Posthumous control of copyright, its limitations and the public interest

by | Dec 17, 2021 | JCLA, JCLA V8 I2 2021

Posthumous control of copyright, its limitations and the public interest

Authors: Desmond Osaretin Oriakhogba and Gloria Kanwulia Adeola-Adedipe

ISSN: 2521-2605
Affiliations: LLM, LLB (UNIBEN), PhD (UCT, Cape Town), Senior Lecturer, University of Venda, Thohoyandou, Limpopo Province, South Africa; LLM (Hertfordshire), LLB, Research Fellow, Nigerian Institute of Advanced Legal Studies (NIALS)
Source: Journal of Comparative Law in Africa, Volume 8 Issue 2, p. 32 – 62
https://doi.org/10.47348/JCLA/v8/i2a2

Abstract

Conducted as a desk research, this paper examines the interface between copyright and succession laws, the notion of testamentary freedom, its limitations and justification for its restriction. The paper draws on this examination to discuss the freedom of authors to dispose their copyright under testate and intestate arrangements, and posthumously control the use of their works under the Nigerian Copyright Act. Following this discussion, the paper identifies and examines the relevant provisions of the Copyright Act that can limit the capacity of authors to posthumously control the use of their works in Nigeria. The paper contends that authors’ liberty to transfer their copyright by testamentary disposition or operation of law, and control the use of their works posthumously, without public interest friendly limitations, can create an imbalance within the copyright system. This paper addresses the issues of whether public interest objectives may be achieved through the limitation in the extant Copyright Act, especially given the propensity for copyright misuse by authors in death, as well as during their lifetime, and what policy options may align the public interest with authors’ posthumous control of copyright. In resolving these questions, the paper draws on instances of copyright misuse in the United States of America (USA) and South Africa and situates them within the Nigerian context to shed light on the issues discussed.

An analysis of the right of Muslim adopted children to inherit from their deceased parents in terms of the law of succession: A South African case study

by | Dec 17, 2021 | JCLA, JCLA V8 I2 2021

An analysis of the right of Muslim adopted children to inherit from their deceased parents in terms of the law of succession: A South African case study

Author: Muneer Abduroaf

ISSN: 2521-2605
Affiliations: BA (Shariah) LLB, LLM, LLD, Senior Lecturer in Law, Faculty of Law, Department of Criminal Justice and Procedure, University of the Western Cape (UWC)
Source: Journal of Comparative Law in Africa, Volume 8 Issue 2, p. 63 – 73
https://doi.org/10.47348/JCLA/v8/i2a3

Abstract

This paper analyses the right of Muslim adopted children to inherit from their deceased parents in terms of the laws of succession within the South African legal context. The status of adoption in South African and Islamic law is looked at first by way of an introduction. This is followed by looking at the rights of adopted Muslim children to inherit from their deceased parents (biological and adoptive) in terms of the South African and Islamic laws of intestate (compulsory) and then testate (optional) succession.1 The paper further looks at the possibility of applying relevant Islamic law of succession provisions applicable to enable adopted Muslim children to inherit from the estate of their deceased biological parents within the South African legal framework. The paper concludes with an analysis of the findings and makes a recommendation.

Pandemic recovery in Africa: A case for strengthening insolvency laws for rescuing small and medium enterprises

by | Dec 17, 2021 | JCLA, JCLA V8 I2 2021

Pandemic recovery in Africa: A case for strengthening insolvency laws for rescuing small and medium enterprises

Authors: Williams C. Iheme and Sanford U. Mba

ISSN: 2521-2605
Affiliations: LLB, LLM, SJD. Associate Professor of Law, Jindal Global Law School; Visiting Professor, Strathmore Law School; LLB, LLM, SJD. Senior Associate in the law firm Dentons ACAS
Source: Journal of Comparative Law in Africa, Volume 8 Issue 2, p. 74 – 103
https://doi.org/10.47348/JCLA/v8/i2a4

Abstract

Small and Medium Enterprises (SMEs) play a significant role in the economy of developing countries. Although SMEs contribute to economic growth, they still struggle with access to finance and cash flow constraints. The coronavirus (COVID-19) pandemic worsened this situation, making it necessary for countries to develop rescue regimes suitable for financially distressed SMEs. Focusing on Nigeria and Kenya – which represent the largest economies in West Africa and East Africa respectively – this paper critically sheds light on the socio-legal challenges posed by extant insolvency law regimes in both countries and their unsuitability for driving SME rescue. As a conversation starter in the African context, the authors identify transplanted concepts and structures which make SME rescue a futility, in the light of local circumstances, while proposing solutions tailored to the social milieu of both countries.

Protection of the right to social security of the migrant worker in international law

by | Dec 17, 2021 | JCLA, JCLA V8 I2 2021

Protection of the right to social security of the migrant worker in international law

Author: Kehinde Anifalaje

ISSN: 2521-2605
Affiliations: LLB (Unilag), LLM (Ibadan), PhD (Ibadan), Faculty of Law, University of Ibadan, Ibadan, Nigeria, West Africa
Source: Journal of Comparative Law in Africa, Volume 8 Issue 2, p. 104 – 148
https://doi.org/10.47348/JCLA/v8/i2a5

Abstract

The right to social security is recognised as a basic human right in a number of international instruments. While most nations give recognition to social security rights and generally enforce them within the dictates of domestic legislation to their nationals, the narrative is different for non-nationals, particularly the migrant worker. The article examines the measures that have been deployed at international and regional levels to protect the social security rights of migrant workers, with particular attention to the regular ones. It argues that a number of factors, including the doctrines of territoriality and nationality, account for the marginalisation of the migrant worker in the enforcement of these rights. Some migrant-specific international instruments and series of bilateral and multilateral agreements to overcome these perceived challenges are being hindered by the low number of ratifying countries and disparities in the design and level of development of schemes for specific branches of social security across countries. The article concludes that the social security right of the migrant worker would be enhanced if more countries ratify, domesticate and enforce relevant international instruments on the social security rights of the migrant worker and complement same by a much more coordinated bilateral and multilateral social security agreements.

The United States Supreme Court’s case selection: A primer for the South African Constitutional Court in hearing matters of general public importance

by | Dec 17, 2021 | JCLA, JCLA V8 I2 2021

The United States Supreme Court’s case selection: A primer for the South African Constitutional Court in hearing matters of general public importance

Author: Paul Nkoane

ISSN: 2521-2605
Affiliations: BCom, LLB (UNISA), LLM (UCT) Lecturer: University of South Africa (UNISA)
Source: Journal of Comparative Law in Africa, Volume 8 Issue 2, p. 149 – 174
https://doi.org/10.47348/JCLA/v8/i2a6

Abstract

The jurisdiction of the South African Constitutional Court has been extended for the court to administer ‘matters of general public importance’ in addition to administering constitutional matters. There is no South African court that accepted appeals on the grounds that the matter raised an arguable point of law of general public importance. This novelty in the South African law requires an inspection of other jurisdictions to determine which matters the Constitutional Court should accept for appeals. In this respect, the article inspects the Supreme Court of the United States case docket to determine the kinds of cases the court accepts for appeals.

A fundamental law of reason and the constitutional law of elections in Africa

by | Jun 10, 2021 | JCLA, JCLA V8 I1 2021

A fundamental law of reason and the constitutional law of elections in Africa

Author: Atudiwe P. Atupare

ISSN: 2521-2605
Affiliations: BA, LLB (UG), M.A. (Brock), LLM, PhD (Queen’s University).
Source: Journal of Comparative Law in Africa, Volume 8 Issue 1, p. 1 – 41
https://doi.org/10.47348/JCLA/v8/i1a1

Abstract

This paper attempts a comparative understanding of the constitutional law of elections in two African countries: Ghana and Nigeria. As a prelude, I argue that judges should approach the task of interpretation of the constitutional law of elections based on a non-positivist understanding of legality or the rule of law. Law is not to be regarded simply as the product of lawmakers’ decisions and intentions but as embodying fundamental values that gain normative force independently of what is decided, written or intended by lawmakers. The core of this claim is anchored on a theory of law, the fundamental law of reason. The identification of this fundamental law is not a matter of pure moral reasoning. It is a conception of law as a rule of reason with ‘reason’ here suggesting a uniquely judicial form of discourse where the particular values that will, under this approach, gain this special normative force cannot be listed in a fixed catalogue; they are, rather, the values that are deemed essential to securing the conditions for legality or the rule of law that are, in turn, necessary for ‘law’ to exist. In light of this, I contend that judicial decisions on electoral disputes in Ghana and Nigeria should be able to carry conviction with the ordinary person as being based not merely on legal precedent or the law-makers’ intentions but also upon acceptable values as understood from the reason of the fundamental law.