This week, Kenya Copyright Board (KECOBO) has published a set of draft amendments on collective management organisations (CMOs) available here. KECOBO has requested the public to give comments on these ISP provisions through the email account: firstname.lastname@example.org. In this regard, KECOBO has confirmed that it shall convene a consultative public forum on February 11th 2016 at the Auditorium of NHIF Building starting at 8:00am. This blogpost is a commentary of the key features of the draft CMO provisions from KECOBO.
With regard to the private copying levy, the draft proposes to amend sections 28(5) and 30(8) by empowering KECOBO to designate a single CMO that will collect the “audio blank tape” levy and distribute it to “collecting societies in the music sector”. Perhaps these amendments and ancillary purposes to be set out under forthcoming Copyright Regulations will lead to the establishment of a private copying CMO notwithstanding the looming dispute on the percentage splits between the various music CMOs.
With regard to licensing and supervision of CMOs, the draft proposes several amendments to sections 46(7), 46(3), 46(8), 46(9), 48(1) and 48(2).
The draft proposes to amend section 46(7) by stating that any person who purports to collect royalties from users under the Act without authority of KECOBO commits an offence and shall be liable to a fine not exceeding Kenya shillings Five hundred thousand, or to imprisonment to a term not exceeding four years, or both.
The proposed amendment to section 46(3) puts into law a questionable practice by KECOBO whereby it would issue a “provisional license” to a CMO, usually in the form of letter with certain terms and conditions. It is important to note that the term “certain administrative shortfalls” is not clear yet it is a ground for KECOBO to issue the four month provisional license.
The draft proposes to include several due process measures to section 46(9) on deregistration of a CMO. KECOBO would be required to send the concerned CMO a notice to show cause why the latter should not be deregistered. The CMO will have 21 days to respond to KECOBO’s notice. The draft does not permit the CMO to make oral representations. The draft is not clear on the decision-making process at KECOBO once the CMO submits its written representations. The draft does not seem to consider the role of the CMO membership in the deregistration process.
With regard to supervision of CMOs, the proposed section 46(8) imposes additional obligations on CMOs vis-a-vis KECOBO such as submitting periodic reports to be submitted to it on any matter touching on members’ interest including accounts and minutes of all committee and full Board meetings. KECOBO is also empowered to cause a special audit to be undertaken by audit firms appointed by KECOBO and paid for from the accounts of the CMO. Finally, KECOBO is allowed to have a representative of its Board attend Board meetings of a CMO from time to time to advise where matters affecting member’s interests are being discussed.
Finally, the draft proposes to expand the jurisdictional mandate of the Copyright Tribunal in two ways. Firstly, it is proposed that the Tribunal should have powers to hear and determine cases where a CMO has refused or neglected to pay due royalties to its member. Secondly, it is proposed that the Tribunal should handle infringement cases between rights holders.