Overview

Although Intellectual Property laws confer proprietary rights on their owners/holders, rights akin to any other form of property, there has always been a separation of treatment between the other rights under the bill of rights and right to property in the form of intellectual property. There are conflicting theories on how to balance these rights and under the Ugandan laws on Intellectual Property, it can be discerned that it is not an easy or obvious task. In this article therefore I analyze the public interest and human rights aspects underlying copyright and trademark protection in Uganda.

Introduction

Uganda is party to inter alia, the Universal Declaration of Human Rights (UDHR)^[1], The International Covenant on Economic, Social and Cultural Rights (ICESCR)^[2] all of which are administered by the United Nations and the African Charter on Human and People’s Rights which is administered by the African Commission on Human and People’s Rights^[3].

Ironically, none of these charters defines the term human rights. Blacks Law Dictionary offers a helpful definition of humans rights as;

‘‘the freedoms, immunities, and benefits that, according to modern values (esp. at an international level), all human beings should be able to claim as a matter of right in the society in which they live.’’^[4]

As regards public interest, in the case of Kwizera Eddie versus Attorney General^[5] the Supreme Court stated that;

‘‘Public Interest in our jurisdiction is not defined by any Statute… defines Public Interest Litigation as :A legal action initiated in a Court of Law for the enforcement of Public Interest or general interest in which the public or a class of the community has pecuniary interest or some interest by which their legal rights or liabilities are affected.’’

Although the definition offered here is on public interest litigation, it is helpful in offering a definition of public interest which can be deduced to mean general interest in which the public or a class of the community has a pecuniary interest or some interest by which their legal rights or liabilities are affected. Another helpful definition is from Blacks Law Dictionary^[6] which defines public interest as;

‘1. The general welfare of the public that warrants recognition and protection.

2. Something in which the public as a whole has a stake; esp., an interest that justifies governmental regulation.’

Intellectual Property as a Human Right.

 Under Article 17 of the UDHR,

‘‘(1)Every person has a right to own property alone as well as in association with others.[Emphasis added].’’

Relatedly, under Article 27 of UDHR,

‘‘(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.’’[Emphasis added]

Similarly, Article 15 of the ICESCR provides that;

‘‘1. The States Parties to the present Covenant recognize the right of everyone:

(b) To enjoy the benefits of scientific progress and its applications;

(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.’’[Emphasis added].

At a national level, human rights are embedded in Chapter 4 of the Constitution of the Republic of Uganda, 1995 [‘the Constitution’] which is almost a replica of the UDHR. Article 26 provides for the protection from deprivation of property and it is to the effect that;

‘‘(1) Every person has a right to own property either individually or in association with others.’’

From the above provisions, it is apparent that intellectual property rights especially copyright are recognized as a human right and the provisions on the right to property apply with equal force to intellectual property. However, it must be noted that the provisions relating to the protection of intellectual property rights as human rights don’t exist in isolation of the other rights like the right to education. In certain cases, the application of these rights may deprive the enjoyment of other rights. Moreover, according to the Preamble of the TRIPS^[7] Agreement, Intellectual property rights are private rights.’’  Accordingly, there is a huge debate as to how to balance intellectual property rights with other forms of human rights.

Approaches to balancing rights

In trying to balance these rights, two approaches have emerged. The conflict approach and the coexistence approach.^[8] The first approach views human rights and intellectual property as being in fundamental conflict and the proponents of this approach recommend that in such cases, the resolution of the conflict should be in favour of the human rights over intellectual property rights. The second approach sees both areas as being concerned with the same fundamental question and the conflict should be managed through defining the appropriate scope of private monopoly power that gives authors and inventors sufficient incentive to create and innovate, while ensuring that the consuming public has access to the fruits of its efforts.

Theories to recognition of intellectual property rights.

The debate around recognition of intellectual property over other rights stems from four main theories i.e utilitarian, natural rights theory of labour, social planning theory, and personality theory. The most applicable to Uganda are the Utilitarian theory espoused by Jeremy Bentham^[9] and John Stuart Mill who argue that intellectual property rights protection acts as an incentive for investment and a balance must be struck between Intellectual Property holders and the public. And the natural rights theory of labour espoused by John Locke John Locke^[10] who argued that;

‘‘Whatsoever then he removes out of the state that nature has provided and left it in, he has mixed his labor with, and joined to it something that is his own and thereby makes it his property. It being by him removed from the common state nature has placed it in, it has by this labor something annexed to it that excludes the common right of other men.’’^[11]

1. Aspects of human rights and public interest under the Trademarks protection laws.

The Trademarks Act, 2010(‘the Act’) is the principle law on trademarks in Uganda and it provides inter alia for the registration of trademarks, action for infringement etc. Its provisions are influenced by the TRIPS Agreement. A Trademark is defined under Section 1 of the Act as a sign or mark or combination of signs or marks capable of being represented graphically and capable of distinguishing the goods or services of one undertaking from those of another. A mark is registrable if it is capable of distinguishing goods or services of one undertaking from those of another, is graphically represented and is also not contrary to public policy under Section 23 of the Act.

Below is a discussion of aspects of human rights and public interest under the Act.

a. The right to information is upheld under Section 3 of the Act. Section 2 of the Act, provides for the creation of the register of all registered trademarks with their conditions and limitations.  Section 3 allows anyone to apply for and obtain a certified extract or copy of the record. This is in line with Article 41(1) of the Constitution of Uganda which grants every citizen the right to access information in the possession of the state or any other organization or agency of the state. This information enables any member of the public to know the owner of any trademark and this useful for anyone who may want to register a trademark to verify any previous registration or to avoid actions for infringement thus serving public interest.

Relatedly, under Section 11 of the Act, the application for registration must be gazetted for 60 days and under Section 12 of the Act, any member of the public is allowed to file an objection to the registration. This act of publication is not only a way of enabling the public to get access to information but is also in public interest to prevent any bad faith or contrary to public interest registrations at the earliest point.

b. The right to a fair hearing under Article 28 of the Constitution of Uganda and the right to just and fair treatment in administrative decisions under Article 43 of the Constitution is highly recognized and protected under the Trademarks Act. In all matters where an application is rejected, the Act reserves the right of the aggrieved party to petition Court. This is evident for example under Sections 7(4) where the registrar is enjoined to state reasons for refusal of an application for registration of a trademark and Section 7(5) states that a person aggrieved by the decision may appeal to the Court. Section 12 also allows any party aggrieved by a decision following an objection to a trademark application to petition court for further redress. This is in line with Article 42 which provides that; ‘‘Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her.

c. The Trademarks Act also in public interest renders un registrable words already in the public domain. Under Section 9(1) (d) words having direct reference to the character or quality of the goods or services and by ordinary signification geographical name or surname are not distinctive and can’t be registered under Part A.  The essence of this restriction is that if words are in the public domain no single individual should claim exclusivity to them. Accordingly, under the Act, where a trademark includes in its composition, a matter that is common to trade or otherwise is non distinctive or is common to the provision of services of that description, then under Section, 19, the registrar may require a disclaimer of exclusivity to such word.

d.  The provisions on certification trademarks bear aspects of public interest in the sense that due to the rules relating to their grant, certification marks if not abused guarantee quality of the product bearing such mark. For example, although the UNBS certification mark is statutory and therefore need not be registered under the Trademark’s Act, it ideally represents that any product with its mark meets the standards. Issues of quality are of public interest as consumption of substandard products can have far reaching consequences especially on the health of consumers. Certification marks ideally guarantee quality because applications for their registration are considered on grounds including whether the registration would be of advantage to the public^[12]. Moreover, the goods are certified in respect of origin, material, mode of manufacture, quality, accuracy^[13] etc.  Unlike the normal trademarks, for certification marks, the registrar or court may cancel the registration on grounds of noncompliance with the regulations deposited with the registrar or where such registration is no longer to the public advantage^[14].

However, unlike copyright where after a certain period the exclusive rights of the registered owner lapse, for trademarks, the registration if renewed subsists in perpetuity thus depriving the public of the benefits that would arise from it being in the public domain^[15].

e. The Trademarks Act by allowing joint ownership of trademarks^[16] recognizes the possibility of communal ownership of intellectual property which is permitted under Article 26 of the Constitution which provides that the property maybe owned in association with other. This avoids a scenario where one private individual deprives others who jointly own the property to co-own the rights in the mark and therefore in public interest.

f. The provisions against infringement^[17] and passing off ^[18]pause the biggest debate as to whether they are for or against human rights. These provisions confer upon the owner of a trademark the exclusive right to use a trademark. According to Ronald Kakungulu Mayambala^[19],copyright, patents and trademarks bear directly on access to medicines, in some cases limiting access to medicines– since most patents are also marketed or use trademarks in some cases. However, the public also benefits from the exclusivity. Section 36(2) demonstrates that a trademark is an indicator of source and the prohibition from use by unauthorized persons is to prevent confusion or a likelihood of confusion of the consumer. Accordingly, a consumer stands to lose a lot where infringement occurs. It must be noted that usually when that happens, the infringing product is usually of a worse quality than the original and may cause far reaching consequences especially on the heath of people and thus exclusivity enables the customer to trace the brand owner for product liability which may not be feasible in other circumstances. This is especially important for a country like Uganda where 90%^[20] of the goods on the market are reportedly counterfeit and these include drugs^[21].A similar argument is sustainable in respect of Part VIII which is on offences. The key offences include forging or counterfeiting, selling goods with false marks. However, it must be noted that the penalties under these provisions are laughable for example, for counterfeiting, the maximum sentence if 2 years.

Human Right and Public Interest Aspects on copyright.

Copyright in Uganda is governed by the Copyright and Neighbouring Rights Act (CNRA) that commenced on the 4^th August, 2006. It is reported that the Act was enacted pursuant to a private members bill^[22] which goes further to prove the private nature of intellectual property rights and how much their enforcement depends so much on what private individuals do.

First of all, the Act is only applicable to works which are not party of the public domain^[23] which is done in public interest since no since individual, should claim exclusivity to anything that is in the public domain.

Under the CNRA, an author is entitled to protection^[24] for any of the works eligible for protection under the Act. In my opinion, the fact that literary works are eligible for protection is confirmation of the right and freedom of expression under Article 29 of the Constitution.

The Act provides that ideas, concepts, methods, procedures are not protected. Besides the fact that ideas in themselves do not demonstrate effort, this prohibition is in public interest and in regard to human rights especially to the right to health.^[25] For example in administrating treatment, doctors don’t have to act in fear of being held for using someone’s method or procedure. Further, the room for creativity is widened where ideas and concepts have no limitation.

By far, the main provisions having regard to human rights and public interest are Section 7 and 15 of the CNRA

Section 7 is to the effect that public benefit works are not protected. These include; Laws, reports by government missions or agencies, news of the day and the government is a public trustee of such works. This provision is in line with Article 41 of the Constitution of Uganda on the Right to information and is justified. Relatedly, Section 8 provides that all works for government or international bodies shall in the absence of an agreement to the contrary vest in the government or international body. Government acts in the public interest and develops works using tax payers’ money for the most part. It is therefore in the  interest of the public that any works should vest in government.

Section 15 on fair use of works protected by copyright offers the widest defence/exception to a would be infringement including where the use if for private personal use only, where it is a quotation of a size compatible with fair practice, and the extent is justified, where it is for teaching purposes to the extent justified, for the purpose of current information, for judicial proceeding, or any work transcribed into braille or sign language for educational purpose of persons with disabilities.

The Section further gives several yardsticks to be applied for assessing what fair use, and/or fair practice is. However, as the case of Angella Katatumba versus Anti-Corruption Coalition for Uganda^[26] demonstrates, one has a high task to demonstrate the applicability of this provision. Court decided in favour of the Plaintiff notwithstanding the argument by the Defendant that the use of the song in question was not substantial and was for public interest and not for commercial purposes.  That notwithstanding, by and large, it is clear that this provision promotes the right to education provided for under Article 30 of the Constitution and the rights of persons of disabilities under Article 35 of the Constitution which calls upon government to ensure that the disabled are able to realize their full mental and physical capacity. Allowing braille versions clearly helps with mental capacity development for the disabled.

Section 20 of the creation of information centers read together with Section 42 of the CNRA protect the right of access to information provided for under Article 41 of the Constitution.

The arguments on infringement and offences set out above on trademarks also apply to copyright. The prohibition of piracy serves the public a much better good as it ensures quality and traceability in the event of works that might be contrary to public interest.

Conclusion

Under Article 40 of the Constitution, everyone has a right to practice his or her profession or to carry on any lawful occupation, trade or business. Authors therefore have a right to create whatever work and business people have a right to carry on trade or business using any lawful brand. However, when they do so, they must not act to the prejudice of the public otherwise, Article 43 of the Constitution allows for the limitation of one’s rights should they be prejudicial to the interests of other members of the public. Accordingly, in resolving a conflict between intellectual property rights and other rights, a balance must be struck for the peaceful coexistence of all rights and each conflict must be handled on a case by case basis.

Disclaimer

This article provides general information only. It is not intended to provide advice with respect to any specific set of facts, nor is it intended to advise on all developments in the law.

About the Author;

The author is a commercial law practitioner and founder of M/s Tibugwisa and Co. Advocates. For comments and inquiries contact her at damalie@tibugwisaadvocates.com or +256787461139.