WIPO Releases Study on Copyright and the Audiovisual Sector in Africa: Recommendations for Kenya

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This month, WIPO has released a new report titled: “Study on Collective Negotiation of Rights and Collective Management of Rights in the Audiovisual Sector” prepared by one Tarja Koskinen-Olsson. This study will be presented at the Fourteenth Session of the World Intellectual Property Organization (WIPO) Committee on Development and Intellectual Property set to take place in Geneva from November 10 to 14, 2014. This study is part of the WIPO Development Agenda Project on “Strengthening and Development of the Audiovisual Sector in Burkina Faso and Certain African Countries”. As part of this project, WIPO and the Kenya Copyright Board (KECOBO) facilitated a training session held in Nairobi earlier this year (See details here).

This blogpost discusses the conclusions and recommendations from the study with a focus on the findings related to Kenya. In the Kenyan context, this blogposts discusses three necessary recommendations to strengthen the audio-visual sector, namely the establishment of a collective management organisation (CMO) for audio-visual works, copyright law reform and finally, the recurring twin issues of copyright enforcement and awareness.

The WIPO study concentrates on three target countries; Burkina Faso, Senegal and Kenya. Burkina and Senegal are both so called civil law countries with a “droit d’auteur” concept and tradition. While Kenya is a common law country with an Anglo-Saxon tradition. However, in all three target countries, the study notes that exclusive exploitation rights are in the hands of producers. In principle, the study suggests that this structure provides legal certainty and enables the producers to effectively seek financing for their productions and to market their works, both nationally and internationally.

In Kenya, the point of departure is the Copyright Act, which lists audiovisual works as one of the works eligible for copyright protection. The interpretation section of the Act provides that “author, in relation to audio-visual works, means the person by whom the arrangements for the making of the film were made”. Based on this provision, it appears that copyright would customarily be vested with the producer of the audio-visual work who would be deemed to be the author of the audiovisual work and thus enjoy the bundle of exclusive rights set out in Section 26 of the Act.

However the study notes that exploitation of copyright rights for financing of audiovisual works is limited and licensing of major users of audiovisual works does not take place as broadcasters and other major users can draw benefit from statutory licenses or fair dealing provisions included in the laws of the target countries. In the Kenyan context, the study highlights section 26(j) of the Act, a fair dealing provision that protects broadcasting organisations who use audiovisual works that are already published. This section provides that a rights holder does not control the broadcasting of a literary, musical or artistic work or audiovisual work already lawfully made accessible to the public with which no licensing body is concerned. Broadcasters thus have a possibility to show published audiovisual works freely, where there is no CMO functioning in the audiovisual industry. Therefore it is only when rights holders mandate a CMO to manage their broadcasting rights in their audio-visual works that broadcasters will need to ask for their permission, i.e. get a license from the CMO.

Currently there is no CMO in Kenya functions in the field of audiovisual works. However if a company limited by guarantee for the collective management of audiovisual rights would be set up, the number of rights holders it would potentially represent is a central issue. However from as early as 2011, KECOBO, the body that accredits and regulates CMOs, has expressed its willingness to set up a CMO “for the audio visual works which will collect for the rental and use of audio visual works such as films on behalf of the rights holders”, as quoted from Issue 2 of its Newsletter available here.

With regard to awareness creation, the study notes the lack of appreciation for the role that contracts can play in the relationship between creative collaborators and financing partners in audio-visual sector and how contractual rights could be enforced and exercised. Currently, the study notes that contracts are in many cases non-existent, which as such is a hurdle for the audiovisual industry to become more professional. In this regard, KECOBO has done its best to empower stakeholders: see Issue 6 of its Newsletter dedicated to protection of audio-visual performances available here.

In the area of law reform, Kenya has not ratified the WIPO Internet Treaties (WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT)) and as a result the study notes that “communication to the public/making available right is unclear under the current law” which constrains to full enjoyment of digital rights management. Therefore the study rightly recommends the granting of digital rights as provided under the WIPO Internet treaties (WCT and WPPT) as they would benefit stakeholders in the audiovisual industries and enable effective use of IP rights in the network environment.

Another area of law reform is the private copying levy which is contained in the Act but only deals with sound recordings. In this regard, this blogger has previously discussed here proposed amendments to the Copyright Act to include private copying remuneration for audiovisual works. The collection and distribution of private copying remuneration in Kenya is an interesting new area of collective copyright management, as this blogger has previously discussed here.

With regards to enforcement efforts, the study notes that piracy is undermining the DVD/VCD market, despite the implementation of copyright authentication through the anti-piracy security device. This notwithstanding, the study notes that the Kenyan audiovisual sector has started to realize the potential of global markets. Locally, Kenyan works have had little opportunities as national broadcasters have preferred popular foreign content. This scenario is likely to change with the setting up of the new Communications Authority of Kenya, whose mandate will include the enforcement of local content quotas for broadcasters in the country. Meanwhile, it is interesting to note that online consumption of films is progressively penetrating the Kenyan market as high-speed internet connections become more available, for instance, “Buni TV”, “MoMoviez” and others.