Contemporary Concerns

 

Copyright Infringements and the Gambian Music Industry

 

By Nasiru D.B. Deen, a student at the University of the Gambia. He is currently studying law and is expected to complete his LLB program in May, 2018. His areas of interest include Intellectual Property Law and Criminal Law, and this is his first published journal article. Email: This email address is being protected from spambots. You need JavaScript enabled to view it..

 

Abstract

 

This research paper seeks to examine in detail how copyrights protecting music, as contained in the Copyright Act of 2004, are presently being infringed in the Gambia, and to also draw the attention to the adverse effects these purported infringements are having on the players and institutions involved in the Gambian music industry. Using bibliographic sources, the research paper highlights the history, current informal structures and questionable modes of operation within the Gambian music industry and how these have contributed to endemic copyright infringements that have plagued the industry since its inception. After outlining the obstacles that the present generation of Gambian artists must tackle on a regular basis, the paper presents recommendations as to how these problems could be potentially solved. It concludes with a positive outlook on the future of both the Gambian music industry and copyright enforcement.

 

Introduction

 

Copyrights is an area of Intellectual Property Law that grants exclusive and assignable moral and economic rights to the creator of original artistic, literary, and musical works for a limited period.[1]The 2004 Copyright Act of the Gambia is the legal instrument which governs and regulates copyrights in the Gambia.[2] It was enacted in observation of the Gambia’s obligations under the Berne Convention for the Protection of Literary and Artistic Works of 1886, a treaty which the Gambia signed in 1993.[3]

 

Copyright in the Gambia differs from other forms of intellectual property in that it need not be registered in order for one to enjoy the protection it provides, which is unlike patents, trademarks or registered designs.[4] Copyright protection is vested on the author of a work once the work is created in a material form.[5] The 2004 Copyright Act contains several provisions that protect the rights of creators of musical works.[6] This aspect of the Copyright Act is vital to the music industry in the Gambia, as without it, hundreds of musical creations would be open to free use and distribution making it impossible for the creators/authors to benefit from their artistic creations.

 

This paper argues that the Gambian Music industry is a largely dysfunctional industry with very few recording studios, and even fewer record labels in operation,[7] yet it has existed since the dawn of Gambian independence from the British in the early 1960’s.[8] The early generation of Gambian musical acts included the Super Eagles, Guelewar and Ifang Bondi bands, who were ever-present in the Gambian musical scene until the late 1980’s.[9] The musical works of this early generation of Gambian musicians did not benefit from copyright protection, however as there existed no relevant copyright law in the Gambia prior to enactment of the Copyright Act in 2004.[10] As a result, their musical productions were pirated on a mass scale, which resulted in substantial economic losses for the creators of such works.[11]

The current crop of Gambian musical acts, which includes artists such as Jaliba kuyateh, Jali Madi and Bai Babu, also face the same problems as the early generation, in spite of the coming into force of the Copyright Act nearly fourteen years ago.[12] Gambian music is still being pirated both online and in the market places;[13] royalties don’t get paid to artistes whose music regularly gets played on FM radio stations and on TV.[14] This paper argues that these issues have in turn led to the Gambian music industry not reaching its full economic and social potential, as it continues to struggle for prominence in both the local and international music scene.[15]

 

The first part of this research paper therefore discusses the copyright laws that protect music in the Gambia, and highlights the implication of those laws on both the creators of music and its users. The second part of the research paper then describes the most common forms of copyright infringements that occur in the Gambia, and details how they occur and who commits them. The third part of this essay examines the effects that copyright infringements have on the Gambian music industry, whilst the final part of the essay provides recommendations as to the different methods that could be employed to curtail the perennial infringement of music copyrights in the Gambia.

 

Copyright Laws Protecting Music in the Gambia

 

Creators and co-creators of musical works are entitled to copyright protection under Gambian law for the music they create.[16] The Gambian Copyright Act of 2004 contains several provisions pertaining to the protection of music copyrights. Copyright in a sound recording vests the exclusive right to do or to authorise the doing of any of the following acts in the Gambia:

 

a.       ‘The direct or indirect reproduction of that sound recording’.[17] Direct reproduction refers to copying sound recordings instantaneously copying from a physical format (such as a CD or DVD to another physical format or device, such as an MP3 player or hard drive) or copying from an online format (such as an online music services, onto a physical format or device), whilst indirect reproduction requires some intermediary copying to take place such as the copying of a broadcast.[18]

b.       ‘Importation of copies of the sound recording’,[19]

c.        ‘the distribution to the public by sale or other means transfer of ownership of the original or copies of the sound recording’,[20]

d.       ‘rental to the public or public lending of a copy of the sound recording’,[21]

e.       ‘the making available to the public of the sound recording, by wireless means, in such a way that members of the public may access it from a place or at a time individually chosen by them’.[22]

By implication, any of the above acts committed by any person(s) or institution(s) without the authorisation of the copyright holder constitutes an infringement of music copyrights and a violation of Gambian Copyright law, and may be liable to a fine of 500, 000 Dalasi or a jail term not exceeding three years; or both a fine and jail term.[23] Such a person or Institution would also be liable to pay damages in a civil suit, and may be mandated by the court to cover all ‘expenses caused by the infringement, including legal costs.’[24]

 

However, it would not amount to a copyright infringement if the unauthorised copying of a music author’s work is done for one’s private use or for teaching and research purposes.[25] It would also not amount to a copyright infringement if ‘short excerpts of a performance or sound recording’[26] are used for ‘commentary, criticism, parody or informative’[27] purposes, this is referred to as ‘fair use.’[28]

 

In the Gambia, an author of music or music producer holds copyright on his/her work for fifty years from the end of the year in which the recording is first published or made available to the public, and if it has not been published, for fifty years from the end of the year in which it was fixated.[29] The work(s) of the music producer/author, after the expiry of this period, would then fall into the public domain and anyone wishing to use the artist’s work(s) may do so freely, without the fear of infringing copyright laws.[30] An artist’s work may also fall into the public domain if he/she deliberately places it in, which is known as “dedication.”[31]

 

In no circumstance does copyright protection for original work extend to ideas and concepts.[32]  For copyright purposes, a work does not come into existence until it is reduced to a material form.[33]In the case of music, “a musical work [would] not come into being while it only exists in the composer’s mind even though he might give a rendition of it on a musical instrument, it will only come into being when it is reduced to some material form such as a written notation.”[34]

 

The Gambia Copyright Act of 2004 grants the authors, performers and producers of sound recordings and other copyright work the right to royalties “when [their] sound recording discs or other devices are used in a public performance or in a public place or where they are used in broadcasting or audio-visual work.”[35] Royalties are sums payable the right to use someone else’s property for the purpose of commercial gain, and are usually paid on assets with a limited lifespan.[36]As such music authors are entitled to royalty payment whenever their music is used by persons or institutions such as radio stations, television channels, bars, clubs, movie directors and even taxi drivers in the conduct of their respective commercial activities.[37]

 

A collecting society is also established under the Copyright Act[38] and is responsible for:

 

a.       promoting, representing and protecting the interests of its members;[39] and

b.       collecting and distributing the royalties and other remuneration accruing to its members.[40]

With the above description of the most relevant copyright laws protecting musical works in the Gambia, this research paper will next explain how these copyright laws are currently infringed in the Gambia.

 

Infringements of Copyright Laws Protecting Music

 

This section of this research discusses the most common forms of music copyright infringements in the Gambia, detailing how these infringements occur, and who commits them.

 

Piracy

 

On the 15th of February 2018, it was reported in the Point Newspaper that 32 accused pirates had been arrested for allegedly ‘re-doubling the CD music’ of Gambian artist Jaliba Kuyateh for sale to the general public.[41] As a matter of personal practice, Jaliba Kuyateh released 5000 copies of his new album into the market on the 26th of January 2018, but had only sold 26 copies since then, which is perhaps a meagre return for an artist whose music has been playing at ‘every nook and cranny of the country’ since its release.[42]

 

The above is one example of Gambian artistes not being able to enjoy the fruits of their labour because of pirate activities. The Piracy of Gambian music has occurred since the inception of the Gambian music industry in the early 1960s.[43] By the early 2000s, it had become endemic, with the growth in the popularity of CD/DVD technology, pirates could now easily make thousands of copies of an artist’s work using CD-burning technology.[44] Some have argued that in the early 2000’s, piracy was a necessary evil due to the fact that Gambian artistes, due to limited finances, were not able to publish ‘anything more than 500 to 1,000 copies’ for the market. As such, if the genuine copies were inadequate to fulfil the demand of the consumers, the pirated copies filled in the gap.[45]

 

Music piracy refers to “the copying and distributing of copies of a piece of music for which the composer, recording artist, or copyright holding company did not give consent”.[46] Music piracy in the Gambia occurs in four ways.[47] The first of which is counterfeiting; which is the unauthorised copying of the sound, artwork, label and packaging of the original recording with the goal of misleading the consumer into believing they are purchasing the original recording.[48] This form of piracy is however very rare in the Gambia as it requires sophisticated technology to carry out and costs a lot more to execute.[49]

 

The second form of piracy is photocopying which involves illegally duplicating legitimate publications of music into pirated CDs/VCDs/DVDs for sale and distribution.[50] The packaging and presentation of the duplicate copies in most cases look nothing like the legitimate release, even though the contents it bears may be the same as the legitimate commercial release.[51] This is the most common form of piracy in the Gambia and the most profitable.[52]

 

For example, an illegal trader or pirate could buy the legitimate copy of a Gambian artist’s work for 150 Dalasi ($3), and buy 100 blank CD’s for 15 Dalasi each which sums up to 1500 Dalasi ($30), for 100 pirated copies of the Gambian artist’s work, through the use of freely available internet software. The pirate could then sell each pirated copy for 50 Dalasi ($1), and would eventually generate a total revenue of 5000 Dalasi ($100) and a high profit margin for every one hundred pirated copies sold. This common concept of piracy is practiced in popular Gambian market places in Serekunda, Banjul and Brikama, where illegal copies are sold by traders, vendors and even small recording studios.[53]

 

The third method of piracy is called bootlegging: “This is the recording, duplication and sale of a performance such as live concert or broadcast (radio & TV) without the permission of the artist or the record company which owns the rights to the artiste’s performances.”[54] Live performances by Gambian artists are generally poor however, as most of them lack the experience of playing with live bands.[55] As a result, the sale of record copies of live performances, TV and Radio broadcasts pale in comparison to pirate copies of studio recordings which are digitally tweaked and auto-tuned to improve the sound.[56]

 

The final form of Piracy is peer-to-peer file Sharing. This involves the distribution of digital media over a ‘P2P’ network, in which the files are located on individuals’ computer and shared with other members of the network.[57] This method of piracy was developed back in 1999 with the file-swapping website ‘Napster.com,’[58] which was a website designed ‘to facilitate the exchange of music between his friends using compressed digital media files called MP3s.’[59] In the Gambia, popular file-swapping websites like ‘emp3e.com’ and ‘tubidy.com’ can be used to download Gambian music for free.[60] In addition to this, the Gambia has one of the highest mobile phone concentrations in the world,[61] with file-swapping technology found on almost every phone being manufactured.[62] This has made file-swapping of Gambian music much easier. Furthermore, advancements in technology have seen the growth in popularity of file-swapping applications like ‘Xender’, which can be used to share music files between mobile devices (phones, tablets and laptops) in record speed.[63]

 

The impact of the peer-to-peer file sharing phenomenon is of greater significance to the Gambian music industry than bootlegging, counterfeiting and pirating, as unlike the others, it creates the perception that Gambian music is of no monetary value, [64]and can be acquired for free with the help of a computer device. This phenomenon is however not unique to the Gambian music industry. Big music corporations like ‘Sony Music’ have been fighting against peer-to-peer file sharing websites and networks since 1999 with very little success.[65] Whenever a music corporation gets a court order for a file-swapping website to shut down,[66] more file-swapping websites pop up. Between 1999 when the first file-swapping website began operations and 2002, there were approximately 58 different file-swapping programs available online.[67]

 

The challenge this phenomenon poses to the Gambian music industry, is finding a way to stop music users from accessing these file-swapping websites in the Gambia and encouraging them to purchase more genuine copies of Gambian music. Many other music industries have tried and failed to achieve this,[68] however recommendations are made in part four of this research on how this could be achieved in the Gambia.

 

Payment of Royalties

 

Music royalties are essentially the payments received by artists when their material is featured in some public capacity, such as advertisements, film or streaming services.[69] The Gambia has a poor history of music royalty collection, and currently has weak royalty collection institutions. For example, prior to 2004, payment of royalties was non-existent, as there was no Copyright Law that provided for this.[70] The coming into force of the Copyright Act in 2004 mandated the creation of the ‘Collecting Society of The Gambia’[71], whose task would be the ‘collecting and distributing of royalties among members’.[72] However it wasn’t until May 2013 that ‘the nine-member board’ of the Collecting Society was fully constituted and began work, albeit in the face of mounting challenges that included a lack of finance to implement its work plan.[73]

 

Mechanical Royalties

 

There are mainly two types of music royalties payable in the Gambia. The first is ‘Mechanical Royalties’: These are royalties paid ‘to a songwriter or music author whenever a copy of one of their songs is made’ in physical format including vinyl, cassette, and CD/DVD productions.[74] These royalties are not to be gathered by the Gambian Collecting Society, as they are individually negotiated between the music authors and the record labels they are signed to.[75] There are however very few record labels in the Gambia,[76] with ‘Jollof Arts’ record label being the most notable.[77] Record labels are the copyright holders of the music that the artist makes,[78] and are also responsible for the costs of production, marketing and distribution of the artist’s work,[79] as well as paying royalties (an already agreed on percentage of every sale made) to the artist as a reward for their work.[80] Most Gambian artists are not signed to a record label however, since there are very few in operation in the Gambia. These unsigned artists release their work through recording studios like the ‘Xalam Studio’[81], and bear the costs of production (this may include fees for recording sessions), whilst also being solely responsible for the marketing and distribution of their music, and the associated costs.[82] Many of the Gambian artists who cannot afford to finance the release of their music therefore seek sponsorships from individuals, companies and institutions.[83]

 

 What this system has created over-time is a large group of independent Gambian artists who are unable to finance the release of their own music,[84] and are thus open to exploitation from corrupt sponsors and investors that might take a bigger percentage of the sales than they are entitled to - leaving the artist unable to adequately benefit from the profits of their work, by paying very little in terms of royalties.[85] In 2013, phone network company Africell, a sponsor of Gambian artists like ‘Mighty Joe’ and ‘Manding Morry’ refused to share the revenue from the sale of songs by Gambian artists through its ringtones service.[86] Some of the songs ‘Africell’ used in this service are songs of artists that it sponsors. One affected artist called on his colleagues to be “watchful of companies that do not have the artists’ interests at heart” and that “would seek to exploit them.”[87] 

 

This paper argues that the above problem is best remedied through the establishment of numerous competing record labels, which would not only be responsible for funding the production of Gambian music, but would also be better equipped at marketing and distributing the music to the Gambian consumers than individual artists and their sponsors, whilst offering competitive royalty packages for their work.

 

Public Performance Royalties

 

The second type of music royalties are ‘Public Performance Royalties’. These royalties are the most common and wide-reaching royalties in the Gambia,[88] and are ‘royalties paid on every performance of copyrighted music’.[89] This can include, but is not limited to, airing music on radio, live performances, performances recorded for film or television, and playing copyrighted music over stereos in public spaces.[90] The Collecting Society of the Gambia is responsible for collecting and distributing Public Performance Royalties to its members,[91] but as a limited institution, it has been unable to effectively carry out this function, since its formation in 2013.[92]

 

There is an implied duty for radio stations, TV stations, hotels, clubs, DJs and others, to comply with public performance royalty payments, as it deemed unfair by Gambian copyright law for an artist’s work to be publicly used, especially in the conduct of commercial activities, without being rewarded for the benefits that may arise from that use.[93] Some radio stations in the Gambia have argued that they should be exempt from paying royalties because the air play they give to Gambian music and Gambian artists promotes their music and boosts sales.[94] However, this argument fails to justify an exemption on royalty payments, due to the fact that the sale of Gambian music has continuously dropped over the years,[95] and – as described earlier in this paper - the fact that radio air play contributes to piracy through ‘bootlegging’.[96] 

 

The Collecting Society of the Gambia should keep track of the royalties owed to the artists by requiring all radio stations in the Gambia ‘to keep a log of the songs they play for a set period each year,’[97] and demanding that all TV stations keep cue sheets - a list of every song that is played on the network, as well as when it is played and for how long.[98] The Gambia Radio and Television Service (GRTS) is the only local TV service in the country,[99] and it airs Gambian music through programmes such as ‘FILA’, ‘African Mix’, Goudi Samdi’ and ‘Dial GRTS Request show’.[100] Keeping track of music played in other spheres such as in taxis and by DJs would prove a much more daunting task for the Collecting Society, but essential in protecting Gambian artists, and an achievable one if the right methods are deployed.

 

In his article ‘Copyrights and Music Royalty Collection in The Gambia’, the Director of Copyrights, Mr Hassoum Ceesay argues that Gambian artists should be at the forefront of the implementation of the Collecting Society Mandate.[101] In his argument, he uses the Senegalese music industry as an example to show that a successful ‘Collecting Society’ is one run by the artists themselves.[102] This paper concurs that Gambian artists may have to take similar steps in creating an effective Collecting Society in order to start reaping the rewards of ‘Public Performance Royalties’ in the Gambia.

 

Effects of Copyright Infringements on the Gambian Music Industry

 

In continuation of the discussion above, this paper will now examine three predominant, different effects that music copyright infringements have on the Gambian music industry.        

               

Loss of Potential Income

 

The biggest effect of copyright Infringements on the Gambian music industry is the loss of potential income.[103] People get into the music business, specifically the Gambian music industry, to earn a living.[104] They seek to utilise their various musical talents to gain meaningful employment and earn enough money on a regular basis to support their art and their families.[105] Since its inception the Gambian music industry has been unable to generate enough revenue to boost growth in the industry, with most of the money being lost due to endemic piracy, peer-to-peer file sharing and poor royalty collection mechanisms, as indicated above.[106]

 

There are more pirated copies of Gambian music in the market place than genuine authorised copies,[107] with revenue from the sales of such illegal pirated copies benefitting only the law-breaking pirates, rather than the music industry itself.[108] ‘Performance Royalty’ collections in the Gambia are potentially worth upwards of 7 million Dalasi ($140,000) annually;[109] potential revenue currently being lost by the music industry due to the poor collection mechanisms in place. The peer-to-peer file sharing of Gambian music has also caused the industry substantial losses, with music users usually preferring to download for free from the internet or just digitally copy from another device rather than go to the stores to buy a legitimate copy.[110] There are no estimates as to how much the Gambian music industry has lost to the peer-to-peer file sharing due to the various difficulties involved in tracking the activities of users in the Gambia.[111]

 

In the past Gambian artists made a good percentage of their income through sales of recorded copies of their music,[112] but sales have steadily dropped in the past few years, due to piracy and online sharing, which affects the earnings of not only the artists but also the recording studios as well as the record labels.[113] In 2013, ‘Sunland Music Studios’- producers of hit Gambian songs like ‘Bul Falleh Nyee’ by Gee and ‘We Must Rebel’ by Rebellion - shut down operations, with its CEO Mr Hakim stating that the studio faced numerous problems during its existence, chief of which was the difficulty in selling records.[114] The closure resulted in the loss of jobs of the producers, sound mixers and technical assistants that worked with the studio.[115] Gambian artists are also known to have quit the industry as they deem it not profitable enough. Popular Gambian Artist Gee, who is considered by many as one of the biggest stars of the Gambian music due to his collaborations with international stars like Wiz-kid and Demarco,[116] quit the industry in 2015 by famously stating “Gambian music is wasting my time because it is not paying my bills, does not pay my daughter’s tuition and can’t get me the proper contacts I need”.[117]

 

The Gambian music industry can take solace in the fact that the fall in sales of recorded copies of music leading to a loss of income is a global problem affecting not only the Gambian music industry, but a good number of other music industries worldwide.[118] The Recording Industry Association of America, which is made up of large companies that oversee the recording and distribution of music,[119] reported in 2016 that sales of recorded music had dropped by almost 50% since 1999 resulting in financial losses of 12.5 billion US Dollars, and over 70, 000 people losing their jobs.[120] These people include artists, songwriters, producers, engineers, technicians, marketing support and promoters.[121]

 

The loss of income in the Gambian music industry as well as the Global music industry as a result of various copyright infringements has led to artists as well as record labels seeking other forms of revenue generation to stay in business. This has led to the second biggest effect of copyright infringements on the Gambian music industry that is next examined.

 

Dependence on Live Performances

 

The dependence on live performances by Gambian artists is a direct attempt to rectify profits that have resulted from the loss of potential income caused by copyright infringements.[122] Performing live with a band before a paying audience is one of the means through which  Gambian artists make money off their music in order to make up for the loss of income caused by Copyright infringements.[123] Piracy, Bootlegging and Peer Sharing do not affect revenues generated from live performances, and in fact, research has shown that music piracy is directly responsible for artists increasing the amount of live performances they make in order to boosts revenue.[124] Gambian artists, as a result, have been hitting the stage more often in the past few years than they did in the past.

 

Residencies are the most common providers of live performances of Gambian music, and these are commonly found in the tourism area of Senegambia.[125] Hotels, restaurants and bars usually hire Gambian artists to perform with resident bands and these artists are either paid a regular monthly salary, or are paid per performance,[126] both of which are a more guaranteed and consistent source of income when compared to selling records. Music festivals like the ‘Open Mic’ festival also provide artists the opportunity to perform live, but these sorts of festivals are rare and usually occur once each year,[127] making these festivals an unreliable source of live performance revenue for the artists. Gambian artists also perform live in social events like naming ceremonies, weddings and gala dinners, where they would not only get paid performance fees but may also receive generous tokens from guests who enjoy the performance.[128]

 

Some artists also perform in concerts at popular venues like the Independence Stadium and Pencha Mi Hall, pulling in thousands of spectators.[129] However, only a few Gambian artists like Jaliba Kuyateh manage to sell out concert tickets easily, whilst many other artists struggle to achieve the same level.[130] Gambian artists have lately relied so much on crowd-pulling performances that it is now commonplace for an artist to give out copies of his music for free to those who buy a concert ticket.[131] In essence, this study argues that a ticket to a live performance by a Gambian artist carries more value than a copy of recorded Gambian music. The notion that concert tickets have become more valuable than recorded music is one that rings true in the global music industry. For example, in 2016, all the top ten earning artists for that year earned significantly more money from touring and performing live than they did from record sales,[132] with the highest earning artist Beyoncé generating 54.7 million US Dollars from touring, whilst earning a modest 4.3 million US Dollars from record sales.[133] 

 

Despite their dependence on live performances to boost income, most Gambian artists have struggled to make it in the live music scene and have in turned blamed the influx of Senegalese artists into the live music scene for their struggles.[134] Senegalese music is very popular in the Gambia; some may argue that its popularity in the Gambia surpasses that of Gambian music.[135] Senegalese artists generally sing in Wollof, which is the one of the most widely spoken local dialects in the Gambia,[136] and the genre of Mbalax is one that cuts across both music industries of Senegal and the Gambia.[137] The malice Gambian artists have against performing Senegalese artists stems from the fact that Gambian promoters would rather bring Senegalese artists all the way from Senegal to perform live in the Gambia than hire Gambian artists.[138] During the Christmas period of 2017 alone, there were 15 different high-profile Senegalese artists and bands performing live in different concert venues in the Gambia.[139] In his paper ‘Music piracy in the Gambia’, Mr Hassoum Ceesay argues that Senegalese music suffers from piracy in the Gambia as much as Gambian music does.[140] If so, then this paper argues therefore that Senegalese artists perform live in the Gambia to make up for the loss of income stemming from copyright infringements their music suffers from – just like Gambian artists do.

 

The solution to this is finding mechanisms through which piracy of Gambian music can be curtailed in the Gambia and to see to it that royalty payments are paid to the artists in order to lessen the dependence on live performances to generate income. Recommendations as to how this can be achieved are provided in part four of this research.

 

 

Illegal Export of Gambian Music

 

The third major effect of copyright infringements on the Gambian music industry is the illegal and unauthorised export of Gambian music to foreign markets. The illegal export is perpetrated by pirates selling unauthorised copies of music in foreign markets[141] and by file-sharing websites where music can be downloaded at no cost from any country in the world.[142] Pirated copies of Gambian music can be found in neighbouring countries like Senegal and Guinea Conakry and –as mentioned earlier- websites like ‘emp3e.com’ and ‘tubidy.com’ can be used to acquire Gambian music from anywhere in the world.[143] This form of export of Gambian music is illegal because it is done without the knowledge and/or the authorisation of the copyright holder.[144] In addition, the financial rewards of this form of export, if any, do not go to the artists, record labels or the music industry but rather go to the perpetrators of this illegal activity.

 

Export revenue is vital to any music industry in the world. In 2015, export revenue accounted for more than half of the Gross Value Added (GVA) to the UK music industry; [145] however the Gambian music industry has been unable to capitalise on the export potential of Gambian music and some have argued that the music industry does not have the capacity to export its own music to foreign markets.[146] This is because Gambian record labels are primarily focused on breaking into the Gambian market and usually sell records only in the Gambia.[147]

 

There currently exists a high demand for Gambian music internationally,[148] and when this demand is not met by the industry, some consumers may resort to either downloading Gambian music from file-sharing websites or buying pirated copies from dealers found in their country.

 

Gambian music is currently legally exported through overseas touring. Artists who want to export their music to a foreign market would have to go on tour and perform live before a foreign audience.[149] Several Gambian artists have set out on tours over the years, crossing different countries and continents. One of such well-travelled Gambian artist is Sona Jobarteh, who has performed in countries like Brazil, India, Ghana, South Korea and Switzerland.[150] Other Gambian artists however have not had much success in trying to export their music, with some facing issues like visa denials and lack of funds to cover travel and accommodation costs.[151] In 2017, two Gambian artists named ST and Bai Babou were denied visas to perform in the United Kingdom, leading to comments by a Gambian artist who stated that due to the constant visa denials by various embassies, it would be “nearly impossible for artists to export our country’s culture”.[152] ST and Bai Babou may have been unable to tour the UK in order to export their music, but consumers of their music in the UK can still acquire and enjoy the music they make by illegally downloading it through file sharing websites.  It can therefore be inferred that copyright infringements like piracy and peer-to-peer file sharing have succeeded in achieving something the Gambian music industry has struggled to achieve: the easy export of Gambian music, albeit illegally, into foreign markets worldwide.

 

The Gambian music industry would however struggle to curb the illegal exporting of Gambian music through file sharing sites and by pirates, as it would require international co-operation with foreign countries in which pirated copies of Gambian music has been found or is being illegally downloaded. It would also require the Gambia to do its part in fighting the illegal importation of foreign music, something which it currently lacks the capacity to do judging from the presence of pirated copies of Senegalese and Nigerian music in Gambian markets,[153] and the availability of a wide range of foreign music online for download in the Gambia.[154]

 

Recommendations

 

This final part of research will provide recommendations as to how to solve some of the copyright problems plaguing the Gambian music industry, in response to the issues outlined.

 

Introduction of New Control and Regulation Measures

 

This paper suggests that new control and regulation measures be introduced to combat copyright infringements. These new measures can be contained in an amended version of the 2004 Copyright Act, which some have argued is long overdue for an amendment because it fails to cater for the developments in piracy techniques that have occurred since 2004. Firstly, in order to prevent the counterfeiting and photocopying of authorised copies of Gambian music, a policy mandating the issuance and enforcement of holograms and a watermarking system of tracking CDs would be vital.[155] The Gambia has never enforced any anti-piracy devices such as holograms,[156] and is yet to enforce the Economic Community of West African States (ECOWAS) common hologram which was agreed upon by ECOWAS culture ministers in 2010.[157]

 

Holograms refer to the “shiny, metallic patterns with ghostly images floating inside them” that can be found on CD/DVD cases, credit cards and on banknotes.[158] They are very difficult to reproduce and so help defeat any attempt at counterfeiting.[159] A hologram can also help convey to the purchaser that the item (copy of music CD/DVD) that he/she is buying is an authentic authorised copy. Digital watermarking on the other hand is a compression technology used to encode within the digital format data about the author, the copyright date, and permitted uses of the material.[160] It is great tool for tracking infringers, identifying them and assessing a royalty fee for the unauthorised use of the copyrighted material.[161] As such, this paper recommends that new regulations be put in place that would require all authorised recorded copies of Gambian music to either bear holograms or be embedded with digital watermarking technology.

 

With regards the online file sharing of Gambian music in the Gambia; this paper argues that employing the litigation approach would not be a viable solution to the problem of online piracy and file sharing in the Gambia. In the early days of the peer sharing phenomenon, the American music industry employed the litigation approach and went after peer sharing websites by seeking court orders to have them shut down.[162] The American music industry also went after individual infringers by seeking compensation for the illegal use of their works.[163] The music industry however realised that shutting down peer sharing websites only led to more peer-sharing sites popping up – as mentioned earlier – and that suing thousands of individual infringers was an expensive and time consuming venture that brought about very little rewards.[164] Recently however, the American music industry in collaboration with internet service providers like Verizon and AT & T,[165] have implemented more practical measures to reduce online piracy and file-sharing, these include: providing warnings in the form of pop-up messages to subscribers attempting to download music illegally.[166] Slowing down the internet speeds of subscribers attempting to download music illegally, and even temporarily blocking persistent infringers from having access to the internet.[167]  All of these practical control measures could also be implemented in the Gambia with the help of internet service providers.

 

Creation of Better Distribution Channels for Gambian Music

 

This paper also recommends the creation of better distribution channels for Gambian music by the music industry. Distribution is a very important aspect for any viable industry and where this is lacking, it is certain that the survival of that industry is shaky.[168] As mentioned earlier – Gambian artists have continuously struggled to get authorised copies of their music into the local and international market,[169] which has resulted in high piracy rates of Gambian music both locally and internationally.[170] Research has shown a direct link between effective ways of distributing music and a drop in the high rates of music piracy.[171] For example, Sweden, which is home to Pirate Bay - a file sharing website where music can be illegally downloaded for free - had “sky high piracy rates” until Spotify – an authorised digital music streaming service – was launched in 2008 resulting in piracy rates of music falling “off a cliff” in Sweden.[172] The researchers of this study have therefore concluded that people are far less likely to pirate music if there exists easy, effective and innovative ways through which they can legally access music.[173]

This paper concurs with the above conclusion and further argues that the same could apply to the Gambian music industry. Spotify and other world renowned streaming services may not be popular in the Gambia, however, similar streaming services which would only be dedicated to Gambian music could be created to serve the purpose of distribution of Gambian music in the Gambia. These streaming services could potentially be available in international markets as well for consumers of Gambian music living outside the Gambia.

 

For consumers who prefer physical copies of Gambian music or who may find it hard to navigate the digital world, music retail stores could be built in strategic locations in the Gambia by record labels or private investors to ensure easy access to purchasing physical copies of Gambian music. Record labels in the Gambia could also distribute physical copies of Gambian music internationally by collaborating with other record labels found in foreign markets that would distributes these copies of Gambian to consumers in that territory on behalf of the record labels in the Gambia. For example, Interscope Records – an American record label - distributes the releases of Polydor Records in the USA, and Polydor Records – a British record label – does the same for Interscope Records in the UK.[174] Through these methods the Gambian music industry would not only solve its problems of distributing Gambian music, but would also in the long run, potentially reduce the piracy rates in the Gambia.

 

Education and Public Awareness

 

This paper recommends that education should not be overlooked as a tool to fight copyright infringements. It is important to create awareness and ensure public education about piracy and other copyright issues.[175] This can be done through an anti-copyright infringement campaign on popular media like TV, radio and social media. If and when the campaign becomes viral, a large number of Gambians would then become aware of the dangers of buying pirated music, downloading music illegally and the negative effects these have on the music industry. An example of such a campaign is the ‘Music Matters’ online campaign which was pioneered by Niamh Byrne of Universal Music.[176]

 

The ‘Music Matters’ campaign features advice on legitimate ways of purchasing music as opposed to illegal downloading and piracy,[177] and a similar campaign could be launched in the Gambia using affected Gambian artists to tell stories of how various copyright infringements have affected their careers and livelihoods, as well as provide advice on what steps the public can take to bring an end to this epidemic. The campaign could be launched through various adverts on radio, TV and social media, and could also be given coverage through popular talk shows and news bulletins. This paper argues this would be the most effective way of educating the public and raising awareness on copyright infringements and the negative effects thereof, due to the fact that it would reach the greatest amount of people in the Gambia.

 

The topic of copyright infringements could also be incorporated within the school curriculum in tertiary institutions for courses like computer science, law, mass communication, and all creative arts courses.[178] Through this method, a good number of people would acquire a detailed understanding of how copyright infringements occur and gain knowledge on how it can be prevented or curtailed. Education and public awareness can also be raised through seminars, symposiums and workshops.[179] The Copyright office under National Centre for Arts and Culture (NCAC), the body mandated to enforce copyright laws in the Gambia,[180] has employed this method for many years by organising numerous workshops and seminars to “bring salient copyright issues to stakeholders to stakeholders drawn from across the creative arts scenes in the Gambia”.[181]

 

This paper however argues that seminars and workshops are the least effective way of raising public awareness because whilst a viral campaign would raise awareness among hundreds of thousands of Gambians, and incorporation of copyrights into the curriculum of tertiary institutions would educate thousands of tertiary students on copyright issues, workshops and seminars on the other hand only educate and raise awareness among a handful of people at a single time. This paper therefore suggests that the NCAC gives greater consideration to both creating an anti-copyright infringement campaign and incorporation of copyrights into the curriculum of tertiary institutions.

           

Embracing the New Gambia

 

The final recommendation this paper makes is for the Gambian Music Industry and its artists to embrace the ‘New Gambia’.[182] The ‘New Gambia’ is a slogan meant to represent the new found freedom Gambians now enjoy under the newly elected government of President Adama Barrow.[183] With the rise of civil society organisations and pressure groups in the ‘New Gambia’ who now have the power to influence policy decisions,[184] the Musicians Union of the Gambia (MUSIGAM), whose mandate is to eradicate piracy in the country for the interests of musicians in the Gambia,[185] must now capitalise on this newly found influence to lobby the government to enforce policies that would benefit the music industry. Gambian artists must also use their voice in this new found democracy to voice out their grievances against various copyright infringements and to critique the government of the Gambia if it continues to show apathy towards the plights of the members of the music industry. 

 

This paper argues that the government of the Gambia has a massive role to play in the promotion of Gambian music and the fight against copyright infringements in the Gambia. This includes but is not limited to; the implementation and enforcement of copyright-related policies through its various agencies or departments, and the provision of funds to not only combat piracy but also boost growth in the industry.

 

Under the dictatorial regime of former president Yahya Jammeh, pressure groups were very ineffective, and self-censorship was rife due to the fact that any opposition to government policies was usually met with lethal force or threats thereof.[186] The former president was known to donate large sums of money, ranging from 250,000 Dalasi ($5000) to 500,000 Dalasi ($10000) to certain Gambian artists who had composed and performed songs of praises to him,[187] whilst artists who attempted to criticise the former president and his government through their music had to flee into exile.[188] The government of former president Jammeh also did very little to boost the growth of the Gambian music industry as a whole and made very little efforts in fighting endemic copyright infringements of Gambian music in the Gambia, resulting in the frustration of many Gambian artists with the status quo of the industry.[189]

 

In the ‘New Gambia’, the Gambian music industry now has an opportunity for growth, a chance to have its voice heard, and a chance to influence the policies that would boost its growth.[190] The Gambian music industry through its unions, associations and artists must therefore seize the opportunity this new found democracy has presented in order to ensure the current and future generation of Gambian musical acts do not continue to suffer from the same copyright problems endured by the past generations.

 

Conclusion

 

Copyright laws and the enforcement thereof may have come a long way since the advent of the Gambian music industry in the 1960’s but still has long way to go to provide proper protection for copyrighted material belonging to the authors. This paper exposed the fact that despite the existence of numerous copyright laws that give an array of rights to the authors of copyrighted material (which includes music), infringements still occur on a massive scale in the Gambia. Copyright laws seek to ensure that an author or copyright holder enjoys the moral and economic benefits of his creation, whilst copyright infringements seek to deprive the copyright holder of these benefits.

 

This paper made clear that the three biggest copyright problems the Gambian music industry faces are piracy; online file sharing and poor royalty collection mechanisms. Each problem with its own unique set of features highlighted to show the dangers they pose to the Gambian music industry. Piracy in all its three forms (counterfeiting, photocopying and bootlegging) attaches some monetary value to Gambian music, albeit a lesser value than should be. Online file sharing however creates the belief that Gambian music is valueless since it can be obtained for free by illegally downloading; whilst poor royalty collection mechanisms foster the notion that organisations (like radio & TV stations) owe no duty to pay artists for the public use of their work.

 

The effects are devastating on the Gambian music industry, with the loss of potential income, dependence on live performances and illegal export of Gambian music being the most prominent. Other knock-on effects include loss of employment, loss of morale and a lack of incentive to invest in the music industry in the Gambia. It is up to the Gambian music industry to take up the fight against copyright infringements, and to accomplish this, certain measures were proposed. Technology is being used to infringe on copyrights in the Gambia, therefore technology should also be used to prevent such infringements through the introduction of holograms and digital watermarking technology. It is clear that the courts are not the best place to fight copyright infringements that occur over the internet, and that internet service providers should not be held responsible for the infringements that occur online in the Gambia, however internet service providers have a great role to play in implementing innovative ways of curbing illegal file sharing online.

 

Education to promote awareness of the problem of copyright infringement will help generate support for the importance of protecting copyrighted works in the Gambia, whilst creating distribution channels for authorised music will help render invalid the argument of copyright infringement as a result of necessity which was propounded in the article ‘Music Piracy in the Gambia. If the Gambian music industry had an excuse in the past for not being very assertive about its intellectual property rights, it has none now under this new democracy. The Gambian music industry stands to benefit the most if copyright enforcement can lead to a significant drop in copyright infringements affecting the industry, and as such, must be at the forefront of protecting its interests and that of its members. It is only through this that Gambian music would reach its full socio-economic potential. 

 

 

References

 

A & M Records v. Napster, Inc., 284 F.3d 1091, 1099

A Firth, ‘Institution and Ownership of Polydor Records’ available at https://slideshare.net/mobile/AbigailFirth/institution-and-ownership-of-polydor-records/

A Khan, ‘Hakim talks about Gambian Music, Betrayal, Relationship with Gee, Africell Cheating Artists’, (17 July 2013) available at https://whatson-gambia.com/exclusive/223-hakim-talks-about-gambian-music-betrayal-relationship-with-gee-africell-cheating-artists-in-candid-interview/

B Andersen et al, ‘Copyrights, Competition and Development: The Case of the Music Industry’ (2000) 145 UNCTAD

B Ceesay, ‘Gambia: T Smallz, Baddibunka, Sophia release new singles’ (Music in Africa, 7 August 2017) available at https://musicinafrica.net/magazine/gambia-t-smallz-baddibunka-sophia-release-new-singles/

B Ceesay, ‘Gambian Musicians refused UK visas’ (Music in Africa, 23 August 2017) available at https://musicinafrica.net/magazine/gambian-musicians-refused-uk-visas/

B Jeng, ‘Is Gee about to win the battle? Africell call for an emergency meeting after reports of artists exploitation’, (27 August 2013) available at http://whatson-gambia.com/news/headline-news/254-is-gee-about-to-win-the-battle-africell-call-for-an-emergency-meeting-after-report-of-artists-exploitation/

Billboard, ‘Top 50 makers of 2016’ (13 July 2017) available at https://billboard.com/photos/7865108/highest-paid-musicians-2016-money-makers/

C Woodford, ‘Holograms’ (Explain that Stuff, 5 July 2017) available at https://explainthatstuff.com/holograms.html

Copyrights Act 2004

Copyright House, ‘List of Berne Convention Signatories’ (2018) http://copyrighthouse.co.uk/copyright/countries-berne-convention.htm

Creative Industries, ‘UK Dominates European Music Sales’ (2016) para 7 available at https://thecreativeindustries.co.uk/industries/music/music-facts-and-figures/export-performance/

D Bainbridge and C Howell, Intellectual Property Law (4th edn Pearson LawExpress, Harlow 2015) pg. 4; World Intellectual Property Organisation, Understanding Copyrights and Related Rights (2nd edn WIPO, Geneva 2016)

Dartmouth Copyright, ‘Peer-to-Peer File Sharing and Copyright Law’ (2018) available at http://dartmouth.edu/copyright/peer2peer/

E. A. Martin, Oxford Dictionary of Law (7th edn Oxford University Press, Oxford 2013)

F.M. Polak, ‘Copyright and Digital Music Collections in South Africa’ (2009) 69 UKZN

Foroyaa Newspaper, ‘Gambian Music is Wasting my Time – Says Gee’ (23 September 2015) available at https://allafrica.com/stories/201509241115.html

Foroyaa, ‘New Gambia Demands that We Serve the People’, (23 February, 2018) available at https://foroyaa.gm/new-gambia-demands-that-we-serve-the-people/

G Douglas, ‘Copyright and Peer-To-Peer Music File Sharing: The Napster Case and the Argument Against Legislative Reform’, Murdoch University Electronic Journal of Law, vol. 11 no. 1 (March 2004) 107 available at < http://www5.austlii.edu.au/au/journals/MurUEJL/2004/7.html#Conclusion_T

H Ceesay, ‘Copyrights and Music Royalty Collection in The Gambia’ (Music in Africa, 9 September 2015) available at https://musicinafrica.net/magazine/copyrights-and-music-royalty-collection-gambia

H Ceesay, ‘Music Piracy in The Gambia’ (Music in Africa, 12 January 2016) available at http://musicinafrica.net/fr/node/14606

H McDonald, ‘How Performance Rights Royalties Are Tracked’, (23 April, 2017) available at https://www.thebalance.com/how-performance-rights-royalties-are-tracked-2460922

H McDonald, ‘Mechanical Royalties’, (November 15, 2017) available at https://www.thebalance.com/mechanical-royalties-2460503

H Mohamed, ‘Music and Poetry Thrive in The Gambia post-Jammeh’ (6 April 2017) available at https://www.aljazeera.com/indepth/features/2017/03/music-poetry-thrive-gambia-post-jammeh-170313115045976.html

Index Mundi, ‘The Gambia Political pressure groups and leaders’ (20 January 2018) available at https://www.indexmundi.com/the_gambia/political_pressure_groups_and_leaders.html

J.A.L. Sterling, Intellectual property rights in sound recordings, film and video: protection of phonographic and cinematographic recordings and works in national and international law (Sweet and Maxwell, London 1992)

J Martinez, ‘Entertainment industry, Internet service providers roll out anti-piracy system’ (9 March 2013) available at https://thehill.com/policy/technology/287151-entertainment-industry-isps-roll-out-online-anti-piracy-system

J Newton, ‘Global Solutions to Prevent Copyright Infringement of Music Over the Internet: The Need to Supplement the WIPO Internet Treaties With Self-Imposed Mandate’, (1999)  IND. INT'L & COMP. L. REV [Vol. 12:1]

J Siddall, ‘The Effects of Illegal Downloading on the Music Industry’, (2018) available at https://marshallmusic.co.za/effects-illegal-downloading-music-industry/

J Warner, ‘Combating Illegal Music Piracy: A Case Study of Warner Music Group’ (2010) American University

Jaycon Systems, ‘Bluetooth Technology: What has Changed Over the Years’, (September 28, 2017) available at https://medium.com/jaycon-systems/bluetooth-technology-what-has-changed-over-the-years-385da7ec7154

K Neely, ‘Music Piracy or a Permanent Passive Revolution: An Examination of the Role of Technology in the Challenge to a Cultural Hegemon’ (2007) UTA

L Marshall, ‘The Effects of Piracy upon the Music Industry: a case of Bootlegging’, (2004) available at http://journals.sagepub.com/doi/abs/10.1177/0163443704039497

M Barrow, ‘Piracy is a Major Threat to Gambian Music’, Foroyaa Newspaper (Serrekunda, 18 March 2009) available at https://allafrica.com/stories/200903180929.html

M Maswick, ‘The Right way to stop Piracy: From the look-at-the-evidence dept’ (8 October 2015) available at https://techdirt.com/articles/20151007/14402732471/right-way-to-stop-piracy.shtml

Music-bed, ‘The 4 Types of Music Royalties’, (2018) available at <https:// www.musicbed.com/knowledge-base/4-types-of-music-royalties/109

Music in Africa, ‘Gee: Promoters, Media have Failed the Gambian Music Industry’ (23 March 2017) available at https://musicinafrica.net/magazine/gee-promoters-media-have-failed-gambian-music-industry

Music in Africa, ‘Musicians Union of the Gambia: Bio’, available at https://www.musicinafrica.net/directory/musicians-union-gambia-musigam

N Baldeh, ‘Gambia Music Industry is Certainly Growing but’, The Point Newspaper (27 June 2014) available at http://thepoint.gm/africa/gambia/article/gambia-music-industry-is-certainly-growing-but

N Baldeh, ‘Gee to quit Music’, The Point Newspaper (26 June 2015) available at https://thepoint.gm/Africa/gambia/article/gee-to-quit-music

N Baldeh, ‘MUSIGAM is disappointed that Copyright is referred to as an impediment to Business’, The Point Newspaper (10 March 2017) available at https://thepoint.gm/africa/gambia/article/musigam-is-disappointed-that-copyright-is-referred-to-as-an-impediment-to-business

N Baldeh, ‘Stakeholders brainstorm development of Culture and Arts’ (30 November 2015) available at https://thepoint.gm/africa/gambia/article/stakeholders-brainstorm-development-of-culture-and-arts

N Baldeh and O Drammeh, ‘Gambia’s Live Music Scene’, (Music in Africa, 9 September 2015) available at https://musicinafrica.net/magazine/gambia’s-live-music-scene

N. S. Tyler, ‘Music Piracy and Diminishing Revenues: How Compulsory Licensing for Interactive Webcasters Can Lead the Recording Industry Back to Prominence’, University of Pennsylvania Law Review [vol. 161: 2101]

National Centre for Arts and Culture, ‘Gambian Music’, para 1(2017) http://ncac.gm/music.php

Net-Names, ‘Technology, Media & Telecommunications’, (2018) para 3, available at https://netnames.com/industries/technology-media-and-telecommunications/

O Drammeh, ‘Music in the Gambian Media’, (30 July 2015) available at https://www.musicinafrica.net/magazine/music-gambian-media

O Drammeh, ‘The Gambian recording industry’ (Music in Africa, 27 July 2015) http://musicinafrica.net/magazine/gambian-recording-industry

P.O. Joof ‘Why isn’t the Gambian Music Industry Growing? Ifang Bondi’s Badou Jobe Explains’ available at https://gambiantalents.com/index.php/news-updatesentertainment/258-why-isnt-the-gambian-music-industry-growing

P. R. Paradise, Trademark Counterfeiting, Product Piracy, and the Billion Dollar Threat to the U.S Economy, (Greenwood Publishing Group, 1999)

R Heeks, ‘Mobile Phone Use in West Africa: Gambian Statistics’, (ICTs for Development, January 2011) available at https://ict4blog.wordpress.com/2011/01/30/mobile-phone-use-in-west-africa-gambian-statistics/

R Stim, ‘Welcome to the Public Domain’ (October 2010) para.1 SUL available at http://fairuse.stanford.edu/overview/public-domain/welcome/

R Stim, ‘What is Fair Use’ (October 2010) para 3 SUL available at http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use

S C Brown, ‘How Piracy is Changing the Music industry landscape’, The Conversation (22 September 2018) available https://theconversation.com/how-piracy-is-changing-the-music-industry-landscape-31919

S Camara, ‘Gambia’s copyright industry is up to D7 million big’, (January 8, 2014) available at http://gambiabeat.wordpress.com/2014/01/08/gambias-copyright-industry-is-up-to-d7million-big/

S Camara, ‘Gambian Culture Minister: Copyright Backbone of Culture Industry’, (6 January 2018) available at https://gambiabeat.wordpress.com/2014/01/06/gambian-culture-minister-copyright-backbone-of-culture-industry/

S Jammeh, ‘Gambia: A tale of two Nations in One Country’ (11 June 2012) available at https://dailynews.gm/afric/gambia/article/gambia-a-tale-of-two-nations-in-one-country

S Janko, ‘Opportunities for Musicians in the Gambia’, (Music in Africa, 9 September 2015) available at https://musicinafrica.net/magazine/opportunities-musicians-gambia

S Janko, ‘Popular Music in Gambia’ (Music in Africa, 23 June 2015) available at https://musicinafrica.net/magazine/popular-music-gambia

S Karapapa, Private Copying (Routledge, New York 2012) 35

S Karapapa, ‘Research and Private Study’ available at http://copyrightuser.org/understand/exceptions/research-private-study/

S Monument, ‘UK Music Royalties – Made Easy’, (2018) available at https://www.dittomusic.com/blog/an-introduction-to-music-royalties-in-the-uk

S Pak, ‘Reawakening Gambian culture through trade-and vice versa’ (27th October 2017) International Trade Forum available at https://intracen.org/news/Reawakening-Gambian-culture-through-trade-and-vice-versa/

S Saihou, ‘The Great Senegalese Invasion on New Year’s Eve’ (Music in Africa, 27 December 2017) available at https://whatson-gambia.com/news/headline-news/2118-disgraceful-the-great-senegalese-invasion-on-new-year-s-eve

T Wu, ‘Network Neutrality, Broadband Discrimination’, Journal of Telecommunications and High Technology Law, Vol. 2, p. 141, 2003

The Copia Institute, ‘The Carrot or the Stick: Innovation vs. Anti-Piracy Enforcement’ (8 October 2015) available at https://copia.is/library/the-carrot-or-the-stick/

The Guardian, ‘Music Matters to new anti-piracy campaign’ (24 March 2010) available at https://theguardian.com/music/2010/mar/24/music-matters-anti-piracy-campaign

The Point Newspaper, ‘NCAC mandated to enforce copyright laws’ (17 February 2012) available at https://thepoint.gm/Africa/gambia/article/ncac-mandated-enforce-copyright-laws

The Standard, ‘Is English a Suitable Official Language for the Gambia’ (19 March 2014) available at https://standard.gm/site/2014/03/19/is-english-a-suitable-official-language-for-the-gambia/

UK intellectual property office for creativity and innovation (2008) ‘History of copyright’ available at http://www.ipo.gov.uk/about/about-ourorg/about-history/about-history-copy.htm

W Adedeji, ‘The Nigerian Music Industry: Challenges, Prospects and Possibilities’ (March 2016) International Journal of Recent Research in Social Sciences and Humanities, Vol. 3, Issue 1

Whats-on Gambia, ‘What is wrong with the Gambian music industry? An insider takes a look’, (23 July 2014) available at https://www.whatson-gambia.com/news/headline-news/603-what-is-wrong-with-the-gambian-music-industry-takes-a-look

Xender, ‘Xender Enables Mobile File Transfer and Sharing with Zero Data Usage’, (September 9, 2015) available at https://www.prnewswire.com/news-releases/xender-enables-mobile-file-transfer-and-sharing-with-zero-data-usage-300138892.html

Y Saliu, ‘Crime Watch: Piracy’, (Africa GM, 2007) available at https://africa.gm/africa/gambia/article/crime-watch-piracy

Y. Saliu, ‘Police Nab 32 for Illegal Sale of Jaliba’s Music’, The Point Newspaper (Banjul, 15 February 2018).

 

 



[1] D Bainbridge and C Howell, Intellectual Property Law (4th edn Pearson LawExpress, Harlow 2015) pg. 4; World Intellectual Property Organisation, Understanding Copyrights and Related Rights (2nd edn WIPO, Geneva 2016) pg. 3-4

[2] Copyrights Act 2004, s 3 and 4

[3] Ibid, s 5(2); Copyright House, ‘List of Berne Convention Signatories’ (2018) http://copyrighthouse.co.uk/copyright/countries-berne-convention.htm accessed 22 January 2018

[4] J.A.L. Sterling, Intellectual property rights in sound recordings, film and video: protection of phonographic and cinematographic recordings and works in national and international law (Sweet and Maxwell, London 1992)

[5] Supra no.2, s 7

[6] Supra no. 2, these include s. 23, s. 38-49 and s. 50-53

[7] O Drammeh, ‘The Gambian recording industry’ (Music in Africa, 27 July 2015) http://musicinafrica.net/magazine/gambian-recording-industry last accessed 22 January 2018

[8] National Centre for Arts and Culture, ‘Gambian Music’, para 1(2017) http://ncac.gm/music.php accessed 22 January 2018

[9] Ibid, para 2

[10] Ibid, para 6

[11] H Ceesay, ‘Music Piracy in The Gambia’ (Music in Africa, 12 January 2016) available at http://musicinafrica.net/fr/node/14606 last accessed 23 January 2018

[12] Ibid, para 15

[13] Ibid, para 4 and 5

[14] H Ceesay, ‘Copyrights and Music Royalty Collection in The Gambia’ (Music in Africa, 9 September 2015) available at https://musicinafrica.net/magazine/copyrights-and-music-royalty-collection-gambia last accessed 23 January 2018

[15] P.O. Joof ‘Why isn’t the Gambian Music Industry Growing? Ifang Bondi’s Badou Jobe Explains’ available at https://gambiantalents.com/index.php/news-updatesentertainment/258-why-isnt-the-gambian-music-industry-growing last accessed 23 January 2018

[16] Copyright Act, Section 4(c)

[17] Ibid, Section 42(1)(a)

[18] S Karapapa, Private Copying (Routledge, New York 2012) 35

[19] Ibid, Section 42(1)(b)

[20] Ibid, Section 42(1)(c)

[21] Ibid, Section 42(1)(d)

[22] Ibid, Section 42(1)(e)

[23] Ibid, section 53

[24] Ibid, section 52 (b)

[25] Ibid, section 43 (a) & (c); see also S Karapapa, ‘Research and Private Study’ available at http://copyrightuser.org/understand/exceptions/research-private-study/ last accessed 16 February 2018

[26] Ibid, section 43(b)

[27] R Stim, ‘What is Fair Use’ (October 2010) para 3 SUL available at http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use last accessed 16 February 2018

[28] Ibid, para 1

[29] Ibid, section 42(2)

[30] R Stim, ‘Welcome to the Public Domain’ (October 2010) para.1 SUL available at http://fairuse.stanford.edu/overview/public-domain/welcome/ last accessed 16 February 2018; see also Copyright Act, Section 48

[31] Ibid, paragraph 4

[32] F.M. Polak, ‘Copyright and Digital Music Collections in South Africa’ (2009) 69 UKZN; see also Copyright Act, section 7

[33] UK intellectual property office for creativity and innovation (2008) ‘History of copyright’ available at http://www.ipo.gov.uk/about/about-ourorg/about-history/about-history-copy.htm last accessed 15 February 2018

[34] Supra no.11, pg. 69

[35] Copyright Act, s 47

[36] E. A. Martin, Oxford Dictionary of Law (7th edn Oxford University Press, Oxford 2013) 486

[37] Supra no. 14

[38] Supra no. 16, s 66

[39] Ibid, s 66 (4) (a)

[40] Ibid, s 66 (4) (b)

[41] Y. S. Saliu, ‘Police Nab 32 for Illegal Sale of Jaliba’s Music’, The Point Newspaper (Banjul, 15 February 2018) 3

[42] Ibid

[43] Supra no. 8

[44] Supra no. 11

[45] Ibid

[46] Ibid

[47] Y Saliu, ‘Crime Watch: Piracy’, (Africa GM, 2007) available at https://africa.gm/africa/gambia/article/crime-watch-piracy last accessed 17 February 2018

[48] Ibid, para 3

[49] P. R. Paradise, Trademark Counterfeiting, Product Piracy, and the Billion Dollar Threat to the U.S Economy, (Greenwood Publishing Group, 1999) 239-241

[50] Supra no. 31

[51] Ibid

[52]M Barrow, ‘Piracy is a Major Threat to Gambian Music’, Foroyaa Newspaper (Serrekunda, 18 March 2009) available at https://allafrica.com/stories/200903180929.html last accessed 17 February 2018

[53] Supra no. 28

[54] L Marshall, ‘The Effects of Piracy upon the Music Industry: a case of Bootlegging’, (2004) available at http://journals.sagepub.com/doi/abs/10.1177/0163443704039497 last accessed 16 February 2018

[55] Supra no. 15

[56] Ibid

[57] Dartmouth Copyright, ‘Peer-to-Peer File Sharing and Copyright Law’ (2018) available at http://dartmouth.edu/copyright/peer2peer/ last accessed 16 February 2018

[58] K Neely, ‘Music Piracy or a Permanent Passive Revolution: An Examination of the Role of Technology in the Challenge to a Cultural Hegemon’ (2007) UTA

[59] Ibid

[60] See www.tubidy.mobi/search.php?q=gambian+music&sid=  and www.emp3e.com/mp3/Gambian-music.html

[61]R Heeks, ‘Mobile Phone Use in West Africa: Gambian Statistics’, (ICTs for Development, January 2011) available at https://ict4blog.wordpress.com/2011/01/30/mobile-phone-use-in-west-africa-gambian-statistics/ last accessed 16 February 2018

[62] Jaycon Systems, ‘Bluetooth Technology: What has Changed Over the Years’, (September 28, 2017) available at https://medium.com/jaycon-systems/bluetooth-technology-what-has-changed-over-the-years-385da7ec7154 last accessed 16 February 2018

[63] Xender, ‘Xender Enables Mobile File Transfer and Sharing with Zero Data Usage’, (September 9, 2015) available at https://www.prnewswire.com/news-releases/xender-enables-mobile-file-transfer-and-sharing-with-zero-data-usage-300138892.html last accessed 16 February 2018

[64] Net-Names, ‘Technology, Media & Telecommunications’, (2018) para 3, available at https://netnames.com/industries/technology-media-and-telecommunications/ last accessed 16 February 2018

[65]J Warner, ‘Combating Illegal Music Piracy: A Case Study of Warner Music Group’ (2010) American University

[66] See A & M Records v. Napster, Inc., 284 F.3d 1091, 1099

[67]T Wu, ‘Network Neutrality, Broadband Discrimination’, Journal of Telecommunications and High Technology Law, Vol. 2, p. 141, 2003

[68] G Douglas, ‘Copyright and Peer-To-Peer Music File Sharing: The Napster Case and the Argument Against Legislative Reform’, Murdoch University Electronic Journal of Law, vol. 11 no. 1 (March 2004) 107 available at < http://www5.austlii.edu.au/au/journals/MurUEJL/2004/7.html#Conclusion_T last accessed 20 February 2018

[69]Music-bed, ‘The 4 Types of Music Royalties’, (2018) available at <https:// www.musicbed.com/knowledge-base/4-types-of-music-royalties/109 last accessed 21 February 2018

[70] Supra no. 14

[71] Supra no.15, section 66

[72] Ibid

[73] Supra no. 68

[74] H McDonald, ‘Mechanical Royalties’, (November 15, 2017) available at https://www.thebalance.com/mechanical-royalties-2460503 last accessed 21 February 2018

[75] Supra no. 67

[76] Supra no. 70; also see Supra no. 7 and Supra no. 14

[77] Whats-on Gambia, ‘What is wrong with the Gambian music industry? An insider takes a look’, (23 July 2014) available at https://www.whatson-gambia.com/news/headline-news/603-what-is-wrong-with-the-gambian-music-industry-takes-a-look last accessed 23 February 2018

[78] S Monument, ‘UK Music Royalties – Made Easy’, (2018) available at https://www.dittomusic.com/blog/an-introduction-to-music-royalties-in-the-uk last accessed 23 February 2018

[79] Ibid, para 3

[80] Ibid

[81] Supra no. 7

[82] Ibid

[83] Supra no.77, para 24

[84] B Ceesay, ‘Gambia: T Smallz, Baddibunka, Sophia release new singles’ (Music in Africa, 7 August 2017) available at https://musicinafrica.net/magazine/gambia-t-smallz-baddibunka-sophia-release-new-singles last accessed 23 February 2018

[85] Ibid, para 4

[86] B Jeng, ‘Is Gee about to win the battle? Africell call for an emergency meeting after reports of artists exploitation’, (27 August 2013) available at http://whatson-gambia.com/news/headline-news/254-is-gee-about-to-win-the-battle-africell-call-for-an-emergency-meeting-after-report-of-artists-exploitation last accessed 23 February 2018

[87] Ibid

[88] Supra no. 70

[89] Supra no. 74, para 3

[90] Supra no. 70

[91] Copyrights Act 2004, section 66

[92] Supra no. 7o

[93] Supra no. 87, section 38(2) and 47

[94]   N Baldeh, ‘MUSIGAM is disappointed that Copyright is referred to as an impediment to Business’, The Point Newspaper (10 March 2017) available at https://thepoint.gm/africa/gambia/article/musigam-is-disappointed-that-copyright-is-referred-to-as-an-impediment-to-business last accessed 23 February 2018

[95] Ibid, para 5

[96] Supra no. 54

[97] H McDonald, ‘How Performance Rights Royalties Are Tracked’, (23 April, 2017) available at https://www.thebalance.com/how-performance-rights-royalties-are-tracked-2460922 last accessed 23 February 2018

[98] Ibid, para 5

[99] O Drammeh, ‘Music in the Gambian Media’, (30 July 2015) available at https://www.musicinafrica.net/magazine/music-gambian-media last accessed 23 February 2018

[100] Ibid, para 6

[101] Supra no. 70, para 15

[102] Ibid, para 16

[103] N Baldeh, ‘Gambia Music Industry is Certainly Growing but’, The Point Newspaper (27 June 2014) available at http://thepoint.gm/africa/gambia/article/gambia-music-industry-is-certainly-growing-but last accessed 5 March 2018

[104] S Camara, ‘Gambian Culture Minister: Copyright Backbone of Culture Industry’, (6 January 2018) available at https://gambiabeat.wordpress.com/2014/01/06/gambian-culture-minister-copyright-backbone-of-culture-industry/ last accessed 5 March 2018

[105] Ibid, para 6

[106] Supra no. 44

[107] Supra no.52

[108] Ibid, para 3

[109] S Camara, ‘Gambia’s copyright industry is up to D7 million big’, (January 8, 2014) available at http://gambiabeat.wordpress.com/2014/01/08/gambias-copyright-industry-is-up-to-d7million-big/ last accessed 5 March 2018

[110] Supra no. 104, para 8

[111] J Newton, ‘Global Solutions to Prevent Copyright Infringement of Music Over the Internet: The Need to Supplement the WIPO Internet Treaties With Self-Imposed Mandate’, (1999) IND. INT'L & COMP. L. REV [Vol. 12:1]

[112] A Khan, ‘Hakim talks about Gambian Music, Betrayal, Relationship with Gee, Africell Cheating Artists’, (17 July 2013) available at https://whatson-gambia.com/exclusive/223-hakim-talks-about-gambian-music-betrayal-relationship-with-gee-africell-cheating-artists-in-candid-interview last accessed 5 March 2018

[113] Supra no. 11

[114] Supra no. 112

[115] Ibid, para 50

[116] N Baldeh, ‘Gee to quit Music’, The Point Newspaper (26 June 2015) available at https://thepoint.gm/Africa/gambia/article/gee-to-quit-music last accessed 10 March 2018

[117]Foroyaa Newspaper, ‘Gambian Music is Wasting my Time – Says Gee’ (23 September 2015) available at https://allafrica.com/stories/201509241115.html last accessed 10 March 2018

[118] B Andersen et al, ‘Copyrights, Competition and Development: The Case of the Music Industry’ (2000) 145 UNCTAD

[119] N. S. Tyler, ‘Music Piracy and Diminishing Revenues: How Compulsory Licensing for Interactive Webcasters Can Lead the Recording Industry Back to Prominence’, University of Pennsylvania Law Review [vol. 161: 2101] pg. 2108

[120] J Siddall, ‘The Effects of Illegal Downloading on the Music Industry’, (2018) available at https://marshallmusic.co.za/effects-illegal-downloading-music-industry/ last accessed 5 March 2018

[121]Ibid, para 3

[122] Supra no. 94

[123] Ibid para 4

[124] S C Brown, ‘How Piracy is Changing the Music industry landscape’, The Conversation (22 September 2018) available https://theconversation.com/how-piracy-is-changing-the-music-industry-landscape-31919 last accessed 10 March 2018

[125] N Baldeh and O Drammeh, ‘Gambia’s Live Music Scene’, (Music in Africa, 9 September 2015) available at https://musicinafrica.net/magazine/gambia’s-live-music-scene last accessed 8 March 2018

[126] Ibid, para 6

[127] S Janko, ‘Opportunities for Musicians in the Gambia’, (Music in Africa, 9 September 2015) available at https://musicinafrica.net/magazine/opportunities-musicians-gambia last accessed 8 March 2018

[128]Supra no. 125

[129] Ibid, para 3

[130] Supra no. 8

[131] Supra no. 112, para 11

[132] Billboard, ‘Top 50 makers of 2016’ (13 July 2017) available at https://billboard.com/photos/7865108/highest-paid-musicians-2016-money-makers last accessed 11 March 2018

[133] Ibid, para 1

[134] Supra no. 111

[135] Supra no. 113, para 13

[136] The Standard, ‘Is English a Suitable Official Language for the Gambia’ (19 March 2014) available at https://standard.gm/site/2014/03/19/is-english-a-suitable-official-language-for-the-gambia/ last accessed 11 March 2018

[137] S Janko, ‘Popular Music in Gambia’ (Music in Africa, 23 June 2015) available at https://musicinafrica.net/magazine/popular-music-gambia last accessed 10 March 2018

[138] Music in Africa, ‘Gee: Promoters, Media have Failed the Gambian Music Industry’ (23 March 2017) available at https://musicinafrica.net/magazine/gee-promoters-media-have-failed-gambian-music-industry last accessed 10 March 2018

[139] S Saihou, ‘The Great Senegalese Invasion on New Year’s Eve’ (Music in Africa, 27 December 2017) available at https://whatson-gambia.com/news/headline-news/2118-disgraceful-the-great-senegalese-invasion-on-new-year-s-eve last accessed 10 March 2018

[140]Supra no. 113

[141] W Adedeji, ‘The Nigerian Music Industry: Challenges, Prospects and Possibilities’ (March 2016) International Journal of Recent Research in Social Sciences and Humanities, Vol. 3, Issue 1, pg. 261-271

[142] Supra no. 111

[143] Supra no.60

[144] Supra no. 20

[145] Creative Industries, ‘UK Dominates European Music Sales’ (2016) para 7 available at https://thecreativeindustries.co.uk/industries/music/music-facts-and-figures/export-performance last accessed 14 March 2018

[146] Supra no. 117

[147] Supra no. 7

[148] Supra no. 15, para 4

[149] Supra no. 15, para 5

[150] S Pak, ‘Reawakening Gambian culture through trade-and vice versa’ (27th October 2017) International Trade Forum available at https://intracen.org/news/Reawakening-Gambian-culture-through-trade-and-vice-versa/ last accessed 14 March 2018

[151] B Ceesay, ‘Gambian Musicians refused UK visas’ (Music in Africa, 23 August 2017) available  at https://musicinafrica.net/magazine/gambian-musicians-refused-uk-visas last accessed 14 March 2018

[152] Ibid, para 6

[153] Supra no. 44, para 13

[154] Ibid, para 14

[155] Supra no.111, pg. 150

[156] Supra no. 113

[157] Ibid, para 14

[158] C Woodford, ‘Holograms’ (Explain that Stuff, 5 July 2017) available at https://explainthatstuff.com/holograms.html last accessed 25 March 2018

[159] Ibid, para 1

[160] Supra no. 155, pg. 150

[161] Ibid

[162] Supra no. 58, pg. 48

[163] Ibid, pg. 52

[164] Supra no. 111, pg. 154, para 3

[165]J Martinez, ‘Entertainment industry, Internet service providers roll out anti-piracy system’ (9 March 2013) available at https://thehill.com/policy/technology/287151-entertainment-industry-isps-roll-out-online-anti-piracy-system last accessed 25 March 2018

[166] Ibid, para 11 & 16

[167] Ibid, para 14

[168] Supra no. 141, pg. , para

[169] Supra no. 113, para

[170] Ibid, para

[171] The Copia Institute, ‘The Carrot or the Stick: Innovation vs. Anti-Piracy Enforcement’ (8 October 2015) available at https://copia.is/library/the-carrot-or-the-stick/ last accessed 24th March 2018

[172] M Maswick, ‘The Right way to stop Piracy: From the look-at-the-evidence dept’ (8 October 2015) available at https://techdirt.com/articles/20151007/14402732471/right-way-to-stop-piracy.shtml last accessed 24th March 2018

[173] Ibid, para 6

[174] A Firth, ‘Institution and Ownership of Polydor Records’ available at https://slideshare.net/mobile/AbigailFirth/institution-and-ownership-of-polydor-records/ last accessed 24 March 2018

[175] Ibid, pg. 267, para 9

[176] The Guardian, ‘Music Matters to new anti-piracy campaign’ (24 March 2010) available at https://theguardian.com/music/2010/mar/24/music-matters-anti-piracy-campaign last accessed 24 March 2018

[177] Ibid, para 2

[178] Supra no. 141, pg. 267, para 9

[179] Ibid

[180] The Point Newspaper, ‘NCAC mandated to enforce copyright laws’ (17 February 2012) available at https://thepoint.gm/Africa/gambia/article/ncac-mandated-enforce-copyright-laws last accessed 18 March 2018

[181] Ibid, para 5; also see N Baldeh, ‘Stakeholders brainstorm  Development of Culture and Arts’ (30 November 2015) available at https://thepoint.gm/africa/gambia/article/stakeholders-brainstorm-development-of-culture-and-arts last accessed 18 March 2018

[182] Foroyaa, ‘New Gambia Demands that We Serve the People’, (23 February, 2018) available at https://foroyaa.gm/new-gambia-demands-that-we-serve-the-people/ last accessed 18 March 2018

[183] Ibid, para 1

[184] Index Mundi, ‘The Gambia Political pressure groups and leaders’ (20 January 2018) available at https://www.indexmundi.com/the_gambia/political_pressure_groups_and_leaders.html last accessed 18 March 2018

[185] Music in Africa, ‘Musicians Union of the Gambia: Bio’, available at https://www.musicinafrica.net/directory/musicians-union-gambia-musigam last accessed 18 March 2018

[186] S Jammeh, ‘Gambia: A tale of two Nations in One Country’ (11 June 2012) available at https://dailynews.gm/afric/gambia/article/gambia-a-tale-of-two-nations-in-one-country last accessed 24 March 2018

[187] Ibid, para 5

[188] H Mohamed, ‘Music and Poetry Thrive in The Gambia post-Jammeh’ (6 April 2017) available at https://www.aljazeera.com/indepth/features/2017/03/music-poetry-thrive-gambia-post-jammeh-170313115045976.html last accessed 24 March 2018

[189] Ibid, para 9

[190] Ibid, para 20