e24702_SN004
Translated from French
2
Explanatory statement
The preliminary draft submitted to you takes an entirely original approach that has few
precedents in the world and for which support has been expressed by all those involved in
the Senegalese cultural world, who have become aware that the potential of cultural
industries can be realized only within a secure legal environment that is conducive to the
blossoming of creativity and the promotion of vital investment.
This preliminary draft embodies three basic ideas:
(1). First, Law No. 73-52 of December 4, 1973, which currently governs copyright,
remains relevant in many respects. For this reason, a number of its provisions are found
in the new text.
(2). Second, in order to comply with its international obligations, Senegal must bring its
laws into line with certain conventions. In chronological order, these are the Rome
Convention for the Protection of Performers, Producers of Phonograms and Broadcasting
Organizations of October 26, 1961; the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS Agreement - the intellectual-property-related annex
to the Marrakesh Agreement Establishing the World Trade Organization of April 14,
1994); and the two World Intellectual Property Organization (WIPO) treaties of
December 20, 1996 known as the Internet Treaties. Two sets of provisions have arisen
from the aforementioned aim. First, the text is novel in that it introduces into Senegalese
law the protection of neighboring rights to copyright that are afforded to those that assist
in literary and artistic creation, namely performers, producers of phonograms and
broadcasting organizations. It also includes some very important provisions, based
essentially on the TRIPS Agreement, and relating to procedures and penalties, the
purpose of which is to provide Senegal with a mechanism for effective prevention of the
scourge of counterfeiting, in particular through the establishment of more severe
penalties.
(3). The third central tenet of the preliminary draft is the personalized focus of the
protection of authors and performers. In contrast to the philosophy underlying AngloAmerican copyright, the interested parties are placed at the center of the legislation
through a clear statement that they are the source of the intangible wealth which various
users will then enjoy. Hence the choice to enshrine the rights of employed authors and
officials; to relinquish the category of collective work, which, by granting rights to a
legal entity, is incompatible with the personalized approach; to confirm the existence of
strong and perpetual moral rights; to provide a broad and synthesized definition of the
economic prerogatives granted to the various rights owners (eliminating any doubt as to
whether such a definition includes digital exploitation); and to elaborate a contract law
that can compensate for the financially disadvantaged position of authors and performers
in comparison with those who exploit their work. This principled position, however,
does not prevent consideration of the legitimate claims of those who, through their
investment, make it possible to create this cultural wealth. Thus the employer benefits, in
accordance with the company's needs, from a presumption of assignment of the rights in