The Punishment of Copyright Infringement Under Cameroon Law
Ferdinand Doh Galabe, Esq.,
Co-founding & Managing Partner
I – Introduction
Intellectual property rights are generally broken down into two main branches, the first being industrial property rights (consisting of patents for inventions, trademarks, trade names, utility models, industrial designs, geographical indications, layout designs or topographies of integrated circuits, and new plant varieties) and the other branch being copyright and related rights, also known as literary and artistic property rights which are a body of exclusive rights attached to original works of authorship fixed in any tangible form or medium of expression which are protected by law. This body of rules protects the rights of artists, performers, phonogram producers and broadcasting organisations (under related rights) as well as cultural heritage.
There are two categories of rights under copyright law, namely, economic or patrimonial rights and moral rights. The moral rights of the author are inalienable and non-transferable and touch on the personal interests of the author in the work including, especially, the right of paternity which is the author’s right to be identified as such and the right of integrity which is the author’s right to object to distortions or changes of the work prejudicial to his honour or reputation.
Generally, economic or patrimonial rights are traditionally divided into four (04) main categories, including, the right of reproduction, rights of translation and adaptation, rights of public performance, broadcasting and communication to the public, and the resale right or Droit de Suite. They specifically include exclusive rights to reproduce or make copies of one’s work, rights to stop third parties from making copies of one’s work, exclusive rights to adapt or authorize the adaption of one’s work, exclusive right to distribute or authorize the distribution of one’s work, right to perform one’s work, right to rent or authorize the renting of one’s work, right to make one’s work available to the public, resale rights (droit de suite) or right to share in the proceeds of subsequent sales of the work, right to display or authorize the display of one’s work, and right to authorize public performances of the works, etc.
The understanding of the concept of works is critical in copyright law. Article 2 of the Berne Convention for the Protection of Literary and Artistic Works (1886), which is the oldest multilateral agreement on copyright law, does not provide a thorough definition of the term “works” or “literary and artistic works or creations” per se. However, it enumerates a non-exhaustive list of works as including, “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as:
- pamphlets and other writings;
- sermons and other works of the same nature;
- dramatic or dramatico-musical works;
- choreographic works and entertainments in dumb show;
- musical compositions with or without words;
- cinematographic works to which are assimilated works expressed by a process analogous to cinematography;
- works of drawing, painting, architecture, sculpture, engraving and lithography;
- photographic works, to which are assimilated works expressed by a process analogous to photography;
- works of applied art;
- illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science. […]
- Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work […]
- Collections of literary or artistic works, such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.”
There are several other international and domestic legal instruments in force in Cameroon which contain similar provisions outlining what constitutes literary or artistic works. These include the Rome Convention or the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Corporations (1961), the WIPO Copyright Treaty (1996), the WIPO Performances and Phonograms Treaty (1996), the Beijing Treaty on Audio-visual Performances (2012), the Agreement on Trade-related Aspects of Intellectual Property Rights also known as the TRIPS Agreement (April 15, 1994), Annex 7 of the Revised Bangui Agreement creating the African Intellectual Property Organisation (1977, revised in 1999 and 2015), Law no 2000/011 of December 19, 2000 on Copyright and Related Rights, etc.
As the Berne Convention of 1886 was adopted a century prior to the digital age, certain forms of copyrights were unanticipated at the time, such as computer programs and databases. Annex 7 of the Revised Bangui Agreement equally protects, within the AIPO area, expressions of folklore and works derived from folklore (mostly in developing countries), which were not protected under the Berne Convention, which was negotiated by mostly western countries which did not have any interests in protecting these rights. In the last few decades, however, the WIPO and other agencies of the UN system have made considerable efforts to protect expressions of folklore and works derived from them.
II – Copyright as a Property Right
As mentioned above, copyrights form a branch of intellectual property rights law, as such the nature of rights to which their creators are entitled to are akin to property rights under property law in more than many respects.
In the English case of Fisher v. Brooker & ors (2010), the Lords of Appeal articulated the above view as follows, “the law of property is concerned with rights in things. The distinction which exists between the exercise of rights and the obtaining of discretionary remedies is of fundamental importance in any legal system. There is no concept in our law that is more absolute than a right of property. Where it exists, it is for the owner to exercise it as he pleases. He does not need the permission of the court, nor is it subject to the exercise of the court’s discretion. The benefits that flow from intellectual property are the product of this concept. They provide an incentive to innovation and creativity. A person who has a good idea…is entitled to protect the advantage that he has gained from this and to earn his reward. These are rights which the court must respect and which it will enforce if it is asked to do so.”
That said, intellectual property rights are not exactly the same as traditional property rights which are in the form of tangible assets which form the object of such rights. With copyrights the object of rights are not the copyrighted works per se, but particular rights specifically recognised by copyright law. Hence, while the owner of the tangible asset owns the things as such, the copyright holder does not own the intellectual creation as such, but the specified rights protected under intellectual property law. For the sake of illustration, the creators of a movie cannot legally own the movie, although they can legally own copyrights to a movie. Therefore, potential rights in copyrighted works that are not recognized by law are not protected by copyrights.
III – Distinguishing Ideas from Expressions & Copyrightable Works
Article 9(2) of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS Agreement) provides that, “copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.”
Section 3(2), (3) and (4) of Law no 2000/011 of December 19, 2000 on copyright and related rights in Cameroon provides that, “copyright shall relate to the expression through which ideas are described, explained and illustrated…this law shall protect only expressions or original distinctive features resulting from a creation. Copyright shall not protect ideas in themselves….”
In other words, copyright law in no way protects an idea in itself yet in the mind or head which has not yet been expressed in copyrightable form as a literary, dramatical, musical or artistic work, nor does copyright law even protect ideas contained or expressed in such works. The implication is that no matter how original or striking an idea may be, and in spite of its expression in a copyrightable work, others are, if such ideas have not been patented, free to express such ideas in works of their own.
Copyright law only protects the original manner in which the idea has been expressed in the creation/work. As such, third parties may draw inspiration from ideas contained in protected copyright works to create original works of their own. An example of this principle is the fact that the underlying idea in a novel is not protected by copyright law, although the unauthorized reproduction of the novel itself which is an expression of such an idea is illegal under copyright law.
There are several other important principles of copyright law which need to be considered along with what has been said above, such as the principle of fixation, in some cases, the requirement of expression, which we just saw, the principle of originality, the principle of automatic protection, the territoriality of rights, and the independence of protection. In a nutshell, the protection of copyright is subject to the criteria that the work be a formal creation, that is, that it be represented in a perceptible form (and not a mere idea), and that the work be an intellectual (primogenial) creation or work and possess originality (creativity & individuality) and not novelty (a criteria applicable instead to inventions for grant of patents). The work does not have to be meritorious or valuable to be copyrightable.
Articles 1 & 2(2) of the Berne Convention provide variously that, “the expression ‘literary and artistic works’ shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books,…It shall, however, be a matter for legislation in the countries of the (Berne) Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been FIXED in some material form.” Fixation should, however, not be construed as a formality within the meaning of Article 5(2) of the Convention which deals rather with administrative requirements necessary to prove the existence of a work. Per these provisions, countries are free to demand such fixation either generally or for one or more categories of works.
Fixation can take one of many forms such as being in writing, in a sound recording, in a cinematographic film and in the RAM memory of a computer or any storage system. It can also be incorporated on any kind of surface which is sufficiently permanent.
With respect to the optional requirement of fixation, Section 3(1) of the Cameroon Copyright Law provides that, “the law shall protect all literary or artistic works, irrespective of the mode, worth, genre or purpose of the expression.” Section 3(2) of that law further provides that, “copyright shall relate to the expression through which ideas are described, explained and illustrated. It shall cover the distinctive features of works, such as the plan of a literary work insofar as it is materially linked to the expression.” Section 3(3) concludes by providing that, “this law shall protect only expressions or original distinctive features resulting from a creation.”
The phrase “mode…of expression” is crucial in conducting an analysis of the existence or not of a requirement of fixation under Cameroon law. It is trite, from the foregoing that there is no requirement of fixation under Cameroon copyright law. If Cameroon law was not enough, Article 3(2) of Annex VII of the Revised Bangui Agreement (2015) provides clearly that a copyright work is deemed to be created independent of any fixation in material form. Article 4(2) of Annex VII of the Revised Bangui Agreement (2015) further provides that, protection of the work is independent of the mode or form of expression, of the quality or object of the work.
The principle of automatic protection is enshrined in Article 5(2) of the Berne Convention which provides that, “the enjoyment and the exercise of these rights shall NOT be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.” This implies that, unlike industrial property rights which require registration or the fulfilment of certain formalities for protection, copyrights do not have to be registered.
The Berne Convention, however, leaves room for parties to the Convention to impose certain formalities in their local legislations applicable strictly to their nationals. That said, automatic protection does not resolve evidentiary issues which arise during copyright litigations when plaintiffs are required to prove the existence of the work or the date of creation of the work.
The territoriality of copyrights is borne of the territorial sovereignty of countries which are therefore free to implement their domestic laws on copyrights on their various national territories. Although the traditional underpinning of this concept is challenged today by the ubiquity of the internet, the fact still stands that protection of copyrights in a specific territory is accorded following the law applicable in the territory where enforcement is required.
This is nuanced by international copyright law, to the extent that courts of countries where copyright enforcement is sought are bound to respect the engagements of their countries undertaken under treaty law by affording protection, for example, to the works of nationals or residents of contracting states of such treaties (national treatment) and to works of non-nationals of the contracting states of such treaties, provided they were first published in one of those countries.
The territoriality of copyrights evokes the application of rules of conflict of laws or private international law as a result of the international exploitation of copyrights which necessarily imposes a multijurisdictional character on copyright enforcement.
III – Limitations on Copyright Protection
The primary limitations on copyright protection are concerned with texts of laws and regulations of the legislature, official administrative or judicial documents and their official translations; news of the day, and mere facts and data, private use, use for scientific, research and educational purposes, use for teaching purposes, use by libraries and archives, use for humanitarian purposes (handicaps or blind persons), use of works for cultural and religious purposes, fair use, and all use which is generally provided by special law in special cases which does not prejudice the normal exploitation of a work nor cause unwarranted prejudice to the legitimate interests of the rights of the author of the work or any interested party. This is known as the three step test. These exceptions are provided to balance the economic rights of authors and that of the public interest, especially access to information.
A rightsholder may not, in the above circumstances, institute judicial proceedings against persons who have accessed or used their works in that manner. This could be teachers, researchers, journalists, reporters, non-profit organisations, clergy, etc.
IV – Duration or General Term of Copyright Protection
Duration of rights vary according to whether these are copyrights or related rights as well as from one jurisdiction to another, although international treaties provide minimum terms of protection. However, signatories of these international treaties are free to grant longer terms of protection under their various local legislations. The minimum term of copyright protection under the Berne Convention and the Revised Bangui Agreement (African Intellectual Property Organisation), for example, is the lifetime of the author and fifty (50) years after his demise. In the case of joint works, the fifty (50) years period begin to run after the demise of the last surviving joint author of the work.
Under the Revised Bangui Agreement, the term of protection for works of applied arts is twenty-five (25) years from the year of creation of the work, the term of protection for performances is twenty (20) years from the year of fixation of the performance or from the date of the performance itself. The term of protection of phonograms, audio-visual fixations and videograms is fifty (50) years from the year of fixation, and the term of protection for radio broadcasts is twenty-five (25) years from the year of broadcast.
V – What Constitutes Acts of Criminal Infringement of Copyrights
The Cameroon lawmaker has provided for penal sanctions for copyright infringement principally in the provisions of Sections 80, 81, 82, 83, 84 and 85 of Law no 2000/011 of December 19, 2000 relating to copyright and related rights in Cameroon and Section 327 of the Cameroon Penal Code (PC). Articles 70, 71, 73, 74, and 75 of Annex VII of the Revised Bangui Agreement (2015) equally highlights ingredient acts of copyright infringement, criminal penalties for copyright infringement, aggravating circumstances and complementary criminal penalties for copyright infringement.
Section 327 of the PC provides for twelve (12) major forms of criminal infringement of copyright punishable with imprisonment of from five (05) to ten (10) years or with fine of from five hundred thousand (500,000) francs CFA to ten (10) million francs CFA or with both such imprisonment and fine, including:
1 – the illegal exploitation by any means whatsoever of literary and artistic works through performance, reproduction, transformation or distribution of such works;
2 – the reproduction, communication or supply to the public by sale, exchange, rental of a recording, phonogram, videogram, undertaken without the prior authorization of the performer, of the producer of the phonogram or videogram or the broadcasting where such authorization is required;
3 – infringement of the moral right to the work by violating the right of disclosure, the right to authorship or the right to respect the literary or artistic work;
4 – infringement of the right of authorship and the right to integrity of a performance;
5 – the import, export, sale or displaying for sale of counterfeited products;
6 – the import or export of phonograms or videograms produced without the authorization of the performer or producer of the phonogram or videogram, where such authorization is required;
7 – knowingly producing or importing with the intention of selling or renting or setting up equipment, device or instruments entirely or partially designed to fraudulently receive televised programs where such programs are reserved for a specific public (audience) that receives them in return for a fee paid to their operator or legal representative;
8 – fraudulently neutralizing effective technical measures used by owners of copyrights or neighbouring rights to protect their works against unauthorized acts;
9 – allowing the irregular reproduction or performance in his establishment of works protected by law;
10 – failing to pay a fee provided for by law or paying same tardily without justification;
11 – removing or altering any electronic information relating to the copyright regime, without authorisation;
12 – distributing, importing for distribution, communicating without authorisation originals or copies of works, performances, videograms, phonograms, being aware that the electronic information relating to the copyright regime has been removed or altered without authorisation.
The law provides for the doubling of the penalty whenever the offender is a co-contractor (partner) of the owner of the copyright. The law equally makes provision for the confiscation of counterfeited copies, equipment used to commit the offense as well as the proceeds derived therefrom. The court may also order the destruction of the equipment used to counterfeit copies of the work as well as copies of the counterfeited works.
The punishment provided by the Cameroon Penal Code is identical to those that are provided in the provisions of Sections 80, 81, 82, 83, 84 and 85 of Law no 2000/011 of December 19, 2000 relating to copyright and related rights in Cameroon, that is, imprisonment of from 5 to 10 years or a fine of 500,000 Francs CFA to 10 million francs CFA, including the doubling of the penalty where the offender is a partner of the owner of the infringed copyright.
Besides the criminal penalties imposed by the court, both the Penal Code as well as the Cameroon Copyright Law provide for the award of civil damages to the plaintiff (civil party).
Relating to acts of counterfeiting and similar acts, Articles 73 and 74 of Annex VII of the Revised Bangui Agreement (2015) have made less severe the penalties provided by the Penal Code and the Cameroon copyright criminal law framework. Article 73 of Annex VII of the Revised Bangui Agreement (2015) provides that, “acts of counterfeiting and similar acts are punishable with imprisonment of three (03) months to two (02) years of imprisonment and a fine of 1,000,000 to 10,000,000 francs CFA or one of such penalties, without prejudice of compensation for damage suffered by the victims.”
In relation to the above, Section 4 (1) of the Penal Code provides that, “a new provision of criminal law shall, if less severe, apply to any offence in respect of which judgment has not been delivered before its coming into force.” This is called the principle of the less severe law. Article 45 of the Cameroon Constitution expressly provides that, “duly approved or ratified treaties and international agreements shall, following their publication, override national laws, provided the other party implements the said treaty or agreement”. This simply means that the provisions of Annex VII of the Revised Bangui Agreement, which is a treaty ratified by Cameroon, overrides the relevant provisions of the Cameroon Copyright law as well as the Penal Code.
That said, it is important to briefly differentiate between the legal concepts of piracy and counterfeiting. In his article titled, “The Persistence of Piracy: The Consequences for Creativity, for Culture, and for Sustainable Development” (2005), Darrell Panethiere defines piracy as, “the activity of manufacturing unauthorised copies (‘pirate copies’) of protected material and dealing with such copies by way of distribution and sale.” He further states that, “the rights of authorisation infringed by those who make and deal in pirate copies are the right of authorship generally protected by copyright, as well as the rights of ownership, particularly in the case of sound recordings, which are generally protected by neighbouring rights regimes.” Darrell Panethiere also refers to counterfeiting as, “selling works made to resemble a genuine copy, as by replicating the label, or the recording itself.
Articles 70 and 71 of Annex VII of the Revised Bangui Agreement (2015) lists acts which constitute acts of counterfeiting and acts which are similar to acts of counterfeiting. These are the following:
A – Acts of Counterfeiting
1 – any edition, reproduction, representation, public performance or dissemination by any means whatsoever of an object protected by Annex VII;
2 – the export, import and distribution for commercial purposes in the national territory of a protected object in violation of the provisions of Annex VII;
3 – any fixation, any reproduction, any communication, made available to the public, for consideration or free, or any broadcasting of a work, an interpretation or a performance or a program, made in defiance of the rights protected by Annex VII;
4 – the commercialisation of graphic and plastic works in violation of the resale right.
B – Acts Similar to Acts of Counterfeiting
5 – the manufacture or import, for sale or rental, of a device or means specially designed or adapted to render inoperative any device or means intended to prevent or restrict the reproduction of a work or to deteriorate the quality of the copies or copies made;
6 – fraudulent circumvention of effective technical measures used by copyright and related rights holders to protect their productions against unauthorized acts;
7 – the manufacture or import, for sale or rental, of a device or means capable of allowing or facilitating the reception of a coded program broadcast or communicated in any other way to the public, by persons who are not authorized to receive it;
8 – the suppression or modification, without being authorized to do so, of any information relating to the rights regime in electronic form;
9 – the distribution or importation for the purpose of distribution to the public or the making available to the public, without being authorized to do so, of works, performances, phonograms, audiovisual fixations or videograms or radio broadcasts, knowing that information relating to the rights regime in electronic form has been suppressed or modified without authorization;
10 – the fact of allowing the reproduction or communication to the public in his establishment or on the installations placed under his responsibility of works protected within the meaning of this law, without having previously requested and received communication of the prior authorization of the national collective management body.
VI – Who Can Institute Criminal Proceedings Against Copyright Infringers before A Court in Cameroon?
Article 77 of Annex VIII of the Revised Bangui Agreement (2015) identifies three classes of persons who can institute a criminal action against copyright infringers, including: copyright owners and rights holders whose rights have been infringed, collecting societies, and professional associations of copyright holders.
Article 5(2) of the Berne Convention provides inter alia, that, “…apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed”.
Pertaining to moral rights, Article 6(3) of the Berne Convention also provides that, “the means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.” This provision clearly infers that domestic criminal legislation can be invoked by interested parties whenever they are seeking redress for breaches touching on moral rights.
This means that in matters of criminal proceedings for copyright infringement, the criminal legislation of Cameroon is applicable, especially the Cameroon Penal Code and the Cameroon Criminal Procedure Code.
Therefore, in addition to interested parties identified above, Section 135 of the Criminal Procedure Code provides that matters shall be brought to the State Counsel either by way of a written or oral report by a third party who is not a victim of the offence or a written or oral complaint by the victim of the offence or by a statement established by a “competent authority”.
The same provision states that any person who has knowledge of an offence classified as a felony or misdemeanour shall be obliged to directly and immediately inform the State Counsel or any judicial police officer or in their absence any administrative authority of the locality. Civil servants (such as customs and borders officers) who in the course of the exercise of their duties have knowledge of the commission of a felony or misdemeanour are equally bound to inform the State Counsel of the commission of such offences. Non-compliance with these provisions is tantamount to the offence of failure to report which is punishable under Section 171 of the Penal Code.
Finally, per the provisions of Section 128 of the Penal Code, the Legal Department headed by a State Counsel, is the principal party in criminal trials. This implies that the Legal Department can suo motu institute criminal proceedings against alleged infringers of copyrights. We see that the persons who can start a criminal action for infringement of copyrights are legion.
VII – The Competent Court
The competent court is determined by the class of the offence and the class of the offence is in turn determined by the penalty provided for the offence. Cameroon law recognises three (03) classes of offence:
1 – felonies which are punishable with death, life imprisonment or imprisonment of more than ten (10) years,
2 – misdemeanours which are offences which are punishable with imprisonment of more than ten (10) days and up to ten (10) years and/or with fine of more than 25,000 Francs CFA, and finally,
3 – simple offences which are punishable with imprisonment of ten (10) days or less or with fine of up to 25,000 Francs CFA.
In the case at hand, copyright related crimes are misdemeanours, as such they are entertained by the courts which are competent to hear misdemeanour offenses, which are Courts of First Instance (Magistrates’ Courts) according to Section 289 CPC and Section 15(1)(a) of the law on judicial organisation. Although the quantum of civil claims/damages is a criteria of competence under Cameroon law, the quantum of the civil claim/damages accompanying a criminal action is immaterial insofar as the offence forming the basis of the action is within the jurisdiction of the court.
Be that as it may, the charges brought within a copyright infringement trial are usually multiple, so much so that felonious offences may have been committed in the course of the commission of the copyright infringement. When this is the case, the competent court becomes the High Court which has jurisdiction to hear felonies. Indeed Section 18(1)(a) of the law on judicial organisation provides that, “the High Court shall have jurisdiction in criminal matters to try felonies and related misdemeanours…”
Offences are considered to be related per the provisions of Section 6(3) of the Criminal Procedure Code when they are committed at the same time by several persons acting together, when they are committed by different persons even in different places and at different times in pursuance of a conspiracy, or when the offenders have committed the offences either to facilitate the commission of another offence or to ensure that the offence is not punished, or when there is a case of accessory after the fact (see Sections 100 & 194 PC and 6(3)(d) CPC), and in all cases where the relationship existing between them is as close as that of offences enumerated in Section 6(3) of the Criminal Procedure Code.
VIII – Proving Criminal Infringement of Copyright
As already mentioned above, the applicable law is the law of the country where infringement takes place and where judicial redress is sought or protection is claimed, which is Cameroon law. The applicable rules are to be found mainly in the Cameroon Penal Code as well as its Criminal Procedure Code.
Besides the legal ramifications of the principle of presumption of innocence enshrined in the Cameroon Criminal Procedure Code, Section 307 of that Code provides expressly that, “the burden of proof shall lie upon the party who institutes a criminal action”, confirming the Latin legal maxim actori incumbit probatio. As such, the burden of proof in criminal cases lies on the shoulders of the “plaintiff” (civil party). This does not, however, exclude the fact that, in Cameroon, the Legal Department is the principal party in all criminal matters with the duty to prosecute all alleged offenses and to build the case for the prosecution.
In this vein, the civil party (plaintiff) is generally supported by the Legal Department which is also in charge of supervising all criminal investigations. In most cases, the State resources which are at the disposal of the Legal Department can be decisive in the outcome of a criminal proceeding. Nevertheless, the “plaintiff” (civil party) should leave nothing to chance and should do everything in his power to gather as much evidence as possible to prove infringement during trial. One of the particularities of criminal trials in Cameroon is that the victim of an offence is known as the civil party, that is, the law considers him/her, not as the principal party setting the action in motion and prosecuting the crime per se, since this is the responsibility of the Legal Department which institutes and prosecutes criminal actions on behalf of the State, as such he/she is referred to as the “State Counsel” (in French “procureur de la republique“). In other countries he/she carries the appellation public prosecutor and in others he prosecutes in the name of the people.
One of the important methods of evidence gathering available to the victim of an act of infringement is provided by Article 80 of Annex VII of the Revised Bangui Agreement (2015) under which interested parties can seize judicial police authorities, bailiffs or any other competent public or administrative authority designated by national law, to draw an official report on the alleged crime, and in appropriate cases and with the authorization of the Legal Department or a competent judge proceed with the seizure of samples of counterfeit goods, illicitly imported goods and equipment used to counterfeit such goods.
Concerning the means of proof, Section 308 CPC provides that, “except where otherwise provided by law, an offence may be established by any means of proof. Any proof in rebuttal of an allegation may be established by any means.” Section 309 adds that where the accused pleads a fact in justification of an offense or to establish his criminal irresponsibility (non-culpability), the accused shall have the burden of proving such fact. The standard means of proof are enshrined in Cameroon law (witnesses, including expert witnesses, original documents, real evidence, admissions, etc.)
Concerning documentary evidence, which is usually key to the success of a criminal trial, it is important to bear in mind the provisions of Section 313 of the Criminal Procedure Code which provides that contents of documents may only be proved by primary evidence (that is the originals themselves) or, where necessary, by secondary evidence (copies of original documents certified by a competent authority), and oral evidence may not be admitted in evidence to prove the content of documents.
In addition, that Section further outlines the specific circumstances in which secondary evidence may be admitted in evidence to prove the content of a document, namely:
1 – where it is established before the court that the original document is in the adverse party’s possession who has refused to produce them even after a notice has been served on him to produce, or
2 – where it is established that the original document is in the possession of a third party who has refused to produce them even after a notice has been served on him to produce,
3 – when the existence and the contents of the original document are not disputed by the adverse party,
4 – when it is established that the original document has been destroyed or lost, and
5 – when it is established that the original document cannot be easily moved from its place of situation to the court (real evidence).
Many a times parties rest on their laurels and produce certified copies of documents only to have them disqualified by the courts for not complying with the above-cited provisions. Several plaintiffs have lost cases as a result of lack of vigilance in this aspect by producing certified documents instead of producing original documents.
The standard of proof set out in Section 395 CPC is proof beyond doubt, and not proof beyond reasonable doubt as it obtains in Common law jurisdictions. The essential difference between the Cameroonian standard of “beyond doubt” and the Common law standard of “beyond reasonable doubt” is that in the latter case, in order to secure the conviction of the accused, the prosecution must persuade the court that there is no other reasonable explanation that can come from the evidence presented at trial, while in the former case, the prosecution must persuade the court that there is no other explanation at all that can come from the evidence adduced at trial. Where there is the least doubt, the law requires the accused to be acquitted. Therefore, the accused may not be convicted by the court when doubts about his or her guilt remain (“in dubio pro réo”). In criminal trials in Cameroon, doubt is a powerful weapon in the hands of the accused and doubt always benefits the accused.
IX – Establishing Criminal Responsibility
Per Section 74 of the Cameroon Penal Code, “criminal responsibility shall lie on him who intentionally commits each of the ingredient acts or omissions of an offence with the intention of causing the result which completes it”. These are the traditional elements of a crime, the actus reus (guilty act) and the mens rea (guilty mind). The law, therefore, requires wilfulness and intentionality in the acts or omissions constituting the offense, as well as corresponding criminal intent behind the criminal outcome of the intentional act or omission. This is a very high standard.
X – The Global Impact of Counterfeiting & Piracy
According to the World Customs Organisation and the International Criminal Police Organisation, the estimated value of counterfeit transactions globally stands at € 500 billion annually. The International Chamber of Commerce (ICC), the European Commission, the World Customs Organisation (WCO) and the Organisation for Economic Cooperation and Development (OECD) have said that around 5% to 7% of all world trade is trade in pirated goods. Per Darren Panethiere (in his 2005 article mentioned above), job losses attributable to counterfeiting and piracy in the USA annually are in excess of 120,000 jobs and in the EU area it stands at over 100,000 job losses every year. There is no doubt that piracy and counterfeiting stifles economic growth significantly.
According to a study by Microsoft, a 10% drop in the counterfeiting of softwares will lead to the creation of 864,000 jobs around the world. According to a report by Cameroon’s employer’s trade union GICAM, Cameroon loses more than 250 billion francs CFA annually as a result of counterfeiting and contraband goods. It is certain that the negative consequences of this phenomenon are devastating. Artists are pauperised, creativity is discouraged, the culture industry is destroyed, etc.
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