09 Jun
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Fair Practice under Copyright Law of Ethiopia

The purpose of copyright law is not to ensure the owner of copyright a maximum economic benefit, rather to balance the right of the copyright owner to obtain a fair return and society’s interest in access to and use of information. As a result, the copyright law does not only provide exclusive right to the copyright owner, but also exceptions to the exclusive right and allow the use of copyrighted work by third parties in certain circumstances.

One of the important exception is education. An exception to the exclusive right of the owner can be given for the purpose of education. Article 11 of the Ethiopian copyright proclamation No.410/2004 allows the reproduction of a work by persons other than the owner for the purpose of teaching. Such exception by itself does have its own limit.The exception, education, is generally guided by a limit known as fair practice .Fair practice is an equitable rule of reason that helps to balance the interests between the copyright owner and the public.

Even if the fair practice is provided in the proclamation, its meaning and standards to apply it are not known .Without these it is difficult to implement. As a result many individuals do not know about fair practice. Even, they do not know as it is stated in the copyright proclamation. So, if they do not know, they do not observe and respect. And many teachers and students understand that they can copy the work of another without limit if it is for the purpose of education. Here the writer wants to notify to everybody that even if the educational exception is provided by the proclamation, article 11 of it also provides a limit –fair practice. The owner of the work can raise such limit and accuse the user of his work. Then determining whether there is infringement or

a fair practice is left to be determined by the courts. The problem is here. There is no standard for judges to interpret and apply fair practice. Even the individuals have to be certain about the outcome of the cases before court.

Therefore, the following recommendations have to be taken into account to avert the problems:

  • The appropriate standards which help to interpret and apply the fair practice have to be provided by a regulation. Standards by taking in to account the spirit of the proclamation No.410/2004 and the policy of the country have to be given specifically for the case of education. In doing so the experience of other countries, especially US, that I considered in the paper are important.
  • While providing standards to fair practice, the three step test requirements of the international copyright conventions, specifically TRIPS, have to be considered.
  • Higher education institutions, in line with the standards provided by the regulation, have to provide detail guidelines in using copyrighted materials to their teachers and students.
  • The standards that would be determined by the regulation should not be exhaustive .They have to be illustrative and should give discretion for judges to include similar standards to handle new cases.
  • The fair practice concept and its standards for the cases of education have to be interpreted broadly, which inclines to the interest of the public in education. This will resolve the negative impact of strict copyright rules on the expansion and quality of higher education, since our country is a developing country. However, this has to be done to the extent of the three-step-test limit of international conventions permits.
  • Article 11 of the proclamation No.410/2004 provides that a fair practice for the purpose of teaching is allowed for “published” works. This limit the use of works unpublished but protected by copyright for the purpose of education. And there is no such requirement under international copyright conventions. So this has to be amended and fair practice of unpublished works has to be also allowed for the case of education. The same is true with regard to the word “reproduction” and it has to be replaced with a broad word –“exploitation” as it is provided in the Berne Convention, Article 10(2).
  • Article 11 of the proclamation has to also provide on how to use fairly new technologies like internet sources for the purpose of education.
  • The Ethiopian Intellectual Property Office (EIPO) has to do something to increase the awareness of individuals in higher education institutions in relation to copyright in general, fair practice concept and its standards.

Download the full text for further reading.

Daniel Mitiku

The blogger is a Lecturer at Welkite University Law School.