Time to Rethink Kenya Copyright Board?

KECOBO MAN

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.

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CMOs Behaving Badly: Kenya Featured Alongside EU and US Copyright Collecting Societies

UKIPO-Copyright-Law-iplogium-1

The raison d’etre of  the collective administration or collective management system in copyright law is to bridge the gap between rights holders and users of copyright works. So, what happens when collecting societies, or as they are commonly called collective management organisations (CMOs), fail to carry out this core function and instead become poster children for corruption, mismanagement, lack of transparency, and abuse of power?

Back in 2013, Jonathan Band and Brandon Butler published an insightful article titled ‘Some Cautionary Tales About Collective Licensing’ which exposed the dark side of CMOs around the world. This blogger was pleased that some of our work in the context of CMOs in Kenya was featured in the article, specifically the on-going wrangles between Music Copyright Society of Kenya (MCSK) and literally everyone else including the copyright regulator, copyright owners, copyright users and even other Kenyan CMOs in the music industry.

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2018 Proposed Amendment to The Copyright Act

2018 Amendments to Copyright Act Kenya KECOBO Bill

The Statute Law (Miscellaneous Amendments) Bill, 2018 seeks to make various, wide-ranging amendments to existing intellectual property (IP) law-related statutes. The Bill contains proposed amendments to the following pieces of legislation: The Industrial Property Act, 2001 (No. 3 of 2001), The Copyright Act, 2001 (No. 12 of 2001), The Anti-Counterfeit Act, 2008 (No. 13 of 2008) and The Protection of Traditional Knowledge and Cultural Expressions Act, 2016 (No. 33 of 2016). The Memorandum of Objects and Reasons for the Bill is signed by Hon. Aden Duale, Leader of Majority in the National Assembly and it is dated 29 March 2018. This blogpost will focus on the changes proposed to The Copyright Act.

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Proposed Amendments to Intellectual Property Laws in Kenya

statute-law-miscellaneous-amendments-bill-no-2-of-2016-submission-memoranda

On 11th November, 2016, pursuant to Special Issue of Kenya Gazette Supplement No.185 (National Assembly Bills No. 45) the Attorney General published the Statute Law (Miscellaneous Amendments) (No. 2) Bill 2016. It is recalled that this Bill is intended to “make minor amendments which do not merit the publication of separate Bills and consolidating them into one Bill”. The Bill proposes to amend several intellectual property (IP) laws including Industrial Property Act, 2001 (No. 3 of 2001), Copyright Act, 2001 (No. 12 of 2001) and Anti-Counterfeit Act, 2008 (No. 13 of 2008).

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Blind Opposition to Caller Ringtone Deal between Safaricom and Collecting Societies: High Court Case of Irene Mutisya & Anor v. MCSK & Anor

Robert Collymore CEO Safaricom

This blogger has recently come across Nairobi High Court Civil Case No. 262 of 2015 Irene Mutisya & Anor v. Music Copyright Society of Kenya & Anor. In this case Mutisya and another copyright owner Masivo have filed suit against Music Copyright Society of Kenya (MCSK) and mobile network operator Safaricom Limited for copyright infringement. The copyright owners filed an urgent application on 30th July 2015 for a temporary injunction to restrain Safaricom from remitting license fees to MCSK pursuant to a recently concluded license agreement for caller ring-back tones (CRBT) made available through Safaricom’s Skiza platform. The copyright owners also asked the court to restrain both Safaricom and MCSK from implementing the CRBT License Agreement pending the hearing of the application.

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Legality of Equitable Remuneration Challenged: High Court Petition of Xpedia & 4 Ors v. Attorney General & 4 Ors

equitable remuneration

Editor’s Note: On 31st July 2015, the urgent application in this Petition No.317 of 2015 dated 29th July 2015 was heard and certain interim orders were granted. A copy of the orders is available here.

This blogger has confirmed a recent media report that two content service providers and three copyright owners have jointly filed a petition challenging the constitutionality of the right to equitable remuneration under the now infamous section 30A of the Copyright Act. The Petition was filed against the Attorney General, Kenya Copyright Board (KECOBO), Kenya Association of Music Producers (KAMP), Performers Rights Society of Kenya (PRiSK) and Music Copyright Society of Kenya (MCSK).

As stated above, the crux of the Petition filed by Xpedia Management Limited, Liberty Afrika Technologies Limited, Elijah Mira, Francis Jumba and Carolyne Ndiba is that KAMP, PRiSK and MCSK should be stopped by the court from receiving or collecting royalties under section 30A of the Copyright Act in respect of works owned or claimed by the Petitioners.

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