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What is in Copyright Bill, National Cultural Policy?

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Artists in Malawi cried to have the outdated Copyright Act of 1989 amended. The criticism was that the 1989 Act had failed to address some of the challenges in the creative industry.

However, even though the current law has fines and penalties put in place to deter the infringement of copyright, creators of artistic products most especially musicians, cry foul as they watch their music being pirated.

Exploiters do not look twice when reaping their sweat as the fines and penalties are just too malleable to curb the vice. And the fact that once they pay a fine of K5,000 to K15,000 then they are scot free makes the matter worse.

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You can never walk around the townships of the cities without getting a place where pirated CDs are sold neither can you walk around the districts without getting any place where music is sold in memory cards or flash disks.

Conversely, there was joy among local artists recently when the bill got approved in Parliament. Artists felt a new dawn had come.

This bill seeks to repeal the Copyright Act (Cap. 49:03) and replace it with a new act that will incorporate recent developments that have emerged since the Copyright Act came into force.

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For instance, any person who infringes any copyright commits an offence and shall on conviction, be liable to a fine of K5 million and to imprisonment for two years and in the case of a continuing offence, to a further fine of K25,000 for each day during which the offence continues.

Nonetheless, the bill is somehow not balanced as someone whose copyright has been infringed is supposed to get a maximum of K700,000 from the fine of K10 million which the perpetrator is obliged to pay.

Part II of the bill establishes the Copyright Society of Malawi (the “Society”) which will oversee its implementation. Copyright Society of Malawi (Cosoma) was established but despite its existence, artists have complained about how the organisation operates especially when it comes to distribution of royalties.

Part III of the Copyright Act provides for copyright matters. It states that an author of any work shall enjoy an exclusive property right in the work against all persons and upon death, the relatives of the deceased are supposed to enjoy the benefits of the work.

When gospel songbird Grace Chinga died, her relatives complained that copies of her yet to be released album were being sold on the market without their permission. Sellers of the songs made huge profits contrary to Part III of the act.

“Derivative works may also enjoy copyright protection as though they were original works and these include translations, adaptations, among others, of original works, collections of works in the form of encyclopaedias and anthologies and works inspired by expressions of folklore,” the bill reads.

Part XI of the Bill makes provision for infringement of copyright.

“Infringement of copyright entails a situation where a person does, permits or causes another person to do acts in relation to material with copyright, without valid transfer, licence or authorisation from the owner of the copyright,” the part reads.

The part also deals with infringement by parallel imports and it provides that any person who, without the consent of the producer, imports into Malawi copies of audiovisual works or sound recordings with the intention of making them available to the public for gain, or causes or permits such imports, commits an infringement of the rights of the producer, except when copies of the same production are not being offered or promoted to the public in Malawi with the consent of the producer.

We have seen a lot of copies of Nigerian movies as well as Hollywood and Bollywood movies being pirated and sold at a very cheap price in our local markets. Very few have faced the consequences of going against the law. Will the new bill make things better?

On the other hand, there is the National Cultural Policy which establishes the mechanism that the Malawi government must follow to adequately fulfil its programme to deliver cultural services to all Malawians in line with the need to strengthen our cultural identity in the face of foreign influences as envisaged in the vision 2020.

The policy states that a National Arts Council shall be established to coordinate and monitor implementation of the policy by different cultural associations and private institutions at a later date.

Several times, artists have complained that the arts industry does not receive funding because there is no arts council.

However, even with the Sports Council, only football and netball have mostly enjoyed the benefits of the council even though at times it also struggles financially.

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