African creators and innovators can get more from their IP by approaching disputes strategically
The African creative sector is a burgeoning powerhouse, generating an impressive US$4.2 billion annually and 2.4 million jobs outpacing many other sectors in growth. From music and film to fashion and design, creators on the continent are redefining global culture. This surge in creativity has brought forth a new wave of talented individuals and businesses, eager to make their mark on the global stage. However, as this creative wave rises, so do the complexities of managing disputes—which naturally arise from relationships. A relatively recent example highlights the importance of strategic dispute resolution in the African creative industry: the legal battle between legendary musician King Sunny Ade and African Songs Limited (ASL) and Take Your Choice Records Stores Limited (TYC). This case, which has been winding its way through the Nigerian courts for several years, demonstrates why a proactive approach to dispute resolution is necessary to help creators and their partners alike protect their interests and maximize their earnings.
In light of this, to fully realize the potential of this sector, it is essential to navigate IP disputes strategically. By understanding the nuances of IP law and employing effective dispute resolution mechanisms, all stakeholders—from creators and innovators to investors and consumers—can benefit from a thriving and sustainable creative ecosystem. This is where Dispute System Design (DSD) comes in. DSD is a strategic approach to planning, designing and implementing effective processes for preventing, managing, and resolving disputes. By focusing on the underlying causes of conflict and tailoring solutions to specific contexts, DSD aims to create more just, efficient, and sustainable outcomes.
DSD often employs interest-based and rights-based approaches. Interest-based approaches prioritize identifying and addressing the underlying needs and concerns of the parties involved. Rights-based approaches, in contrast, rely on legal rules and precedents to resolve disputes. A key component of DSD is the need to involve all relevant stakeholders in the design and implementation of a dispute systems as this is crucial for their success. By fostering collaboration and shared ownership, stakeholders can contribute to the development of effective and sustainable solutions. DSD can be applied to a wide range of contexts, including international disputes, and disputes within organizations. In each of these contexts, DSD can help organizations and individuals to prevent, manage, and resolve conflicts more effectively. The fundamental goal of DSD is to achieve justice.
Benefits of DSD for the African Creative Sector
DSD offers a proactive approach to addressing the challenges faced by the African creative sector. By prioritizing early intervention, effective communication, and accessible justice, DSD can foster a more harmonious and productive creative ecosystem. Also, DSD promotes the use of facilitated negotiation and mediation as effective tools for resolving disputes. These processes can help parties to reach mutually beneficial agreements, preserving relationships and avoiding costly litigation. By encouraging open dialogue and creative problem-solving, DSD can help parties find common ground and reach amicable solutions.
Furthermore, DSD encourages open and honest communication between parties. By fostering a culture of dialogue and understanding, DSD can help to prevent misunderstandings and reduce the likelihood of disputes. Effective communication is essential for building trust and collaboration, which are key ingredients for successful partnerships and collaborations. Moreover, DSD can help to build trust and collaboration between parties. By focusing on shared interests and finding common ground, DSD can help to create a more harmonious and productive creative ecosystem. When parties trust and respect one another, they are more likely to work together to find solutions to challenges.
Practical Applications of DSD in the African Creative Sector
To fully realize the benefits of DSD, the African creative sector can implement a variety of strategies. For example, Creative Guilds and Associations can establish internal dispute resolution mechanisms, such as mediation and arbitration, to handle conflicts between members. By providing a neutral forum for dispute resolution, these organizations can help to maintain harmony within the creative community. Government agencies responsible for intellectual property rights can adopt DSD principles to streamline dispute resolution processes. Thus, by embracing DSD, the African creative sector can create a more stable and sustainable environment for creators and innovators. By investing in effective dispute resolution mechanisms, the industry can unlock its full potential and contribute to the economic and cultural development of the continent.
Understanding Alternative Dispute Resolution
ADR processes supply the building blocks for a good DSD, and they include various processes—such as negotiation, mediation, and arbitration—that provide alternatives to the courtroom. Unlike litigation, where a judge imposes a binding decision, ADR generally empowers parties to find mutually acceptable solutions, promoting collaboration over confrontation. This flexibility is particularly valuable in the realm of intellectual property, where relationships can be as important as the rights themselves.
The Unique Nature of IP Disputes
Intellectual property is inherently different from other forms of property. Rights such as copyrights, trademarks, and patents have defined lifespans—trademarks, for instance, may last seven years, while patents typically last 20. This temporal limitation means that lengthy court battles can render the dispute moot by the time a resolution is reached, making ADR a more pragmatic choice. Furthermore, IP disputes often involve relationships that need to be preserved. In creative industries, where collaboration is key, maintaining professional ties can be as valuable as protecting rights. ADR strategies prioritize the interests of the parties over a rigid application of legal rights, allowing for solutions that respect both the legal and relational aspects of IP.
Designing an Effective ADR System
For organizations—like universities, for instance—facing potential IP disputes, having a structured ADR system in place is crucial. Key considerations in designing such a system includes; efficiency, understanding relationships, and flexibility. Efficiency is crucial given the limited lifespan of many IP rights; the ADR process should prioritize quick resolutions to prevent these rights from expiring during protracted disputes. Understanding and acknowledging the existing relationships between parties, whether they are students and faculty or artists and labels, can help tailor the ADR process to be more collaborative and less adversarial. Flexibility means that the ADR system should be adaptable, allowing for different approaches based on the specific circumstances of the dispute. This adaptability is essential for fostering a conducive environment for negotiation and mediation.
Real-World Success Stories
The effectiveness of ADR in intellectual property (IP) disputes is something I've personally witnessed in countless cases throughout my years of practice. There is something deeply satisfying about guiding parties toward resolutions that avoid the bitterness and expense of court battles. It’s not just about winning a legal case—it’s about preserving relationships, saving time, and finding solutions that work for everyone involved. And when it comes to IP disputes, where time is often a critical factor, ADR offers a practical and often preferable path.
But before sharing my personal experiences, recently, the Lagos Multi-Door Courthouse (LMDC), a successful model for alternative dispute resolution (ADR) in Nigeria provides an example of a high-profile legal dispute between Nigerian musicians 2face Idibia and Blackface resolved by ADR. The case, which had been ongoing for 15 years, was successfully resolved through mediation at the LMDC within just two days. The ADR process not only led to a swift resolution but also preserved the relationship between the two parties, who had previously been estranged. While this case demonstrates the potential of ADR to provide efficient, amicable, and cost-effective solutions to disputes within the creative industry, what would have been even better if the parties had planned ahead for how they might address future disputes.
One case that stands out in my personal practice involved a film creator whose work was being aired by a television station well beyond the agreed licensing period. Now, the typical reaction from a client in such a situation might be to rush straight to litigation, eager to make the other party pay for their breach of contract. But in this instance, I advised the film creator to take a step back and consider ADR. Instead of jumping into a lengthy and expensive lawsuit, we began with negotiation—a much simpler and more flexible approach. As I guided the creator through the process, we reframed the issue. What was the real goal here? Was it to punish the TV station for their breach, or was it to reach a resolution that benefited them? After discussing the options, the creator realized that what they really wanted wasn’t just for the station to stop showing the film—it was for fair compensation. The TV station, after all, was still providing exposure and value, and they had an audience who enjoyed the film. Why shut that down when a mutually beneficial outcome was possible? By presenting this option—allowing the station to continue airing the film but in exchange for proper compensation—the tone of the negotiations shifted entirely. The station, which might have been defensive if we had pushed straight for a lawsuit, was more open to discussion. In the end, both sides walked away satisfied. The creator got the payment they deserved, and the TV station kept a valuable piece of content for their viewers. It was a win-win and a perfect demonstration of how ADR, specifically negotiation, can lead to quicker, less adversarial resolutions.
These stories highlight why ADR strategies should be practiced often in IP disputes. Not only do they offer quicker, more efficient resolutions, but they also provide a platform for preserving relationships and finding creative solutions that litigation simply can’t provide. Whether through negotiation, mediation, or even arbitration when necessary, ADR allows the parties to maintain control over their outcome—something that is invaluable in the fast-paced and ever-evolving world of intellectual property.
Conclusion
ADR processes provide the tools for effective DSD empowering parties to resolve disputes efficiently. However, the success of ADR lies not only in its application but also in its strategic implementation. By understanding the unique nature of IP disputes and tailoring ADR processes to specific contexts, the African creative sector can harness the full potential of DSD. As demonstrated by the examples above, ADR can lead to mutually beneficial solutions, preserving relationships and avoiding the costs and delays associated with litigation. By prioritizing early intervention, effective communication, etc., the African creative sector can foster a more harmonious and productive creative ecosystem.
