Introduction

Copyright protection in Ghana aims to recognize and safeguard original works of authorship[1]while simultaneously promoting the dissemination of knowledge and information to inspire and encourage creativity. These protectable original works include literary works, artistic works, sound recordings, audiovisual works, and more.[2] In terms of copyright, "original works of authorship" do not need to be new or novel; they simply need to be the result of the author's independent effort.[3] While this determination of authorship may seem straightforward, it is often complex due to the varied forms of copyright-protected works, the wide range of subjects it covers, and the peculiarities within creative industries. Therefore, the criteria for determining originality may differ for various subject matters, though the fundamental requirement remains that the work is the product of the author's independent effort.

Determining Originality and Infringement in Musical Works

In the case of musical works, for instance, determining originality typically involves considering the musical itself and not the lyrics alone. This is because the copyright in a song subsists not only in the lyrics[4] but also in the underlying composition. For this reason, it is the creative combination of music's primary elements—rhythm, melody, and harmony—with the lyrics that collectively establishes copyright in a particular line or lines.[5] When assessing whether there is an infringement therefore, the starting point would be the overall impression and similarities between the songs in question.

Copyright in Ghana protects original works of authorship, allowing owners to control the economic and moral rights in their works. In exchange for this protection, copyright mandates that authors make their works public to promote the spread of knowledge and contribute to the building blocks for future creators.[6] This means other creators are free to draw inspiration from existing works to create new ones, but there are limitations. One may only borrow uncopyrightable elements from existing works. In the case of musical works, one can copy copyrightable expressions but must re-express them uniquely. This practice is known as interpolation or sampling, depending on the context, and represents different forms of music borrowing.[7]

Resolving the possible copyright infringement in “Defe Defe” songs

There have been several debates over a possible copyright infringement of a ‘Defe Defe’ song by Team Eternity over an earlier Defe Defe song by Helleluya Voices.

For Halleluyah Voices, or the copyright owners in the musical work(s), to claim copyright protection, the works must be the independent effort of the author(s), created without copying existing works. If inspired by existing works, they should have only copied uncopyrightable expressions. When listening to Halleluyah Voices' song titled "Defe Defe," it becomes clear that the chorus or lyrics in question, "M’anhyia Nyame a nanka )bonsam ayɛ me defe defe," runs throughout the song and forms the core of the music, likely being the major copyrightable expression in the manner in which they sang as, ‘mongyae me na menkoda Nyame n’ase, m’anhyia Nyame a, na anka )bonsam ayɛ me defe defe.’

In contrast, Team Eternity's song, also titled "Defe Defe," features a different lyrical and musical composition. However, Team Eternity also uses the term "Defe Defe," singing it at the tail end of their song in a repeated manner, saying, "M’ anhyia Nyame anka y’ayɛ me defe defe." At first glance, to an ordinary listening ear, it may seem that Team Eternity has copied Halleluya Voices' copyrightable expression due to the striking similarity between the two choruses because, this perceived protectable element, in both songs standing alone would appear and sound similar and also have a similar connotation.[8]

However, it is important to note that copyright law aims to balance protection for owners with lawful access for the public to promote creativity. With this balanced purpose in mind, copyright should not grant a monopoly over creative expressions, especially common phrases. The term "Defe Defe" is a common linguistic phrase in Ghana, which also points to only one major meaning which is "to destroy completely." In this context conveying the message of one being destroyed completely but for God's salvation, which is a common recurring theme in Christianity, gospel music and in normal communications. Thus, Team Eternity could not have utilised it in any other meaningful way than to present it with the same or similar meaning common in Ghana to the phrase. With these phrases being common in everyday communication, can we allow one person or entity to solely appropriate or monopolize them under copyright protection? This shouldn't be the case!

Taking any such step by granting Halleluyah Voices copyright over such common phrases or term would deny the public and other creators the freedom to draw inspiration from existing uncopyrightable works and build upon them. It would further mean that the term "Defe Defe" would be restricted to Halleluyah Voices, preventing others from using it in musical works and beyond. For instance, would it make sense for one person to have copyright over a phrase like "Awurade Kasa ma enye yie" simply because they used it in their work and hold copyright over the musical work containing this phrase? Certainly not! "Awurade Kasa ma enye yie" means "God should speak for a situation to turn out well," and it is a common phrase with a commonly understood meaning in Ghana. Thus, allowing one person to monopolize this common phrase would be unreasonable, particularly since the authors did not originate it themselves. Even if copyright law appears to permit this, it should be revisited, as it would contradict the dual purpose of copyright and its societal role.

Conclusion

In our view, endorsing the phrase "m’anhyia Nyame a, na anka obonsam aye me defe defe" or "defe defe" alone[9] for Halleluya Voices would effectively grant a monopoly over a common Ghanaian phrase to one entity. This would prevent others from using it as a foundation for new works, potentially opening a Pandora's box for countless similar claims and ultimately hindering progression and competitive growth in the music industry.

[1]Section 2 of Ghana’s Copyright Act, 2005, Act 690, hereinafter referred to as Act 690. See also, Paul Oliver v Samuel Boateng, Suit No RPC/208/11

[2] Section 1 of Act 690

[3] Section 4 of Act 690 

[4] The is because, under section 1 of Act 690, the lyrics alone can stand for copyright in literary works, the accompanying sound may also pass independently for copyright in sound recording etc. 

[5]ELLIS vs. DONKOH AND ANOTHER [1990] DLHC726’ <https://www.dennislawgh.com/case-preview?dl_citation_no= [1990] DLHC726> accessed 26 November 2022. Such that future songwriters cannot combine those sets of words with that particular combination of melody, harmony, and rhythm.

[6] Section 2(c) ii of Act 690, Adden Technology Limited Ghana [www.addentech.com, ‘PEARSON EDUCATION LIMITED vs. MORGAN ADZEI[2011]DLSC2643’ <https://www.dennislawgh.com/case-preview?dl_citation_no=[2011]DLSC2643> accessed 30 November 2022. The learned Justices of the Supreme Court noted the importance of having in mind policy considerations in analysing copyright issues in order not to stultify creativity(emphasis mine).

[7] Depending on the nature of the use, permission from the copyright owner may still be needed. H Edmondson, Interpolation, Litigation and Copyright Confusion: How the Music Industry's Influence is Hindering Creativity, <https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=2300&context=olr> accessed 25 June 2024.

[8]NMJ ENTERTAINMENT AND ANOTHER vs. RLG COMMUNICATIONS AND 3 OTHERS [2017] DLHC3673’ <https://www.dennislawgh.com/case-preview?dl_citation_no=[2017]DLHC3673> accessed 19 December 2022.

[9] The phrase standing alone also would most probably not pass the test for originality in literary works under section 1 of Act 690. See PROPHETESS THANE II vs. PROPHET GEORGE[1977]DLCA1390’ <https://www.dennislawgh.com/case-preview?dl_citation_no=[1977]DLCA1390> accessed 26 November 2022., Exxon Corp v Exxon Insurance Consultants International Ltd | International - Cases | Westlaw Edge’ <https://1.next.westlaw.com/Document/IA4F81470E42711DA8FC2A0F0355337E9/View/FullText.html?navig> accessed 26 November 2022.