By Desmond Oriakhogba and Chijioke Okorie
Background
There is no generally accepted definition of digital trade. However, there is increasing recognition of the fact that digital trade includes digitally-enabled transactions in goods and services. Digital trade may be in respect of physical goods delivered physically or in relation to intangible products and services supplied digitally (see here and here), such as online streaming and download businesses.
To facilitate digital trade in copyright on the continent, such as by online streaming and download platforms, African collective management organisations (CMOs) recently established a multi-territorial digital copyright licensing hub. The hub, which links 17 CMOs across Africa by reciprocal agreements, operates through the Composers, Authors and Publishers Association (CAPASSO) in South Africa. The hub has so far granted multi-territorial digital copyright licenses over music and sound recordings to major players, such as YouTube, Apple Music, Spotify, Facebook, Udux, Boomplay, etc.
Multi-territorial digital copyright licensing is a business model developed by CMOs to enable trade in copyright in the digital space. It thrives on cooperation, through reciprocal agreements, between sister CMOs from different jurisdictions forming a central hub for granting licences covering the CMOs’ repertoires for the commercial exploitation of copyright online. The central hub bundles the copyright in the repertoire through a single licence that enables the licensee to exploit the copyright online for all territories in which the participating CMOs operate. Multi-territorial digital copyright licensing developed from, and is shaped by opportunities and challenges that digitisation brings to the copyright system. To be effective, the central licensing hub also deploys useful digital technology to manage copyright online.
Multi-territorial digital copyright licensing is not entirely new. It exists in Europe, for instance, where the European Union (EU) has already formulated directives for its operation within the EU internal market. Gleaned from the EU’s experience (see here), multi-territorial digital copyright licensing is an interesting practical example for the future implementation of the overarching objectives of the Agreement on the African Continental Free Trade Area (AfCFTA agreement). Multi-territorial digital copyright licensing within the AfCFTA has the potential to enhance incentives for copyright owners through increased earnings made possible by continent-wide digital copyright licensing. It also has the propensity to foster digital trade in copyright, such as by online streaming and download platforms, through a one-stop cross-border multi-territorial authorised access to copyright protected works within the purview of the AfCFTA.
The AfCFTA and copyright
The AfCFTA agreement came into force on 30 May 2019. Phase II negotiations, was scheduled to commence between December 2018 and January 2019 with the development of a draft Protocol on IP, among others. The draft Protocol would then be finalised in December 2019 for eventual adoption in June 2020. However, the summit in which the Protocol would have been adopted did not hold as a result of the uncertainties caused by the COVID-19 pandemic. AfCFTA’s overarching objectives (art.3 AfCFTA agreement) can be aptly summarised as the achievement of pan-African trade liberalisation, economic integration and socioeconomic development in line with the AU Agenda 2063 aspirations. To achieve its broad objectives, the agreement outlines 7 specific goals, which include cooperation on IP rights (art.4).
From existing official reports and studies (see here and here), when concluded, the IP Protocol would comprise high-level policy aspirations on key cross-cutting IP issues in similar fashion as the existing trade in goods, trade in services, and dispute settlement protocols. For instance, the Assessing Regional Integration in Africa IX (ARIA IX Report) contains 10 high-level policy recommendations for a viable IP protocol under the AfCFTA. One of the recommendations is specific to copyright – the recommendation requiring ratification of the Marrakesh VIP Treaty (ARIA IX Report, p131). The report does not specifically mention collective management of copyright. Nonetheless, it recognises that the IP Protocol may designate areas for regional cooperation, which may include “strengthening the means for copyright holders to secure a fair share of the proceeds from commercial use of their work” (ARIA IX Report, p129). Undoubtedly, this speaks to copyright licensing and can offer a leeway to develop guiding principles for multi-territorial digital copyright licensing within the context of the AfCFTA.
Other overarching policy recommendations, not specific to copyright, may also be useful to develop guiding principles, which will inform specific guidelines or best practices document, for multi-territorial digital copyright licensing within the purview of the AfCFTA IP Protocol once adopted. Important recommendations in this regard include those requiring the AfCFTA IP Protocol to provide for non-discrimination among nationals of member states on IP-related matters, the development of “norms to safeguard African interests, including non-discrimination among African countries” on IP-related matters, and the establishment of “a regional IP exhaustion system to prevent fragmentation of the AfCFTA market and encourage regional value chain development” (ARIA IX Report, p131). However, the question remains how to formulate specific guiding principles for multi-territorial digital copyright licensing within the purview of the AfCFTA from these high-level policy recommendations.
The AfCFTA and digital trade
Digital trade has become a major phenomenon in contemporary commerce such that it now constitutes a key agenda to be considered in policy conversations around global and regional trade (see here, here, here, and here). Online IP licences, particularly copyright, form a huge market and a key element of digital trade globally (see here and here). While digital trade in copyright licences has advanced in developed and other developing regions, such as Asia, the phenomenon is fast growing in Africa. For instance, report shows that digital copyright licensing amounted to 14.7% of the total EUR78,000,000 (USD88,011,768) licencing revenue collected by African CMOs in 2018. This signified a 32.5% increase over a period of five years from 2014 to 2018 (the reporting year). Also, music streaming revenue in Africa is projected to reach USD555,000,000 in 2020 and USD872,000,000 by 2024 (see here).
Digital trade is not expressly mentioned in the AfCFTA agreement. However, it is a form of trade falling under the ambit of the AfCFTA agreement for which special rules may be developed given the peculiar nature of the digital space. According to the ARIA IX Report (p229), digital trade manifests primarily in the form of e-commerce, which can be defined as the exchange in goods and services, including copyright, undertaken over computer networks adopting “multiple formats and devices, including the web and electronic data interchange, using personal computers, laptops, tablets and mobile phones of varying levels of sophistication”. E-commerce may comprise physical commodities and intangible goods, such as copyright, and services that can be digitally delivered.
Identifying e-commerce as a potentially important driver and outcome of intra-African trade, the ARIA IX Report acknowledges the interplay between e-commerce and other issues such as consumer protection and electronic transaction law. While copyright is not mentioned specifically, the ARIA IX Report makes a case for the formulation of consistent rules that will simplify e-commerce across Africa and ensure fair competition among firms. In this connection, the ARIA IX Report recognises the existence of evolving national and regional e-commerce policies and strategies which can serve as bases for cooperation among African countries to prevent barriers to e-commerce and the fracturing of the African digital space by tech giants (ARIA IX Report, p263).
Carefully developed guiding principles for multi-territorial digital copyright licensing within the AfCFTA may form a model for the formulation of such consistent rules for e-commerce envisaged by the ARIA IX Report. To be effective, however, the guiding principles must take cognisance, from an African perspective, of the impact of digitisation on copyright including its social dimensions, the key stakeholders involved in the commercial exploitation of copyright online, the nature of the online business models shaped by copyright and developed by industry players, the role of CMOs in the facilitation of trade in copyright on the internet through multi-territorial licensing (see here), and the deployment of digital technologies (such as blockchain) for copyright management.
Key questions for consideration
Multi-territorial digital copyright licensing within the AfCFTA raises important questions, which a carefully developed set of guiding principles must address. These questions include accountability and transparency issues in relation to royalty collection, distribution and the use of the metadata identifying copyright owners and their works. Other questions relate to the extent to which the centralised licensing hubs can:
- limit copyright owners’ exclusive rights to grant direct individual commercial digital or open licenses to online users;
- prevent national copyright owners from joining foreign CMOs within Africa;
- prevent online users from directly accessing the individual national repertoire of CMOs in Africa; and
- constrain the operationalisation of copyright exceptions and limitations within the digital space.
To address the foregoing, our study is examining key questions, such as:
- how multi-territorial digital copyright licensing can be aligned with the overarching objectives of the AfCFTA?
- how the high-level policy recommendations in the ARIA IX Report relating to IP should be specifically tailored to guide the operation of multi-territorial digital copyright licensing within the AfCFTA?
- how digital technologies, such as blockchain, can be deployed towards multi-territorial copyright licensing under the AfCFTA
- whether there are any similarities between the African multi-territorial digital copyright licensing with the practice in in Europe such that Africa can draw important lessons from the EU experience?
Conclusion
Multi-territorial digital copyright licensing has birthed in Africa and it is a practical model for the facilitation of digital trade within the AfCFTA. Its sustenance, however, depends largely on carefully developed guiding principles that considers the peculiarity of commercial exploitation of copyright online within the African context. Our ongoing research seeks to develop such guiding principles.
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