CHAPTER ONE

GENERAL INTRODUCTION

• BACKGROUND TO THE STUDY.

The entertainment law is that law which governs, or guide the practice and activities of artist, authors and stakeholders in the entertainment industry.

Scholars like, Jon M. Garon, see entertainment law from the perspective of regulation specifically designed to regulate the entertainment industry[1]. It encompasses the entire legal frame work from issues associated with entertainment industry. The entertainment industry includes and not limited to the film, television, music recording and writing, publishing, radio, theatre and sports.

The black’s law dictionary defines entertainment law as;

“the field of law dealing with the legal and business issues in the entertainment industry (such as film, music and theatre.) and involving the representation of the artist and producers, the negotiation of contracts and the protection of intellectual property rights[2]”

Deducing from the black’s law dictionary definition, it is clear that the entertainment law goes beyond intellectual property. Entertainment law is an ecosystem of many branches and sub branches of law, this will include and not limited to; the law of contract, law on agency, the law of tort, the law of taxation, the laws on securities, labor law, mortgage law, real estates, criminal laws and other laws that will require the legal practitioner to attend to the needs of the client.

The entertainment laws seek to protect the rights of the artist, so as to permit them make a living off their work, which could last them even after they must have retired from the trade or unable to carry out the trade due to failing health. This benefit could equally extend to the heir of the artist. What better way to ensure the artists make a living of their work if not through the enactment of laws that will protect the rights of artists. The protection is best interpreted in the intellectual property laws and copyright laws both at national laws and international laws.

The interest of authors and artists on their work is separate from copyright and can be retained by an author or artists even after he has transferred copyright to another person or has parted with the physical work.

These rights are referred to as the moral rights defined by Cameroon copyright law as Moral implications confer on the author, independently of his patrimonial rights and even after the transfer of such rights[3] this rights will include; the right of integrity, under which the artist can prevent alteration of  his work; the right of attribution, which the artist is empowered to insist the work be distributed or displayed  only if his name is connected with it; the right to disclosure, if the artist feels his work is not ready for public eyes he has the right to withhold the said work, the right of retraction or withdrawal , under this the artist can withdraw his work after it no longer within his possession  

While the author economic rights or patrimonial rights as defined by the Cameroon copyright law as, the exclusive right of the author to use or authorize the use of his work in any form whatsoever and to reap the financial benefit therefrom[4]. These rights are exploited by representation right which includes publication of the work to the public. Reproduction right shall comprise material fixation of all or  part of literary or artistic work through any means that will enable its indirect communication, including permanent or temporary electronic storage; transformation right shall mean adaptation, translation, arrangement or any other alteration of a literary or artistic work; distribution right shall mean the offer to sell or lease, the sale, rental or any other act of marketing the original or copies of a literary or artistic work and indefeasible mortgagee right.

Holders of neighbouring rights which is define by the Cameroon 2000 law on Copyright and Neighbouring as the rights of performers, producers of phonograms or videograms and audiovisual communication companies[5] enjoy the protection of their moral rights and economic rights as well.

Tracing the historical development of the rights artists now enjoy that is attached to their work be it, the moral or economic rights, the author shall be writing from the perspective of the development of the practice of copyrights. Looking from the global perspective when these rights were not protected, mapping out from the time and the circumstances that encourage nations to recognize and protect the economic rights and moral rights of authors.

• HISTORICAL OVERVIEW.

The historical development of the rights of artists or authors would be discussed from the perspective of copyright law, for it is pivotal in satisfying the various desires, moral and financial aspirations of creators, authors, and stakeholders in the entertainment industry.

The earliest of copyright law was first recorded in the 17^th century by the British which protect the rights of authors of such work which have been expressed in a specific form, for further transmission or reproduction by the person who are neither authorized or licensed by the copyright holder owner.[6]

Before and during the 17^th century, authors, inventors and artists had little or no control over their work especially after the sales of the manuscript to a noble or a rich man. The authors and the buyer were governed by private contract. In which the parties determine how the work was to be exploited and the rights, alongside the obligation each party had. For instance, the Booksellers will acquire the right to print and sell the book of an authors through contracts. The author of the book, then relinquish his moral and economic rights to publisher, for a consideration. The bookseller then had absolute ownership over the work of the author, hence the authors became the sole determinant on how the work of the author was disseminated to the public, they equally had the right to sue to anyone who infringes rights held over the work.[7] 

The booksellers, after acquiring the work (book) of the authors, will now exercise monopoly over work, thus will be the sole determinant on how much and who gets to own a copy of the work. The practice proved detrimental to public policy and the interest of the artists for the sales was only limited to a selected few and hindered the expansion of the arts into new territories. At this point the economic nor the moral rights of artists were not recognized or protected by any law. Few rich publishers and rich nobles especially in Britain influenced the market, this was typical of the book selling business and playwriters/actors.

The British parliament in efforts to encourage learning passed and enacted the Copyright Act 1710[8] which was popularly known as the Statute of Anne[9], this law pioneered the law on copyright. This law was sought by booksellers and stationer to protect the financial benefits which they benefitted from the reproduction and sales of books they had acquired authorization from the original authors. In effect the law was enacted to tackle problems of plagiarism which became rampant with the arrival of new technology.[10] 

The Statute of Anne is credited to have changed the practice of copyright from a practice governed by private agreements (contracts) between parties to being govern by statute and courts[11], marking a very significant move towards protection of the right of artist. As earlier mentioned the act was pioneered by printers and stationers[12] who during the 16^th century sought for, and were granted protection for their work by the crown against the  importation of foreign books, for the law to define ownership as to the rights, asserting ownership an author’s work, during and sometime after the death of the author. The statute of Anne was the first legislation to have recognized the economic rights of artists. Though it provided a very limited duration for the artist to enjoy the said rights. the law provided duration to last during the life of the author and fourteen years after the death of the author.  After this period the work is then considered to be in a public domain, and can be used by anyone who desires to without having to obtain authorization from the original right holder or his hers. This duration was criticized to be very short.

In the 18^th century and the beginning of the 19^th century works of British writers like Robert Maugham[13], Thomas Noon Talfourds and J.J. Lowndes[14], who were convinced that, “limiting the duration of copy right to the statutory period was a monstrous injustice[15] propounded and advocated for the extension of the duration. The duration ownership was limited only to the economic rights of artists in Britain as the moral rights of the artist was never in contemplation of the legislators. The English common law system at this time was oriented only on the economic rights authors benefitted from their work as it was believed the economic incentive encouraged writers to be inspired and be more creative.

The work of the scholars like Thomas Noon shaped the laws of the 18^th and 19^th century, to that effect the Statute of Anne was amended, to introduce copyright protection to three additional artistic work – original drawing, paintings and photographs[16]. New amendments solidified the right of artist by providing protection to their works during and even after their life time.[17] the Statute of Anne provided property rights to authors with economic regulations.

The right of authors since identified and recognized by the statute of Anne in the common law jurisdiction which was structured from a perspective of publishers rights laying its emphasis on economic rights as opposed to the civil law approach of the prosecution in France and other European countries who view the protection of the rights of the author from a moral point of view.

Common law approach on the protection of artists’ right was focused on the protection of the economic rights of the author. This tend to vest control into the hand of the publisher who gets to determine how the works gets into the public. These economic rights are; right of reproduction, right to distribution, right to rental, right to communication to the public and right to adaptation. The author control over these rights are limited to pecuniary interest he benefits reaps off.

The civil law system on the other hand while considering the economic rights artists reap off their work, placed more importance on the moral rights of the artists. French lawyer Édouard René de Laboulaye in is writings tended to affirm his theory of perpetual literary property[18] (moral rights). French lawyers agreed with him and tried consolidating the moral rights by asserting that it’s not only natural but one that existed since the dawn of time[19].

The nineteenth century and twentieth century, witness a change in the attitude of law, scholars and court as regard the rights of authors. The courts embraced a more liberal and open interpretation these rights.  the attitude of law makers especially in England who practice the common law reluctantly passed laws to promote the rights of artists which include moral rights of artist in so doing advance the protection of the rights of artists.

Cameroon, a former colony of France and Britain practice, practice a “bijural” legal system of common law practice in Anglophone Cameroon and civil law practice in francophone side of the country. Before independence these two sections, applied different laws for the French and Anglophone regions. While French Cameroon assembly adopted the 1881 law as; law 55-35 of May 27, 1959 to regulate press in francophone Cameroon. The Anglophone only after its independence in 1961 that the West Cameroon Newspaper Ordinance was passed to govern the establishment of newspapers.

Following the independence and unification of the two territory in 1960, the government in attempt to extent the 1959 law into the Anglophone territory which was welcome with stiff resistance. The Federal government in resolving this issue adopted law No.  66/CF/13 of December 1966 to regulate press in Cameroon which later was amended by the Federal Assembly. This law was amended five times by Decree No. 69/LF/13 of November 1969; Decree No. 73/6 of December 1973; Decree No. 76/27 of December 14, 1976; Decree No. 80/18 of July 14, 1980, and Decree No. 81/244 of June 22, 1981. In 1987, Law No. 87/19 of December 17 1987 on audiovisual communication was enacted to regulate the functioning of television following its introduction in 1985[20]

Cameroon being one of the founders of the Bangui agreements in 02/03/1977 as amended on 24/02/1999 with the aim of harmonizing the law on intellectual property in Africa relied on this law as it main law on intellectual property to protect the right of artists until 2000 when Law No. 2000/011 of December 19, 2000 on Copyright and Neighbouring Rights, in accordance with article 3 of the Bangui agreement.

Globalization and digitalization have exposed the work of authors vulnerable to infringement. Technology has brought about new innovation especial in the music and arts sector, so much that once life time of work can be copied to almost exactitude in a matter of seconds by an unauthorized person millions of miles away from the author the original work and it would be near impossible for the author to stop infringements or seek for legal redress.  

An increasing market especially across territorial boarders poses as another challenge to the national copyright laws whose applicability is limited in territory. To gain these market publishers or individual will have to translate works of author in languages different from them in a bit to consume same, providing another avenue wherein the work can be tampered with, in the absence of the original authors consent.

The new problem saw the need for states to come together in order to protect their cultural heritage and the work of their authors on other territory. The result was the rectification of treaties like the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) and the Berne convention for the protection of literary and artistic work.

The contribution of the court cannot be ignored in the development of the rights of authors and artist. The attitude of the courts in deciding cases during the early development of right of holders especial when it comes to right to privacy has been instrumental in asserting the economic importance of right holders to intellectual property and copyrights the authors possessed, thus providing judicial strength to the entertainment industry.

The right to privacy was first highlighted by Warren and Brandeis[21] who in their article the emphasis on the fundamental principle, stated that “ the individual shall have full protection of his person and in property”  the authors were  at the time concern with the development of journalism  and the protection the common law accorded to the recent  inventions and business method, for example instantaneous photography  and the wild spread and circulation of newspaper , both of which has contributed to the invasion of an individual privacy.

The courts was reluctant to assert and recognize  the right to privacy though it was observed that there were many cases from which it would appear that this right really existed.[22] The right to privacy was first recognized  in the case Roberson v Rochester Folding Box Co.[23] In this case the defendant uses the likeness of the plaintiff without her consent. She sued for damages and was granted though in demurer.[24] This was the first in recognizing the private rights by the courts. After the courts recognized the rights to privacy, the next was the recognition of the property rights attached to the using of someone likeness without the permission of the person. The property rights attached to it will be the right to publicity.

 The transmission or recognition of publicity rights could only be possible after the baptism of the legislator. This position was held by the United States Supreme Court in Re Sawyer.[25] The courts later in Pavesich v New England Life Insurance Co[26]  made the extension from privacy to publicity quite easy where it was postulated that;

The right of one to exhibit himself to the public at all proper times, in all proper places, and in a proper manner is embraced within the right of personal liberty. The right to withdraw from the public gaze at such times as a person may see fit, when his presence in public is not demanded by any rule of law, is also embraced within the right of personal liberty. Publicity in one instance, and privacy in the other, are each guaranteed. If personal liberty embraces the right of publicity, it no less embraces the correlative right of privacy, and this is no new idea in Georgia law[27].

The decision of this from the Pevesich case ushered the era wherein publicity rights were immediately rooted in the fabric of general privacy.  In International News Service v Associated Press[28] the courts in this case differentiate the private life and public life of a right holder.

• STATEMENT OF THE PROBLEM

At first it was difficult to get hold of the master copy of an artist’s or author’s work, that’s no longer the case with the rapid change in technology one can within seconds transmit the work of artist without authorization to all angles of the world with a single push of a button. Same as another could download the life work of an author with a single click of a computer key and the author won’t benefit an single franc but we will be a loser in this illegal act. Most if not author of literal, musical and artistic work rely on their work as a means of livelihood. Infringing their rights has a far reaching effect deep down into their families to the extend where some artist dies in misery and abject poverty. The infringement equally affects the state cultural heritage and policy through illegal exportation and adulteration of the countries cultural heritage

For these reasons, it becomes necessary for the government to enact laws taking into consideration the constant change in technology to help save guard the interest of author of literal, musical and artistic work. To protect artist from the ills of infringements, the government has enacted laws which concerns particularly the intellectual property interest of artist of literal, musical and artistic work.

There exist many legal instruments as well as institutions that are established to ensure the projection of the right of artists in Cameroon and the United Kingdom. The difficulties that exist in the protection of their work cannot be overlooked in spite of the already existing laws and institutions.  Such as law No.2000/011 of 19th December 2000 on copyright and neighboring Rights, the Cameroon penal code, TRIPS agreement, Bangui agreement and the Berne convention for Cameroon. While for the United Kingdom we have laws such as; Copyright, Design and Patent Act 1988, and other international instruments.

Within these jurisdiction, there equally exist well established associations and institution which are aimed at protecting the rights of artists. This association and institution serve as social schemes in which the right of artist are collectively protected. As it is often said it is easy to break a single broomstick but difficult to break a bunch.

In order for artist to benefit the artist must of course be register themselves, these collective management schemes or institution in order to easily protect these rights.  With artist registered under these collective management schemes they are provided with secure legal backing which makes it easy to identify infringers of their rights and take legal redress faster.

This work seeks to investigate on how the laws enacted and institutions established guarantee the protection of the right of artists in Cameroon and the United Kingdom.

• OBJECTIVE OF THE STUDY.
  • Main objective.

To look at the effectiveness in the protection of the moral and economic right of artists under the Cameroonian and English law.

• Specific objective.

• To examine the nature of the relationship existing between their collaborators.
• To examine the legal and institutional mechanisms put in place to protect the rights of artists under the Cameroonian and English law
• To examine the rights of artist requiring protection and the challenges faced in its protection.
  • RESEARCH QUESTIONS.
    • Main question

How effective is the protection of the right of artists in under the Cameroonian and English law?

• Specific question

• What is the nature of the relationship existing between their collaborators?
• What are the legal and institutional mechanisms put in place to protect the rights of artists under the Cameroonian and English law.?
• Which are the rights of artist requiring protection and the challenges faced in its protection.?

[1] Jon M. G, Entertainment Law, 76 TULANE L. REV. 559 (2002).

[2] Bryan A. G. Black’s law dictionary (9^th Edn, USA west publishing co. 2004) 611.

[3] Article 14, law 2000/011 of 19 December 2000 on Copyright and Neighbouring rights

[4] Article 15, law 2000/011 of 19 December 2000 on Copyright and Neighbouring rights

[5] Article 56(1), law 2000/011 of 19 December 2000 on Copyright and Neighbouring rights

[6] Odion (J.O). and N.E.O Ogba, essay on intellectual property, copyright, trade mark, patent and industrial designs (Ambik press 2010)

[7] Tonson v.Walker (5 May 1739) c 33 1753/208

[8] Bently L., Suthersanen U. and Torresmans P. Global Copyrights.

[9]  Name after Queen Anne.

[10] The second half of the 17th century Guttenberg invented movable Typer and Caxton developed the printing press.

[11] Tonson v. Collins (1762) 1 Black W. 321.

[12] Term use to refer publishers and booksellers.

[13] Maugham R., A Treatise on the Laws of Literary Property (London: Longman,1828)

[14] Lowndes J.J., An Historical Sketch of the Law of Copyright (1840, facsimile edition) with a new Introduction by R. Deazley (New Jersey: Law Book Exchange, 2008),

[15] Maugham supra

[16] Copyright Act of 1862

[17] Paul T, H. and Torreman (2013) intellectual property law

[18] Laboulaye E. and Guiffrey G., (1859). La propriété littéraire au xviiie siècle: Recueil de pièces et de documents

[19] Pierre M., (1906), Le droit moral de l’auteur sur son œuvre littéraire ou artistique

[20] Rosemary M.S, (2015) Enabling legislation for access to information in Cameroon and the role of libraries and librarians

[21] Warren. S D. & Brandeis L D., (1890), The Right to Privacy,4 HARv. L. REv 193

[22] Ibid.

[23] 64 N.E. 442,442 (N.Y. 1902).

[24] Jon. M. Garon Entertainment law.

[25] 124 U.S. 200 210(1888)

[26] 50 S.E. 68, 78-79 (Ga. 1905).

[27] Ibid

[28] 248 U.S. 215 (1918).