Ten Years Later: Dismal Performance Scorecard for Kenya’s Copyright Office

kecobo-launch-768x504

As discussed previously, this month marks the 10 year birthday of Kenya’s Copyright Office (KECOBO) and this blogger promised to rate KECOBO’s performance over the past decade. In this blogger’s humble opinion, KECOBO deserves no score higher than 4/10 for its performance in overall administration of copyright and related rights in Kenya. In arriving at this score, this blogger looks at two key result areas for KECOBO, namely fighting piracy and regulation of CMOs in Kenya.

A good starting point would be to interrogate the theory behind the creation of institutions like KECOBO in our laws. From the landmark work of Richard Posner, one may term KECOBO a public interest regulator. The public interest theory of regulation holds that institutions like KECOBO exist to correct inefficiencies and inequities in the operation of the free market. Therefore government intervention generally is assumed to benefit society as a whole rather than particular vested interests. The regulatory body is considered to represent the interest of the society in which it operates rather than the private interests of the regulators.

An important component of KECOBO’s outcomes as a regulator under the public interest theory is the considerable costs to be borne by members of the public in order to know what KECOBO is doing and thereby, supervise its actions. This situation results in what public interest theory terms as “principal-agent slack”, whereby KECOBO enjoys a fair amount of slack because you and I require large amounts of time, information and organisation to supervise KECOBO’s activities.

Let’s test this public interest theory of regulation with respect to KECOBO’s performance in fighting piracy and regulating CMOs.

KECOBO’s Scorecard on the Fight Against Piracy: 3/10

It is no secret that KECOBO’s enforcement unit consists solely of 8 copyright inspectors and 5 prosecutors covering the entire country. This fact alone underscores the uphill task KECOBO faces in dealing with the menace of piracy. For instance, in 2003 when the Attorney General launched KECOBO, software piracy levels were at 78% in Kenya.

BSA estimates indicate that between 2010 and 2011 software piracy levels oscillated between 78% and 79% corresponding to a commercial value of US$85 million. KECOBO has acknowledged that this insignificant change in the piracy rate is evidence that little progress has been made in reducing piracy. It is important to note that aside from pirated software, the overwhelmed enforcement unit at KECOBO has to deal with other forms of piracy relating to music, film, broadcasts and books.

From an enforcement perspective, this blogger has often wondered why KECOBO has never made any real head-way in the fight against piracy in Kenya. Indeed it is difficult to recall any notable raids against large-scale piracy operations. In reality, KECOBO’s enforcement actions seem to target small to medium piracy operations instead of large-scale manufacturers and suppliers of pirated goods. It is based on this reality that many have argued that there must an inter-agency approach to intellectual property (IP) enforcement led by the newly formed Anti-Counterfeit Agency (ACA) whose empowering legislation is much broader in scope and stringent on violations of IP rights. With ACA solely in charge of IP enforcement, KECOBO will be able to re-focus its limited resources away from fighting piracy to its other functions under the Copyright Act such as the regulation of collective management organisations (CMOs).

KECOBO’s Scorecard on Regulation of Collecting Societies: 4/10

During the launch of KECOBO 10 years ago, the Attorney General’s speech noted that KECOBO faced the herculean task of creating a conducive environment for Kenya’s music industry to thrive amidst a climate of disorder, disagreements and mismanagement. At the time, the Music Copyright Society of Kenya (MCSK) was already 24 years old and was in operation as an unregulated CMO. In this blogger’s humble opinion, KECOBO ought to have pushed for CMO Regulations (like Nigeria and South Africa) to address the gaps in the Act relating to licensing and supervision of CMOs. The Copyright Regulations of 2004 pay little attention to important issues relating to regulation of CMOs. This lack of clear regulations for CMOs may have led to the deregistration of MCSK in 2011-2012.

In the meantime, KECOBO seems to have opted for several short-term extra-statutory means of regulating CMOs including performance contracting, developing a license agreement and licensing guidelines. In 2012, KECOBO failed to seize a second opportunity to amend the Act so as to empower it to adequately monitor the activities of CMOs. The amendments to the Act in 2012 did very little to improve the shaky legal framework within which CMOs are regulated.

Another important failure on the part of KECOBO is the Competent Authority under the Act aka the Copyright Tribunal. The Chair and members of this Tribunal were gazetted in 2009 however this Tribunal has never heard or determined any cases relating copyright. One of the key functions of the Tribunal is to consider certain licensing practices of CMOs deemed to be unreasonable by users.

The next 10 years?

In truth, many stakeholders would want the Copyright Office to allow the mandate of fighting piracy to be taken over by one sole agency eg. ACA. This would allow KECOBO to do better at its functions as a copyright registry through improvements and technical enhancements to the information technology platforms that support registration and recordation functions, including an online registration system. Generally, KECOBO would be expected to do a host of new things to help make copyright law more functional. For example, some people would like KECOBO to administer enforcement proceedings (such as a small copyright claims tribunal), offer arbitration or mediation services to resolve questions of law or fact, issue advisory opinions, and engage in countrywide awareness campaigns.

Of course, much of this will depend on the availability of technical capacity and resources.

JB Maina, M-Shwari Updates: Safaricom’s Copyright Battles Continue

Safaricom House

As many may already know, Safaricom, the largest mobile telecommunications company in Kenya is currently embroiled in a handful of intellectual property (read: copyright) law suits, with creators and innovators alike. See full list here. Recently, there have been some new developments in two of these cases, namely the M-Shwari and JB Maina cases.

To recap briefly, the M-shawri row arose late last year when Faulu Kenya claimed that it had pitched to Safaricom the idea of a mobile money service that allows users to save, borrow loans and earn interest using their mobile phones. On the other hand, the JB Maina case has been in court since 2010 when Safaricom was accused of copyright infringement in respect of musical works of JB Maina alleged to have been uploaded on Safaricom’s portals.

The Daily Nation now reports that the Court has declined to grant Faulu Kenya’s application for an interim injunction pending determination of its suit for breach of copyright and violation of trade secret. While this blogger is inclined to agree with this preliminary ruling by Justice Havelock, several concerns the learned judge’s reasoning on this case were raised.

Turning to the JB Maina case, a recent court ruling reported in full here has awarded limited Anton Piller orders to the plaintiff, JB Maina against Safaricom. The effect of these orders is that it allows JB Maina in the company of a copyright inspector to enter Safaricom’s premises, inspect its machines, take records, make copies of records for purposes of gathering and preserving evidence necessary to prove his claim. The court has also granted JB Maina a temporary injunction restraining Safaricom from dealing in JB Maina’s works, in addition to awarding JB Maina the costs of the motion to be paid by Safaricom.

This blogger will revisit this return of Anton Piller orders in Kenya’s IP litigation landscape in a subsequent post. However for the purposes of the JB Maina case, there are a couple of interesting questions that this blogger believes must be at the back of Safaricom’s mind. The first question is whether there is need to have such a complex web of relationships between the right holders (copyright owners); the music collecting societies (the copyright assignees); the content service providers and/or premium rate service providers (the middle men); and itself as a major user of copyright works. This first question requires Safaricom to think hard about eliminating the middle men altogether so as to deal directly either with the music collecting societies or the copyright owners themselves on an exclusive basis. The second question which flows from the first is whether the acts currently performed by Safaricom in respect to musical works and sound recordings ought to be licensed in the first place. This second question arises based on the various unlicensed rights currently being exploited by Safaricom, namely reproduction, communication to the public in addition to the performing right in the musical download.

At the very least, it is hoped that the final conclusion of both these Safaricom copyright suits may provide useful IP jurisprudence that will help settle some of the unanswered questions in Kenya.

Chief Justice Makes Rules for Enforcement of Intellectual Property Rights Under the Constitution of Kenya

Supreme Court Fountain Kenya

Today, the Law Society of Kenya reports that the Chief Justice (CJ) Dr. Willy Mutunga has made Practice and Procedure Rules for enforcement of the Bill of Rights under Article 22(3) as read with Article 23 and Article 165 (3) (b) of the Constitution of Kenya. A copy of these Practice and Procedure Rules (hereafter “Mutunga Rules”) is available here.

Jurisprudentially, the Mutunga Rules mark the beginning of a new era in the determination of constitutional questions by the courts of Kenya. From as far back as the Gibson Kamau Kuria vs Attorney General case of 1988, the courts relied on the absence of such rules made by the CJ to argue that they lacked jurisdiction to enforce rights and fundamental freedoms that were alleged to have been denied, violated, infringed or were threatened.

The right to property is one of the fundamental rights guaranteed under the Constitution of the Republic of Kenya. The said right was protected by Section 75 of the former Constitution. As discussed elsewhere, the 2010 Constitution in Article 40 read with Article 260 fundamentally transformed the right to property by extending its definition of property to cover both real property and intangible property rights such as IP rights. Article 40(6) also imposes a positive obligation on the State to support, promote and protect the IP rights of the people of Kenya.

Read the rest of this article over at the CIPIT Law Blog here.

Local Universities To Host Two Patent Drafting Training Courses in August

This August, IP enthusiasts, practitioners, professionals and students will have a choice of two separate patent drafting courses both taking place within Nairobi. The first option is a patent drafting and dispute resolution course organised by Kenyatta University (KU). The second option is a training course on drafting and prosecuting patent applications jointly organised by the Kenya Industrial Property Institute (KIPI) and Strathmore University (SU) Centre for IP and IT Law (CIPIT). Details of this SU course are available online at the CIPIT Law Blog here.

Here are some of the details IPKenya readers may need to decide whether to attend both courses, or one of the two courses or none of them.

1. Dates, Venues & Duration:

The KU course runs for five (5) consecutive days from 5th to 9th August 2013 at KU’s Conference Centre.
The SU course runs for four (4) consecutive days from 12th to 15th August 2013 at SU.

2. Charges:

The KU course costs Kshs 65,000.00 which includes lunch and teas but excludes accommodation and transport.
The SU course costs Kshs 50,000.00 which includes lunch, teas and training materials. However, participants who register and pay the fee by 2nd August 2013 will enjoy a special rate of Ksh. 45,000.00.

3. Resource Persons:

KU’s course will be facilitated by Eng. Pierre Fuller, MSc. B.Mech, B.Arch – A Patent Agent at Ropes & Gray LLP and Prof. Ethel Monda, PhD in Plant Pathology at KU.

SU’s course will be facilitated by Mr. David Njuguna, Chief Patent Examiner at KIPI and Dr. Isaac Rutenberg, PhD.,JD. at SU CIPIT.

IPKenya would like to encourage everyone to take advantage of this rare opportunity and atleast attend one of these training courses. Any feedback, comments and thoughts on the courses are most welcome via the comments box below or through email at ipkenyan@gmail.com.

Legal Protection for TV Formats: Another Sui-Generis Area of Intellectual Property Law?

Dads Can Cook TV Kenya

Imagine this scenario: You’re a budding creator and film producer who develops this brilliant reality show which is being aired in one of our local TV channels. At the end of the first season of your hit show, the TV broadcaster discontinues your show. One month later, you discover that the same TV channel or a rival TV station has premiered its own show which is a carbon copy of your own show which they discontinued. What recourse would you have under intellectual property law?

At the CIPIT Seminar #KnowUrIP, Mr. Martin Munyua (@MartinMunyua) the editor and creator of the hit TV show “Dads Can Cook” painted this very same scenario drawn from his real-life experiences. The topic of TV format protection in Kenya may becoming pertinent as local creators and innovators continue to create programming content at a level that compares favourably both regionally and internationally. Domestically, the growth and expansion of the TV industry has resulted in cut-throat competition among broadcasting houses who increasingly demand for new and original programming content. Many TV viewers in Kenya may recall the case of two similar shows on two rival networks namely, “Mali” and “Lies That Bind” on NTV and KTN respectively. This case illustrated the level of competition among TV networks and how popular TV shows, concepts, formats and themes can be copied, replicated, modified across these networks to capture a larger share of viewership.

Read the rest of this article at the CIPIT Law Blog here.

The Past Decade: Kenya’s Copyright Office Turns 10 Years Old This Month

Kenya Copyright Board KECOBO

On the 21st July 2003, the then Honourable Attorney General of the Republic of Kenya, S. Amos Wako, SC officially launched the Kenya Copyright Board (KECOBO) at the State Law Office in Nairobi. In his speech, he expressed optimism that the launch of KECOBO marked the beginning of a new era for the copyright industry in Kenya. This optimism was of course tempered by his acceptance that there continued to exist numerous challenges in the copyright industry with adverse effects on copyright owners countrywide.

The first challenge cited was the issue of piracy. It was noted that piracy has resulted in several prominent recording artistes and performers dying poor while their music dominates the airwaves both locally and internationally. In addition, it was noted that piracy resulted in wood carvers and other finer artists having their works misappropriated and sold overseas at abnormal profits with no compensation to these original creators. Furthermore, local authors and book publishers found it difficult to keep afloat as there was an influx of pirated books manufactured in the back streets of Nairobi and elsewhere throughout the country. At the time of KECOBO’s launch, software piracy levels were at 78%, which was considered a serious issue not only because Kenya was losing billions in unpaid taxes but because of the link between piracy and other international crime such as drug trafficking and illegal trade in firearms.

With regard to this challenge of fighting piracy, it was recognised that KECOBO joins a growing list of enforcement agencies such as the Customs Department of the Kenya Revenue Authority, the Kenya Police, the Weights and Measures Department of the Kenya Bureau of Standards who were all on the spot for their lack of efficiency and effectiveness with regards to curbing copyright piracy.

In the case of KECOBO, it was noted that prior to 2003, the Copyright Office was a small section within the Department of the Registrar General and lacked personnel and other resources to ensure the proper administration of copyright and related rights through public awareness campaigns and training of key agencies and other enforcement bodies.

Connected to the challenge of fighting piracy was the issue of the administration of the Anti-Piracy Security Device (APSD) introduced in the 2001 Copyright Act which replaced the previous Act, CAP 130 of the Laws of Kenya. The APSD would be affixed to all genuine audio and audio-visual works in Kenya and would serve as an identification of legitimate works. The administration of the APSD would also facilitate a comprehensive database of all copyright works in Kenya that would be used both by the Government and the stakeholders in the copyright industry.

Another herculean challenge cited during KECOBO’s launch was the organisation of the music industry in Kenya, which was riddled with disagreements and controversies. It was noted that although the Music Copyright Society of Kenya (MCSK) had been in existence for the past 24 years as the sole collecting society, the latter was characterised by constant wrangles and non-payment of royalties. Therefore at KECOBO’s launch, it was stated that the Board must exercise its function of licensing and supervising the activities of collecting societies in order to intervene and put the music industry in order.

Read the rest of this article over at the CIPIT Law Blog here.