Recap of WIPO African Sub-Regional Workshop on New Perspectives on Copyright

WIPO African Sub regional Workshop New perspectives on copyright organized by the World Intellectual Property Organization in cooperation with the African Regional Intellectual Property Organization Harare Zimbabwe July 2015

This week, African Regional Intellectual Property Organization (ARIPO) hosted the WIPO African Sub-regional Workshop on New Perspectives on Copyright organized by the World Intellectual Property Organization (WIPO) from 20 – 21 July 2015.

The Workshop drew Heads of Copyright Offices in the ARIPO Member States and some Observer States who took part in this crucial Workshop aimed at discussing the management of Copyright and Related Rights in the face of new challenges emanating from new digital technologies. Also in attendance were copyright officials from Jamaica and Trinidad and Tobago who shared their experiences with their African colleagues.

What follows is a summary of the presentations made by the various participants at the Workshop.

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

LupitaNyongoblue1Banner via afropunkdotcom

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.

The Lupita Factor as Kenya Prepares to Celebrate World Intellectual Property Day 2014

world ip day 2014 movies a global passion

The theme selected by the World Intellectual Property Organisation (WIPO) for this year’s World Intellectual Property (WIP) Day celebrations, “Movies – a Global Passion”, could not be a better fit for Kenya. From an intellectual property (IP) perspective, there appears to be a renewed focus on the audio-visual industry (television and film) in Kenya, culminating in the introduction of section 30A which introduced the right to equitable remuneration for use of audio-visual works (see my comments on section 30A here, here, here and here). More recently, Kenya successfully negotiated and signed the WIPO Beijing Treaty on Audiovisual Performances (See my comments on Kenya and the Beijing Treaty here).

lupita by thewiredotcom

Enter: Kenyan Actress Lupita Nyong’o. Earlier this week, Kenya joined the rest of the world in celebrating Lupita’s Oscar win for Best Actress in a Supporting Role. Lupita’s sterling performance as an abused servant in the movie “12 Years A Slave” undoubtedly put Kenya on the global stage and the 31 year old actress becomes the first Kenyan to win an Academy Award.

Read the full article here.

Kenya Welcomes Conclusion of WIPO Beijing Treaty for Audiovisual Performers

 

Yesterday, in a historic Diplomatic Conference held in the Chinese capital Beijing, member states of the World Intellectual Property Organisation (WIPO) adopted a new Treaty in the area of copyright and related rights.

As WIPO explains, this Beijing Treaty on Audiovisual Performances (BTAP) will strengthen the economic rights of film actors and other performers and could provide extra income from their work. It will potentially enable performers to share proceeds with producers for revenues generated internationally by audiovisual productions. It will also grant performers moral rights to prevent lack of attribution or distortion of their performances. Importantly, the new treaty will strengthen the precarious position of performers in the audiovisual industry by providing a clearer international legal framework for their protection. For the first time it will provide performers with protection in the digital environment. The treaty will also contribute to safeguarding the rights of performers against the unauthorized use of their performances in audiovisual media, such as television, film and video.

 

 

You will notice in the youtube clip above that Dr. Marisella Ouma, CEO of Kenya Copyright Board, who represented the Kenya delegation in Beijing, shares her thoughts on the conclusion of BTAP and states that:

“This diplomatic conference has been a major breakthrough for the copyright industries especially in relation to audio visual works. It is also a milestone in relation to WIPO in regard to its norm-setting activities considering that the last treaty was done 16 years ago. And it actually gives us hope in relation to the norm-setting activities more so in relation to issues such as broadcasting as well as the issues of exceptions and limitations and any other international issues that might arise in this multi-cultural and borderless society.”

 

The adopted text of Beijing Treaty on Audiovisual Performances in all official WIPO languages is available here.

 

Meanwhile, back in Nairobi, IPKenya caught up with Mrs. Angela Ndambuki, the General Manager of the Performers Rights Society of Kenya (PRISK) and sought her thoughts on the recently adopted Beijing Treaty.

This is what she had to say:

“The Beijing Treaty is welcomed with much anticipation and the Performers Rights Society of Kenya (PRISK) in particular is pleased to have the International protection for audiovisual performers. The treaty provides for both moral rights; rights to be identified as the performer and prevent distortion of the performance and economic rights such as broadcasting and communication to the public which PRISK is mandated to administer.

It is now more than ever that Kenya needs to step up in terms of having presence in the audiovisual international scene to be able to benefit from the protection. At the moment we find that Nigerian movies are mostly shown hence now Policies touching on Audiovisual works and local/ Kenyan content should be lobbied and enforced to include a reasonable minimum percentage to enable our local performers to benefit.

Meanwhile the amendment proposals to the Kenya Copyright Act are in line with the Beijing Treaty. The provision of equitable remuneration not only touches on use of sound recordings but also for audiovisual works. This is good news to actors and other performers taking part in audiovisual works as it means that now they can enjoy additional remuneration for the use of their fixed performances for a period of 50 years after publication of the works.

It is my understanding that Kenya intends to ratify the Beijing Treaty. We now wait for the assent of the amendments to the Copyright Act and put proper structures in place to administer these rights. PRISK is determined to ensure that there is proper administration of these rights. We shall work with the Kenya Copyright Board (KECOBO) to raise awareness on these rights and also with other stakeholders such as the Kenya Film Commission to ensure policies are in line with the minimum standards provided in the Treaty.”