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Copyright Law in Botswana Paper

Botswana has gone a long way in terms of legislation in the field of Copyright Law. In the article “The development of modern copyright law in the SADC region: The case of Botswana” it was discussed; “By April 1998, Botswana had acceded to the TRIPS Agreement, the WIPO Convention 1970 and the Paris Convention 1883.In addition to these two Conventions, Botswana is a party to the Berne Convention for the Protection of Literary and Artistic Works 1886. Moreover, two other treaties were adopted in December 1996 under the auspices of WIPO, namely, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). Botswana has ratified both of them. Additionally, Botswana is a member of the African Regional Intellectual Property Organization (ARIPO).The ratification of these Conventions and Agreements placed an obligation on Botswana to revise the laws providing for the protection and regulation of copyright so as to bring the levels of protection and type of works protected in line with international standards. These reforms were introduced by the Copyright and Neighboring Rights Act 2000. This Act was recently amended by the Copyright and Neighbouring Rights (Amendment) Act 2005. ” These findings concur on the first statement and prove that indeed Botswana has gone a long way in enacting modern legislation in the field of Copyright law.The main defect in the field of Copyright law lays in the ineffectiveness of law enforcement when dealing with matters of Copyright Infringement. Law enforcement in this context refers to the Botswana Police as they are responsible for enforcing the legislation and the Customs and Immigration departments as they regulate goods and people coming in and out of the country. The following study explores the gap between the Copyright legislation in place and the enforcement of this legislation by the authorities. AIMS AND OBJECTIVES Aims * To find out how far the government goes to enforce Copyright law.Objectives * Well outline actions that constitute Copyright Infringement. * To find the government` s position on copyright infringement in terms of legislation. * To outline the law enforcement authorities roles in dealing with copyright infringement cases. * To identify and discuss incidents of Copyright infringement and Copyright law enforcement and how they were handled by the authorities. * To make recommendations for the effective enforcement of Copyright law. METHODOLOGY The data for the research will be collected from newspaper articles, statutory law, interviews both oral and written.The newspaper articles will be used for reports on incidents of copyright infringement and the enforcement of the law by the authorities which involve police raids and seizures and all the other information relevant to the topic. Botswana newspapers will be used for local coverage on Copyright law and England newspapers will be consulted for the comparative study on Copyright law between Botswana and England. The oral interviews will be used to gather expert opinions and views on the effectiveness of law enforcement on copyright law and suggestions on a way forward on the matter.Moreover affected industry members, that is musicians, will be interviewed on the matter and their opinions used to weigh law enforcement`s effectiveness. Further the opinions of all those interviewed will be considered when drawing up the recommendations. PURPOSE OF THE STUDY As already mentioned in the abstract Botswana has indeed enacted modern legislation in the area of Copyright Law but the big question is whether the law enforcement authorities are enforcing the law the law effectively.Intellectual property law is a widely complex and technical area of law and may require a certain level of intellect to comprehend. Policemen in Botswana are not trained or educated in the specifics of Copyright Law and it subsequently becomes hard for them to know what exactly constitutes copyright infringement, which objects are copyright protected and the procedures in place for dealing with incidents of Copyright infringement. The same applies to the Customs and Immigration Departments as they are the authorities regulating goods and individuals leaving and entering Botswana.The example below serves as a scenario. Indigenous knowledge is protected under Copyright law and it may be in the form of traditional songs, traditional handicrafts and protected wildlife species. Though there is legislation in place indigenous knowledge keeps going through our borders and a classical example is the Sengaparile herb which is originally a Tswana medicinal herb but is currently being produced commercially outside Botswana.This raises the issue of whether Customs officials are aware of copyrighted goods coming in and out of our borders and furthermore whether they have procedures in place to identify shady individuals coming into the country in an effort to steal or distribute this copyrighted works and knowledge. CHAPTER TWO: LITERATURE REVIEW The most relevant source of background information adopted for this research is the article “The development of modern copyright law in the SADC region: The case of Botswana” by Prof John Kiggundu.Kiggundu outlined the government`s efforts in combating Copyright Infringement. Kiggundu well outlined and elaborated the Copyright and Neighbouring rights Act and raised the question of level of knowledge of law enforcement personnel for the purpose of enforcing the legislation in place. This point is in line with the matter in question and thus this research will also serve as a continuation of Kiggundu`s findings. As continuation of Kiggundu`s findings this research will break new ground in adding findings of law enforcement`s efforts of enforcing the legislation in place.This study will identify the procedures currently adopted by the law enforcement authorities in combating copyright infringement and their defects in modern society. Kiggundu mentioned that “The object of copyright is to protect creative individuals such as authors and artists from having their work copied or reproduced without their authorization” This then raises the question of how well this individuals` s work is protected if the law is not properly enforced when the need arises.CHAPTER THREE ROLES OF AUTHORITIES Botswana Police Service The Police Service is concerned with identifying incidents of copyright infringement, arresting individuals participating in the act and seizure of these infringed goods. Furthermore they have to prosecute these individuals in courts of law. The seizure of these goods has to be done with due process as provided for in Section 29 of The Copyright and Neighbouring Rights Act thus; 29. 1) Subject to subsection (2) where a complaint of the contravention of the provisions of this Act is made and it is considered that a document, book or other object connected to any investigation in regard to the complaint, is being concealed within specified premises, a Police Officer or such other person as the Minister may, by Order, appoint and grant investigating powers, shall enter the premises to conduct a search and seize any item found within the premises. 2) The Police Officer or the person appointed by the Minister under subsection (1) (hereinafter both referred to as “the investigating officer”) shall not enter, conduct a search or seize any item in terms of subsection (1) unless he has obtained- (a) the consent in writing of the owner of the premises or the person in charge of the premises; or (b) a search warrant. Customs OfficialsSection 32 of the Act further provides the powers of Customs officials thus; 32. Any goods imported into the country that are in contravention of the provisions of this Act, may be placed under an embargo, destroyed or otherwise disposed of as provided for under sections 119 and 120 of the Customs and Excise Duty Act. Section 120 provides for the destruction of goods thus; 120. 1) If it is necessary for the safe guarding of public health or for the safety of the public or the State, the Director may at any time, and at the expense and risk of the importer, exporter, owner or pilot concerned, according as the Director may determine- (a) cause any goods under customs and excise control forthwith to be destroyed or otherwise disposed of; or (b) delay the departure of any vehicle from any place in Botswana for a period not exceeding 48 hours. (2) No person shall be entitled to any compensation for loss arising out of any bona fide action of the Director under subsection (1).It can therefore be derived from the above provisions that it is the duty of the Customs officials to know which goods infringe Copyright, when to impound the goods, what to do with the impounded goods and when to involve the police for the purpose of enforcing the legislation in place. Immigration officials The Immigration Act confers certain powers to the immigration officials that allow them to deny prohibited individuals into Botswana. In essence they are in the position to deny entry to individuals with the intention of stealing or bringing in infringed material into the country.It is their duty to weed out these individuals and deny them entry into the country. CHAPTER FOUR LEGAL FRAMEWORK ON COPYRIGHT LAW The following material is Copyright protected as provided in Section 3(2) Copyright and Neighbouring Rights Act; (a) books, pamphlets, articles, computer programmes and other writings; (b) speeches, lectures, addresses, sermons and other oral works; (c) dramatic, dramatic-musical works, pantomimes, choreographic works and other works created for stage productions; (d) stage productions of works referred to in paragraph (a) and of expressions of folklore; (e) musical works with or without accompanying words; f) audiovisual works; (g) works of architecture; (h) works of drawings, painting, sculpture, engraving, lithography, tapestry and other works of fine art; (i) photographic works; (j) works of applied art; and (k) illustrations, maps, plans, sketches and three-dimensional works relative to geography, typography, architecture or science. Section 31 provides the Criminal Sanctions thus; 1) Any person who contravenes the provisions of this Act so as to infringe a right protected under this Act for profit shall be guilty of an offence and upon conviction shall be liable to a fine not exceeding P20, 000 or to imprisonment for a term not exceeding ten years or to both. (2) Any person convicted of a second or subsequent offence shall be fined a minimum of P30, 000 or a maximum of P5, 000,000 or be imprisoned for a term not exceeding ten years, or to both.Section 32 of the Act outlines the powers of Customs officials thus (32)Any goods imported into the country that are in contravention of the provisions of this Act, may be placed under an embargo, destroyed or otherwise disposed of as provided for under sections 119 and 120 of the Customs and Excise Duty Act. IMPLICATIONS OF LEGISLATION While section 3(2) identifies Copyright protected material section 31 outlines what constitutes criminal proceedings under Copyright Law.Though this piece of legislation is expressly intended to curb copyright infringement in practice that is not often the case. The reality of it all is that like the police the Customs officials lack background information on some copyrighted goods and would not be able to identify some of the goods. The Customs department has no specific procedures in place on enquiries of copyrighted materials such as music cd`s and the customs officers decide themselves if materials are Copyrighted while lacking intellect on Copyright Law.The Customs and excise Act mainly provides for the disposal on infringed material but lacks guidelines for ascertaining if goods are copyrighted or procedures for handling the goods. Apart from knowing which goods are copyrighted the Customs officials should also know when to impound these goods and when to involve the police. In essence it can be said that the current legislation is inadequate to an extent as there is a wide gap between it and its enforcement by the authorities.In an interview with Professor John Kiggundu he was of the view that; “there is enough legislation in place and the question is whether the authorities in place, that is the Customs officials, Immigration officials and the police know the law. It is evident that there are not aware of how to apply the law, they are not explicitly trained to handle instances of copyright infringement” THE LAW ENFORCEMENT`S RESPONSE There have been numerous reports on Copyright infringement and the police`s efforts to fight it in the media.In the newspaper article “Illegal forex dealing, piracy on the rise in F/town” published in the Botswana Guardian it was reported, “the police usually mount searches of different businesses in a bid to combat the problems, often resulting in the arrest of a sizeable number of individuals and businesses”, “Letebele attributed these cases to the high number of illegal immigrants in the city. He indicated that illegal immigrants constituted a larger number of offenders for the said cases than locals. ” This statement brings the discussion back to the role of the immigration department in Copyright law.The department should be in a position to weed out individuals who come into the country with the intention of violating Copyright law either by bringing in infringed goods or taking them out of the country. Futher cooperation between the two departments could prove even more effective in time as they may be able to stop the acts of infringement befor they happen by apprehending these individuals at the borders during their entry into the country. It is evident from the newspaper article that the police operate with the standard raid and seizure procedures adopted in other crimes.Further it seems this Police raids are carried out on occasion and thus the problem may keep on commencing when the raids cease and this leaves the problem unsolved. It can thus be added that the police raids serve as a temporary solution and the desired result of deterrence is never attained at the end of the exercises. In the newspaper article “Counterfeit Goods Producers On Rampage” published in the Mmegi newspaper it was reported, “The police explained that the copyright law is complex and there is nothing much they can do if victims do not complain to them” CHAPTER 5COMPARATIVE STUDY ON THE ENFORCEMENT OF COPYRIGHT LAW IN ENGLAND AND BOTSWANA Numerous newspaper articles suggest that England is way advanced in the enforcement of copyright law. In the newspaper article “Police release suspect in illegal music download investigation” published in the English newspaper The Northern Echo it was reported “The 24-year-old IT worker was arrested at his flat in Middlesbrough during a dawn raid by Interpol and Cleveland Police yesterday” , “the 24-year old was arrested on suspicion of conspiracy to defraud and infringement of copyright law.  , “At the same time, Dutch police raided an office in Amsterdam, where they seized the site’s servers and database details. Forensic computer experts will now examine the servers, looking for information about users and the music they uploaded. ” It can be derived from the above newspaper extract that the England police have extensive expertise in the field of copyright law as they even enlist computer specialist for the retrieving of computer information that may be of some assistance in prosecuting offenders.It was further reported that “The raids were the culmination of a long-running investigation by police and the music industry. ” This suggests cooperation between the industries affected by Copyright infringement and the England police. The article further suggests the cooperation between countries in curbing this crime where it was reported, “We have been working closely with Interpol and our Dutch colleagues in Amsterdam where the website server is based, to ensure that it too was secured at the time of arrest. This particular newspaper extract can be summed up as indicating much more advanced procedures for dealing with Copyright law as opposed to Botswana with emphasis on the police. CHAPTER SIX CONCLUSIONS * Taking into account all the findings discussed in the paper it is concluded thus; * Botswana has gone a long way in modern legislation on Copyright law and the Copyright and Neighbouring Rights Act serves as a consolidation of all the treaties, agreements and conventions Botswana has entered into. The media coverage on Copyright law enforcement shows that the effectiveness of modern Copyright law is limited in its enforcement.* The ineffectiveness of the enforcement of this legislation is limited by the lack of intellect or knowledge of the authorities on the specifics of Copyright law. * This in turn results in the intents of the legislation not being carried out. SUGGESTIONS * It is recommended that the Botswana Police Service introduce courses on Intellectual property and Copyright law for the purposes of keeping the Police officers informed on the matter. The same is recommended for the Customs and Excise department so that the officials are able to administer Copyright law at borders and entry points into the country. * Both the police and customs and excise department should engage in cooperation’s with the concerned industries for the purposes of increased expertise on Copyright law. * Furthermore it is recommended that the Immigrations department set out new protocols and cooperate with Immigration Departments in other countries for the purpose of identifying culprits coming into Botswana for the looting of indigenous works and knowledge. It is suggested that a specialised task force between the Police, Immigration Department and Customs and Excise Department be formed with the initiative of enforcing Copyright law.

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