World Intellectual Property Day 2015: “Get up, stand up. For Music.”

world intellectual property day 2015 poster get up stand up for music worldipday

“When Bob Marley and the Wailers laid down the opening track on Burnin’ in a Kingston recording studio some four decades ago, they likely had little idea how far their simple, straightforward tune would resonate, becoming an enduring international anthem for human rights.

Such is the power of music.” – WIPO, 2015.

The theme for World Intellectual Property (IP) Day 2015 is out: “Get up, stand up. For music”. In its press release, the World Intellectual Property Organization (WIPO) describes music as the “most universal of creative expressions” which “transcends borders and connects with some primal beat within all of us”. Through this theme, WIPO also appears to be paying tribute to the “inspiration and hard work of thousands of creative people around the world – singers and songwriters; musicians and publishers; producers, arrangers, engineers and many others” who are responsible for the music that we enjoy today.

This year’s World IP Day theme invites us all to explore some of the changes shaping the music industry today, and interact with those intimately involved in the business of making music about how they see the future. In this regard, WIPO asks:

“What is the future of our relationship with music? How will it be created and disseminated? How will we listen to it? And how will we ensure that all those involved in bringing us this universal pleasure can make a living from their craft?”

This blogger wishes everyone all the best as preparations to celebrate and reflect on this year’s #worldipday theme begin.

In the African context, this blogger highlighted Kenya’s successful 2014 World IP Day activities here and hopes that this year will be equally memorable.

The Copyright (Amendment) Act 2014: The Good, the Bad and the Ugly

parliament of kenya by diasporadical

This blogger has received official confirmation that the Statute Law (Miscellaneous Amendments) Bill, 2014 passed by the National Assembly on 13/08/2014, was assented to by the President of the Republic on 28/11/2014 thereby bringing the Copyright (Amendment) Act 2014 into force. The Bill has effectively amended four sections of the Copyright Act, namely sections 22, 28, 33 and 46. A copy of the Bill is available here.

The Bill’s Memorandum of Objects and Reasons explains that the Copyright Act has been amended to “empower the competent authority to grant a compulsory licence for the publication or republication or broadcasting of works which are subject to copyright where it considers that the right holder withholds consent unreasonably. It [The Bill] also restricts the imposition of a tariff or levying of royalties unless approved by the Cabinet Secretary.”

It is recalled that four other sections in the Copyright Act were amended in 2012 in the exact same manner. Please see this blogger’s comments on the 2012 amendments here. What follows are this blogger’s thoughts on the 2014 amendments to the Act:

Section 22(5)

This is an amendment by insertion. The new subsection inserted relates to the principle of automatic protection under the Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971). Article 5(2) of the Berne Convention reads:

“The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.”

This blogger reckons that this amendment is aimed at counteracting the effects of section 36 of the Act which requires authentication of copyright works.

Section 28(5)

The amendment to Section 28(5) states that the blank tape levy shall be collected by KECOBO and then distributed to “the respective copyright collecting society registered under section 46”. This wording is problematic since no CMO has been registered to administer audio blank tape compensation from the private copying of musical works and sound recordings.

Currently section 28(3) as read with section 30(6) of the Act provide that that owner of the sound recording and the owner of a related right in the fixation of a performance shall have the right to receive fair compensation consisting of a royalty levied on audio recording equipment or audio blank tape suitable for record and other media intended for recording, payable at the point of first sale in Kenya by the manufacturer or importer of such equipment or media.

Section 28(4) as read with section 30(7) further provides that the royalty payable under the above subsection (3) shall be agreed between organisations representative of producers of sound recordings, performers, manufacturers and importers of audio recording equipment, audio blank tape and media intended for recording or failing such agreement by the competent authority appointed under section 48.
From the aforegoing, it is clear that the copyright owners of musical works have been systematically side-lined from receiving any compensation from the collection of audio blank tape levies within the Republic of Kenya.

With reference to international best practices, it is clear that Kenya’s current legislative provisions on private copy levying are not only illegal but more importantly unconstitutional. This line of argument has been explored by this blogger here.

Finally, this blogger wonders whether the reference to “the respective copyright collecting society registered under section 46” in the amendment creates an opportunity for establishing a Collective Agency for blank tape levy administration. In other jurisdictions, such Agencies do exist and are made up of all CMOs that represent concerned rights holders.

Section 33A

This is an amendment by insertion. The new section inserted officially introduces compulsory licensing in Kenyan copyright law. However this blogger has argued previously that section 30A in the 2012 Amendments was the Government’s successful move to unofficially introduce a compulsory licensing regime under the guise of the right to equitable remuneration.

Compulsory license is the term generally applied to a statutorily license to do an act covered by an exclusive right, without the prior authority of the right owner. This concept of compulsory licensing in copyright is derived from patent law, where the owner is forced to face the competition in market, similarly in copyright law; the copyright holder is subjected to equitable remuneration. One of the main reasons for introducing non-voluntary licenses is where the users of certain works have access to these works on terms which are known in advance and it is not practicable for them to locate right owners and obtain an individual license from them.

Article 9(2) of the Berne Convention provides the legal basis for compulsory licensing in copyright law. The Article reads:

“It shall be a matter for legislation in the countries of the union to permit the reproduction of such works in special cases, provided that such reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”

This provision provides the Convention’s exclusive basis for compulsory licensing and provides for the conditions which should be met before a member country can entirely excuse a use which includes compulsory licensing and not prejudicing the reasonable interests of the author. Therefore this Article provides the so-called three (3) step test for compulsory licensing, namely exceptional circumstances, no conflict with the normal exploitation of the work and no unreasonable prejudice to legitimate interests of the author.

Article 11 bis (2) provides that:-

“It shall be a matter for legislation in the country of the Union to determine the conditions under which the rights mentioned in the preceding paragraph [11 bis (1)] may be exercised but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral rights of the author, nor to is right to obtain equitable remuneration which in the absence of agreement, shall be fixed by competent authority.”

The amendment to section 33 emphasises the regulatory role of the Competent Authority (aka Copyright Tribunal) in compulsory licensing. This role is common in other common law jurisdictions such as the UK, US, Australia and India.

As this blogger has previously noted here, the reality in Kenya is that the Competent Authority provided under section 48 of the Act remains non-existent over a decade since the establishment of the Kenya Copyright Board (KECOBO). This situation is problematic as there are no mechanisms in place to monitor the practical implementation of the compulsory licences under section 30A and the proposed section 33A.

Section 46A

This is an amendment by insertion. The newly introduced section 46A creates an approval system for all tariffs set by CMOs to license copyright users. This new section prohibits any registered CMOs from imposing or collecting royalty based on tariffs that have not been approved and published in the Government Gazette from time to time by “the Cabinet Secretary in charge of copyright issues”. In addition, the new section empowers “the Cabinet Secretary” to exempt users of copyright works from paying royalties by notice in the Gazette.

A preliminary issue that may require clarification is whether the Attorney General can be deemed to be “the Cabinet Secretary” for purposes of the Act? The Act defines “Minister” as “the Minister for the time being responsible for matters relating to copyright and related rights”. In the previous dispensation, the Attorney General (who was an ex-officio member of the Cabinet) assumed the role as “Minister” since KECOBO was under the Office of the Attorney-General. It is submitted that there is an established practice in Kenya whereby the Attorney General exercised the powers and performed the functions conferred on the “Minister” such as appointment of the Competent Authority and making Regulations for the better carrying out of the provisions of the Act.

However this issue is now settled under the Statute Law (Miscellaneous Amendments) Act, 2014 which has amended the definition of “Minister” under the Interpretation and General Provisions Act (Cap 2 Laws of Kenya) making specific reference to the Attorney General. The relevant portion of the amendment has been reproduced below:

Statute Law Miscelleneous Amendments Act 2014 Kenya

Nevertheless, this blogger maintains that the section 46A amendment may serve to further frustrate the relationship between CMOs and users of copyright. Over the years, this relationship has been severely strained due to the absence of the Competent Authority – a body which is authorised under the Act to deal with all issues relating to the licensing terms and conditions imposed on users by CMOs. The powers given to the Attorney General to approve tariffs and to exempt users from paying royalties may also prove problematic for CMOs.

Regrettably, this blogger notes that KECOBO and the Office of the Attorney General did not formally invite for public comments and/or conduct stakeholder consultations before causing these amendments to the Copyright Act to be passed by the Legislature and the Executive.

In the next blogpost, this blogger will discuss another set of IP law-related amendments with respect to the Kenya Anti-Counterfeit Act as contained in the Statute Law Miscellaneous Amendments Bill, 2014.

Proposed Intellectual Property Law Amendments: Kenya Copyright Act

Parliament of Kenya

Recently, the Statute Law (Miscellaneous Amendments) Bill, 2013 was published in Kenya Gazette Supplement No. 146 (Bills No. 32). The Bill seeks to amend four sections of the Copyright Act, namely sections 22, 28, 33 and 46. A copy of this Bill is available here (See pages 933-936).

It is recalled that four other sections in the Copyright Act were amended in 2012
in the exact same manner. Please see this blogger’s comments on the 2012 amendments here. What follows are this blogger’s thoughts on the proposed 2013 amendments to the Act

Read the rest of this article here.

Will An Affordable Authentication Device Encourage Copyright Registration in Kenya?

Today the Kenya Copyright Board (KECOBO) officially announced via twitter and on its website the much anticipated reduction of the price of the Anti-Piracy Security Device (APSD).

And so with effect from August 2011, Legal Notice No. 103 states that the APSD will now be sold by KECOBO at Kshs. 4.00.

The issue of the APSD price was raised during the Music Stakeholders’ Consultative Meeting organised by KECOBO in June 2011. KECOBO reported that it had carried out a study on Music Piracy in Kenya which revealed that the level of piracy was at a staggering 95%. This high rate of piracy is cited as the main reason the APSD was introduced pursuant to section 36 of the Copyright Act which deals with authentication.

The APSD is made up of two separate labels:

Firstly, there’s the Barcode (pictured above) which contains critical information of the registered copyright works.

Secondly, the Hologram sticker (pictured above) which contains a number of security features and is unique to each registered copyright holder

Close to two years later, three main issues have been raised by music users concerning the APSD:

1) The price of the APSD at Kshs. 10 was widely considered as expensive.

2) Whether they are plans to introduce a version of the APSD to deal with digital piracy of copyright works?

3) Whether the revenue from the APSD could be put in a consolidated fund to be used for artist’s welfare?

Although most music users were adamant that KECOBO should lower the price of the APSD to Kshs 2.00, the new price of Kshs 4.00 from the previous Kshs. 10, is indeed a sign of compromise on its part.

However with pricing issue 1) out of the way, KECOBO still has the issues raised under 2) and 3) to address.

In addition to these, KECOBO must work more towards instilling confidence in music users that the APSD actually plays a significant role in curbing piracy of their copyright works.

More fundamentally, issues have been raised with the requirement copyright registration itself. Under section 36 of the Copyright Act, registration is mandatory for any person intending to sell audio-visual works or sound recordings. Is this a violation of the Berne Convention? I’ll share my thoughts on that another day.

Copyright Registration Shows You Value Your Work

Although it is widely believed that no idea is original in and of itself, there are an infinite number of ways in which any single idea can be expressed and this fact may qualify to make each expression unique and original. For instance, the idea behind mobile money transfer in Kenya may well have been implemented differently had it been originally disclosed to a banking institution or a computer company instead of a mobile service provider. Therefore copyright protects that unique expression of any idea provided it has been translated into some tangible and material form.

Recently, in a case reported in the Kenya Law Reports on the 25th March involving a University of Nairobi student who plagiarized the postgraduate thesis of a Maseno University student, the High Court made it clear that the thesis was a work protected under copyright law. Accordingly, plagiarism of such work is copyright infringement and the court therefore restrained the University of Nairobi from including the student’s name in its list of graduands last year. Such cases clearly demonstrate the seriousness with which issues related to copyright are taken in the country.

The Kenya Copyright Board being the government agency mandated with the administration and enforcement of Copyright and related rights, encourages all owners of copyright works to register the same with the Board especially for those that intend to sell their work to the public such as producers and manufacturers of music and audio-visual works.

Although the Berne Convention, which Kenya has ratified, states that copyright may not be bound by any formalities, Kenya encourages its right holders to register their work because it is the only way the public can distinguish between genuine copyright works and pirated copies of the same. Once your register your copyright work, you as the legitimate copyright owner must apply for the Board’s authentication mark which consists of a bar-code sticker and a hologram. This authentication mark is to be placed on all copies of your work that are distributed for sale.

The advantages of registration can be broadly expressed in two ways. First and foremost, registration is prima facie evidence of the subsistence of copyright especially in today’s digital age. This gives the copyright owner an initial advantage in litigation when establishing ownership of the original work as distinguished from the infringing or pirated copy of the copyright work. Secondly, registration is useful for both the copyright owners and the State for the following reasons.
Firstly, it facilitates negotiations in respect of the copyright work since it puts the world on notice of the copyright owner’s identity and claim to copyright. Secondly, the data collected from copyright owners and their works helps the State, through the Kenya Copyright Board, to build and maintain a comprehensive database of authentic copyright works existing in Kenya. Thirdly, registration serves a signaling function in that although registration is simple and inexpensive and the Board denies very few registration applications, the fact that the copyright owner takes even the minimal pains necessary to register his or her work suggests that the owner believes that the work has some economic value in excess of the minor expenses.