Copyright And Competition: Whose Burden?

Copyright is the right that vests in a holder regarding original work, enabling them to prevent unsolicited copying.

This means a copyright holder has an exclusive right to authorise the copying of their work. However, copyright infringement has become the order of the day, resulting in the unjustified enrichment of offenders at the expense of authors.

Incidents of the reproduction of songs and sound recordings have been observed despite the existence of the Copyright and Neighbouring Rights Protection Act of 1994.

Musicians often replicate old songs of authors who have aged or died. These artists vary the rhythm and acoustics without permission and pass them off as their own. Some even replicate ancient religious hymns and twist them into entertainment songs while leaving the original lyrics intact.

The law provides that a copyright holder enjoys protection for 50 years after the year the author dies. However, this is often not feasible because many artists’ estates are not reported to the master of the high court. Without the appointment of an executor, there is no one responsible for instituting action against infringers.

Similarly, there is poor enforcement of trademark law. In many cases, marks used to distinguish goods and services are abused with impunity. Some even use the national flag as a trademark, while others use deceptive marks likely to mislead the public about the origin of goods. Some businesses replicate well-known foreign trademarks, using names like Manchester United or Chicago Bulls to lure customers. This is an unfair practice and an infringement of a proprietor’s rights. Despite the Industrial Property Act of 2012, trademarks continue to be exploited.

Many traders also find themselves vulnerable to unlawful competition. Deception regarding other traders’ products continues unabated, with some imitating names by spelling them slightly differently to create a false impression of quality. These conducts infringe on a trader’s right to attract goodwill.

In terms of the Paris Convention, to which Namibia is a signatory, member countries are obliged to provide effective protection against unlawful competition. We must ask whether the Business and Intellectual Property Authority Act and the Competition Act offer enough protection to traders.

Currently, many victims are left without remedies, burdened by the tedious and costly process of instituting legal action on their own. – Lucas Tshuuya

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