties. As
a result, there is only moderate international obligation imposed on the region to protect copyright over the Internet.
There has been even less action on the
related issue of ISP liability, both in general and
for copyright infringement specifically. Only South
Africa has done anything on the matter. As mentioned earlier, the Electronic Communications
and Transactions Act 2002 establishes blanket
liability limitation for South African ISPs through a
notice and takedown system similar to that in the
DMCA. 105 Botswana, however, has also recognized the need to address this issue in its ICT
Policy, in which the writers directly point out the
lack of any “appropriate legislative limitation on
the liability of Internet Service Providers” and call
for the government to “examine the liability of
third parties, including Internet Service
Providers.” 106
On the whole, online copyright protection in
sub-Saharan Africa is still in an embryonic state.
As with defamation, however, there does not
seem to be any reason that copyright laws will
not be applied to the Internet on a widespread
basis as the Internet expands. It is unclear, however, what balance will be struck over ISP liability.
The one example in the region, South Africa,
points to the development of systems with blanket liability, but other models may yet emerge.
VoIP
The introduction of voice over Internet protocol
(VoIP) represents a major challenge to subSaharan governments with the stiff competition it
presents to the incumbent telecommunications
companies by offering significantly cheaper calling rates. 107 This challenge has elicited a number
of responses. Most countries, such as Botswana,
Côte d’Ivoire, Ethiopia, 108 and Malawi, do not
allow ISPs to provide VoIP.
109
Only seven subSaharan countries—Kenya, Mauritius, Somalia,
South Africa, Tanzania, and Uganda 110 —actually
allow it. In yet other countries, the policy is less
clear. Though Zimbabwe technically allows VoIP,
the regulatory agency Potraz has not yet promulgated regulations on the issuance of the particular license that would allow a company to provide
VoIP services. 111 In Ghana, while no laws specifically make VoIP illegal, the government chose to
protect a duopoly (of Ghana Telecom and
Westel) over the international voice gateways by
having the National Communications Authority
shut down ISPs that offered VOIP services. 112
220
Regional Overviews
works, audio-visual works, sound recordings and
broadcasts,” 101 and establishes exceptions to
the rights of copyright holders.
102
Even with this
legal structure, however, DVD and software piracy is rampant in the region. Sixty percent of all
DVDs sold in South Africa and 81 percent of all
software in use in Africa is pirated. 103 Few countries have established policies to apply their
copyright laws to the Internet.
International pressure is a growing factor in
the application and enforcement of copyright
laws, particularly in cyberspace; the World
Intellectual Property Organization’s (WIPO)
“Internet treaties” are intended to compel countries to apply copyright protections to the
Internet. The WIPO Copyright Treaty (WCT) obligates countries to protect traditional works, and
the WIPO Performances and Phonograms Treaty
(WPPT) obligates countries to protect producers
and performers of sound recorders. WIPO
explains that “the treaties thus clarify, first, that
the traditional right of reproduction continues to
apply in the digital environment, including to the
storage of material in digital form in an electronic
medium. Second, they clarify that the owners of
rights can control whether and how their creations are made available online to individual
consumers at a time and a place chosen by the
consumer, e.g., at home via the Internet.” 104 Only
thirteen—including South Africa, Ghana, Nigeria,
and Botswana—of the forty-eight sub-Saharan
countries included in this overview (but not
including Sudan) are parties to these treaties. As
a result, there is only moderate international obligation imposed on the region to protect copyright over the Internet.
There has been even less action on the
related issue of ISP liability, both in general and
for copyright infringement specifically. Only South
Africa has done anything on the matter. As mentioned earlier, the Electronic Communications
and Transactions Act 2002 establishes blanket
liability limitation for South African ISPs through a
notice and takedown system similar to that in the
DMCA. 105 Botswana, however, has also recognized the need to address this issue in its ICT
Policy, in which the writers directly point out the
lack of any “appropriate legislative limitation on
the liability of Internet Service Providers” and call
for the government to “examine the liability of
third parties, including Internet Service
Providers.” 106
On the whole, online copyright protection in
sub-Saharan Africa is still in an embryonic state.
As with defamation, however, there does not
seem to be any reason that copyright laws will
not be applied to the Internet on a widespread
basis as the Internet expands. It is unclear, however, what balance will be struck over ISP liability.
The one example in the region, South Africa,
points to the development of systems with blanket liability, but other models may yet emerge.
VoIP
The introduction of voice over Internet protocol
(VoIP) represents a major challenge to subSaharan governments with the stiff competition it
presents to the incumbent telecommunications
companies by offering significantly cheaper calling rates. 107 This challenge has elicited a number
of responses. Most countries, such as Botswana,
Côte d’Ivoire, Ethiopia, 108 and Malawi, do not
allow ISPs to provide VoIP.
109
Only seven subSaharan countries—Kenya, Mauritius, Somalia,
South Africa, Tanzania, and Uganda 110 —actually
allow it. In yet other countries, the policy is less
clear. Though Zimbabwe technically allows VoIP,
the regulatory agency Potraz has not yet promulgated regulations on the issuance of the particular license that would allow a company to provide
VoIP services. 111 In Ghana, while no laws specifically make VoIP illegal, the government chose to
protect a duopoly (of Ghana Telecom and
Westel) over the international voice gateways by
having the National Communications Authority
shut down ISPs that offered VOIP services. 112
220
Regional Overviews