199
GUINEA
Law Adopting Provisions on Copyright and Neighboring Rights in the Revolutionary People's Republic of Guinea
(No. 043/APN/CP, of August 9, 1980) *
TITLE I
Copyright
CHAPTER I
Subject, Scope and Beneficiaries of Copyright-Definition
Article 1. The author of any original intellectual work {literary, scientific or artistic) shall, by the mere fact of its creation, enjoy an exclusive incorporeal property right in the work, effective against all per sons.
The following in particular shall be considered intellectual works within the meaning of this Law:
(i) books, pamphlets or other literary, scientific or artistic writings;
(ii) lectures, addresses, sermons, pleadings in court and other works of the same nature;
(iii) works created for the stage or for broadcasting (sound and/or visual), including dramatic or dramatico-musical works and also choreogra phic works and pantomimes, the acting form of which is fixed in writing or otherwise;
(iv) musical compositions with or without words; (v) works of painting, drawing, lithography, etch
ing, wood engraving and other works of the same nature;
(vi) sculptures, carvings in low relief and mosaics of all kinds;
(vii) architectural works, including both plans and models and the building itself;
(viii) tapestries and objects created by artistic pro fessions and by the applied arts, ·including both sketches and models and the works themselves;
* Published in the Journal Officiel de Ia Republique populaire revolutionnaire de Guinee, N° special [1980], and promulgated by Decree No. 442/PRG of September 15, 1980, published in the Journal Officiel of October 1, 1980. WIPO translation.
(ix) maps, illustrations, drawings and graphic and three-dimensional reproductions of a scientific or artistic nature;
(x) cinematographic works, to wh~ch me assimi lated, for the purposes of this Law, works ex pressed by processes analogous to cinemato graphy;
(xi) photographic works of artistic or documentary character, to which are assimilated, for the purposes of this Law, works expressed by a process analogous to photography;
(xii) derivative works such as trans~ations, arrange ments or adaptations of the above works;
(xiii) folklore and works derived from folklore, sub ject to special provisions which will be laid down in a special law on the protection of the national heritage.
Article 2. The title of a work, in so far as it has original character, \Shall be protected in 'the same way as the work itself. Even if the work is no longer protected, no one may use that title to distinguish a work of the same type if such use is liable to cause confusion.
Article 3. Copyright includes attributes of an in tellectual and moral nature and attributes of an eco nomic nature.
(a) Moral Rights
Moral rights consist of the author's right: - to .decide on the disclosure of his work;
to respect .:flor his name, his authorship and his work. The name of the author shall be indicated to such
an extent and in such a manner as conforms to fair practice on every copy of any reproduction of the work, and whenever the work is made available to the public.
The work may not undergo any modification without the consent of its author, given in writing. No one may make it available to the public in a form
200 COPYRIGHT - JUNE 1981
or under circumstances that might be prejudicial to his honor or reputation.
The rights conferred on the author by the fore going paragraphs are perpeuual, inalienab1e and im prescriptible.
(b) Economic Rights
The author shall enjoy the exclusive right to exploit his work in any form and to derive monetary benefit therefrom. He shall in. particular have the exclusive right to perform or authorize any one of the following acts:
(i) reproduction of the work in any material form, including cinematograph films and sound re cordings, by all processes that allow it to be indirectly communicated to the public;
(ii) performance or ·recitation of the work in public, by any means or process, including sound or visual broadcasting;
(iii) communication of the broadcast work to the public by wire, loudspeaker or any other pro cess or means for the transmission of sounds or images;
(iv) translation, adaptation, arrangement or any other transformation of the work.
For the purposes of this Article, "work" means the work either in its original form or in any form derived from the original.
None of these acts may be performed by a third party without the formal written authorization of the author. Any reproduction or performance, in whole or in part, made without the authorization of the author or his successors in title shall be unlawful.
The same shall apply to translation, adaptation, arrangement and transformation.
Article 4. The author of the work is the person who created it. The work shall be considered created, independently of any public disclosure, by virtue of the mere fact of the author's conception being real ized, even incompletely.
In the absence of proof to the contrary, author ship shall belong to the person or persons under whose name the work is disclosed.
Subject to Article 23 below, copyright, even in a work made under a contract to make a work or an employment contract, shall belong in the first in stance to the author. However,
(a) when the work is produced by officials of the administration in the course of their duties, the economic rights deriving from the disclosure of the work may be distributed according to the internal rules of the administration that employs them;
(b) the economic rights deriving from the disclo sure of the works of students or trainees of a school or art establishment may be distributed
according to the internal rules of the school or establishment.
Article 5. "Original work" means awork which, in its characteristics and form, -or in its form alone, allows its author to be identified.
"Work of joint authorship" means a work result ing from joint contributions on the part of two or more authors, iTrespective of whether the work is an indivisible whole or made up of rpatts having the character of independent creations.
"Composite work" means a new work in which a pre-existing work is incorporated without the colla boration of the author of the latter.
"Collective work" means a work created on the initiative of a natural person or legal entity who or which discloses it and publishes it under his or its name, in which the personal ·contributions of the various authors who participated in its creation merge in the whole for which they were made, in such a way that it is not possible to attribute to each co author a separate right in the whole thus completed.
"Posthumous work" means a work made accessi ble to the public after the death of its author.
Article 6. A work of joint authorship shall belong jointly to all the co-authors. The co-authors shall exercise their rights by common consent, failing which the court shall decide. Where the contribution of each of the co-authors is of a different type, each co-author may, unless otherwise agreed, exploit his personal contribution separately, provided however that this does not prejudice the exploitation of the joint work.
A composite work shall be1ong to the author who made it, subject to the rights of the author of the pre-existing work.
A collective work shall belong to the natural person or legal entity who or which initiated its creation and disclosed it.
Article 7. The authors of pseudonymous and anonymous works shall enjoy the rights specified in Article 3 in relation to their works.
They shall be represented in the exercice of those rights by the original editor or publisher until such time as they disclose their identity and prove ·their authorship.
The declaration provided for in the preceding paragraph may be made by will; however, any rights that may have been previously acquired by third parties shall be maintained.
The provisions of the second and third para graphs above shall not be applicable where the pseud onym adopted by the author leaves no doubt as to his identity. _
Article 8. The authors of translations, adapta tions, transforma1Jions or arrangements of ,intellectual works shall enjoy the protection afforded by this Law
NATIONAL LEGISLATION 201
without prejudice to the rights of the author of the course of a religious service, m premises original work as defined in Article 3 above. reserved for that purpose;
The same shall apply to the authors of anthologies (ii) reproductions, translations and adaptationsor collections of works which, by reason of the choice intended for strictly personal and private use;and arrangement of their contents, constitute intellec (iii) parodies, pastiches and caricatures, with duetual creations. regard for the laws governing that type of Article 9. Folklore shall belong in the first in work.
stance to the national heritage. Article 11. It shall be lawful, provided that theFor the purposes of this Law: title of the work and the name of its author are (1) "Folklore" means all literary and artistic mentioned, to make analyses of and short quotations
creations made by authors presumed to be of Guinean from a work that has already been lawfully made nationality, passed from generation to generation available to the public, provided that this is compat and constituting one of the basic elements of the ible with fair practice and justified by the scientific, traditional Guinean cultural heritage. critical, polemic, educational or informatory purpose,
(2) "Work derived from folklore" means any including quotations from newspaper articles and work composed exclusively of elements borrowed periodicals in the form of press summaries. from the traditional Guinean cultural heritage. Such quotations and analyses may be used in
The public performance or direct or indirect their original form or in translation. fixation of folklore with a view to its exploitation for Article 12. Subject to the mention of the nameprofit-making purposes shall require the prior autho of the author and of the source, the following mayrization of the BGDA (Guinean Copyright Office), be reproduced in the press or broadcast for informaobtainable against payment of a fee, the amount of tion purposes, unless the right of reproduction haswhich shall be determined under the conditions cus been expressly reserved: tomary in each of the categories of creation con articles on current political, social! and economiccerned. topics, published in their original form or inThe fees payable in connection with the compi trans1ation; lation of a work of folklore shall be distributed as speeches intended for the public and delivered atfollows: political, judici•al, administrative and religious
(i) compilation without arrangement or personal assemblies, and at public meetings of political contribution: chamoter and officiarl ceremonies. 50 Oj0 to the person who made the compilation; 50 Oj0 to the BGDA; Article 13. It shall be lawful, to the extent jus
tified by the informatory purpose, to record, repro(ii) compilation with arrangement or adaptation: duce and communicate to the public literary, scien75 Ofo to the author; tific or artistic works that may be seen or heard in the25 °I0 to the BDGA. reporting of current events by means of photography,The proceeds from the above fees shall be man cinematography, or sound or visual broadcasting.aged by the BGDA and used for cultural and social
purposes for the benefits of authors. Article 14. It shall be lawful to reproduce in a film or in a television broadcast and to communicate to the public works of figurative art permanently located in a public place, or whose inclusion in the
CHAPTER II film or broadcast is only by way of background or is incidental to the essential matters represented.
Limitations on Copyright
Exceptional LimitationsPermanent Limitations Article 15. Subject to, and under the conditionsArticle 10. Where the work has been lawfully specified in, the Appendix to the Paris Act (1971)made available to the public, the author may not of the Berne Convention for the Protection of Literprohibit:
ary and Artistic Works, licenses may be granted by(i) communications such as performance or the Minister for Higher Education and Scientificbroadcasting, Research to any natural person or legal entity re (a) if they are private, take place exclusively siding on the territory of the Revolutionary People's
within a family circle and do not give rise Republic of Guinea for: to receipts of any kind; (i) the translation of foreign works already law
(b) if they take place free of charge for strictly fully made available to the public and their educational or scholastic purposes or in the publication in printed or analogous forms of
202 COPYRIGHT- JUNE 1981
reproduction on the territory of the Revolu Escheated ·economic rights of authors shall accrue
tionary People's Republic of Guinea; to the BGDA, and royalty revenue deriving therefrom shall be used for cultural and social purposes, without(ii) the reproduction and publication in printed or
analogous forms of reproduction on the terri prejudice to the rights of creditors and to the honor
tory of the Revolutionary People's Republic ing of such ass~gnment contracts as may have been
of Guinea of foreign works already lawfully concluded by the author or his successors in title.
made available to the public; such licenses may Article 18. The total or partial assignment of not be granted, however, for the publication any one of the rights specified in Article 3 above of literary or scientific works of which a French shall not imply assignment of any one of the other edition is 'available abmad unless such publi rights. cation on the national territory affords good Where a contract entails total assignment of one conditions for the desired dissemination. of the rights, the scope of the assignment shall be
Article 16. In the cases provided for in Article limited to the methods of exploitation provided for
15, there must be no derogation from the rights in the contract.
conferred on the author by Article 3 above. Further Arvicle 19. The transfer of ownership of the sole more, the author shall have the right to equitable copy or of one or more copies of a work shall not remuneration which, failing amicable agreement, imply transfer of the copyright in the work. shall be ·determined by the Minister for Higher In the case of manifest abuse on the part of the Education and Scientific Research, whose decision owner preventing exercise of the right of disclosure, may be referred to the court competent under Arti the civil court may take any appropriate measure in cle 50 below. accordance with the provisions of Article 17.
Article 20. A clause assigning the right to exploit
CHAPTER III a work in a manner which is unforeseen or unfo reseeable on the date of the contract shall be explicit
Transfer of Copyright and shall stipulate a corresponding participation in the profits derived from exploitation.
Article 17. With the exception of the right to Article 21. Total assignment of future works modify the work, copyright as defined in Article 3 shall ·be null and void. However, it shall be lawful shall be transferable by inheritance. to conclude a contract commissioning three-dimen
The moral rights shall be exercised jointly by the sional or graphic works that grants temporary exclu S'llccessors •and the BGDA. sive r1ghts for a period not exceeding five years,
The right of disclosure of posthumous works shall subject to respect for the independence and freedom be exercised during their lifetime by the executors of expression of the author. designated by the author. In the absence of executors or after their death, and unless otherwise willed by Article 22. Unless otherwise specified, the au the author, this right shall be exercised in the follow thorization to broadcast the work shall cover all free ing order: by the descendants, by the spouse or communications made using its own facilities and on spouses against whom there exists no final judgment its own responsibility by the Radio and Television of separation or who have not remarried, by succes Broadcasting Office of the Revolutionary People's sors other than descendants who inherit all or part Republic of Guinea. of the estate and by the universal legatees or donees Pursuant to A11ticle 3(b)(ii), this 'authorization of the entirety of future assets. shall not extend to 1he communication of broadcasts
This right may be exercised even after expiry of made in places open to the public or to any trans the exclusive right of exploitation specified in Arti missions made by third parties by wire or wireless. cle 42.
Article 23. Rights of performance, reproduction,In the event of manifest abuse in the exercise or adaptation and translation shall be assignable for anon-exercise of the right of disclosure on the part of
the deceased author's representatives referred to in consideration or free of charge. The author's assign
ment of his rights in his work may be total or partial.the !Second paragraph of this Article, the civil court It shall confer on the author a proportionate particimay order any appropriate measure. The same shall pation in any proceeds from sale or exploitation.apply if there is conflict between the said represen
tatives or if there is no known successor in title, no However, the remuneration of the author may be
calculated as a lump sum under the following circumclaimant and no heir. The maMer may be referred ·to the court in parti stances:
cular by the Minister for Higher Education and (i) a basis for calculating the proportionate parti
Scientific Research. cipation cannot be determined practically;
203
(ii) the cost of supervision would be out of propor tion to the results expected;
(iii) the use of the work is merely of an accessory nature in relation to the subject matter ex ploited.
Notwithstanding the assignment of his right of exploitation, the author shall enjoy, even after the publication of the work, the right to disavow or with draw in relation to the assignee. He may only exer cise this right, however, on condition that he indem nifies the assignee beforehand for any loss that the disavowal or withdrawal may cause him.
When the author decides to have his work pub lished after having exercised the right to disavow or withdraw, he shall be bound to offer priority exploi tation rights to the assi-gnee he originally chose, under the conditions originally specified.
CHAPTER IV
Droit de Suite
Article 24. Notwithstanding any assignment of the original work, authors of graphic and three dimensional works shall have an inalienable right to share in the proceeds of any sale of the work by public auction or through ·a dealer.
After the author's death, this droit de suite shall subsist to the benefit of his heirs for the pe-riod laid down in Article 42.
This right shall take the form of a deduction, in favor of the author or his heirs, of 5 °/o of the pro ceeds of the sale.
CHAPTER V
Cinematographic and Broadcast Works
Article 25. A cinematographic work shall be the property of the natural person or legal entity who or which has taken the initiative for the making of the work and the responsibility for exploiting it.
That person or entity, called the maker, shall be deemed to be invested with the copyright in the work.
The maker shall be required, prior to the making of the work, to ·conclude contracts with all those whose works are to be used in the making.
Such contracts, with the exception of those con cluded with the authors of musical compositions with or without words, shall, unless otherwise stipulated, imply assignment to the maker of the exclusive right of cinematographic exploitation; they shall be in writing.
Article 26. The maker shall also be required, prior to the making of the cinematographic work, to conclude contracts with the intellectual creators of the cinematographic work, and in particular:
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(i) the author of 'the script; (ii) the author of the adaptation;
(iii) the author of the musical compositions with or without words specially composed for the work;
(iv) the director; (v) the author of the dialogue.
These contracts shall, unless otherwise stipulated, imply assignment to the maker of the exclusive right of cinematographic exploitation; they shall be in writing.
Article 27. The director of a cinematographic work shall be the person who assumes the direction of, and artistic responsibility for, the transformation into image-s .and sounds and the ·cutting of the cinema graphic work, and its final editing. The cinemato graphic work shall be deemed to be completed when the first "master print" has been established by com mon consent between the director and the maker.
Article 28. If one of the intellectual creators of a cinematographic work refuses to complete his contri bution to the work or is unable to complete such contribution owing to circumstances beyond his con trol, he may not ·object to the use of the part of his contribution already in existence for the purpose of the completion of the work.
Unless otherwise stipulated, the intellectual cre ators of a cinematographic work may use their per sonal contributions freely with a view to their exploi tation in a different type of work, provided that such use does not prejudice the exploitation of the work in which they have collaborated.
Article 29. The authorship of ·a radj.o or televi sion work shall belong to the nat!ural pernon or persons who assume the intellectual creation of the work. The provisions of Article 28 shall be applicable to radio or television works.
CHAPTER VI
Authors' Contracts
Article 30. Contracts under which the author or his successors in title authorize the performance or publication of his work shatll, on pain of nullity, be dmwn up in writing. The same shall apply to per £ormance authorimtions granted free of charge.
Such contracts shall mention the method of ex ploitation and the manner of remuneration specified by the author or his successors in •title. They shall be subject to the provisions of the Code of Civil and Commercial Obligations.
The transfer of the author's rights shall be subject to the condition that each of the rights assigned is mentioned separately in the instrument of assignment and that the area of exploitation of the rights as
204 COPYRIGHT - JUNE 1981
signed is limited with respect to extent and purpose, and also with respect to place and duration.
Where required by special circumstances, the contract may be validly concluded by exchange of telegrams, on condition that the area of exploitation of the rights assigned is defined in accordance with the provisions of the third paragraph of this Article.
(a) Publishing Contract
Article 31. A publishing contract is a contract under which the author of the work or his successors in title transfer to the publisher, under specified con ditions, the right to manufacture, in quantity, gra
j. phic, mechanical or other copies of the work, on f condition that he ensures the publication and dissem
ination thereof. The form and mode of expression, the manner in
which publication is to take place and the termination clauses shall be determined by the contract.
Article 32. The publishing contract shall mention the minimum number of copies constituting the first printing. Howeve-r, this obligation shall not apply to contracts specifying minimum royalties guaranteed to the author by the publisher.
They shall provide for remuneration proportion ate to the proceeds from ·exploitation, except in the case of ·lump-sum payment made in accordance with A-rticle 23 of this Law.
Article 33. The publisher may, either free of charge or for a considemtion, or as a share in any corporate partnership, transfer the benefits of the publishing contract to a third party independently of his own business without having obtained the prior authorization of the author. In the case of disposal of the business, if such disposal is liable to prejudice seriously the material and moral interests of the author, the latter shall be entitled to obtain redress, even by means of termination of the contract.
Where the pu'blishing business was operated as a corporation or as a joint enterprise, the fact of en trusting the business rto one ·Of the former share holders or partners as a result of its liquidation or division shall in no case be considered an assignment.
In the case of a contract with a specific term, the rights of the assignee shall lapse automatically on expiry of the term, without nee-d for formal notice.
The publisher may, however, for three years following such expiry, proceed to sell the copies re maining in stock at the standard price, except where the author prefers to purchase those copies at a price to be fixed, failing amicable agreement, by expert opinion, provided that this right conferred on the first publisher shall not prevent the author from having a new edition made within a period of 30 months.
Article 34. The publisher shall be required to provide the author with all the documentary evi dence necessary for establishing the accuracy of his accounts. In the absence of special procedures spe cified in the contract, the author may, at least once a year, demand that the publisher produce a statement showing the number of copies manufactured in the course of the period concerned, with details of the date and volume of printings, the number of copies in stock, the number of copies sold by the publisher, the number of copies unused or destroyed by accident or by circumstances beyond his control, the amount of royalties payable and, where appropriate, the amount of royalties paid to the author.
Any clause to the contrary shall be deemed not to have been written.
Neither the bankruptcy of the publisher nor a settlement approved by the court shall terminate the contract.
The receiver shall not proceed to remainde-r the copies in stock or sell them out for at least 15 days after having advised the author of his intention, by registered letter with a request for acknowle-dgement of receipt.
The author shall have an option to purchase all or part of the copies. In the absence of agreement, the purchase price shall be fixed by expert opinion.
Article 35. The publishing contract shall termi nate, regardless of cases provided for in ordinary legal provisions or in the foregoing Articles, when the publisher destroys all the copies.
Termination shall take place automatically when, after formal notice has been served on him by the author and a suitable period fixed, the publisher does not proceed with publication of the work or, where the work is out of print, with its republication.
An edition shall be considered out of print if two orders for the delivery of copies addressed to the publisher have not been met within three months.
If the work is not completed on the author's death, the contract shall terminate with respect to the uncompleted part of the work, unless otherwise agreed between the publisher and the successors in title ·of the author.
Article 36. The author shall '·deliver to the pub lisher the work to be published within the period specified in the contract and in a form that permits manufacture. Unless otherwise agreed or impossible for technical reasons, the work handed over by the author for publication shall remain his property. The publishe-r shall be responsible for it during a period of one year after m·anufacture is completed.
Article 37. A contract for publication at the author's expense [a compte d'auteur] does not con stitute a publishing contract within the meaning of Article 31.
1
205
Under such a contract, the author or his succes t !'-
sors in tltle pay the editor an agreed sum, on condi tion that the latter manufactures copies of the work in quantity, in the form and according to the modes of expression specified in the contract, and that he ensures publication and dissemination thereof.
Such a contract constitutes a contract for the making of a work, governed by the agreement, usage and the provisions of the Code of Civil and Com mercial Obligations.
Article 38. A "shares" contract [de compte a demi] does not constitute a publishing oontr.act within the meaning rof Artic1e 31.
Under such a contract, the author or his succes sors in title commission a publisher to manufacture, at his expense and in quantity, copies of a work in the form and according to the modes of expression specified in the contract, and to ensure publication and dissemination thereof, subject to an agreement reciprocally contracted to share the benefits and losses of exploitation in the proportions specified.
Such a contract constitutes a partnership.
(b) Performance Contract
Article 39. A performance contract is a contract under which the 1author of an intellecvual work or his successors in title authorize a natural person or legal entity to perform the work under specified conditions.
A contract under which a professional organiza tion of authors grants an entertainment manager the right to perform, for the duration of the contract, the existing or future works constituting the repertoire of the said organization under conditions specified by the author or his successor-s in title shall be called a general performance contract. In the case provided for in the foregoing paragraph, an exception may be ma,de to the provisions of Article 21.
Article 40. The performance contract shall be concluded for a limited period or for a specified number of communications to the public.
Except where exclusive rights are expressly pro vided for, the ·Contract l'lhall not confer any monopo1y of exploitation on the entertainment manager. The entertainment manager may transfer the benefits of his contract without the formal and written consent of the author or his representative.
The validity of the exclusive rights granted by the dramatic author may not exceed five years; any inter ruption of performances in the course of two con secutive years automatically causes them to lapse.
Article 41. The entertainment manager shall be obliged:
(i) to notify the author m his representatives of the exact program of publlic performances;
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(ii) to provide them with a documented sfiatement of receipts;
(iii) 1:o pay them the alffiount of royalties provided for;
(iv) ·l!o ensure public performance under technical conditions such as will guarantee the intel lectual and !ffioral rights nf >the author.
CHAPTER VII
Term of Protection
Article 42. Copyright shall subsist during the life time of the author and for 80 calendar years from the end of the year of his death.
In the case of a work of joint ·authorship, the only date taken into considerahon for the calculation of the te11m of protection shahl ·be that of the death of the la!st surviving coauthor.
Article 43. Copyright shall subsist: (a) for 80 calendar years from the end of the year in
which the work is lawfully made accessible to the public in the case of:
(i) anonymous or pseudonymous works, ex cept where the identity of the author of the work becomes known before expiry of the term provided for in this Artiole, in which case ·the term provided for in ATticle 42 shall be applioable;
(ii) cinematographic works; (iii) posthumous works; (iv) collective works.
Where a collective work is published in in stallments, the term shall run from January 1 of the calendar year following the publication of each installment. Provided that publication is completed within the 20 years following publi cation of the first installment, the term of the ex clusive rights in the work as a whole shall not end unti1 the expiry of the 80th year following the year of publication of the las.t installment;
(b) for 40 oalendar years from the end of the year of the author's death in the case of photographic works and works of applied art.
Article 44. A general lien on the assets of the debtor shall attach to the economic rights of the au thor. This lien shall be unaffected by bankruptcy and settlements approved by the court. It shall operate illllllediately after that which guarantees the wages of employees.
206 COPYRIGHT - JUNE 1981
CHAPTER VIII
Domaine Public Payant
Article 45. On expiry of the terms of protection referred to in Articles 42 and 43, during which are cognized exclusive right belongs to authors, their heirs or successors in title, the works of the author shall fall into the public domain. Exploitation of works in the public domain shall be subject to: - respect for moral ·rights;
- prior declaration;
- payment of a fee, the product of which shall be paid to the BGDA and used for cultural and social purposes for the benefit of authors. The right of exploitation or performance of works in the public domain shall be administered by the BGDA. The rate of the fee shall be specified by the Ministry of Higher Education and Scientific Research, and may not exceed 50 Ofo of the rate of collection by virtue of the copyright during the period of protection.
CHAPTER IX
Exercise of Copyright
Article 46. The administration of the rights and the defense of the material and moral interests of cre ators of intellectual works, as defined in Title I of this Law, shall be entrusted to a body called the Bureau guineen du droit d'auteur [Guinean Copyright Office] (BGDA), the tasks, organization and operation of which shall be laid down by decree.
The BGDA shall have the status of a public institution of professional character; it shall be under the authority of the Ministry of Higher Education and Scientific Research.
The BGDA shall be entitled, to the exclusion of any other natural person or legal entity, to act as intermediary between the author and his successors in title and the users of literary or artistic works, for the issue of authorizations and for the collection and distribution of the royalties payable for rights as specified in this Law.
The BGDA shall represent the interests of the various foreign authors' offices or societies on the national territory under such conventions or agree ments as it may have entered into with them.
CHAPTER X
Procedure and Sanctions
Article 47. The BGDA shall be entitled to be party to legal proceedings in the defense of the interests entrusted to it, notably in all disputes di
recly or indirectly concerning the reproduction or communication to the public of works protected under the provisions of this Law.
Article 48. The user of a work of folklore or of the right of performance of a work in the public domain who fails to make the appropriate prior declaration to the BGDA shall be liable to a fine amounting to twice the amount of the royalties nor mally payable, but not less than 500 sylis.
Article 49. It shall be prohibited and shall con stitute an act of infringement to import into the terri tory of the Revolutionary People's Republic of Gui nea any rep:roduction of a work made in violation of the provisions of this Law.
Article 50. At the request of any author of a work protected by this Law, his successors in title or the BGDA, the examining magistrate to whom the infringement has been referred or the president of the court in all cases, including when the interests of the author risk imminent violation, shall be em powered, subject to security where appropriate, to order the seizure in any place, and even at hours not provided for in the law in force, of copies of an unlawfully reproduced work that have been or are being manufactured, of unlawfully used copies and of the p:roceeds of any unlawful reproduction, performance or dissemination of a protected work.
He may also order the cessation of any manu facture or public performance, either in progress or announced, that constitutes an infringement or an act preparatory to infringement.
The provisions of this Article shall be applicable in the case of irregular exploitation of folklore or by reason of performance of a work in the public domain.
Article 51. Where the proceeds from exploitation due to the author of an intellectual work are the subject of a seizure, the president of the court may order payment to the author, as maintenance, of a specified sum or proportion of the amounts seized.
Article 52. The measures ordered by the exam ining magistrate under Article 50 shall be withdrawn automatically in the event of a non-suit or nolle prosequi order.
They may be withdrawn at any time by the exam ining magistrate or by the criminal jurisdiction, on condition, where appropriate, that security is given or a receiver is appointed to resume the manufacture or the public performances and to hold· the proceeds from the exploitation of the work on behalf of the owner to be determined.
The measures ordered by the president of the court shall be withdrawn automatically on the 30th day following the decision if the plaintiff fails to refer the matter to the competent civil court,
207
unless criminal proceedings are in progress; they may be withdrawn at any time by the president of the court in a summary proceeding or by the civil court hearing the main issue, in accordance with the condi tions provided for in the second paragraph of this Article, where appropriate.
Article 53. Evidence of violations of the provi sions on the protection of copyright may be obtained either from the reports of police officers or from the statements of sworn agents of the BGDA.
Article 54. In the case of violation of the provi sions of Article 24, the acquirer and the ministerial officials may be jointly condemned to pay damages to the beneficiaries of the droit de suite.
CHAPTER XI
Field of Application of Title I
Article 55. The p.rovisions of this Title shall apply to current contracts whose execution shall con tinue until the expiry date agreed upon at the time of their conclusion.
Article 56. This Title shall apply: (a) to the works of nationals of Guinea; (b) to :the works of fmeign nationals the first pub
lication of which took place in Guinea; (c) 'io works of ·architecture erected on the terri
tory of the Revolutionary People's Republic of Guinea and any work of art incorporated in a building located on that territory.
Works that do not fall into any of the categories referred to above shall enjoy protection under this Law only if the country of which the original owner of the copyright is a national or resident affords equivalent protection to the works of nationals of Guinea. No derogatory action may, however, be un dertaken with respect to the integrity or authorship of such works. Royalties shall be paid to the BGDA.
The countries for which the reciprocity condition provided for in the second paragraph above is deemed fulfilled shall be decided jointly by the Min istry of Higher Education and Scientific Research and by the Ministry of Foreign Affairs.
CHAPTER XII
Production Bonus
Article 57. The Revolutionary People's Republic of Guinea,
(1) moved by the desire to encourage creative activity and promote the protection of intellectual property,
(2) resolved to render effective the administration of management bodies that have been and may yet be created in the field of literary and artistic property and ·
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(3) determined to derive the maximum benefit from the wide experience of WIPO in the promotion of intellectual works under the protection of intellec tual property,
without prejudice to the rights of the author as specified in Article 3 of this Law, hereby introduces the following:
(i) a literary production bonus to encourage cre ative activity on the part of the authors referred to in Articles 4 and 8 above;
(ii) a ibonus for the correction of this literary and artistic production;
(iii) a literary competition with a range of prizes.
Article 58. The procedure for the application of the provisions of Chapter XII will be laid down by decree of the President of the Republic.
Article 59. Authms whose works were pub lished prior to this Law shall be fully eligible for the literary production bonus provided for in Article 57(i).
TITLE II
Neighboring Rights
CHAPTER I
Definitions
Article 60. For the purposes of this Title: (i) "performers" means actors, singers, musicians,
dancers and other persons who act, sing, deli ver, declaim, play in or otherwise perform in tellectual works as referred to in Article 1, and expressions of folklore;
(ii) "duplicate of a phonogram" means any article which contains sounds taken directly or indi rectly from a phonogram and which embodies all or a substantial part of the sounds fixed in that phonogram;
(iii) "distribution to the public" means any act by which duplicates of a phonogram are offered, directly or indirectly, to the general public or any section thereof.
(iv) "fixation" means the embodiment of sounds, images or both in a material form sufficiently permanent or stable to permit them to be per ceived, reproduced or otherwise communicated during a period of more than transitory dura tion;
(v) "phonogram" means any exclusively aural fixation of sounds of a performance or of other sounds;
(vi) "producer of phonograms" means the person who, or the legal entity which, first fixes the sounds of a performance or other sounds;
(vii) "publication of a phonogram" means the offering of copies of a phonogram to the public in reasonable quantity;
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(viii) "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds;
(ix) "rebroadcasting" means the broadcasting by one broadcasting organization of the broadcast of another broadcasting organization;
(x) "·reproduction" means the making of a copy or copies of a fixation or a substantial part of that fixation.
CHAPTER II
Protection of Performers
Article 61. Without the authorization of the per formers, no person shall do any of the following acts:
(a) the broadcasting of their performance, except where tlie broadcast:
(i) is made from a fixation of the perfor mance, other than a fixation made under the terms of Article 76, or
(ii) is a rebroadcast authorized by the orga nization initially broadcasting the per formance;
(b) the communication to the public of their per formance, •except where the communication:
(i) is made from a fixation of the perfor mance; or
(ii) is made from a broadcast of the perfor mance;
(c) the fixation of their unfixed performance; (d) the <reproduction of a fixation of their per
formance, in any of the following cases:
(i) where the performance was initially fixed without their authorization;
(ii) where the !'eproduction is made for pur poses different from those for which the performers gave their authorization;
(iii) where the performance was initially fixed in accordance with the provisions of Articles 74 and 76 below, but the reproduction is made for purposes dif ferent from any of those referred to in those Articles.
Article 62. In the absence of any contractual agreement to the contrary or of circumstances of employment from which the contrary would nor mally be inferred:
(i) the authorization to broadcast does not imply an authorization to license other broadcasting organizations to broadcast the performance;
(ii) the authorization to broadcast does not imply an authorization to fix the performance;
(iii) the authorization to broadcast and fix the per formance does not imply an authorization to repmduce the fixation;
(iv) the authorization to fix the performance and to mproduce the fixation ,does not imply an autho rization to broadcast the performance from the fixation or any reproduction of stich fixation.
Article 63. Once the performers have authorized the incorporation of their performance in a visuai ·or audiovisual fixation, the provisions of Articles 61 and 62 (iii) and (iv) shall have no further application.
Article 64. Nothing in this Chapter shall be con strued to deprive performers of the right to agree by contracts on terms and conditions more favorable for them in Tespect of any use of their performances.
Article 65. Granting of <authorizatiton by perform ers.
(1) A binding authorization under Article 61 may be given by the performer or by the Guinean Copy right Office.
(2) Any authorization given by a performer claiming that he has retained the relevant rights or by the Guinean Copyright Office (BGDA) shall be cons~dered v-alid unless the recipient knew m had good reason to believe that the delegation of powers was not a valid one.
Article 66. (1) The performer (in the case of a group of performers, the leader and the main parti cipants) shall be entitled to have his name mentioned as follows:
(i) in the case of a public performance and in the case of a transmission of the performance to the public by any means, the main performers shall be identified in an appropriate manner;
(ii) all copies of a published phonogram of a per formance and their containers shall bear the names of the main performers; if such mention cannot be affixed to the copies of the phono gram, the main performers need only be men tioned on the containers;
(iii) where applicable, the mention referred to in subparagraph (ii) above shall also include the name of the person who authorized the fixa tion on behalf of the performers concerned.
(2) The performer shall be entitled to protection . against any distortion of his performance.
Article 67. The protection under this Title shall subsist for 40 years computed from the end of the year in which the performance took place. Applica tion of the provisions of Article 66 above shall re main reserved without limitation ill time.
CHAPTER III
Protection of Producers of Phonograms
Article 68. Without the authorization of the ducer of phonograms, no person shall do any of following acts:
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(i) direct or indirect reproduction, (ii) importation for the purpose of distribution to
the public, or (iii) distribution to the public,
of duplicates of his phonogram.
Article 69. All copies in commerce of the pub lished phonograms or their containers shall bear a notice consisting of the •symbo1 ® (the letter "P" in a circle), accompanied by the year date of the first pub lication, placed in such a manner as to give reason able notice of claim of protection. If the copies or their containers do not identify the producer by carrying his name, trademark or other appropriate designation, the notice shall also include the name of the owner of the license granted by the producer.
Article 70. The protection of producers of_ pho nograms under this Title shall subsist for 40 years computed from the end of the year in which the phonogram was published for the first time or, failing that, was initially made.
CHAPTER IV
Remuneration of Performers and Producers of Phonograms for Use of Phonograms in Public
Article 71. (1) If a phonogram published for commercial purposes, or a reproduction of such pho nogram, is used directly for broadcasting or for com munioation •to the public, a single equitable remu neration for the performers and the producer of the phonogram shall be paid by the user to the producer.
(2) Unless otherwise agreed between the perform ers and l!:he pmducer, half on the amount received by the producer under paragraph (1) shall be paid by the producer to the performers.
(3) The amount received from the producer under paragraph (2) shall be divided among them selves by the performers.
(4) The right to an equitable remuneration under this Article sha'l'l subsist for 40 years computed from the end of the year in which the phonogram was pub lished for the first time or, failing that, was initially made.
(5) This Article shall not apply where a broad cast is made for non-profit-making purposes or where communication to the public in public places is not the result of a purely commercial activity.
CHAPTER V
Protection of Broadcasting Organizations
Article 72. Without the authorization of the broadcasting organization, no person shall do any of the following acts:
(i) the rebroadcasting of its broadcasts; (ii) the fixation of its broadcasts;
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(iii) the reproduction of a fixation of its broad casts:
(a) where the fixation, from which the re production is made, was done without its authorization; or
(b) where the broadcast was initially fixed in accordance with the provisions of Arti cles 74 and 75, but the reproduction is made for purposes different f-rom any of those referred to in those Articles.
Article 73. The protection of broadcasting orga nizations under this Title shall subsist for 40 years computed from the end of the year in which the broadcast took place.
CHAPTER VI
Limitations on Protection
Article 74. The acts referred to in Articles 61, 68, 71 and 72 shall not be subject to authorization and !payment when they are performed for:
(i) private use as provided in Article 10(1), (2) and (3);
(ii) the reporting of current events, provided that no more than short excerpts of a performance, of a phonogram or of a broadcast are used;
(iii) use solely for the purposes of teaching or scientific research, subject to the application of Article 75 below;
(iv) quotations in the form of short excerpts of a performance, or of a phonogram or of a broad cast, provided that such quotations are compat ible with fair practice and are justified by their informatory purpose;
(v) such other purposes as constitute exceptions in respect of copyright works under Articles 10(1)(a) •and (b) •and 12.
Article 75. The Guinean Copyright Office shall issue licenses for the reproduction of duplicates of phonograms, where such reproduction serves the ex clusive purpose of education or scientific research, is made and distributed on the territory of the Revolu tionary People's Republic of Guinea to the exclusion of aH exportation of duplicates, •and comprises an equitable remuneration for the phonogram producer, fixed by the said Office according to the tariff laid down by the competent Ministry, with particular re ference to the number of duplicates to be made and distributed.
Article 76. The requirements fm authorization under Articles 61, 68, 71 and 72 for making fix ations of performances and broadcasts, for repro ducing such fixations and for reproducing phono grams published for commercial purposes shall not apply where the fixation or reproduction is made by a
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broadcasting organization by means of its own fa CHAPTER IX cilities and for its own broadcasts, provided that:
Field of Application of Title II(i) in respect of each broadcast of a fixation of a performance or of a reproduction thereof Article 80. Protection of performers under this made under this subsection, the broadcasting Title is available where: organization has the right to broadcast the par (i) .the performer is a national of the Revolutio ticular performance; and nary People's Republic of Guinea;
(ii) in respect of ,each broadcast of a fixation of a {ii) the performance took place on the territory of broadcast, and each broadcast of a reproduc the Revolutionary People's Republic of Guinea; tion of such a fixation of a broadcast, made (iii) the performanoe is fixed in a phonogram quali under thi!S Ar-ticle, the broadoasting organi fying for protection under Article 81; zation has the ,right to broadcast the particular (iv) the performance, which has not been fixed in broadcast; and a phonogram, is embodied in a broadcast
(iii) in respect of any fixation made under this qualifying for protection under Article 82. Article or ,any •reproduotion the.reof, the Article 81. Protection of phonograms under thisfixation and any reproductions thereof are Title is available where:destroyed within the same period as applies to fixations and reproductions of copyright works (i) the producer is a national of the Revolutionary under Article 10, except for a single copy People's Republic of Guinea;
(ii) the first fixation of the sound was made in thewhich may be preserved exclusively for archi val purposes. Revolutionary People's Republic of Guinea;
(iii) the phonogram was first published in the Revolutionary People's Republic of Guinea.
CHAPTER VII Article 82. Protection of broadcasts under this Exercise of Neighboring Rights Title is available where:
(i) the headquarters of the organization is situatedArticle 77. The 'administration of the ·rights con in the Revolutionary People's Republic offerred by Title II 'Of this Law shall be entrusted to the Guinea; Guinean Copyright Office (BGDA), mentioned in (ii) the broadcast was transmitted from a transmitArticle 46 above. ter situated in the Revolutionary People's
Republic of Guinea.
CHAPTER VIII Article 83. This Title shall also apply to perfor mers who, and to phonograms and broadcasts
Procedure and Sanctions which, are to be protected by virtue of the internatio nal conventions to which the Revolutionary People'sArticle 78. In a civil action brought. by any Republic of Guinea is party.person or legal entity whose rights under this Title
are threatened with violation or have been violated, ArNcle 84. Nothing in this Title shall prejudice the following remedies shall be available: the right of persons or legal entities to use, in accor
(i) an injunction, upon such terms as the court dance with the requirements ·of this Law, fixations or may deem reasonable, to restrain violations; reproductions made in good faith before the date of
(ii) payment to the complaining party of any its coming into force. ·damages ·suffered by it as a result of a viola Article 85. The provisions of this Title on the tion, including any profits enjoyed by the viola protection of performers, producers of phonograms tor that are attributable to the violation. If the and broadcastmg organizations shall in no way be violation is found to have been malicious, the interpreted to limit or prejudice the proteotion other court may, at its discretion, award damages. wise secured to authors or to any person or legal
entity under 'I1it1e I of this Law or under any interArticle 79. (1) Any person who gives authoriza tions on behalf of performers without being a duly
national agreement to which the Revolutionary People's Republic of Guinea is party.appointed representative, or any person who know
ingly proceeds under such an unlawful authorization, shall be guillty of a criminal offense punishabie by a FINAL PROVISIONSfine of 10,000 to 20,000 sylis.
(2) Any person who fails to affix the notice pro Article 86. All earlier provisions contrary to the vided for in Article 69 on copies of published phono provisions of this Law are repealed. grams or on their containers shall be liable to a fine Article 87. This Law !Shall be registered and pubnot exceeding 10,000 sylis. lished in the Official Journal of the Republic.