This paper attempts to analyse the status of Intellectual property rights (hereinafter referred to as IPRs) in Uganda, it investigates whether IPRs as a new area of law has been received with its due attention. It probes into the necessity of having these rights protected by the Ugandan law, not by any statute but the Ugandan Constitution. The purpose of IPRs is to be assessed and evaluated as a yardstick for the Constitutionality of IPRs.
The Ugandan law seems to already provide for IPRs protection in particular statutes that is, the Industrial properties Act, the copyright and neighbouring Rights Act and trademark Act. This paper is therefore to contend the need to provide for the same protection in the Constitution of Uganda.
The paper is also to address interpretation of Intellectual property against the property clause in the Constitution. It presents an argument that Intellectual property is accommodated by the property clause and thus Constitutional protection is already accorded to IPRs. It will be argued that as such, Intellectual property is accorded a Constitutional reception which it rightly deserves.
By NAMARA KEITH
THE CONSTITUTIONALITY OF INTELLECTUAL PROPERTY RIGHTS IN UGANDA
Intellectual property and the rights that accrue to it were a strange phenomenon to the pre-independence era; the reason was not because there were no intellectual property rights anywhere else in the world. The major reason is simply because as part of the pangs of colonialism, our colonial masters could not permit the development of a law that in their opinion was irrelevant and later on detrimental to their own cause.
This explains why the very first traces of Intellectual property rights back in the early 50s (Trademarks Act 1953)1 were largely unknown and not used at all. Perhaps, one should also argue that the law was indeed unnecessary at that moment considering the level of industrialisation, political instability and low education among others.
However, in the post independence era and more specifically after 1986 during the NRM regime, the intention of having the Intellectual property rights in our laws was very clear. Intellectual property laws are undoubtedly very instrumental for any country’s economic progress.
Justification for IPRs
IPRs widen the scope of investment by diversifying the economy to venture into non tangible aspects of property. Such will certainly provide an alternative into different ways of investment. In Tunisia, it is believed that by having IPRs protected by the Constitution, the effect will be that it will foster the creation of a “knowledge economy” that will make enterprises more competitive globally, and set to take advantage of more opportunities.2 IPRs are in this regard used as a new avenue of investment into science and technology where the benefits of such an investment are unprecedented.
IPRs can also provide a viable incentive to inventors to invest more in exploring new fields which will eventually provide solutions to the world’s problems. Intellectual property rights create incentives for individuals and firms to invest in research and development, and to commercialize inventions and other creations by allowing individuals and firms to profit from their creative activities.3 It is stated, in this regard, that the grant of a IPRs confers great value on any business that has developed the idea, thus creating incentives for innovation and attracting financial investments.4 It should noted then that through these incentives, inventors get the confidence to invest more and more, and this translates into a frog leap of the economy. In the USA, IPRs are jealously protected; they contribute largely to the US economy up to $5.6 trillion that translates into about 27.7% of all jobs in the entire country. Indeed, Anthony Wayne, former U.S. Assistant Secretary of State for Economic and Business Affairs, whose views were published in the U.S Department of State publication, Focus on Intellectual Property Right (2008) clearly put it that “Society benefits because this incentive to create will yield a rich and varied cultural menu for its citizens. Indeed, one can say that copyright protection is a necessary ingredient for ensuring cultural wealth in our societies.”5
Intellectual Property rights in Uganda have also been quite helpful in several sectors; trade, agriculture, and industry. In trade, IPRs are investments in themselves, inventors of copyrights and trademarks do so to achieve economic goals. The business nature of IPRs can be traced from S.9 of the Copyright and neighbouring rights Act of 2006. The section provides for commercial rights of an author of a copyright, he exclusively retains the rights to commercially exploit his works through publishing, producing and broadcasting and any other use that is considered of commercial benefit.
In agriculture, IPRs have revolutionized the methods of farming through new inventions that have not been heard of in the agriculture sector, new and disease resistant seeds are being developed by the umbrella body; the National Agricultural Research Organisation whose vision is “A farmer responsive research system that generates and disseminates problem-solving, profitable and environmentally sound technologies, knowledge and information on a sustainable basis “6 The input of IPRs is to grant protection to such works which will eventually lead to sustainable agricultural productivity, poverty eradication and economic development.
Constitutionality of Intellectual Property Rights
From the above discussion, it can remain undisputed as to how important these IPRs are to both the owners and the economy at large. However, the bigger question to ask is if by their importance as illustrated above, they deserve a place in the Constitution, the supreme law of the land. In the next text, I will be discussing this question while fronting an argument to the effect that it is unnecessary to have these rights Constitutionalised.
First and foremost, A79(2) of the 1995 Ugandan Constitution provides that Parliament will make provisions that will have the force of law, this Article grants a Constitutional mandate to Parliament to make provisions and that these provisions will have a force of law, this means in turn that the enactment of Copyright laws is rooted in the Constitution, it serves no purpose therefore to undermine this parliamentary mandate by amending the Constitution to establish an independent provision overriding the existing parliamentary statutes. These include; the copyright and neighbouring rights of 2006, the trademark act of 2010, the industrial properties Act of 2013. These laws provide for copyrights and neighbouring rights, trademarks, patents and utility models respectively. They have not been inadequate in protecting the IPRs holder. An IPRs holder seeking to enforce his rights in these laws will have an equal protection from the law for his IPRs in the same way if their rights were entrenched in the Constitution. This was clearly demonstrated in Angella Katatumba v Anti Corruption Coalition of Uganda7 In this case, the plaintiff’s song was used by the defendant for a campaign against the sale of a forest reserve (Namanve) by the government to investors. The song was used as a theme song for the campaign whereby it would be played in the background of the defendants advert on TV stations and some radio stations. This was done without the plaintiffs consent and without acknowledging her as the author of the used song. Court awarded damages worth 50 million Ugandan shillings for the infringement of the plaintiff’s moral rights.
In addition to the above, Article 2878 is articulate in providing to the effect that all international conventions to which Uganda is party are to apply to it, this was made clear in Attorney General v Susan Kigula and 417 ors9 where Justice Egonda Ntende as he then was while recognising various United nations instruments averred that the input of the same article 287 was to indicate that the framers of the Constitution were aware of the applicability of these conventions that Uganda is party to. In that regard, one cannot doubt the applicability of the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS agreement). Provisions in the TRIPS agreement could also work as substitutes to a Constitutional provision that is to relate to the same rights protected by the same agreement. This is particularly so since Uganda is party to the TRIPS agreement.
Secondly, IPRs seem to already be provided for in the Constitution, a close scrutiny of Article 2610 affirms this fact. Article 26 provides for the protection from deprivation of property as below;
(1) Every person has a right to own property either individually or in association with others.
(2) No person shall be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfied—
(a) the taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, public morality or public health; and
(b) The compulsory taking of possession or acquisition of property is made under a law which makes provision for—
(i) Prompt payment of fair and adequate compensation, prior to the taking of possession or acquisition of the property; and
(ii) A right of access to a court of law by any person who has an interest or right over the property.
This article does not expressly define what form of property it deals with, whether it deals with strictly corporeal or if it is to include other forms of incorporeal property like intellectual property. The rationale for this was given by the South African court in First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance11 to be that it is both practically impossible and judicially unwise to formulate an exhaustive definition of property. This decision was narrowed down in another case Laugh It Off Promotions CC v SAB International (Finance) BV t/a SABMARK International12 which held intellectual property to mean property as is provided by an equivalent of A26 of the Ugandan Constitution in South Africa.
Beinbridge, in his book, Intellectual property advances the same argument that intellectual property gives rise to some form of property which can be dealt with just like any other property, it can be transferred, assigned, mortgaged, licensed. He argues that Intellectual property is to be considered as a chose in action, a right enforced by a legal action and not by possessory rights.13 It should still be emphasised at this point that the only difference that there is between Intellectual property and other forms of corporeal property is the tangibility aspect, otherwise, they both confer the same rights.
Although the Ugandan courts have not faced a question of interpretation as to whether intellectual property is in the precincts of property as is mentioned in Article 26, these opinions can do much to predict what the likely outcome of the court’s decision would be. If Intellectual property is indeed to be included in the definition of property as envisaged by Article 26, a separate provision in the Constitution will be unnecessary, a duplication and unwarranted, more so with the court’s ardent interpretation of the said article. For example in Phillip Karugaba v the Attorney General of Uganda14 court held;
The right to own property encompasses the right to control property, to transfer or sell it and to exclude others, while enjoying protection of due process and fair procedural rules governing compulsorily acquisition. The Constitutional Court in Uganda has recognised that the right to property is the highest right a man can have over anything to which one claims ownership, from lands and tenements, to goods and chattels. The right extends to ‘personal’ as well as ‘intangible property’ (like debts), and in no way depends on another man’s courtesy.
This decision serves as a precursor for the interpretation discussed above including Intellectual property in the conventional definition of property.
Thirdly, having intellectual property rights in the Constitution would conflict with other rights already guaranteed in the Constitution. For example, the right to freedom of speech and expression; courts will be faced with an unfortunate situation of having to balance conflicting rights. This is so because an infringing act can also be pursuant to one’s freedom of speech and expression especially if that act regards literature works.
The question to ask therefore is which is superior if economic rights (IPRs) interface with civic rights (freedom of speech) in case both are provided for in the Constitution. Awarding copyright owners a property right in the Constitution to prohibit creative criticism of their works devalues the constitutional guarantee of freedom of expression as well as the very objectives that underlie copyright law, and can even be said to prevent citizens from actively participating in our Constitutional democracy by unjustifiably suppressing divergent voices.15
IPRs if put in the Constitution will definitely conflict with Article 3716 which provides to the effect that everyone has a right to practice and promote a culture, language, tradition in community with others. Article 37 seems to encompass traditional knowledge as part of culture yet traditional knowledge is as for now a copyrightable area, the only protection it has is the very presence of Article 37, a Constitutional provision on preservation of culture, if this provision is diluted by another rival provision providing for the copyrighting of traditional knowledge, the motive of Article 37 will die off. The treating of traditional knowledge as un-owned has exposed it to numerous exploitations by outsiders many of who use this knowledge as an input for their innovations which are later on privatized through patents, copyrights and plant breeders’ rights. Adding insult to injury, the financial and technological benefits of those innovations are rarely shared with indigenous communities.17
In Prof. Mwambusya v Y.K. Museveni18 the petitioners sought to intercept the copyrighting of the defendants song which was largely a poem from the Ankole culture that had been recited by the Banyankole people overtime as part of their culture. The petition was denied by the registrar of copyrights who held that the song was a derivative work and that since it was part of traditional folklore, it was un-owned and there was no one to seek permission from. This decision has caused controversy with some defining it as unfair to the Banyankole culture.19 It should therefore be emphasised that in the spirit of upholding the constitutional values (like protection of culture), IPRs should not be embedded in the Constitution.
Another reason why we ought not to have IPRs in our Constitution is that in Uganda’s situation, the promotion of science, research and innovation is not much reliant on what the law (in this case Constitution) says but rather what the government policy is, it is one thing having a law and another thing implementing it through a clear government policy. The government policy towards research and innovation seems rather positive. This can be clearly seen from the National ICT policy of 2012 where one of the broad policy objectives is to promote innovation and enhance research.
In the same policy, it is expressly indicated that the government is to commit to protection of IPRs through a legal framework which is the existing copyright law. The same is reflected in the institutions that have been set up by government to achieve this aim. An example is UIRI, a research institute solely set up to promote research and innovation. It is important to note that this was set up without a provision in the Constitution that specifically protected IPRs. The aim of this argument is to demonstrate that it is possible to achieve the objective of IPRs (Promotion of research and innovation among others) without the unnecessary trouble of amending the Constitution.
IPRs are a monopoly; they stifle competition and promote exploitation of the public. They are only meant to benefit the rich employer and not his workers. They are against the general good. And where they are considered thus, they should be limited. For example in South Africa, plain packaging by cigarette industries is prohibited in light of public policy even if it is a trademark.20
Incidentally, IPRs limit investment to only that which should not be considered infringing; the motive of it to promote investment becomes counterproductive in that regard. Even if the owner licenses to potential investors, they will be priced out since they can only charge a lower price than his in order to attract market.21
In addition to that, IPRs and power concentration limit participation, sharing and creativity which can lead to collective investment. With IPRs, ideas are limited because information is stifled. Besides, having these rights enforced would be a disadvantage to the Ugandan investor, the enforcement of these rights will shift business from the Ugandan businessmen to big American and European big businesses. This shift in business was predicted in neighbouring Kenya. Andersdotter argues that moving the Kenyan legislation towards the European will shift power from Kenyan entrepreneurs to European big business. The effects may, in the worst case, make the Kenyan economy benefit the European economy more than it benefits Kenyans.22
Finally, IPRs are not protected by inserting a clause in the Constitution, for that only protects IPRs in a particular country since IPR protection is based on the national level, IPRs are protected by timely registration of one’s IPR with the relevant IPRs protection umbrella organisations that cover the countries in which the inventor wants his right protected. For example, In case one wishes to have their right protected in Africa, they will go to African Regional Intellectual Property Organisation (ARIPO), in case of protection over the world, one goes to World Intellectual Property Organisation (WIPO). Mere registration with the national registry does not confer full protection throughout the world especially since reciprocal protection arrangements cannot be with every country. Proper protection is guaranteed with registration at an umbrella body.
In advancing this argument, I’m not suggesting that it is not important to promote IPRs through a sound legal framework, as a matter of fact; each IPR should have a corresponding law that supports it. However, my argument is rather that, the sound legal framework need not be the Constitution; it can be an Act of parliament like the Industrial properties Act or the Copyright and neighbouring Act. As long as these laws are in place, it can only be over ambitious to have IPRs Constitutionalised.
IPRs are key for a robust economic development; they have the power to frog leap any economy from a take off stage to a self reliant and independent economy. They influence industrial development and promote research but they are not so fundamental to be embedded in the Constitution, the present law is sufficient to acknowledge their relevance. Besides, they have been enforced by courts before and certainly, the courts have already taken notice of them through the famous doctrine of precedent.
1 Legal framework of the Intellectual Property system of Uganda, World Intellectual Property Organisation
2Egyptian And Tunisian Constitutions Favour Intellectual Property Rights-Here’s Why That’s Important, Kathleen Caulderwood March 18 2014 6:44 AM)
3 THE CONSTITUTIONAL FRAMEWORK FOR THE PROTECTION OF INTELLECTUAL PROPERTY RIGHTS IN KENYA By Allan Tuli
4 Anthony C.K. Kakooza, EMBRACING E-COMMERCE IN UGANDA: Prospects and Challenges
5 Quoted in William, Gindlesperger Why Intellectual Property is protected by the US Constitution. 13/06/2011
7 High Court (Commercial Division), Civil Suit No. 307 of 2011
8 The 1995 Constitution of the republic of Uganda
9 Constitutional Appeal No.3 of 2006 UGSC
11 2002 4 SA 768 (CC) (FNB)
12 2006 1 SA 144 (CC) para 17
13 Beinbridge, D. I. (2010). Intellectual Property. Edinburgh: Pearson Education Limitted.
14 Uganda, Supreme Court, Constitutional Appeal No 1 of 2004
15 AJ Van der Walt and RM Shay, CONSTITUTIONAL ANALYSIS OF INTELLECTUAL PROPERTY.
16 Supra 8
17Lawrence R. Helfer, Human rights and intellectual property; conflict or coexistence?
18 Registrar of copyrights rulling in 2010
19 Kakooza, Anthony, The Cultural Divide: Traditional Cultural Expressions and the Entertainment Industry in Developing Economies, J.S.D. diss., University of Illinois at Urbana-Champaign, 2014
20 AJ Van der Walt and RM Shay, CONSTITUTIONAL ANALYSIS OF INTELLECTUAL PROPERTY.
21 Dr Birgitte Andersen. ‘Intellectual Property Right’ Or ‘Intellectual
Monopoly Privilege’: Which One Should Patent
Analysts Focus On?
22 Amelia Andersdotter, Why Kenya’s Attempt To Put Intellectual Property Rights In Its Constitution Is A Mistake
AJ Van der Walt and RM Shay, (2014) Constitutional analysis of intellectual property.Retrieved from ssrn.com/abstract=2497991
Allan, Tuli (2014) The constitutional framework for the protection of intellectual property rights in Kenya, retrieved from www.academia.edu
Amelia, Andersdotter,(2010) Why Kenya’s Attempt To Put Intellectual Property Rights In Its Constitution Is A Mistake.Retrieved from https://www.techdirt.com/articles/20100706/23322610092.shtml
Anthony C.K. Kakooza (2008) Embracing e-commerce in Uganda: Prospects and Challenges. The Uganda Christian University Law Review, Vol. 01, No. 2 August 2009
Beinbridge, D. I. (2010). Intellectual Property. Edinburgh: Pearson Education Limitted.
Dr Birgitte Andersen. ‘Intellectual Property Right’ Or ‘Intellectual
Monopoly Privilege’: Which One Should Patent
Analysts Focus On? Retrieved January 28 2015 from www.redesist.ie.ufrj.br/globelics/pdfs/GLOBELICS_0050_Andersen.pd
William, Gindlesperger (2011) Why Intellectual Property is protected by the US Constitution. Retrieved January 26 2015 from www.manufacturing.net
Kakooza, Anthony (2014) The Cultural Divide: Traditional Cultural Expressions and the Entertainment Industry in Developing Economies, J.S.D. diss., University of Illinois at Urbana-Champaign.
Kathleen, Caulderwood (2014) Egyptian and Tunisian Constitutions Favour Intellectual Property Rights-Here’s Why That’s Important, retrieved from www.theglobalipcenter.com
Lawrence R. Helfer, (2003) Human rights and intellectual property; conflict or coexistence? Minnesota Intellectual property review. Vol 5 No.1 2004