Question: What do the proposed amendments to the Copyright Act in 2017 and 2018 both have in common? Here’s a hint, it has to do with Kenya Copyright Board (KECOBO). In 2017, the Copyright Amendment Bill proposed changes to the functions of the Board, composition of the Board and qualifications of the Executive Director whereas the recently tabled 2018 Bill proposes specific changes to KECOBO Board Membership. Arising from these two sets of proposals less than a year apart, there appears to be a growing call for the repeal or overhaul of the Copyright Act with specific concerns being raised about KECOBO’s Board structure, functions and role within the copyright and related rights system.
The caption image of this blogpost is taken from KECOBO’s recent public communications material available widely on social media. This imagery of KECOBO as a mean-faced superhero-looking figure booting out a ‘con artist’ from a room full of authors creating literary, artistic and musical works is problematic for at least three reasons. Firstly, it entrenches the troubling notion that KECOBO and the copyright system as a whole is purely author-centric thus excluding other important stakeholders like users and the society at large on the sole basis that they may be ‘con artists’. Secondly, it creates the worrying perception that KECOBO is primarily a copyright enforcement agency dedicated to fighting ‘piracy’ at all costs. Thirdly and most fundamentally, it raises questions about the real justifications of having a copyright system in Kenya and whether KECOBO’s justification as depicted in the above imagery is in line with wider societal views and objectives.
But we digress.
In recent times, there have been concerns raised from different quarters about KECOBO’s apex decision-making body, its Board of Directors. These concerns may be categorised into three broad headings as per the Act: functions of the Board, composition of the Board and qualifications of the Executive Director. We shall consider each of these in turn.
The 2017 Bill proposes to amend sections 5 and 11 on the functions of the Board and qualifications of the Executive Director. On section 5, the proposed introduction of a new mandate to ‘licence all dealers of copyright works’ is problematic since the nature and scope of this regulatory power is not clearly set or defined anywhere in the Act. Under section 11 of the Act, the Bill proposes amendments to the qualifications for the Executive Director to the effect that the latter office holder must have a “Master of Laws degree in the field of intellectual property”. This may discourage other competent copyright professionals with other non-law academic qualifications from seeking appointment to the office of Executive Director.
The most controversial issues has been the composition of the Board. On this score, there are two main issues. The first issue has been the apparently bloated list of over 20 Board Director slots at KECOBO. The second issue has to do with the representation of key stakeholders on the Board and the rules governing Board Members.
The 2018 Bill contains proposed amendments to the Act aimed specifically at these two issues. As discussed here, it is proposed to reduce the number of Board Directors from 21 to 9 members. In this regard, it is proposed that the Chairperson of KECOBO be appointed by the President as opposed to the Cabinet Secretary. Further, it is proposed that the Cabinet Secretary appoints ‘three persons each nominated by associations recognised by the Government as representing stakeholders in music, film and publishing respectively.’
These proposals along with those in 2017 have been criticised by representatives from the creative economy as well as libraries and information services. Reacting to these proposed amendments, here is what Prof. Otike at Moi University stated in his submissions to Parliament:
‘Copyright [in Kenya] is still considered the absolute right of the rights holders. Only three stakeholders exist in the country: (a) the rights or copyright owners; (b) the copyright lawyers and (c) senior civil servants. Both information users and librarians are not recognised as important components of a copyright industry. They are excluded from high level decision making process. This is a major anomaly.’
In addition to libraries and information user groups, Otike proposes that the Board should also include a member from an association for visually impaired persons. In this regard, Otike notes as follows:
‘Since Kenya has ratified the Marrakesh Treaty and is about to domesticate the treaty in its legislation, it would be important to have their interests represented on the Board. Secondly, blind people have unique information requirements that can not be catered for by other people. Thirdly, they are the people who are seriously affected by the existing copyright law.’
In this regard, the Creative Economy Working Group in its submissions to Parliament on the proposed amendments warns against ‘hard-wiring named external organisations into the body of the Act.’ The Working Group was equally concerned about the adherence of KECOBO to Mwongozo which is the Code of Governance for State Corporations in Kenya, particularly with regard to the size of the Board, mode of appointment, code of conduct and terms of service for Board Members.
The most important issue raised thus far in support of an overhaul of the Copyright Act has been the lack of a philosophical underpinning for the copyright system in Kenya. As discussed above, this issue is equally relevant when considering the nature and role of KECOBO. In this regard, it is noted that Kenya does not have a national Intellectual Property (IP) policy which would set out the rationale/basis for the promotion and protection of creativity, striking an appropriate balance between IP and the public interest, among other things. Such a policy would also serve as a guide for copyright law principles, development and reform.