A dubious verdict
The seminary of the ministry of culture against piracy of literary and artistic work is beginning tomorrow. This meeting will unite in the palace of culture the associations of artists, of writers, of producer and distributors, of tapes importers… It goal is to find strategies to reinforce the struggle against a scourge that have grave social repercussions on the artists and economical ones in the country.

This seminary takes place two weeks after the verdict of the appellate court in the trial opposing Mali K7 SA and 13 artists (Ali Farka Touré, Amy Koïta, Rokia Traoré, Habib Koité, Nahawa Doumbia, Issa Bagayogo, Mamou Sidibé...) to an importer of tapes called Ousmane N’Daou "Gouro". The reason given to the plaintiff to explain their defeat is "the public action extinct by the customs transaction of the charge of the infraction of non-authorised importation.” Nobody understands this verdict because all the proofs were there to confirm the first verdict of the magistrate’s court on May 2001. The court carried on regardless.
This affair began with the seizure of a container at the customs of Zegoua on November 1999. According to the documents the importer presented, the container should have contained “2004 parcels of trousers and dungarees made of cotton for women and small boys”. But during the checking, the customs officers discovered 1986 boxes of recorded tapes, a generator, a colour photocopier (certainly to copy the inserts), three glass shutters, three spares pieces, four bedspreads and a suitcase.

So the second-hand clothes the container was supposed to contain was transformed into 198.6000 tapes. We already know that a container can contain up to 200.000 tapes. The sorting of the seizure was made in the presence of the Malian Authors Rights Office (Bumba) which attitude was paradoxical in discovering among piracy tapes legal tapes. And yet, the importer wasn’t able to present any importation authorization duly delivered by the competent authorities. Nevertheless, the Bumba has declared that 157.800 tapes are legal tapes. “We can not imagine that a second-hand clothe container contains legal tapes. A dream or a nightmare? But, things always go on like that…” said a plaintiff.

The plaintiff wanted to obtain reparation for the 40.800 illegal tapes the customs has confiscated. It obvious that the customs’ transaction evocated by the court to justify its verdict concerned only the reparation of the contravention of fraudulent importation. She dispenses no justice to Mali K7 and the 13 artists deprived of their author rights and of the receipts of the sales of their tapes. In any case, this is the conclusion of the first trial.

She had concluded on the responsibility of gouro on the public action, the penal responsibility and on the civil action. She had then accepted the “constitution of the public prosecutor” with the artists and Mali K7. The fraudulent importer was condemned to pay a 500.000 FCFA (763,00 €) fine and 1.000.000 (1.525,00 €) to each of the plaintiff, so it makes a total of 14.500.000 (22.105,00 €).
And at the appellate trial, they and the customs had brought more compromising proofs. But the court didn’t take care because of other considerations that stay to her discretion alone.

When the verdict was announced, a lot of people came down with a bump; beginning with the minister of culture who supported the plaintiff since his appointment to the heading of this department. This verdict’s foundations are really dubious. The several postponements of it announcement for “additional information” (which the court was alone to see the necessity) had already brought scepticism among plaintiffs. Mali K7 and the artists bring the affair in the court of cassation and hope to have right there.

Moussa Bolly
Le reflet N° 371 of 08/09/2003

This container contained second-hand clothes that transformed into 198.000 tapes (a container contains up to 200.000 tapes). 157.800 tapes became legal? And 40.800 illegal…

It’s very difficult to imagine that a second-hand clothe container can contain even one legal tape… but it goes like that…

It’s important to note that the sorting (of the dungarees?) has been led under the direction of the Malian Authors Rights Office (Bumba) to find legal tapes…
Pinch me, I should be dreaming…

Moreover, the BUMBA never appears in the legal procedures brought by the artists, and yet, one of its principal roles is to protect artists’ rights…
In order to make the rights of Artists respected, the BUMDA must conform to the articles 141 and 142 of the law 84-26 to seize the whole container and bring the importer to court.

The statement established by the sub direction of the customs inquiries on the date of 30/11/99 precises:
“On these facts, we notified to Sir Ousmane N’Daou an infraction consisting in non-authorized importation and an offence in the sense of the law 84-26 AN-RM (law on the author rights)”…”in view of the customs code and the law 84-26 AN-RM especially the articles 141 and 142, we declared the sir Ousmane N’Daou …”

…”We read the present statement to the defendant and invited him to sign it with us; he accepted to sign and received immediately a copy of it …”

Nine customs officers signed as well as Ousmane N’Daou.

The offender himself recognized to have imported piracy works… and yet the court acquitted him and noticed the nonexistent of the prosecutions for imitations and piracy and sends back the public prosecutor to better appeal of this charge. This means that the artists have not brought proofs that the sir N’Daou has imported illegal tapes… the court puts the expenses to the Treasure…
That means that it’s the state (the citizens then) that will pay the procedure bill…

Recall of the law 84-26

Article 141: any edition of writings, of musical compositions, of drawing, of paint or any other printed or cut productions, entirely or just a part, regardless of the rules and laws relative to the property of authors is an imitation and this imitation is an offence.
Is guilty of the imitation offence and punished by prison sentence of one to five years and a 50.000 FCFA (77,00 €) to 15.000.000 FCFA (22.867,00 €) fine anyone:
A) Imports on the Malian territory any reproduction of a work did in violation of the dispositions of the present law.

Article 142: In all the cases planned in the preceding article, the guilty persons wiil be moreover, condemned to the confiscation of sums equal to the sum total of the parts of the receipts produced by the reproduction, the representation or the illicit diffusion as well as the confiscation of any equipments especially installed to make illicit reproduction and all the samples and imitations. The equipments or the imitations, as well as the receipts or parts of receipts that has been confiscated will be given to the author or to his eligible parties to compensate the prejudice they suffered; the surplus of their compensation or all the compensation if there is no equipment or imitation or receipts confiscation will be dealt with by ordinary ways.

The language of truth
In the repression of piracy and the reparation of its prejudices, the artists and their illegible parties should not have too much hope because our justice, in the time being where other considerations always prevail over the right, is not ready yet to be their ally against piracy.

Moreover, in this struggle, everybody takes offence but rare are the actors who act concretely. Over the last few years, the more active have been the press, the artists and Mali K7. But, one must recognize that they have now an unfailing support of the minister of culture since the appointment of Cheick Oumar Sissoko. No problem!
The piracy will never stop as long as it will have the complicity of the structures which should fight it. The struggle is lost in advance as long as the producers and the distributors will continue to pull the lucrative strings of the scourge in the shadow. The bare truth must now be told because the ones who will meet tomorrow at the palace of culture know the roots of the scourge and know who is doing what in the cause to take root of the scourge. But nobody has courage to denounce the other or to attack him in front.

That means that the engagement of a lot of people in this struggle is just selfishness and hypocrisy. Everybody is conscious that the importation of the musical works is a large breach in which the pirates have no difficulty to step. But it seems to offend nobody except the artists and Mali K7. Mali is one of the rare countries in the world not to say the only one where such a thing is permitted. The artistic productions, especially musical ones circulate due to the agreements between producers and distributors around the world and not through a network of importers or rather Mafioso. We shouldn’t fear words; these importers have a large part of responsibility in the piracy in Mali. And they have been covered up by the Bumda for a long time by spinelessness or by complicity.

The meeting of tomorrow is a good initiative because it permits the protagonists to discuss about the strategies to elaborate. But it’s not the end of all the problems. This seminary, like a lot of ones, will bring nothing as long as each one (artists, producers, justice, security forces, customs, Bumda...) won’t secure his role sincerely and honestly. It must then be the best occasion to tell the truth how harsh it could be. For that, the velvet gloves must be abandoned, the protagonist must accept to spit the truth in the face to clear the air. Diplomatic language will lead nowhere because it’s a world in which sincerity is rare because of the interests. The actors have no more interests in handling carefully the black sheep in their rows.

The actors have covered enough the piracy. It’s time to relieve the consciences in order to be able to watch one self in front and moreover, to watch one’s artists in front: pigeons that have no more feathers to remove. The musical market, when it’s clear, is lucrative enough to grant to each one his interests. But it’s greed that pushes some to try to take the part of the others.

We are fed up, the artists (those who are clear) are fed up and the country needs the receipts of its cultural booming to support its efforts of economical and social development. All this is compromised because somewhere, some haven’t got the courage to tell the truth. Have you ever see a wound healing over pus? In the same way, no struggle can be won when the actors refuse to tell the truth to each other to take pleasure in hypocrisy and selfishness.

Moussa Bolly
Le reflet N° 371 of 08/09/2003