Copyright and royalties in Togo

Law enforcement

Since 1975, the Convention de Berne, ratified in January 1976 and implemented in April of the same year, provides protection of literary and artistic works in Togo. Before this ratification, these works were subjected to the colonial provisions inspired by the French legislation.

It was not until 1991 that Togo adopted legal and institutional instruments for the protection of "copyright, folklore and related rights" (Bill number 91-12 on the protection of copyright, folklore and related rights of 10 June 1991).

The law of 1991 defines the contents of copyrights (including national folklore); its duration of protection (during the life of the author and fifty calendar years following his/her death) as well as the penalties for infringement of copyright.

Penalties were reviewed in November 2015 by the new penal code which honors copyright protection by practically doubling the penalties in cases of copyright and related rights infringement while the former code only addressed counterfeiting.

These civil and criminal penalties are now 1 to 2 years of detention and a fine of between 1.500.000 and 3.000.000 XOF (2 489,255 / 4 978,786 USD). Under the former penal code, penalties were "6 to 18 months of detention and a fine of between 500.000 and 1.500.000 XOF". The law of 1991 is reinforced with decrees and orders namely the order 1503 of 6 October 1992, which regulates the publishing, duplication, import and distribution of artistic works in Togo.

The BUTRODRA

The Bureau Togolais du Droit d’Auteur (BUTODRA) is the copyright office in Togo. The BUTODRA, a statutory public institution provided by the law of 1991, aims at protecting and defending the artistic works of the residents and authors living in Togo as well as their assignees, within the territory and abroad while promoting national creativity in its field of competence. It also manages the works that are in the public domain which is subjected to its authorization for payment of a royalty.

In reality, its primary function remains the collection and distribution of royalties to artists as well as fighting piracy against artistic and literary works. The office is however supported by artist associations, in particular, the Union Nationale des Artistes-Musiciens established in 1982.

To date, 5740 authors are registered at the BUTODRA.The music sector (authors, composers, interpreters, musicians) registers the most with 61.48 % of the total number of subscribers (3529 subscribers), followed by scriptwriters and actors (17.77 %), writers, novelists and poets (15.8%), playwrights and comedians (1.65 %) and painters, draftsmen and graphic designers (1.56 %). All in all, 9573 works are registered to date.

As for the registered authors, musical works count more records with 46.96 % of the total number, 33.37 % for literary works, 11.13 % for plastic works, 5.11 % for dramatic works and 3.4 % for film works.

The collection and distribution of royalties

The management of literary and artistic works at the BUTODRA is undertaken through three stages: documentation, collection, and distribution. The office first identifies the work with regard to various authors and proceeds with their authentication by affixing holograms to distinguish them from imitations. The office then proceeds with the collection of royalties from all users exploiting the works of an artist in particular bars, restaurants, nightclubs, radio and TV stations etc.

These users are placed into two categories: the occasional (who occasionally use the works such as supermarkets) and the permanent user (nightclubs, bars). They are listed by group and the office enters into a contract with them. The royalty rate is fixed according to their use, their turnover and size of the business.

Once these distinctions are made, the method of collection is simple: the office provides log sheets to the aforementioned users, which they are suppose to fill daily by specifying the title, author, hour of distribution and category of the work used.

These reports are then entered into the WIPOCOS, the software set up by the World Intellectual Property Organization (WIPO) to calculate the fees of every artist according to the number of hours of distribution and distribution category. The office also collects royalties for the duplication of musical works (50 XOFV/tape and 75 XOF/CD), according to the law of 1991.

The royalties are then distributed to it's registered with the office or whose works have been registered. The law requires that the artists be represented at the Board of directors of the office to ensure collaborative management.

Despite these more or less transparent mechanisms, artists have filed several grievances for the mismanagement of royalties. Some say they have never received royalties from BUTODRA, even though they are registered and have declared their works. Others do not trust the institution enough and prefer earning from concerts and live shows.

Piracy

Music piracy is the exploitation or illicit reproduction of musical works without the consent of its author, legal successors or collective management company. There are two types of piracy. Piracy for personal use (download of an original work on a computer) and commercialpiracy (reproduction of musical worksin quantity by means of machines).

According to figures collected from the BUTODRA, nearly 10,000 pirated copies are released into the market every month.

Besides the authentication process and more coercive legal measures to discourage perpetrators, the office regularly organizes raids together with the Togolese security forces. For example, in 2004, these raids led to the dismantling of a Chinese network of counterfeiters in a suburb of the Togolese capital (Lomé), where a large quantity of counterfeit CDs were seized.

In 2007, more than 70000 musical works imported from Singapore were confiscated in Lomé. These operations are sometimes organized on the borders of Togo and Benin, in cooperation with the Bureau Béninois du Droit d’Auteur (BUBEDRA).

The Web

The Web 2.0 imposed new threats to the music industry worldwide. The Togolese State has already drafted a new legislation addressing the management of private copying of copyrighted material, which will allow the office to collect royalties on the import of gadgets or digital media: USB drives, memory cards, hard disks, mobile phones etc.

The purpose is to allow compensation to authors for the unfair and deliberate damage caused the bynon-commercial private use of their copyrighted material.

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References for further reading:
La Convention de Berne ordonnance No4 du 6 Janvier 1975
La loi sur  N 91-12 portant protection du droit d’auteur du folklore et des droits voisins