The role of Bipa in protecting creatives’ work
The Business and Intellectual Property Authority (Bipa) has said its mandate is to promote creativity and innovation and facilitate effective and balanced protection of intellectual property rights (including copyright) but does not intervene in the enforcement of copyright.
This was said by Intellectual Property Executive Aina Kaundu, answering to Entertainment Now! on whether the Authority has overseen Namibians held responsible for copyright infringement.
“Bipa does not handle or intervene in infringement cases. Affected artists report copyright infringement cases with law enforcement agencies (Namibian Police Force) or privately institute legal action. Bipa does not intervene in the enforcement of copyright but can provide proof of protection for registered works,” ironed out Kaundu.
To improve service delivery and ensure the effective administration of business and intellectual property rights (IPRs), Bipa has been established as the focal point for the registration of business and industrial property.
The authority is established as a juristic person in terms of section 3 of the Bipa Act, 2016 (Act No.8 of 2016) and is a Public Enterprise as defined in the Public Enterprises Governance Act, 2006 (Act No. 8 of 2015).
“The Namibian Copyright and Neighbouring Rights Protection Act (Act 6 0f 1994) is the law that protects creatives’ work. This law protects original works of authorship that are fixed in a tangible medium of expression,” detailed Kaundu.
She, moreover, added the law does not protect ideas, concepts, styles or techniques. Kaundu explained that this means an idea for a film or book will not be protected but a script for the film will be protected.
“Neither does it protect titles, names, familiar symbols, designs, recipes, facts, works that are not original, procedures, processes, works produced or commissioned by the government of Namibia, submissions to the government of Namibia for use in judicial or administrative proceedings or works permitted by infringements of other copyrighted works,” she informed.
Any person who uses works that are protected by copyright law without permission/ authorisation for usage where such permission is required is infringing/violating certain exclusive rights granted to the copyright holder.
“A proven wilful copyright infringement can result in criminal penalties, including imprisonment as follows: a first conviction, a fine of up to N$12 000 or imprisonment for three years or both; a second conviction will see a fine of up to N$20 000 or imprisonment for five years or both,” informed Kaundu.
Bipa advised creatives and IP business in general to protect any unique product or service that a creator-owned, as competitors can use their success to take away market share, resulting in slow growth or loss of revenue.
“Unless original, genuine work is registered, exception rights cannot be enforced through the court; protection is critical to fostering created works; ideas that are protected reap the full benefits of their works. It is time-consuming to enforce your rights without proof of legal protection,” she cautioned.
Nascam CEO Eino-John Max said Bipa is doing what they can do despite the limitations, depending on their program guidelines for the development and protection of intellectual property rights in Namibia.
‘’When it comes to copyright enforcement, it needs to be tackled from both sides of the law enforcement agencies of the government – that include police, lawyers, Bipa, Customs and Nascam.’’
Max opined that when the IPR Protection division was with the ministry of information and technology, the division used to combine all government enforcement agencies and also intervene when there were cases reported about piracy, counterfeit and copyright disputes or infringement activities.
‘’Bipa needs to have an enforcement division that will deal with a dispute on copyright, or industrial property rights violation, monitoring IPR activities and mediate or encourage members of the public to provide information on counterfeit and piracy activities, he ended.
In 2007, TVSA reported that South African kwaito star L’Vovo Derrango, real name Thokozani Ndlovu, was stopped in his tracks in his attempt to mirror US superstar rapper Jay-Z’s likeness.
L’Vovo’s album, The Heavyweight, was pulled from the shelves because he copied the artistic work of Jay-Z’s American Gangster on the sleeve of his album.
The decision to yank the muso’s album was sparked by a complaint sent to his record label EMI/CCP by Jay-Z’s local record label, Universal Music’s local division.
According to information received, Universal Music wrote an e-mail to EMI/CCP, saying L’Vovo’s sleeve blatantly resembled that of Jay-Z.