Kenya among African Countries Set to Ratify Marrakesh Copyright Treaty

On the June 28, 2013, Kenya was among the WIPO member states who signed Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (“the Marrakesh Treaty”). Our principal negotiator at the WIPO Standing Committee on Copyright and Related Rights (SCCR) tweeted the good news here and here.

In the latest edition of the Copyright Newsletter (pictured above), the Board applauds the signing of the Treaty stating:

“Access to published works by visually impaired and persons with print disabilities is important for economic growth and development as the beneficiaries will be able to access published works at the same time with visually able persons. The Copyright Act in Kenya is currently under review and the proposed amendments will include provisions of the Marrakesh Treaty. Once the law has been approved the Government of Kenya will be at the forefront to ratify the treaty.”

The ratification of the Marrakesh Treaty has since been echoed by leading Intellectual Property (IP) commentators such as Cathy Mputhia. In her article titled “Ratify Marrakesh Treaty into law” published in the Business Daily, Mputhia makes a case for the domestication of the Treaty and states, in part:

“What the treaty urges member states to do is to limit the rights of the authors in recognition of the right of the visually impaired persons to access the information.
If ratified in Kenya, this provision will have an impact on authors, the education sector, the publishing sector and will affect several institutions.”

Comment:
For the second year in succession, the Copyright Act will be amended through the Statute Law Miscellaneous Bill which is already before Parliament. In a previous post here, this blogger reviewed the current proposed amendments to the Act which do not include any changes specifically aimed at giving effect to the Marrakesh Treaty.

In order to effectively domesticate the Treaty, Kenya’s proposed amendments to the Act would have to be two-pronged, namely:
1. Inclusion of certain new terms and definitions contained in the Treaty.
2. Review and amendment of the fair dealing provisions under section 26 of the Act.

With respect to the first set of amendments, the Act would have to been amended to include certain new terms and definitions in Article 2 of the Treaty such as: “Accessible format copy”, “Authorised Entity”, “Beneficiary Person” and “works” (in relation to visually impaired persons).

With respect to the second set of amendments, the Act would have to contain an exception/limitation to copyright specifically aimed at allowing access for visually impaired persons. This new provision of the Act would make it possible for the making, importation, sharing of accessible format copies by beneficiary person or Authorised entities or persons acting on their behalf of a beneficiary person including circumventing any technical protection measures that may be in place.

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