A recent anti-piracy case in Seychelles, the smallest African state by population, shows African courts are willing to protect the rights of content producers and rights holders. This offers hope for the continent’s creative industries, but the fight against piracy is far from over.
The findings of the Supreme Court of Seychelles in the case of MultiChoice Africa Holdings B.V and SuperSport International (Pty) Ltd v Intelvision Limited has enormous significance for the protection of intellectual property rights and the fight against content piracy.
The court found that Intelvision was breaking the law when it broadcast matches from the 2019 African Cup of Nations (AFCON) football tournament, for which it did not have broadcast rights. This is the first successful application of Seychelles’ Copyright Act.
This decision sets a strong national and regional precedent in upholding content-sharing agreements to ensure that the rights of content providers are protected at every level of the supply chain. The goal is to ensure that creators are remunerated fairly and the content ecosystem – on which much of modern media is built – remains sustainable.
The court ordered that a commissioner be appointed to investigate Intelvision’s accounts to assess the benefit derived by Intelvision from the illegal broadcast of the AFCON tournament. Once the investigation is complete, the court will determine the amount to be paid by Intelvision to MultiChoice Africa and SuperSport as damages suffered by these parties.
Content piracy takes many forms, often simply amounting to intentional content theft. The respondent, Intelvision, was found to be in breach of copyright for its disregard of the rights held by the content producers and rights owners.
Africa-wide fight against piracy
While the Seychelles ruling is to be applauded, the fight against piracy is global and Africa is meeting the challenge head-on. Civil-society organisations and government agencies across the continent are actively working to protect content-creator and owner rights by developing policy, passing laws and enforcing them.
Like most African countries, enforcement of copyright laws in a country like Nigeria, for example, is saddled with loopholes, bureaucratic bottlenecks and lack of public awareness leading to the prevalence of piracy.
There is, however, a willingness among content stakeholders to assert their rights, as the MultiChoice and SuperSport victory in Seychelles demonstrates. Increasingly, Africa is building a united front against piracy and fighting for copyright-protection enforcement.
Content piracy involves the unauthorised use of the content, whether broadcast, shared, streamed or accessed in any way. Illegally streaming content on digital platforms without paying for it or having the rights to do so has exploded globally, and on the African continent, particularly during the pandemic. Other forms of piracy are hardware-related crimes – such as illegal connections and the sale of counterfeit decoders.
Protecting creative industries
Ultimately, piracy robs content creators, artists and entire creative communities of their royalties.
In the creative entertainment space, this war against piracy is about protecting Africa’s creative industry. Only when artists, screenwriters, directors, actors and sporting codes, to name a few, are assured of being adequately compensated for the work they create would they dedicate themselves to such careers as a viable livelihood – thereby ensuring a legacy of creativity for future generations
This commitment to protecting content rights also has broader relevance for Africa’s national economies. The African Growth and Opportunity Act (AGOA) is a United States preferential-trading arrangement signed into law, requiring – among other things – that African countries defend intellectual property rights, to qualify for preferential access to US trade and investment.
There is therefore the need for national and continental economic importance that the fight against piracy is prosecuted and with a consistent commitment by all stakeholders, including government agencies and the courts.
Fortunately, a united front is developing across the region, with various organisations showing a commitment to fighting piracy, protecting content rights and building a content economy governed by the rule of law, which is safe for investors and beneficial for local economic growth and development.
In Africa, piracy remains a significant problem – particularly in the digital-content space, wherein in some cases even mainstream internet service providers stand accused of enabling piracy.
In Nigeria, Africa’s largest economy and home of most the continent’s biggest creatives, organisations like the Musical Copyright Society Nigeria (MCSN), an incorporated collective association of authors, composers, arrangers and publishers of music and the Nigerian Copyright Commission (NCC) are working to minimize piracy levels to provide an environment conducive to the growth of legitimate copyright industries in Nigeria.
Partners Against Piracy (PAP) is an awareness initiative launched in Kenya, championed by the Kenya Copyright Board (KECOBO). It has also been launched in Zambia, where it is driven by the National Arts Council (NAC).
PAP is a multi-stakeholder awareness programme to help fight the piracy menace by educating the public on the unintended consequences of piracy and the threat it poses to livelihoods, and society at large.
To put it simply, when content is stolen, creators do not get paid. New content stops becoming available and audiences suffer. Confidence evaporates, investment stagnates and entire industries die. It is not hyperbole to say that piracy can lead to the death of African entertainment.
The solution, according to experts is to develop clear policy directives that support the rights of content creators and owners; build robust laws that protect such rights; and enforce these laws by establishing dedicated, well-resourced, anti-piracy teams including policing legal and digital resources.
When raids are conducted and content pirates start going to jail, we will start to see an industry where content rights are respected and producers and owners of entertainment content can earn the kind of living they are entitled to, an industry expert said.
The cases of actor Ray “Velaphi” Ntlokwana, gospel star Lundi Tyamara, both from South Africa, and Kenyan actor Joseph Olita – who entertained millions and died paupers – are some of the many examples.
“The injustices that they and countless other African artists have suffered prove that if we do not protect content rights and intellectual property, the creators suffer, lives are destroyed, economies stagnate and communities are short-changed,” an industry legend was quoted to have said.
The satellite industries or Over-The-Top (OTT) platforms that support creative industries are also directly affected. When content creation becomes less viable, the demand for suppliers evaporates too – impacting catering, accommodation, fashion and production houses. The industry that trains young creative professionals is also threatened – the schools of the arts, the talent factories and boot camps for emerging filmmakers and sports professionals.
For Africa’s creative economy to survive and to thrive, industry experts say, it needs to be built on a strong legal foundation that inspires confidence and encourages investment – financial, time and policy enforcement. Given such a supporting environment, it will be able to fully celebrate the love and creativity that produce the best sport, art and entertainment experiences.