To date, Kenya Copyright Board (KECOBO) has published two sets of draft proposals of amendments to the Copyright Act on collective management organisations (CMOs) available here and on intermediary liability for internet service providers available here. KECOBO has now published a third set of draft legislative proposals namely a draft copyright regulations 2016 available here. These three sets of draft proposals will be the subject of a day-long consultative public forum to be held next week on February 11th 2016 at the Auditorium of NHIF Building starting at 8:00am. For those who will not be able to attend the public forum, KECOBO has set up an email account to receive your comments on the drafts, which is: email@example.com. This blogpost is a commentary of the key features of the draft copyright regulations 2016 proposed by KECOBO.
With regard to administration, the draft formalises the current practice of offline copyright registration as well as the newly introduced online copyright registration. The draft provides that the Copyright Register may be in form of an online database or
physical register or both. Where an application for registration of copyright has been made through the online Registration portal, the draft states that KECOBO may issue an e-certificate to the Applicant and that the Certificate shall be validated by the application of the Seal of KECOBO.
With regard to assignment and licenses, the draft modifies the procedure for verification of assignment of copyright works from outside Kenya. The proposed procedure requires KECOBO to issue a certificate of verification upon successful application for verification with necessary supporting documents. Thereafter, the verified Assignment shall be entered in the Copyright Register upon payment of a Registration fee as set out in the Second Schedule. Interestingly, the draft provides that where there is no counterpart office charged with copyright registration, the Executive Director shall publish such application in the Kenya Copyright Board website inviting objections and such works shall be deemed as verified after three months of such publication.
With regard to inspection and enforcement, the draft requires that any written notification made pursuant to section 41(3) of the Act shall be in the form of an Inventory of Seized Goods. This Inventory must contain the date, physical address of seizure, number, type, brand and description of the items seized as far as practicable to include; in case of high quantities single items need not be described and may be listed as a block. The inventory shall be filled in triplicate and a copy issued to the accused person who may choose to sign or not. The inventory must be witnessed and signed by the person who prepares it.
With regard to the enforcement of section 38(2) of the Act, the draft requires that licensing officers of CMOs prepare an inventory of items used for public performance and thereafter issue summons to the management of a business which has failed to pay for a public license to appear before a Copyright Inspector to explain non-compliance. Such Copyright Inspector may record a statement from the person to whom summons have been issued and may bring him to a court of law to answer charges under the section. The draft makes it clear that the seizure of items of trade is prohibited in the absence of a Copyright Inspector.
A novel aspect of the draft regulation is the concept of renunciation of copyright. The draft provides that an author who wishes to renounce a Copyright work shall be required to copy such written renunciation to KECOBO Executive Director. KECOBO shall publish such renunciation in a manner to be determined for public information and keep a record thereof.
With regard to proceedings before the Competent Authority or Copyright Tribunal, the draft proposes that the Competent Authority should be administered by Secretary appointed by the Cabinet Secretary for the time in charge of Copyright matters and it shall operate under the direction of that Cabinet Secretary. The draft states that any application or appeal under the Act shall be in form of an Affidavit filed with the Authority setting out certain important information including: details of the parties involved, the decision appealed against, grounds on which appeal/application is based and the orders or reliefs sought.
With regard to registration and oversight of CMOs, the draft introduces three new documents to be submitted by new applicants namely a report of its operations during the year preceding the application, certified copies of deeds of assignment of rights by the members where applicable and a business plan showing financial infrastructural and Personnel capacity for collection and distribution of the royalties. For applications for renewal of registration, the draft states they must be made at least 3 months prior to the expiry of the subsisting license.
Interestingly, the draft attempts to address cases where there is no existing CMO registered for various reasons, such as deregistration by KECOBO. In this regard, the draft states that where no CMO exists in respect to certain category of rights, or the license for a CMO in the category has been revoked, KECOBO shall through a public notice in a newspaper with largest circulation invite applications. Where more than one organization has applied for the same class of works, the draft requires KECOBO to be guided by the provisions of the Act and evaluate each application separately.
The draft also introduces new considerations for renewal of CMO registration which in turn impose new obligations on CMOs. The draft requires that KECOBO must be satisfied that CMO has the capacity to collect and distribute the royalties and in addition, it
shall consider among others:-
(i) Whether there is demonstrated integrity, transparency and accountability in collection and distribution of the royalties.
(ii) Whether the CMO adheres to national values and principles of governance provided for under Article 10 of the Constitution of Kenya
(iii) Particulars of the directors and their antecedents
(iv) Whether membership is fully representative of the class that it collects and distributes royalties for.
(v) Whether the administrative costs are as a matter of policy minimal. In this regard, KECOBO will be guided by the international rules whereby the administrative costs do not exceed 30% if the royalties collected.
(vi) Whether the royalties are regularly and properly distributed using the popularly approved distribution rules.
(vii) The particulars of the senior management and the number of staff and their qualifications.
(viii) The systems put in place to ensure that the royalties are collected and properly distributed efficiently.
(x) Submission of quarterly reports before the 10th day of the next quarter.