I have followed with keen interest the public debate about the registration of the logo of the National Democratic Congress (NDC) by the former First Lady, Nana Konadu Agyemang Rawlings with the Copyright Office.
From the comfort of my ivory tower at the Law Faculty, University of Ghana, the debate has been interesting in more ways than one. First of all, it has shown the paucity of knowledge in the public domain about intellectual property rights generally and copyright law in particular.
Secondly, it has demonstrated the lack of diligence and integrity on the part of our public institutions and officials. This is in view of the fact that the Copyright Office agreed to register the logo of a major political party in this country as the 'artistic work' of an individual without bothering to cross check with the Electoral Commission and to verify the legality of that registration under the Political Parties Act, 2000 (Act 574).
A quick legal opinion from the Attorney General's Department would have put paid to the attempt to register the logo.
Thirdly, the public discourse portrayed, rather subtly, the deep partisanship that has bedeviled our political discourse so far. Rather than rally in support of the NDC, the other political parties kept mute as if to say that the chickens have come home to roost!
Well, from my point of view as a public intellectual (I am paid by the taxpayer to teach at the University), the chickens have not come to roost and the reason is simple: the claim of ownership or authorship of the logo is legally untenable. I will provide the reasons shortly. But first, a primer on copyright law is in good order.
A copyright is the right that the law exclusively confers on an author or producer of artistic or literary work to exploit or use the work without permission from any other person. In simple terms, it is the right to copy one's own work without license and to distribute, sell, prepare derivative works, display, claim or disclaim authorship and to prevent intentional distortion or destruction of the work by others.
The exclusivity means that others can only use or exploit the work with the permission of the original author or producer.
Under both Ghanaian and international law, copyright is granted in respect of literary works (which cover all forms of writings, whether by words or numbers or symbols), artistic works, musical works (with or without words), sound recording, audio-visual works, choreographic works, derivative works (which include translations, adaptations, and arrangements), computer software and programmes as well as folklore.
Our Copyright Act requires that for the right to be conferred, the work must be the original work of the claimant or copyright owner expressed or fixed in a tangible form or medium. Copyright law does not protect ideas; it protects the form or medium in which those ideas have been expressed.
The requirement that the work must be original means that the work must be the result of the independent effort of the copyright owner in the sense of not having been copied, plagiarized or parodied from the works of others. In CCH Canadian Ltd. v. Law Society of Upper Canada (2004) 1 S.C.R. 339 (S.C.), the Supreme Court of Canada held that “an 'original' work…is one that originates from an author and is not copied from another work. In addition, an original work must be the product of an author's exercise of skill and judgement.”
Under the Copyright Act, registration of a work is not the basis of the copyright. In other words, registration is not what gives a claimant copyright protection. Thus original authorship receives automatic protection without the need for formalities or registration.
Indeed, the Copyright Act provides in section 39 that “Copyright protection of a work shall not be dependent on the registration of the work.” This provision reflects the position of international law, particularly the WTO Agreement on Trade-Related Intellectual Property Rights and the Berne Convention. The latter treaty expresses this principle beautifully when it states in Article 5(2) that “the enjoyment and exercise of these rights shall not be subject to any formality.”
Registration is required for evidentiary purposes only. In consequence, the Copyright Act provides for the registration of works in order to maintain a record of works, give publicity to the rights of owners and provide evidence of ownership and authentication of intellectual property. Hence there is a presumption of authorship in favour of an individual whose name is indicated on the register as the author of any work.
This presumption may however be rebutted by contrary evidence.
A copyright subsists during the life of the author and seventy years after the death of the author where the author is an individual person. In the case of corporate entities, the right subsists for seventy years from the date on which the work was either made or first published depending on which is later in time. During this period, the copyright owner can enforce her exclusive right to exploit and benefit from the work by preventing any actions tending to undermine her exclusive right to do so.
The copyright owner can, for example, resort to court action for an injunction to prevent infringement or for compensatory damages for infringement that has already taken place.
There are a number of exceptions under Ghanaian and international law to copyright protection but these are not, for present purposes, necessary. They include the right of others to make exclusive personal as opposed to commercial use of the work and the use of the work for teaching and educational purposes.
So the question is whether Nana Konadu Agyemang Rawlings has a copyright in the NDC logo. I have already opined that she does not and cannot ever claim authorship of the logo. My reasons are as follows.
First and foremost, the Copyright Act does not provide expressly that it is the sole source of legal protection of copyright. This means that Parliament did not intend that works protected under other laws and regulations be disregarded when it comes to the issue of copyright protection.
Therefore, copyright protection may be granted under other statutes of a specialised nature, such as the Political Parties Act with respect to party symbols or logos. Under this Act, there is a mandatory requirement to supply the Electoral Commission with certain particulars for the registration of a political party, including “a full description of the identifying symbols, slogans, and colours, if any, of the political party.” The symbol of a party applying for registration is so significant that the Act prohibits the use of the symbol or emblem to communicate ethnic, gender, regional or religious particularism.
As I noted earlier, registration of a work under the Copyright Act is only presumptive evidence of authorship that may be rebutted with contrary evidence. The same principle will thus apply with respect to registration of symbols under the Political Parties Act. It will be presumed for instance that the NDC has the copyright in the symbol unless contrary evidence is produced that it does not.
By simply registering the logo under the Copyright Act, the former First Lady cannot be said to have provided sufficient proof of authorship. Indeed, her act of registering the symbol is illegal by reason of the fact that the symbol has already been duly registered in the name of a political party under the Political Parties Act. Moreover, in view of the fact that the NDC logo was registered under the Political Parties Act and for several years has been associated with the party, the burden is on the former First Lady to prove that she is the original author of the symbol.
Second, from what has been written and said in the media so far, it would appear that the former First Lady is not the only person claiming authorship of the NDC logo. There is credible evidence that Prof. Kwame Addo designed the logo on the instructions of the then Chairman of the Provisional National Defence Council (PNDC), and later, Founder of the NDC, Flt. Lt. Jerry John Rawlings.
According to Prof. Addo, he produced the graphical image of the logo and named it “Akatamanso (covering the land)”. In an article published on Ghana News Link, Prof. Addo asserts that the “final artwork combining both the eagle and the umbrella concept was accepted by the party and I handed it over in the presence of its leading members who subsequently adopted and registered it as the party emblem of the National Democratic Congress at the Electoral Commission.”
Where does this leave the claim of the former First Lady to authorship of the logo?
From a legal point of view, there is no basis for accepting the Professor's assertion as more probative than that of the former First Lady. What it does though is to cast doubt on her claim, thus increasing her burden of proving that she authored the logo.
If the old Professor's claim were true, it would mean that the logo qualifies as commissioned work under the Copyright Act because it was designed on the instructions of the founder of the party and subsequently adopted and registered by the party. In copyright law, a person commissioned to produce a work cannot turn round and claim authorship of that work.
Authorship is vested in the person who commissioned the work, in this case the founder of the party acting for and on behalf of the party.
Thirdly, assuming for the sake of argument that the former First Lady designed the symbol and has registered it, she has a right under the Copyright Act to enjoin its use by the party. That is, she can go to court, as threatened by her lawyers, to obtain an injunction against the use of the logo by the party in the forthcoming elections.
However, this will not be a simple, straightforward matter. As we say in law, an injunction is an equitable relief and equity does not help those who sleep on their rights. The defences of laches and acquiescence would be available to the party were she to apply for an injunction. The defence of laches will apply where it can be shown that there has been lack of diligence on the part of the former First Lady in asserting her copyright since 1992 or thereabouts in timely manner and that the NDC stands to suffer substantial prejudice if the injunction is granted.
In addition, the party can assert as a defence, the fact that the former First Lady acquiesced for many years in its assertion of ownership of the logo. For instance, during the NDC primaries, she campaigned as a candidate of the party using this symbol, not as her personal symbol but as that of the party. The party will thus argue that it lies foul in her mouth now to assert ownership of the same symbol that she used in the name of the party.
The doctrine of acquiescence was applied in the famous case of Elton John v James  FSR 397, where an attempt by Sir Elton John and Bernie Taupin to set aside their publishing and recording agreements with Dick James was rejected on the basis that for many years, Sir Elton John had taken advantage of the relationship with Dick James and his record companies although his manager, John Reid, had been aware of the claims but had taken a decision not to pursue them but to keep them in his back pocket until the relationship broke down.
The former First Lady is in the same position as Sir Elton John: she kept her claim in her back pocket and waited till the relationship with the NDC went sour and then removed it like the magic wand to swipe away the party's ownership of the symbol.
In conclusion, the foregoing demonstrates that the registration of the logo by the former First Lady does not confer on her ownership right that entitles her to copyright protection.
It is indeed an illegal act to have registered the logo in her name when in fact the said logo had already been registered under the Political Parties Act as the symbol of the NDC.
In any case, doubts have been cast over her authorship claim by the assertion by Prof. Kwame Addo that he designed the logo on the instructions of the founder the NDC, thus qualifying the logo as commissioner work under copyright law.
This makes the NDC a better claimant of copyright protection than the former First Lady. Furthermore, she has slept on her rights, if any, for so long and has in fact acquiesced for so long in the party's claim of ownership of the logo by her own positive actions that it is doubtful that any court would grant her relief.
The writer is a Lecturer in International Trade and Investment Law at the Faculty of Law, of the University of Ghana