I-CAN-GHANA

I have, in a couple of radio interviews and on Facebook, expressed my views, based on my understanding of Ghana’s copyright laws, on the heated debate relating to what may be called ‘the Otabil Tapes’ where the respected Pastor Mensa Otabil has expressed strong reservations at the unauthorised used of his voice and sermons by a group called Education Watch as part of the current political campaign. I received a call from Kweku Baako, Managing Editor of the ‘New Crusading Guide’ newspaper, requesting that I put my thoughts in writing. This is what I have produced for him and his paper.

Yes, sermons are protected by our laws on copyright, and may only be used with the consent of the author consents or under circumstances expressly permitted by law. However ‘legalistic’ or ‘religiously objectionable’ this may sound to some, particularly those who hold the view that the ‘Word of God’ should not be subjected to such ‘earthly’ laws, the fact remains that sermons are copyright protected.

The copyright law of Ghana is generally captured in the provisions of the Copyright Act, 2005 (Act 690), which repealed and replaced the long-standing Copyright Law, 1985 (PNDCL 110).

A Sermon is a protected Literary Work
Section 1(1) of Act 690 provides a list of “work eligible for copyright” and states that authors, co-authors or joint authors of those works are entitled to copyright protection. The first on that list is “(a) literary work,” which term is defined by section 76 to include “(f) lectures, addresses or sermons” [Emphasis added.] There is therefore no doubt that Act 690 protects the rights of an author of a sermon, as literary work.

Authors’ Economic and Moral Rights
The rights of authors of copyright protected material are generally expressed as “economic” and “moral”. Section 5 of Act 690 protects authors’ “exclusive economic rights” to reproduction, translation, adaptation, arrangement or any other transformation, public performance, broadcasting or communication to the public, distribution, and commercial rental of their work.

Section 6 states that in addition to economic rights, an author has “the sole moral right” to claim authorship and demand that his name or pseudonym be mentioned when any of the acts referred to in section 5 are done in relation to the work, and to object to and seek relief where there has been “a distortion, mutilation or any other modification of the work, where that act would be or is prejudicial to his reputation or where the work is discredited by the act” [Emphases added.]

These provisions capture the basic statutory rights of authors, including authors of sermons. For example, and with particular reference to “moral rights” where the author of the sermon is a proclaimed apolitical or politically neutral person, the reproduction of his sermon(s), designed in such a way as to cast him in a political light is clearly prejudicial to his reputation and amounts to a violation of his moral rights over the sermon.

Permitted Uses
However, that does not mean that copyright protected sermons cannot be used by other persons at all. As pointed out, under section 5, the author may authorise the use of his material, and that use would not be a breach of the copyright. Further, Act 690 contains, in section 19, certain “permitted uses” of copyright protected material. Of particular relevance is section 19(1)(g)(iii), which states specifically as follows:

“(1) The use of a literary or artistic work …is not an infringement of the right of the author in that work and does not require the consent of the owner of the copyright where the use involves…(g) subject to subsection (4), the reproduction in the media or the communication to the public of… (iii) lecture, address, sermon or any other work of a similar nature delivered in public, where the use by reproduction or communication to the public is exclusively for the purpose of reporting fresh events or new information.” [Emphases added.]

The effect of this section is that if the conditions (emphasised by me) are met, then the otherwise protected material may be used, even without the author’s consent. The first relevant and critical condition is that the reproduction is wholly and absolutely to give an account of “fresh events or new information.” That is where the current debate on the copyright status of sermons runs into the law. The persons seeking to rely on those sermons, today, have a huge burden of showing that those sermons delivered in the past, somehow report fresh events or new information. It is however clear to me that if the sermon(s) being used was/were delivered in the past, it cannot be claimed as “reporting fresh events or new information.” Such a use is not permitted by law.

The next relevant condition is contained in section 19(4), which provides as follows:

“Paragraph (c) of subsection (1) does not apply in respect of a particular work unless the use referred to in that paragraph is compatible with fair practice and the source of the work used and the name of the author are indicated in the relevant publication, broadcast or recording.” [Emphasis added.]

Once again, where a sermon was preached in the past and was not directed at any current issue, but is subsequently reproduced in a manner that suggest that it does, then certainly, that use is not compatible with fair practice. A practice is “fair” if it is reasonable or unbiased and done properly according to the applicable rules. My views are three-fold. First, the use of work via deliberate distortion, intentional mutilation or wrongful modification, and which therefore violate the “moral rights” of an author, cannot be “compatible with fair practice” by any stretch of any legal principles or any person’s fertile imagination. Second, the use of a previous sermon under circumstances that suggest that it either relates or is related to a current issue, is plainly dishonest. Third, the “splicing and dicing” and “cutting and pasting” of different parts of different sermons, to present them as one sermon, is devious and does violence to notions of fair practice. These fall squarely within the prohibition contained in section 19(4) of Act 690.

Yet another relevant permitted use of copyright protected material is contained in section 19(1)(d)(ii), with respect to “a broadcast on current economic, political or religious topics,” where “the broadcast or any other communication to the public where a statement of the source is provided unless the article or broadcast when first published or made was accompanied by an express condition prohibiting its use without consent.” Note, first, that this provision relates only to a “broadcast” by an author; thus so if the matter has not been the subject of a broadcast, this permitted use does not apply. Second, the use of the word “current” shows that the broadcast must be on a recent or present matter. In the context of the sermons in question, (even if they were broadcasts, which is not the case) they have been explained to have been preached at times when the relevant “current” matters (to which they are being massaged to apply) had not arisen, and/or did not relate to them in any way. Further, once the author had reserved his copyright even to that sermon, then that use is not permitted. I have noted the words “all rights reserved” on the relevant CDs and tapes. It would appear that this permitted use does not apply to the matter at hand.

Are Sermons in the Public Domain?
Finally, I have also heard it claimed that sermons do not enjoy copyright protection because they are in “the public domain.” That is clearly and respectfully untrue or uninformed. The term “public domain” has a strict definition within the context of copyright law. Section 38(1) of Act 690 provides only 3 categories of works that “belong to the public domain.” These are

“(a) works with expired terms of protection,
(b) works by authors who have renounced their rights, and
(c) foreign works that do not enjoy protection in the Republic.“

Clearly, the sermon(s) in question do not fit under any of the above categories, and accordingly the phrase “public domain” does not apply to the sermons. Further section 38 contains regulations for the use of “public domain” work. It does not appear that those regulations have been followed at all.

Sanctions
The law provides both criminal and civil sanctions for the breach of a person’s copyright. Under section 43, copyright violation is an offence and a person who is convicted is liable to a fine between GH¢6,000 and GH¢12,000 and/or to imprisonment not exceeding three years. Where the offence is continuing (as appears to be the case presently), there may be a further fine between GH¢300 and GH¢1,200 for each day during which the offence continues. Note that this offence is committed, not only by the person who put the plagiarized work together, but anyone who continues to disseminate the material.

Where the offender is a corporate body, every director or secretary shall be deemed to have committed the offence, unless the person can satisfy the court that some other person committed the offence without his consent or connivance, and that he “exercised due diligence to prevent the commission of that offence having regard to the circumstances.” Thus, and for instance, it would be very difficult for a director of a radio station that gleefully continues to disseminate such work, in the face of clear objections by an author, to set up the defence of “due diligence.”

In the exercise of its criminal jurisdiction, and under section 46, the court may seize the offending material and may direct that monies arising out of the offence be paid to the author. Again, for instance, a radio station may be compelled to pay to an author, all monies it has earned from airing a commercial advert that wrongfully contains copyright material.

With respect to civil sanctions, section 48 provides that a wronged author may obtain injunctions to restrain the further dissemination of the word and damages for the breach of his copyright. The law specifically allows for what lawyers call ‘Anton Piller-type injunction’ applications to be moved ex parte (i.e. when the application is taken or granted at the instance and for the benefit of one party only, and without notice to, or contest by, any person adversely interested) and in a judge’s chambers, for the inspection or removal from a defendant’s premises of copyright infringing materials which constitute evidence of infringement by the defendant.

Conclusion
In conclusion, and on the bases of the above (the law and all the exceptions and conditions discussed), my respectful view is that sermons are indeed protected under our copyright laws, subject only to (1) the consent of the author or (2) applicable statutorily permitted uses. And, the law prescribes some severe punishment upon the breach of a person’s copyright.