Intellectual Property: An Overview for Africa’s Artists and Innovators

Creative industries include entertainment and media industries such as arts and culture, literature, performing arts, publishing, and broadcasting as well as innovation and design industries such as architecture, engineering, software, and research and development. The creative economy has both cultural and economic value. With artists creating a wide array of entertaining media, and innovators developing valuable solutions to common problems, this culture improves the quality of life in Africa while boosting its economy.

PwC’s Entertainment and Media Outlook forecasts combined entertainment and media (E&M) revenues of $12.4 billion for Kenya, Tanzania, South Africa, Nigeria, and Ghana alone between 2017 and 2022. This windfall distributes across the multiple actors of the E&M value chain—from creators to content providers to advertisers and all their employees —creating income for millions of homes. While revenues from innovative technologies also create massive revenue streams for a wide range of people, their most important economic contribution is arguably the improvements to efficiency they impact in multiple sectors. According to McKinsey, digital innovation in Africa will have the greatest impact in the agriculture, education, financial services, government, health, and retail sectors. This will result in productivity gains of between $148 and $318 billion by 2025.

The vibrance of Africa’s creative and innovative spaces is, therefore, a good thing for the socio-economic prospects of Africa. It is also a source of pride: Africans, who understand the values and challenges in Africa, are helping the continent on towards prosperity through African creations.

In light of the above, we must have structures that encourage inventiveness and protect the rights of creators to benefit from their work. At the same time, we need to encourage the sharing of ideas and creations that add value to people’s lives. This balancing act is the realm of intellectual property law.

What is Intellectual Property?

Intellectual property (IP) refers to creations of the mind such as inventions, processes, literary and artistic
works, designs, symbols, names, and images. IP rights are legally recognised and enforceable rights that a creator has over the use of their creations.

IP law protects creative works and innovations for two main reasons:

  1. To encourage creative and innovative work that contributes to economic development and the improvement of people’s lives; and
  2. To protect the economic and personal rights of creatives and innovators while enabling public access to their creations and innovations.

Encouraging inventiveness holds considerable potential benefits for Africa. The continent is a bit-part contributor to the global E&M market, which is predicted to reach a worth of $2.6 trillion in 2023. With over 15% of the world’s population, Africa can grow its market share considerably. One of the core drivers of such growth is digitisation which opens up African entertainment and media to the world stage.

Protecting the economic and personal rights is equally important to advancing Africa’s economy. Unlocking the digital economy requires considerable commitments in terms of time and capital by innovators and investors alike to create digital products and services that Africa’s rapidly growing number of digital adopters will value. The protection that IP law affords these commitments enables creators and innovators to monetise their efforts to make a living and secure investor confidence. It is instrumental in creating a secure space for the ingenious to flourish.

IP law adds value to creative and innovative works by turning them into property that can be bought, sold and protected. It is highly encouraged that creatives and innovators familiarise themselves with which laws afford them which protections as well as how to go about registering their creations.

IP Theft

IP theft is the unauthorised use of protected IP. It is particularly concerning where it affects the earning capacity of the IP owner, for example where the thief resells the IP or releases it for free. It diminishes the value that creatives and their backers receive from their investment and therefore deters participation in the creative economy.

The biggest weapon against IP theft is the enactment and enforcement of laws. IP law is a complex area of the law as the non-tangible nature of IP create a wide range of possible thefts and misuse. It forms a standard part of the legal framework of modern states, although not all national IP frameworks are equal.

Variability in IP laws across different countries creates trade barriers for the creative economy since IP owners cannot be certain that their work will not be unfairly exploited. International collaboration in
IP law is an important element of the success of the global economy. There are numerous treaties such as the Berne and Universal Copyright Conventions, that commit signatory states to an international IP law framework. There are also organisations that facilitate the administration of IP rights on an international scale such as the World Intellectual Property Organisation and the World Trade Organisation. International collaboration eases the creation and use of IP in the digital era by helping standardise the international IP law regime and protecting the rights of creators around the world.

Africa’s creative economy is slated to benefit from Phase II of the African Continental Free Trade Area negotiations, which include the development of an Intellectual Property Protocol for Africa. As a modern IP regime, we can expect that it will help the competitiveness of Africa’s creative economy by guiding African states to protect local IP better.

Beyond this, however, IP theft can be frustrating to prevent in the digital age. One of the precursors of obtaining IP protection is the disclosure of the IP to the public through publishing or registration. Anyone from anywhere can therefore access and take advantage of IP without the permission of the rights holder. The law can only do so much, and creatives and innovators need to take their own steps to benefit from their participation in the creative economy.

How to Protect Your IP

Know its Value

Like any property, IP can be valuated on the basis of its intrinsic worth and its potential for future profits. Like any property, the value of IP is largely determined by what other people are willing to pay for it. The digital age also affords numerous platforms for self-publishing and monetisation with different fee models. Options mean stronger bargaining power for owners to use while valuating their IP.

Know your Rights

Different kinds of IP entail different kinds of rights. Copyright has economic and moral facets—you can sign away your economic rights to benefit from your work but you retain the rights to claim it as your own and stop others from altering it. Copyrights also last for a much longer time than trademarks or patents. Trademarks can be renewed, patents cannot. Different kinds of IP also have different requirements before a creator can obtain rights over them. Copyrights do not have to be registered and are valid globally, tradenames generally register automatically but are only valid in the country of registration.

Knowing which laws apply to your creation and how is essential to securing and enforcing your IP rights.

Proactivity is Key

IP law is not foolproof as all laws are only as effective as their enforcement. This means that IP owners must be vigilant about protecting their property from unlawful use:

  1. Ensure that your IP is properly registered to secure your legal rights. In some cases, it may be wise to hold off registration (e.g. of patents) until you are ready to go to approach investors or go to market. Registration exposes your ideas to the public domain and may enable unscrupulous competitors to undercut your plans;
  2. Be informed of licensing, confidentiality, and non-disclosure contracts and how they can be applied to protect your work;
  3. Carry out threat analyses and take steps to avoid potential theft due to unauthorised access or storing IP on unsecured devices or platforms;
  4. Market your content widely with clear attribution to strengthen the association between you and your work; and
  5. Try to keep track of how and where your IP is being used. If you discover unauthorised or inappropriate use, take steps to stop the offender. You can contact the offender and inform them of your intention to take all necessary steps to secure your rights. For digital content, platforms such as YouTube have systems in place that enable IP owners to take down content that infringes on their IP rights.