Somaliland Copyright Law
Copyright (or Author’s Right, in civil law countries) – in Somali, Xuquuqda Qoraaga or, as I prefer, Xuquuqda Allifaha (ama Curiyaha) – is essentially a right that subsists in specified types of creative (original) literary or artistic works such as books, music, paintings, sculptures, films and technology based works. It is an important type of intellectual property (which includes the other mainly industrial/commercial property right, such patents, industrial designs, trademarks, commercial names etc. The owner of a copyright in a work has the exclusive right to make copies, broadcast or sell copies of the work. Copyright was initially aimed at preventing copying of printed works, but from the early British common law copyright rules and the UK’s 1709 Copyright Act (the Statute of Anne) and the various world-wide copyright conventions during the last two centuries, the statutory copyright protection now extends, especially in the wake of ‘digitization’ and globalisation, to musical and dramatic performances, and works like designs on clothes, contents of digital discs, computer games and software, and the new ways of disseminating creative works worldwide have also expanded communication to the public and the wider reach of copyright and neighbouring (related) rights.
The World Intellectual Property Organisation (WIPO) administers the following international conventions dealing with copyright and neighbouring (related) rights:
- Berne Convention for the Protection of Literary and Artistic Works (1886, as revised in 1908 (Berlin); 1928 (Rome); Brussels (1948); Stockholm (1967) and Paris (1971).
- Brussels Convention Relating to the Distribution of Program-Carrying Signals Transmitted by Satellite (The Satellites Convention) 1974.
- Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (The Phonograms Convention) 1971.
- Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (The Rome Convention) 1961.
- WIPO Copyright Treaty (WCT) 1996.
- WIPO Performances and Phonograms Treaty (WPPT) 1996.
The World Trade Organisation (WTO) administers the 1994 Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). TRIPS requires members of the WTO to protect and (Arts. 9 to 14) and enforce copyright (and other IP rights).
Although common law countries traditionally considered copyright a property right, civil law countries often saw copyright as an individual right. The protection of the moral and material interests resulting from any scientific, literary or artistic production is now also recognized as a ‘human right’, for example, in the following international instruments. The Universal Declaration of Human Rights (1948) - ‘Art. 27: (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. The International Covenant on Economic, Social and Cultural Rights (1966) – Art. 15(1): ‘The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’.
This page (and website) is essentially about the legal protection and enforcement of copyright and other neighbouring (related) rights and not about political or economic aspects of the copyright protection. Developing countries have often had a different approach to the balances to be struck between the interests of the copyrights owners/holders and users/consumers of the protected works, which is reflected in and the levels of implementation and enforcement of copyrights laws. As we can see below the 1977 Somali Democratic Republic (SDR) Copyright of 1977 (which predates the WTO TRIPS but not the WIPO) was, by all accounts, hardly ever implemented or enforced. Emphasis on Trade and property rights on the one hand and concerns about development, expansion of knowledge and safeguarding indigenous cultural on the other are often the axis on which copyright and other IP rights protections policies and bilateral TRIPS linked trade agreements are viewed in the less developed countries. The WIPO Tunis Copyright Model Law for Developing Countries 1976 addressed some issues such as ‘folklore’, but requires ‘ digital age’ revisions that can also accommodate some of concerns of less developed countries on issues such as copyright exceptions and fir dealing (use) and access to knowledge and cultural works.
Somaliland Copyright Law (1912 to 1977)
Although few people are aware of, Somaliland had a copyright law since 1912 when the then UK Copyright Act 1911 was extended to many British colonies and protectorates by an Order in Council in June 1912. The Act came into force in Somaliland (The Laws of the Somaliland Protectorate, Revised Edition 1950, British and Indian Acts Applied in Protectorate, p. xxvi (and Ch. 86))- and other British protectorates - on July 1912 on the authority of the Order in Council and under the Somaliland Copyright Ordinance No. 3 of 17 July 1918, the Somaliland Chief of Customs was designated ‘to perform the duties and may exercise the powers thereby imposed on or given [under the Act] to the commissioners of Customs and Excise of the United Kingdom’ in connection with importation of any works infringing the Act. No other ordinances were needed to implement the Act. The 1911 Act, which was referred to as first ‘global’ Copyright Law (U. Suthersanen, The First Global Copyright Act, in A Shifting Empire: 100 years of the Copyright Act 1911, in U. Suthersanen & Y. Gendreau (eds.). Edward Elgar, 2012) because of its reach, consisted of 37 sections and two short schedules which implemented the provisions of the (then) revised 1886 Berne Convention. The Act applied to ‘every original dramatic musical and artistic work’ (s.1(1)) whether published or unpublished and significantly, unlike other intellectual property rights, there was no requirement of registration for the protected copyright under the Act to vest in an author of such work. The common law (i.e case law based) copyright was replaced by a statutory copyright and the duration of Copyright protection was extended to the life of the author plus 50 years thereafter. The deposit of copies of published books to the British Museum [the British Library since 1972] and to other main designated libraries, though set out in various ways previously, was laid down in detail in section 15 of the Act and has survived to date. I mention this because it features in later laws discussed below.
The 1911 Act was superseded in the UK by the Copyright Act 1956. This Act consisted of 51 sections and nine schedules and covered not only copyright in literary, dramatic and musical works, but also cinematograph films and television and sound broadcasts. Derivative works were covered separately and there were special exceptions as respects libraries and archives. Section 31(1) of the Act, which is similar to s.28 of the 1911 Act, laid down that the Act may be extended by an Order in Council to among other territories ‘any country outside Her Majesty’s dominions which for the time being Her Majesty has jurisdiction’ such as, for example, protectorates. An Order in Council dated 19 January 1959 (the Copyright Act 1956 (Transitional Extension) Order which came into force on 26 January 1959) then extended the Act to ‘all countries outside her Majesty’s dominions in which for the time being Her Majesty has jurisdiction, being countries to which the Copyright Act 1911 was extended by Order Council’. I can trace no further Somaliland copyright ordinances issued in either 1959 or prior to independence on 26 June 1960, but the Index to the Laws in force in the independent Somaliland (published in August 1960) only lists the Copyright Act 1911 as being still current, which indicates that the 1956 Act was never applied in Somaliland.
On Somaliland’s independence on 26 June 1960, section 54(1) of the independent State of Somaliland Constitution (1960) confirmed that ‘the existing law’ in Somaliland on independence ‘shall continue to be the law of Somaliland as from the commencement of this Constitution except in so far as it is thereafter amended, modified, repealed or revoked by competent authority’. ‘The existing law’ was defined in the section as meaning ‘the written and unwritten law of Somaliland as it exists immediately before the commencement of this Constitution’ on 26 June 1960. This was also entrenched in the Article 3(1) of the 1961 Somaliland and Somalia Act of Union which stated that ‘[t]he laws in force in Somaliland and Somalia at the time of the establishment of the Union shall remain in force and effect in the respective jurisdictions subject to the provisions of the Constitution, this law or any future law’. But although, like other former British Protectorates, such as Kenya and Uganda, Somaliland became bound by, for example, the principles of the Berne Convention and the Universal Copyright Convention which were set out in the Copyright Acts subsisting on independence and the Copyright Act continued to apply, after the union with Somalia, in the territory of Somaliland, the new united State of the Somali Republic never acceded to any of the copyright conventions. The Somali Democratic Republic (SDR) acceded to the WIPO Convention establishing the World Intellectual Property Organisation on 18 August 1982 and ratified on 14 May 1978 the 1977 OAU Cultural Charter for Africa which, in Art. 25, states that ‘African governments should enact national and inter-African laws and regulations guaranteeing the protection of copyright, set up national copyright offices and encourage the establishment of authors’ associations responsible for protecting the moral and material interests of those who produce work that gives spiritual and mental pleasure’.
Although the some of the main laws , especially relating to criminal and administrative matters, of Somaliland and Somalia have been integrated, predominantly through the adoption of Somalian Italian based laws during the 1960s, it was only in the 1970s that the major civil laws were integrated. Intellectual property (IP) laws were an example of such civil laws and, as was often the case, in 1975 the Italian 1955 trademarks and patents laws applicable in Somalia were simply extended to Somaliland whose previous UK law based Trade Marks and Patents Ordinances were thereby repealed.
In 1977, the then Somali Democratic Republic (SDR) Government passed the first Copyright Law – Law No. Law No. 66 of 7 September 1977 (Sharciga Xuquuqda Qoraaga in Somali) (see below), which (as confirmed in Art. 95(2) of the Law) came to force on its signature by then President on 7 September 1977. Unlike the 1975 extension of the 1955 Somalian Intellectual Property laws to Somaliland territory expressly made clear the repeals of the then prevailing IP Somaliland legislation, the 1977 Copyright Law failed to mention at all the repeal of the previous Somaliland Copyright Law and simply sated in Article 93 (Repeal) that ‘all laws which conflict with this Law (i.e the new Copyright Law) or which are incompatible with this Law are hereby repealed’. This was an imprecise repealing provision which invites article by article examination of the previous Somaliland Copyright law for conflict or incompatibility and sadly was often used in the SDR laws (and sometimes, even now in Somaliland legislation), but in view of the length of the new 1977 Law and its broad coverage, discussed below, it can be concluded that it has indeed repealed the previous Somaliland Copyright law.
Athough I have now recently traced a copy of this Law (see below), there are no indications that any regulations to implement it have ever been issued. It was appears also that the Law was never widely used nor enforced. As it has not been appealed either, and is also, in many respects an out of date law, the next question which I shall address is how far it can be still applicable (or even can be applied) in the Republic of Somaliland before I outline the main provisions of the Law . There are, of course, different considerations in Somalia. See below for more information on the 1977 Law.
The 1977 Copyright Law and Somaliland
Firstly, Art. 16(1) of the Somaliland Constitution lays a positive duty on the State to ‘promote knowledge and literature’ and to ‘encourage creativity and research’. Art. 16(2) then adds that ‘the law shall determine the rights to authoring, creating and inventing’ i.e protecting intellectual property of all types, including copyright and neighbouring rights. This is another duty on State to ensure that these laws do exist. As I have mentioned above copyright and other intellectual property is seen as a right under the International conventions to which the Somaliland State is expressly bound to observe under Art. 21 of the Constitution. The right of authors ‘to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production’ of which they are author, as set out in the International conventions mentioned above (and also referred in the Somaliland Constitution – Arts. 10 and 22(2)) relate to both to the fundamental rights of expressing opinions ‘orally, visually, artistically or in writing or in any other way’ under Art. 32(1) of the Constitution and dorm also part of ‘the right to own private property’ under Art. 31 of the Constitution.
Secondly under Art. 130(5) of the Somaliland Constitution any pre 1991 laws that have not been repealed ‘and which do not conflict with Islamic Sharia, individual fundamental freedoms’ (and rights) set out in the Constitution ‘shall remain in force in the country of the Republic of Somaliland until the promulgation of laws’ which are fully in accord with the Constitution are promulgated. Clearly reference in such laws to the Somali Republic or the Somali Democratic Republic and its institutions, if applied in Somaliland will have to be read as referring to Somaliland and its institutions and also provisions which are blatantly contrary to other parts of the Constitution have to be disapplied or interpreted in a manner that is consistent with them. In my view, also any provisions that are currently plainly impractical or unenforceable or out of date or are significantly out of step with international practice or existing similar legislation in other countries, because of the changes of circumstance and passage of time need not be applied as they shall not be in the interest of the Somaliland people.
In my detailed note on the 1977 Law (to be published shortly on this page), I point out that that whilst this Law follows, to some extent, the 1976 Tunis Model Copyright Law for Developing Countries, it is let down by highly prescriptive registration regime, without which the copyright protection will not arise, the controlling role of the Minister in respect of re-publications and also in respect publication by foreigners which reflect the repressive nature of the then regime, its monopoly of printing and publishing in the country at time which is reflected in the 1974 Authorship Law (Xeerka Qorista Buugaagta), Law No. 44 of 2 October 1974 that was not repealed by this Law and the Censorship Law, Law No. 4 of 2 January 1971, which controlled publishing, importation of works, and performances of works. The Authorship Law, for example set up a regime where a committee vetted any books ‘worthy’ of publication and copyright was owned by the National Printing Press although the author had ‘moral’ right to his name as author. In short until Somaliland can adopt a new up to date Copyright Law, any short term implementation of this Law as a stop gap will only be advisable if the following issues are addressed :
- In addition to the removal of references in the Law to the Somali Democratic Republic and its institutions, all the provisions relating to compulsory registration and the wide autocratic role of the Minister are disapplied. There is no Copyright Registration Office in existence, anyway, and in any case, as was the case in the previous Somaliland Copyright Law and, unlike patents and trademarks, registration is not essential for copyright to arise, as copyright is an automatic right arising from the very creation of an original work of the type protected under the Law.
- The prescriptive provisions relating to the Minister’s powers over publications (and specially those by foreign authors; the percentages of payments in the assignment (or licence) of copyrights and in publishing agreements are highly dictatorial and out of date and should be disregarded.
- The civil and criminal enforcement of copyright infringements provisions are predicated on the compulsory registration and would need to be de-coupled.
- What is left could be implemented as an interim measure under a Presidential decree, but it would be advisable as well that the Decree appoints a Committee including representatives of authors, the media and acadamia to help draft a new modern Somaliland Copyright Law in line with more recent international conventions/treaties, with updated exceptions and fair dealing (use), and covering adequately Somaliland folklore and neigbouring rights; and which also sets up a voluntary registration system (if thought necessary in the Somaliland context) and an appropriate model for collective administration of copyright and neigbouring rights as is the case in all the East African countries that, like Somaliland, have started with the 1911 Copyright Act.
The 1997 SDR Copyright Law - Law No. 66 of 7 September 1977 (Sharciga Xuquuqda Qoraaga in Somali)
For a more detailed examination of the Law, see below (and the forthcoming electronic booklet: Somaliland Copyright Law)
As far as I am aware, the Law was never translated into English and so I set out below for reference purposes, the arrangements of the Parts and Articles of the Law in Somali and my own translation of their headings:
(SDR) COPYRIGHT LAW - LAW No. 66 of 7 September 1977
Arrangement of the Articles in Somali and its translation into English
Editor, www.somalilandlaw.com May 2015
QAYBTA 1: Hawlaha la dhawrayo
Qod. 1 Qeexid iyo Macnayn
Qod. 2 Hawlaha iyo xuquuqda la dhawro
Qod. 3 Magaca hawsha
Qod. 4 Hawlaha dheegashada ah
Qod. 5 Hawlaha aan la dhawrayn
QAYBTA 2: Xuquuqda qoraha iyo qofka yeelan kara
Qod. 6 Xuquuqda Qoraha
Qod. 7 Qofka yeelan kara Xuquuqda Qoraha
Qod. 8 Heshiisyada Xuquuqda Qoraha Waxyeellaynaya
QAYBTA 3: Xuquuqda qorayaasha la dhawrayo
Qod. 9 Qorayaasha Soomaaliyeed
Qod. 10 Qorayaasha aan soomaalida ahayn
Qod. 11 Qoraaga shisheeyaha ah oo hawshiisa lagu soo daabaco dibedda
Qod. 12 Qorayaasha shisheeyaha ee hawshooda la dhaliyeen qorayaasha soomaaliyeed
QAYBTA 4: Noocyada xuquuqda
Qod. 13 Ma laha cinwaan
Qod. 14 Xuquuqda dhaqaale
Qod. 15 Xuquuqda macnawiga ah (moral)
QAYBTA 5: Wareejinta xuquuqda qoraha
Qod. 16 Wareejinta xuquuqda dhaqaalaha
Qod. 17 Wareejin la'aanta xuquuqda qoraha haddii aan qoraal jirin
Qod. 18 Xuquuqda aan la jabin karin
Qod. 19 U qaadashada tixgelinta ku saabsan wareejinta
Qod. 20 Wareejinta asalku kuma lug laha wareejinta xuquuqda qoraaga
Qod. 21 Xaq uu qoraagu u leeyahay inuu hawshiisa ka soo ceshado dadweynaha
Qod. 22 Waajibka qoraaga ee ku saabsan wareejinta xuquuqda qoraaga
Qod. 23 Maxkamadda ku shaqo leh xuquuqda qoraaga
QAYBTA 6: Muddada
Qod. 24 Muddada caadiga ah
Qod. 25 Muddada hawlaha aan cid leh la aqoon kuwa lagula been-magac baxay
Qod. 26 Hawsha la qabto dhimashada qoraaga kaddib
Qod. 27 Lambarinta iyo kala qaybinta hawlaha
Qod. 28 Bilowga muddada dhawridda
QAYBTA 7: Wax-qabashada iyo inta xadkeedu le'eg yahay
Qod. 29 Dadka wax ka qaban kara
Qod. 30 Dadka leh dhaxalka qoraaga
QAYBTA 8: Hawlaha dadweynuhu leeyahay
Qod. 31 Qeexidda hawlaha hadweynuhu leeyahay
Qod. 32 Lahaanshaha guud ee xuquuqda qoraaga ee hawlaha dadweynuhu leeyaha
QAYBTA 9: Ma laha cinwaan
Qod. 33 Oggolaanshaha isticmaalka hawlaha cilmiga ah
Qod. 34 Amarro khasab ah
Qod. 35 Dhaqangelinta habboon
QAYBTA 10: Heshiiska daabicidda
Qod. 36 Heshiiska daabicidda
Qod. 37 Xuquuqda iyo awoodda daabacaha
Qod. 38 Waxyaalaha heshiiska lama huraanka u ah
Qod. 39 Lumidda ama kharribidda hawsha gacanta ku qoran ka hor in taan la daabicin
Qod. 40 Muddada u go'an gudbinta iyo daabicidda hawsha gacanta ku qoran
Qod. 41 Nuqulladii aan gadmin kaddib marka heshiisku dhaco
Qod. 42 dhicidda heshiiska marka dhawr daabacadood dhammaadaan
QAYBTA 11: Heshiiska soo bandhigidda iyo bandhigidda qorayaasha
Qod. 43 Heshiiska soo bandhigidda
Qod. 44 Caddeeynta qoran ee hawl lagu guddoomay
Qod. 45 Waajibaadka kooxda saddexaad
Qod. 46 Ciriir gelinta madax bannanida ka faa'iideysiga soo banidhigidda hawl la oggolaaday
Qod. 47 Qeexidda soo bandhgidda
Qod. 48 Cinwaan ma leh
Qod. 49 Hobal kastaa wuu is-hortaagi karaa soo bandhigidda hawshiisa
QAYBTA 12: Heshiiska ku magacaabidda
Qod. 50 Heshiiska ku magacaabidda
Qod. 51 Awoodda dibu-badinta (reproduction) hawlaha laysku magacaabo
Qod. 52 Kontrolidda isticmaalka sawir gacmeed qorshaynta dhismaha (architectural plans) ama qaabka (designs) iyo hawlaha la midka ah
Qod. 53 Bandhigyo gaar ah ayaa raadiyaha ama telifisyoonka laga sii deyn karaa ayadoo ay oggolaatay hay'adda ka mas'uulka ahi
QAYBTA 13: Ku-xagudbidda xuquuqda qoraha
Qod. 54 Xeerka guud ee ku saabsan xadgudbidda
Qod. 55 Daabicid, gadid ama dibudaabicid sharci darro ah
Qod. 56 Qofka is-hortaaga soo bandhigid isago iska dhlgaya kll lahaa xuquuqda qoraaga
Qod. 57 Dacwadaha madaniga ah iyo kuwa dambiyada ah ee ka dhasha ku xadgudbidda sharciga way kala baxsan yihiin
QAYBTA 14: Hagaajinta iyo nidaamka madaniga ah (Civil remedies and procedure)
Qod. 58 Dacwadaha madaniga ah
Qod. 59 Kharashka dacwooyinka madaniga ah
Qod. 60 Cidda iska leh xuquuqda qoraaga ee la siinayo dhaca dheeftisa
Qod. 61 Cidaha wada leh xuxuuqda qoraaga, wadajir iyo kala jirba way u dacwoon karaan
Qod. 62 Lama dumin karo dhismo laga dhisay xuquuqda qoraha oo la dhacay
Qod. 63 Soo koobidda habka dacwooyinka degdegga ah
QAYBTA 15: DIIWAAN GELIN
Qod. 64 Deebaaji sharci ah
Qod. 65 Deebaajiga masawirrada, sawirradda aslan (painting) iyo masawirrada xardhan
Qod. 66 Hawlaha shineemooyinka iyo kuwa golayaasha murtida
Qod. 67 Shahaado diiwaan gelin oo ku meel gaar ah
Qod. 68 Habka diiwaan gelinta
Qod. 69 Waxyaalaha ka soo horjeeda diiwaan gelinta
Qod. 70 Daabacaha keeni waaya deebaajiga sharciga ah
Qod. 71 Deebaajiga nuqullada hawsha aan la daabicin
Qod. 72 Hawlaha aan diiwaanka la gelin karin
Qod. 73 Cashuurta diiwaangelinta
QAYBTA 16: Xafiska Diiwaan gelinta Xuquuqda Qoraaga
Qod. 74 Abuurista xafiiska diiwaan gelinta
Qod. 75 Diiwaanaada uu haynayo diiwaanhayuhu
Qod. 76 Diiwaangelinta heshiisyada iwm iyo waxyaalaha gaarka u ah xuquuqda qoraaga
Qod. 77 Astaanta diiwaan gelinta
Qod. 78 Soo saaridda nuqullada ama waxyaabo gaar ah ee hawl laga soo dhex saaray ee hore loo diiwaaniyey
Qod. 79 War ka raadinta diiwaanada
QAYBTA 17: Wax ka beddelidda dii waannada iyo gefafka uu sameeyo diiwaanhayuhu
Qod. 80 Sixidda yar ee diiwaanhayaha
Qod. 81 Maxkamadda ayaa amri karta sixidda ama wax ka beddelidda diiwaannada
Qod. 82 Ogaan u habaabinta maxkamadda ama diiwaanhayaha
Qod. 83 Ogaan u musuqmaasiqidda diiwaanhayaha
Qod. 84 Musuqa ka yimaada fiiradarro ciqaab mudan
(QAYBTA 18): Xeerar gaar ah oo ku meelgaar ah
Qod. 85 Tallaabada u horraysa ee sharci geynta
Qod. 86 Wixii ka dhiman sharcigan
Qod. 87 Dardaaran ku meelaynta xuquuqda qoraaga
Qod. 88 Dacweyn been ah ama aan macne weyn lahayn (frivolous) oo ku kaco qof iska dhigaya inuu leeyahay xuquuqda qoraaga
Qod. 89 Astaanta ku meel-gaarka ah ee diiwaaninta
Qod. 90 Muddada dhawridda hawlaha qorayaasha shisheeyaha
Qod. 91 Diiwaan gelinta hawlaha sharcigan ka horreeyey
Qod. 93 Burin
Qod. 94 Xeerhoosaadyada
Qod. 95 Dhaqangalka
PART 1: Works protected
Art. 1 Interpretation and definitions
Art. 2 Works and rights protected
Art. 3 Title of the work
Art. 4 Derivative works
Art. 5 Works not protected
PART 2: Copyright and the person who may own it
Art. 6 Copyright
Art. 7 The person who may own copyright
Art. 8 Agreements affecting copyright adversely
PART 3: The authors whose rights are protected
Art. 9 Somali authors
Art. 10 Non-Somali authors
Art. 11 Foreign author whose work is published abroad
Art. 12 Foreign authors whose works were co-authored by Somali authors
PART 4: The types of rights
Art. 13 No title - it lists the types of protected author’s rights.
Art. 14 Economic rights
Art. 15 Moral rights
PART 5: Assignment of copyright
Art. 16 Assignment of economic rights
Art. 17 No assignment of copyright unless it is in writing
Art. 18 Rights that cannot be alienated
Art. 19 Presumption relating to assignment
Art. 20 Assignment of the original work does not necessarily affect the assignment of the copyright
Art. 21 Right of the author to re-claim his work from the public
Art. 22 Obligation of the author in relation to the assignment of the copyright
Art. 23 The competent court for copyright
PART 6: Duration
Art. 24 Ordinary periods
Art. 25 Duration (of copyright) of works whose owners are unknown or have used pseudonyms
Art. 26 Works undertaken after the death of the author
Art. 27 The numbering and division of works
Art. 28 Commencement of the protection period
PART 7: Enforcement and its extent
Art. 29 Persons who may enforce
Art. 30 Author’s heirs
PART 8: Public domain works
Art. 31 Definition of public domain works
Art. 32 Public ownership of the copyright of public domain works
PART 9: No title – This part deals with exceptions and fair dealing/use
Art. 33 Permission for the use of scientific works
Art. 34 Binding orders
Art. 35 Proper implementation (Fair dealing )
Part 10: Publishing agreements
Art. 36 Publishing agreements
Art. 37 Rights and powers of the publisher
Art. 39 Loss or damage to manuscript prior to publication
Art. 40 Specified periods for the submission and the publication of the manuscript work
Art. 41 Copies not sold after the end of the agreement
Art. 42 End of the agreement after several publication runs
Part 11: Performance agreements and authors’ performance
Art. 43 Performance agreement
Art. 44 Written proof of acceptance of (assigned) work
Art. 45 Obligations of third parties
Art. 46 Limitation of freedom to exploit work whose performance has already been agreed to
Art. 47 Definition of performance
Art. 48 No title - It deals with power of the President to issue specific rules for the management of the performance of authors.
Art. 49 Every artiste may object to the performance of his work
Part 12: Assignment Agreement
Art. 50 Assignment agreement
Art. 51 Power to reproduce assigned work
Art. 52 Control of the use of a drawing, architectural plans or designs and other similar works
Art. 53 Special performance may be broadcast at radio or television with the consent of the relevant agency
Part 13: Copyright infringement
Art. 54 General provisions relating to infringement
Art. 55 Unlawful publication, sale or re-publication
Art. 56 Person objecting to (lawful) performance by claiming to be the copyright owner
Art. 57 Civil claims and criminal cases arising from infringements of the law are separate
Part 14: Civil Remedies and procedure
Art. 58 Civil claims
Art. 59 Costs of civil claims
Art. 60 Copyright owners entitled to damages arising from infringements
Art. 61 Copyright co-owners may sue jointly or severally
Art. 62 Building based on infringed copyright may not be demolished
Art. 63 Expedition of the procedures of urgent claims
Part 15: Registration
Art. 64 Legal Deposit
Art. 65 Deposit in relation to pictures, paintings and sculptures
Art. 66 Cinematographic works and entertainment centres’ works
Art. 67 Certificate of provisional registration
Art. 68 Registration procedure
Art. 69 Matters militating against registration
Art. 70 Publisher failing to submit the legal deposit
Art. 71 Deposit of copy of unpublished work
Art. 72 Works that cannot be registered
Art. 73 Registration fees
Part 16: Copyright Registration Office
Art. 74 Establishment of Registration Office
Art. 75 Registers kept by the Registrar
Art. 76 Registration of agreements etc. and matters particular to copyright
Art. 77 Registration seal
Art. 78 Production of copies or particular extracts of the previously registered work
Art. 79 Search of the Registers
Part 17: Amendment of the Registers and errors made by the Registrar
Art. 80 Minor corrections by the Registrar
Art. 81 Court may order correction or amendment of the Registers
Art. 82 Intentionally misguiding the Court or the Registrar
Art. 83 Intentional fraud by the Registrar
Art. 84 Fraud arising from culpable negligence meriting punishment
(Un-numbered Part 18): Special provisional rules
Art. 85 Initial enforcement steps
Art. 86 Any deficiencies of this Law
Art. 87 Testamentary disposition of copyright
Art. 88 False or frivolous suits by person claiming to be copyright owners
Art. 89 Provisional seal of the Registration
Art. 90 Duration of the protection of the work of foreign authors
Art. 91 Registration of works preceding this Law
Art. 92 Registration of public domain works
Art. 93 Repeal
Art. 94 Rules
Art. 95 Implementation
COPYRIGHT LAW - Law No. 66 of 7 September 1977- Outline of Main Provisions
The Law (Art. 2) protects ‘literary, artistic, artistic craftsmanship and scientific works which are lawfully created by authors using their mind’. This latter phrase imports the element of ‘originality’ which, in general, is accepted to relate more to the work originating from the author’s skills, creativity and effort and was not copied from another work, rather than the work being new, innovative or unique.
This protection shall particularly (but not exclusively) extend to:
- Books (small or large), articles or writings of whatever kind and nature, such as dictionaries, including encyclopaedias and any other collected works of whatever kind.
- Non-written literary, artistic craftsmanship and artistic works.
- Lectures, addresses, commentaries and other similar works.
- Dramatic works written or recorded or oral, music and, in general, other theatrical works.
- Any literary broadcast on radio or television, and any other original work created for radio or television.
- Newspaper and articles lawfully published.
- Drawing and engraved or designed articles.
- Literary anthologies and scientific works and their translations.
- Plastic works relating to geography (The phrase used in other Copyrights laws is ‘three dimensional works relative to geography’), maps, topography, audio-visual and other works relating to knowledge.
- Cinematographic works.
- Sketches and drawings.
- Paintings, illustrations and similar works.
- Sculptures and other similar works. (This list needs updating)
Derivative Works protected under the Law include translations, adaptations, abridgments or other transformations of literary, artistic or scientific works; collections of literary, artistic or scientific works such as encyclopaedias and musical anthological works and other similar works; and works derived from culture and folklore. (Arts. 4 and 2(xiv)).
As this Law was passed in 1970s, the scope of the protected works predated the computer age. Secondly, whilst this Law aimed to follow the Berne Convention, as, for example, re-stated in the 1976 Tunis Model Law on Copyright for Developing countries, it suffers, in my view, from inadequate translation into Somali. Thirdly, the definitions in Art. 1 of the Law are woefully inadequate as they do not define terms such as ‘literary’ or ‘artistic’ works etc
Neighbouring (or related) Rights – The Law mentions in passing some of the ‘neighbouring rights’ of performers, producers of phonograms and broadcasting organisations, but other than a few provisions relating to performance contracts, these important issues appear to have been left to subsidiary legislation (and we can trace no such regulations or rules ever being issues).
Works not protected
These are listed in the Law (Art. 5) as being -
- Laws and governmental statutory instruments.
- Notices of orders, warning circulars and other similar items issued by the branches of the government or by independent agencies, and official translations relating to the notices orders and warning circulars.
- Political speeches and addresses lawyers give in court proceedings and the official translations of these speeches.
- Judicial decisions, orders, judgments and court decrees, and administrative decisions of governmental bodies.
- The daily news broadcasts on radio (or television) for communication to the public. This, in my view, appears to relate to the content of the news, rather than the actual broadcast itself and the way it has been put together. Note also news reports also fall under the fair dealing (or use) exceptions.
Nature of copyright
The Law set out the two types of copyrights (Arts. 6, and 13 to 15). Firstly the economic right of the author or copyright owner to (do or authorise) the following:
- to reproduce his work and to decide the manner in which that work shall be reproduced;
- to translate, abridge or improve, as he sees fit and in accordance with his rights;
- to change his work , show it or allow it to be shown to the public;
- to broadcast or allow it to be broadcast on the radio (or television);
- to communicate it to the public;
- to be clearly informed of his allocated percentage as an author when the work is either sold or otherwise used;
- to allow other people to benefit lawfully from a part or all of his work
Secondly the author has moral rights (Xuquuqda Macnawiga ah) to claim authorship of his own work, in particular that his name as author be indicated in connection with the matters relating his economic rights (with the exception of occasions when the work is included accidentally or incidentally in broadcasts of reports current events and broadcasts). This authorship right is sometimes referred to as the ‘paternity right’ is also accompanied by the rights of the author to object to any distortion, modification or devaluing of this work or any other derogatory action which may damage his reputation or name -‘integrity right’. These moral rights subsist even where the author or his heirs no longer own the economic rights (Art. 15(3)) and are inalienable or not assignable (Art. 15(4)).
Who may own the copyright?
Art. 7 of the Law sets out that the copyright protected under this Law is owned by the author and by his heirs. Joint authors of the work are ‘equal’ co-owners of the copyrights of that work. Persons who may acquire copyrights through grant, purchase or licence shall have their copyrights protected. When an author creates a work under a contract with the government or an independent public agency, or the work created formed part of his ordinary activities (as part of that contract), the copyright of the work shall, unless there is clear evidence to the contrary, be owned by the government/agency he was so employed. Similar provisions apply where the author is commissioned for a fee to create a work on consideration of the payment of the fee.
This Law does not include any specific provisions for the ownership of ‘cinematographic work’, and so the assumption is that the intellectual creators of the work, (i.e the director, the various authors etc) are, in the first instance, owners of such work, thus following the civil law tradition.
The authors protected under the 1977 Law
The main authors protected under the Law are, as set out in Art. 9 of the Law, any Somali persons without any regard as to whether his work was created or published in the country or abroad; or was published or not published in compliance with this Law; or was written in any language.
Where, however, a Somali and foreign author create a joint work, that work shall be considered as work created by a Somali, whether or not the work is published within the country or abroad (Art. 12(1)). If, however, after publication, it turns out that the work ‘damages the Somali interest’, the Minister, whilst taking note of any permission given by the Presidency, shall order that the work shall not be published again if it was previously published in the country; all the copies of the work that had been circulated in the country shall be gathered and destroyed; and any income received by the authors from the work shall be surrendered.
Furthermore, under Art. 12(3), any author whose work damages the Somali State shall commit an offence, but there were also many other potential criminal offences against the state in both the Penal Code and the then extensive draconian security laws.
The Law declares unequivocally (in Art. 11) foreign authors’ copyrights set out in the numerous international conventions shall not be protected if the SDR has not ratified or acceded into such conventions or if there was no bilateral copyright treaty agreed to by the SDR. There was no available record to show that the SDR has done either. Nevertheless, a foreign author’s copyrights was to be protected (under Art. 10) if his work was originally published in the Somali Democratic Republic (SDR) on condition that he has received written permission of the Minister (for the publication). Re-publication in the SDR also required the permission of the Minister who would not grant if the new work was very different from the previous one or if the new work might ‘create bad opinions about the Somali person or is one which is not compatible with our newly adopted scientific socialism ideology and with, in general, the Somali culture’. Furthermore, the Minister may withdraw a previous permission of publication or re-publication of a foreign author’s work if he learns that the publication may ‘damage the dignity of the Somali nation or of a Somali person’ and such a withdrawal shall deemed to have taken effect retrospectively from the date of the previous permission.
All these provisions of Article 11 and the linked Article 10 relating to foreign authors (as well as Art. 12(2) and 12(3) on joint foreigner/Somali work) reflect the dictatorial nature of the regime that passed this legislation in 1977 when there were strict censorship laws of all publications and go much beyond the reciprocity rules relating to application of conventions or bilateral treaties. For example, Article 1(1) of the Censorship Law of the SDR (Law No. 4 of 2 January 1971) stated that ‘No public theatrical performance or cinema show shall be held and no publication shall be circulated without the prior authorisation of the competent Censorship Board’ (underlining added). ‘Publication’ was then defined in Art. 1(3) of the Law as meaning ‘a book, periodical, newspaper whether printed in the Republic or imported from abroad’.
Public domain works
Public domain works (Arts. 31 - 32) are owned by the nation whose agent, in this respect, is the Minister of Culture and Higher Education) and who shall act as their ‘author’. These works are -
- those whose authors may not be known, but are believed to authored by Somalis;
- any work published anonymously or under a pseudonym until the identity of the author is ascertained;
- any work in which the author’s copyright protection period (see below) has expired;
- any work created and owned by the government, with the exception of any work set out in Art. 5(1). The exception relates to Government legislation and laws.
There is no set period, under the Law, for the copyright protection of public domain works
Unfortunately this Law (unlike other African copyright laws) did not particularly specify the protection of ‘works of national folklore’ (considered as work passed from generation to generation and constituting one of the basic elements of traditional cultural heritage), although arguably could come under Art. 31 as being works authored by Somalis but with no identified author.
Fair dealing or fair use of copyright works and exceptions
In general, authors may authorise the use of their work, but for scientific works, the Minister was also given power, under Art. 34, to issue a binding order for the use of scientific works, in the public interest, where author or copyright owner has refused without a reason the necessary permission for the use of a work or has made the permission for the use contingent on unreasonable conditions or on conditions whose fulfilment would involve insurmountable difficulties.
Copyright laws usually permit reasonable fair dealing (or fair use) of copyright works for private use, study and education, research, review and reporting of current events without the permission of the copyright owner. The 1977 Law covers this area in one unnecessarily convoluted article (Art. 35) prefaced by the brief statement that the copyrights of the author shall not be infringed when his intellectual work is used without his permission (or that of his heirs) and no changes are made to its original language of publication in various scenarios which can be briefly summarised as follows:
- Where the work is used in a court. There is also a confusing reference to use by authorised public bodies.
- Where the work is reproduced, translated, adapted, arranged or transformed for personal use only.
- Illustrations (in the sense of explanations and not drawings) and any other extracts (or quotations) of the protected work may be included in another work on condition that the name of the author is acknowledged and the illustrations and other extracts (or quotations) should not exceed the extent justified by the purpose of their use. Where illustrations or extracts from articles published in newspapers or periodicals are used, the names of the authors of the articles, if signed, must be acknowledged, and if they are not signed, the source of the articles must be acknowledged.
- When articles (written or broadcast) relating to economic, political, religious, and social affairs (which show no express indications prohibiting their use) are reproduced in newspapers, periodicals or anything similar (which should cover now websites), or re-broadcast for communication to the public, the author and the source of the news must be acknowledged.
- Illustrations or extracts from a work or a recording may be included in another work or communicated to the public for use in schools, universities, training programmes and other similar places, on condition that the use shall not exceed the intended purpose; it is only for educational purposes; and the title name of the work the name of the author is acknowledged.
- Public libraries, schools, Colleges or any other educational places may reproduce, photocopy or otherwise publish a literary, artistic or academic work which has been previously lawfully published, but the number of copies made shall not exceed the required number; and the reproduction must not damage the (legitimate) interests of the author.
- Any publicly delivered lecture, address, sermon, legal submission at a court or other similar public activity may be published or broadcast for the purpose of informing the public about current affairs.
Assignment of copyright
Briefly, ownership of part or all of an economic copyright may be assigned in writing to someone else (as a gift, under licence or on sale) and the instrument assignment must be clear and detailed and show the right to be assigned, the extent, purpose and period of assignment, and the places where it can be utilised (Art. 17 & 50)). As states above,
Moral rights, however, are inalienable and cannot be assigned.
Publishing & performance agreements
Unlike many other copyright laws, the 1977 Copyright Law includes various highly prestrictive provision relation to agreements for publication of protected works. It is, likely that the some of the highly prescriptive provisions of the 1977 Law relating to publishing agreements may have been coloured by the fact that the dictatorship government, at that time, had a state monopoly of all printing and was also running a regimented militaristic ‘command’ economy. Law no. 44 of 2 October 1974 titled Authorship of Books Law (Sharciga Qorista Buugaagta, in Somali) regulated the publication of ‘all literary and/or knowledge books’ that are to be published (Art. 1). Any author wanting to publish a book had to submit the details of the book together with particulars relating to him to a Book Assessment Committee set up by The Ministry of Culture and Higher Education (which was also the Ministry dealing with copyright) consisting of representatives of the Academy of Culture, the National Printing Press (which had a printing monopoly), the Political Office of the Presidency and the National Security Service. The Committee vetted the person and the draft book and, according to Art. 6, considered its import, writing style and skill, cultural and political perspectives, value, sale and distribution, and decided whether or not it should be published. If the book was accepted for publication, the Committee set an ‘allowance’ (fee) for the author (commensurate with the usefulness of the book and the work put into it) and entitlement to 20% of the publication profit (Art. 7). The National Printing Press was responsible for the printing and distribution and sale of books (Art. 13) and owned the copyright of the book (Art. 14(1)) but the author had the ‘moral right’ to have his authorship confirmed in the book ( Art. 14). There was no indication in the 1977 Law that the provisions of the 1974 Law were all repealed.
The Law covered performance agreements briefly laws and mentioned ‘neighbouring rights’ (covering usually the rights granted to performers, producers of phonograms and broadcasting organisations) which the Law left to be dealt with by Presidential Regulations/Rules. I can trace no such regulations/rules. The legal provisions on the protection of ‘neighbouring rights’ are important and, for example, the copyright laws of Somaliland’s neighbouring countries cover them in these articles: Djibouti: Arts. 60 to 65; Ethiopia: Arts. 26 to 31; Sudan: Art. 26 to 33; Kenya: S. 27 to 30; Uganda: S. 21 to 34; and Tanzania: S. 31 to 35.
The compulsory Copyright Registration
There was to be established, under Art. 16 f the Law, a Copyright Registration Office (which I shall refer to as the CRO) at the Ministry (of Culture and Higher Education) to be managed by a copyright Registrar. Again, I could not trace, so far, any record of a CRO being established. The procedures for registration, including a deposit of each work at various libraries as well as the CRO, were covered in the Law, and the CRO was tasked to keep the following Registers:
- The Literary works Register.
- The Artistic Works Register.
- The Scientific Works Register.
- The Public Domain Works Register.
- The General Register which records the complete particulars of all regsiatered works. (Art. 75)
The CRO shall not register any published work if the following particulars were not clearly shown therein: a) the name of the author, unless the work is anonymous; b) the name of the publisher; c) the date each part of the work was published; d) the place of publication; and e) the encircled letter c, ©, sign denoting the copyright of the work does not appear therein. (hence the adoption of the encircled (c) to indicate copyright for printed works).
The Registrar shall, in addition to other matters, enter in each relevant Register every lawful contract relating to copyright; order made by the Minister; court judgments or orders or decrees relating to copyright and the Registration Certificates of the registered works.
Significantly, this Law made the protection of the copyright conditional on the work being registered with the CRO and is now out step with other copyright laws. Art. 91(1) of the Law states categorically that ‘no work, other than public domain work that existed before the date this Law came into force (i.e 7 September 1977), shall merit protection unless it is registered within 12 months starting from the aforementioned date’. This, in my view, makes this Law impossible to adopt/implement in Somaliland, in its current state, unless al the compulsory registration provisions are disapplied immediately. Such a central mandatory requirement in this 1977 Law makes it incompatible with the positive constitutional duty laid on the Somaliland state, under Art. 16(1), to ‘promote knowledge and literature and … encourage creativity and research’ and the obligation, under Art. 16(2), to introduce laws determining ‘the rights to authoring, creating and inventing’. Any law that considers creative works do not merit copyright protection unless they are registered is likely to be seen nowadays as negating the existence of a right that is accepted under international laws as existing from the creation of a work.
One of the principles of the copyright conventions(e.g Article 5(2) of the Berne Convention- Paris Text 1971- formality-free copyright protection) and copyright laws is that whilst a voluntary system of registration of some types of copyrights might help with provision of proof in case of disputes, there should be no compulsory registration or other mandatory formalities for the protection of the right. This is in need a central feature of copyrights (as compared to other intellectual property (IP) rights, such as patents, designs and trademarks) that the right arises from the creation of the work, whether it is published or not, so long as the idea is expressed in a tangible form, and although its assignment requires that it be in writing to make it effective, its existence does not require any registration or other formalities. In general, in the countries where voluntary registration was offered, according to a 2010 WIPO survey (http://www.wipo.int/export/sites/www/copyright/en/registration/pdf/registration_summary_responses.pdf), ‘the legal effect of registration of copyright or related rights is to establish a prima-facie, a preliminary evidence to prove that the facts and acts recorded are true, unless proven otherwise. In the majority of countries, voluntary registration provides for a rebuttable presumption of authorship or, where applicable, ownership of related rights’. According to WIPO, out of a total of 80 countries’ responses to the survey, ‘[n]one of the countries surveyed has established a mandatory registration system for the purpose of recognition of creation, with the possible exception of Mauritius. It can be noted that in Bulgaria, Kingdom of Saudi Arabia, Peru Romania, and Argentina, registration of a published national work is compulsory for the publisher. However, the lack of registration does not affect the recognition of rights but rather attracts administrative sanctions, as detailed in the corresponding responses’.The survey also found there were only 3 countries where registration was necessary for initiating copyright legal proceedings.
Duration of copyright
The copyright of (registered) literary and artistic and scientific works shall be protected, under Art. 24 of this Law, during the life of the author and for a further period of 30 years after his death. In the case of joint works, the copyright shall be protected up to 30 years after the death of the last surviving author (article 24 (2)). Works whose authors are not known or were published anonymously or under pseudonyms shall enjoy protection from the date when the unknown name or the real name of the author is found in the Copyright Register (Art. 25). This is so worded because this Law makes registration as the focal point for the protection of the copyright, but in all the other countries where the copyright protection is not dependent on registration, works published anonymously or under a pseudonym are protected from the date on which such work was first lawfully published and then if the author’s identity is revealed or is no longer in doubt, the normal periods apply. Works undertaken after the death of an author shall enjoy protection from the date of their publication.
Courts and copyrights
Copyright laws often include some criminal offences, but this Law significantly, and unnecessarily, in my view, makes all contraventions of the copyrights, protected under this law, criminal offences punishable by imprisonment of one year or a fine of 6,000 shillings (current equivalent is 6 million SL Shillings) or both imprisonment and fine - 54 (1). Further similar contraventions would attract additional punishment each time of up to, a maximum of, 4 years imprisonment or 18,000 shillings (current equivalent of 18 million SL Shillings) – Art. 54(2). Similar punishments may be meted out (under Art. 55) for the following offences:
- The publication, sale or re-publication of a protected work or its distribution to the public, or acts in any (other) manner inconsistent with the provisions of this Law – Art. 55(1).
- The publication, sale or re-publication of a protected work or its distribution to the public without the permission of the copyright owner - Art. 55(2).
- The fraudulent and malicious –
- omission or change of the name of the author;
- omission or change of the title of the work;
- change in the work itself or omission of parts of the work;
- publication or production of more copies of the work than was agreed.
- These fraudulent offences also attract confiscation of the published or produced works (unless such works belong to the government!), and confiscation of all the unsold copies of the work, as well as the secret proceeds of the sales or the publication, re-publication and the distribution to the public. (Art. 55(2)).
Article 56 of the law makes an offence for any person who, whilst claiming to be copyright owner or his authorised agent, obstructs the lawful performance of a work or instigates someone else to obstruct such performance, and shall be liable to punishment of imprisonment of not more than three years. This offence is enforceable even if the injured party has not complained.
The Penal Code, Art. 365 of the Penal Code states also covers counterfeiting or alteration of, among other things ‘literary or artistic’ products , but only in cases where ‘ the person entitled to the protection has complied with the provisions of domestic law or international conventions for the protection of literary, artistic … property’. But some copyright infringements may amount to offences of fraud (e.g Art. 397) or deception (Art. 496).
Under Art. 85 of the Law states that the initial steps of the prosecution of copyright infringements offences, even though there are injured parties, shall be taken by the CRO Registrar or by any police officer who becomes, however that might be, aware of the commission of such offences. These are not therefore offences that require a complaint being submitted by the injured party before a prosecution can be mounted.
As for Civil claims for copyright infringements, the Regional Courts are the appropriate first instance forum and any person (including successors to title) whose copyrights, set out in this Law, have been infringed may, under Art. 58 of the Law sue for compensation for the damages caused to him by the infringement of his copyrights; seek a restraining order to stop further infringements; seek a court order for the defendant to show proper account of their infringements and request any other corrective measures, such as, where relevant seizure of infringing copies. Copyright civil claims can be instituted under the procedures set out in the Civil Procedure Code and the court also has power, under Art. 63 of the Copyright Law to expedite the proceedings if there are urgent issues to be dealt with. Art. 88 also gives the court power to deal expeditiously with any frivolous or vexatious claims.