Strathmore to Host World Intellectual Property Day 2014 Events in Kenya

world ip day 2014 poster

Strathmore University’s Centre for Intellectual Property and Information Technology Law (CIPIT) has been at the centre of Kenya’s preparations for this year’s World Intellectual Property (WIP) Day celebrations on 26th April 2014. This blogger has previously discussed here the significance of this year’s WIP Day for Kenya. The programme for the day is available here. The celebrations will run from 8.30 a.m to 5.00 p.m and will involve three concurrent events, namely the IP Pavilion, the IP Workshop and the IP Moot Competition. To top it off, there will be a public screening of the award-winning film, “The Prestige”.

The IP Pavilion will be a tented area for exhibitors to carry out public outreach. Attendees of the WIP Day events will have time to visit The Pavilion and meet the various exhibitors.

The IP Workshop will delve into the theme of WIP Day 2014, which is “Movies – A Global Passion.” Speakers will include representatives from the Kenya Copyright Board, Department of Film Services, Kenya Film Commission, Kenya Film Classifications Board, Kenya Film & Television Professionals Association, and experienced Intellectual Property Lawyers in the creative industry.
Venue: Main Auditorium.
Tentative program:
9.45 – 10.45 am: Intellectual Property Rights in Film
10.45 – 11.00 am: Presentation on Copyright and Film Industry
11.30 – 1.00 pm: Discussion Forum on the Dissection of the Film Industry in Kenya

The IP Moot Competition will provide a platform for exposing law students to Intellectual Property Rights, and is the first of its kind anywhere in Kenya. The IP Moot Competition questions and rules are available here.
CIPIT has registered 18 teams from 9 law schools. The Chief Justice of the Supreme Court of Kenya will be closing the event and handing out prizes.
Venue: morning activities to be in assigned classrooms, afternoon activities in Main Auditorium.
Tentative program:
9.45 – 1.00 pm: Initial Round
1.00 – 2.00 pm: Lunch
2.00 – 3.15 pm: Semi-final Round
3.30 – 4.30 pm: Final Round
4.30 – 5.00 pm: Closing and Presentation of Prizes

CIPIT is confident that there will be a good turnout for the WIP Day events, including media coverage, participation by Kenya’s two national IP offices, KIPI and KECOBO, as well as a visit from the Chief Justice of the Supreme Court of Kenya.

This blogger salutes CIPIT, IP Checkin, Kikao IP and the entire organizing committee and looks forward to a memorable WIP Day 2014.

Why Private Copying Law and Practice in Kenya is Unconstitutional

50 bob movies by wamathai dot com

Private copying can be defined as the act of making any copy for non-commercial purposes by a natural person for his/her own use. Kenya’s Copyright Act defines it as the making of a single copy for the personal and private use of the person making the copy. Although the right of reproduction under copyright law is exclusive, Kenya is among many jurisdictions worldwide that limit the application of the reproduction right to activities that can be qualified as private copying, the reasoning being that it is practically impossible to grant permission to large numbers of individuals, or to monitor the use consequently made of it. It follows that private copying is allowed under the condition that a fair compensation is paid to the authors and other rights holders for loss of revenues or harm caused to the rights holder whose work had been copied. Private copying levy (or the audio blank tape levy as it known in Kenya) is currently the only efficient mechanism which allows creators to be compensated for widespread copying of their works for private/domestic use. It therefore follows that the blank tape levy would be applicable to blank CDs, tapes, cassettes, DVDs, VCDs, USB Disks, MiniDiscs, Memory Cards, Mobile Phones among others. It is yet to be operationalised in Kenya despite being provided for under section 28(3),(4),(5) and (6) of the Copyright Act.

In December 2013, this blogger discussed here that one of the proposed amendments to the Statute Law (Miscellaneous Amendments) Bill, 2013 related to the provisions of audio blank tape levying provided under Section 28(5) of the Copyright Act. The effect of this proposed amendment was that the blank tape levy be collected by KECOBO and then distributed to the registered CMO representing the owners of sound recordings, currently known as the Kenya Association of Music Producers (KAMP). However, this blogger argues that this section 28 (in both its current and proposed form) is unconstitutional and ought to be fundamentally amended so as to address the economic rights of all rights holders.

The WIPO International Survey on Private Copying Law and Practice 2012 explains that where private copying remunerations are gathered by collective management organisations (CMOs), these societies are appointed by the government or by rights holders. According to the Survey, these CMOs must be representative of each variety of rights holders namely the authors, performing artists and producers. In some jurisdictions, a distinct CMO exists dealing solely with private copying levy and the board of such a CMO is comprised of the various rights holders’ representatives.

From all the 30 countries selected for the Survey, it is clear that there are two main categories of rights holders who benefit from the royalties collected for private copying: copyright holders and the related rights holders. The copyright holders appear to take the lion’s share of the collections with countries like Switzerland and Canada recording an authors’ share of 58%. All in all, the share for copyright holders appears never to be less than 30%.

Meanwhile, back in Kenya, the related rights CMO representing sound producers (KAMP) has recently published a public notice on it’s official website which reads in part:-

“The Kenya Association of Music Producers and Performers Rights Society of Kenya Stakeholders Meeting on Blank Media Levy concluded by setting an unopposed tariff of 6% of import price at the point of sale on the aforementioned equipment. KAMP and PRISK by virtue of Sections 28 (5) and 30 (8) will commence collections May of 2014.”

According to section 28(4) of the Act, the royalty payable for private copying can only be set in one of two ways: through agreement with stakeholders or by the (non-existent) competent authority. The question which therefore must be asked is which one of the two ways was used and what was the rationale behind the percentage figure of 6% purportedly agreed upon pursuant to the Act.

Assuming that the conditions of section 28(4) of the Act have been met, it would follow that the audio blank tape levy would only be applicable to KAMP and not PRiSK. This is because the section refers only to audio recording equipment and audio blank tape and not video. In addition, according to the WIPO Survey, the only jurisdiction with a tariff of 6% (of the import price) is Lithuania and this tariff covers both copyright and related rights holders, as illustrated in the table above.

However there is a fundamental question which remains unanswered, namely: is the current private copying levy provision under section 28 constitutional? The blogger argues that the answer must be no. In all the countries studied in the WIPO Survey above, copyright holders were allocated a substantial share of collections from the respective private copying levies. However, the Kenyan Act only refers to owners of sound recording. It is therefore possible to argue that section 28(3),(4),(5) and (6) are unconstitutional for two cardinal reasons, namely the discrimination of rights holders contrary to Article 27 of the Constitution and the deprivation of property contrary to Article 40 of the Constitution.