The Competent Authority: Behold! Kenya’s New Copyright Tribunal

During the Second Reading of the Copyright Bill on November 20, 2001, the following statement was made by the Deputy House Speaker recorded in the Hansard at page 3186:

“the competent authority will act as an arbiter between the Board and the members.”

Section 48 (1) of Kenya’s Copyright Act provides for the appointment of a “competent authority” which is really a Tribunal appointed by the Minister in charge of the Kenya Copyright Board who happens to be the Attorney General (AG).

In Gazette notice no. 4339 dated 2nd April 2012, the AG has now appointed the following 5 individuals to form the Competent Authority:

Prof. Ben Sihanya – appointed as Chairman of the Competent Authority

Sihanya is currently Associate Professor of Law at the University of Nairobi School of Law. He has researched, published and spoken widely on Intellectual Property, Constitutionalism, Education Law and ICT Law in Kenya.

Sihanya is known for his innovative approach to the law and other inter-disciplinary areas of legal research and practice. He has conducted training, publishing, consulting and mentoring in Intellectual Property and Innovation, Education, Training, Research and Mentoring (ETRM) Law, Constitutionalism and Governance, Communications Law as well as Trade and Corporate Governance Law in Kenya specifically and Africa generally.

As one of the foremost authorities on copyright law in Kenya, IPKenya believes that Sihanya’s appointment as Chairman is well deserved. His wealth of skills, knowledge and experience in intellectual property is unmatched.

The following 4 individuals have been appointed as Members of the Competent Authority:

Prof. Paul Musili Wambua

Although Prof. Wambua is a renowned Maritime Law and Piracy scholar, IPKenya believes that he was appointed to the Competent Authority for a different reason.
Wambua is one of the leading legal minds in Corporate Governance in Kenya and IPKenya has had occasion to sit in his classes at LL.M.
This in-depth knowledge of corporate governance principles and practices will definitely come in handy when considering performance of collecting societies and licensing conditions imposed by the Board.

Mr. Leonard Obura Aloo

Mr. Aloo is a practising commercial lawyer with postgraduate degrees in Commercial Law from the University of Cape Town and IT and Telecommunications Law from University of Strathclyde. His academic expertise in information technology and telecommunications law is reinforced with practical experience which includes having served as Head of Commercial Legal Services for Telkom Kenya.
IPKenya believes that Aloo’s presence will assist the Competent Authority in tackling issues related to digital copyright within the alternative dispute resolution framework.

Mr. John Syekei

Mr. Syekei is without doubt a household name in intellectual property law practice in Kenya and has represented notable local and international clients in a wide range of intellectual property matters.

IPKenya believes the appointment of Mr. Syekei is meant to bring in a commercial intellectual property perspective in the Tribunal’s decisions.

Ms. Michi Kirimi

Like Mr. Syekei, Ms. Kirimi is a private legal practitioner and Partner of a leading law practice in intellectual property.

Ms. Kirimi has carved out a niche for herself as an expert in commercial disputes resolution through arbitration and mediation.

————

As you know, the Competent Authority is intended to act as an independent arbiter between the Kenya Copyright Board and a collecting society in the event of a dispute on any one of the following areas:
a) Unreasonable refusal by KECOBO to grant a certificate of registration to a collecting society.
b) Unreasonable imposition by KECOBO of terms or conditions on the granting of a certificate of registration to a collecting society.
c) Unreasonable refusal by a collecting society to grant a licence in respect of a copyright work.
d) Unreasonable imposition by a collecting society of terms or conditions on the granting of a licence in respect of a copyright work.

The Authority may make Anton Piller Orders or make any order as it considers necessary or appropriate to secure the preservation of the documents, copies or things as evidence. The Authority is vested with powers to hear any and all matters arising from the Act that requires to be determined.
The Authority has the following discretionary powers:
a) to direct the collecting society to do any act relating to work with which a collecting society is concerned
b) to direct that a certificate or licence shall be deemed to have been granted by KECOBO and the collecting society respectively at the time the act is done or the application is made, provide all other requirements are met.

All in all, IPKenya is happy with the choices of the Chairman and the Members appointed to serve in the Competent Authority. Naturally, the first matter on their agenda should be to settle the long-standing dispute between MCSK and KECOBO once and for all.

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4 thoughts on “The Competent Authority: Behold! Kenya’s New Copyright Tribunal

  1. I’m very interested to see some of the work to come out of this Tribunal with regard to MCSK stalemate esp with Prof. Sihanya at the helm and Syekei on board as well!

    • The MCSK stalemate has been resolved, it seems. See post on “The Return of MCSK”.

      However I imagine the Tribunal will have to resolve the issue of conflicts between CMOs particularly MCSK and the other two music CMOs: KAMP and PRSK.

  2. What is the tribunal going to do about the various cases before court and those that are yet to be presented of Kenyan citizens against corporate companies who have been sued in court for “stealing” ideas? and how will they protect the common mwananchi from having his ideas stolen? Its a frustrating process that needs to be dealt with firmly to enable the concept developer is rewarded.

    • The Tribunal has not yet come up with its Rules for Practice and Procedure but my guess is that they will be modeled very closely on the WIPO Arbitration and Mediation Rules. If our so-called Competent Authority is properly implemented, the common mwananchi may find justice much easier than through our court system. Let’s wait and see.

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