Kenya’s Protection of Traditional Knowledge and Cultural Expressions Act No. 33 of 2016 Comes into Force


On 31 August 2016, President Uhuru Kenyatta (pictured above) assented to the Protection of Traditional Knowledge and Cultural Expressions Bill, No.48 of 2015. The Bill was published in Kenya Gazette Supplement No. 154 on 7 September 2016 cited as the Protection of Traditional Knowledge and Cultural Expressions Act, No. 33 of 2016. The date of commencement of the Act is 21 September 2016, which means the Act is now in force. A copy of the Act is available here.

In previous blogposts here, we have tracked the development of this law aimed at creating an appropriate sui-generis mechanism for the protection of traditional knowledge (TK) and cultural expressions (CEs) which gives effect to Articles 11, 40 and 69(1) (c) of the Constitution. This blogpost provides an overview of the Act with special focus on the issues of concern raised previously with regard to the earlier Bill.

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High Court Judgment on Constitutionality of Equitable Remuneration Right and Copyright Collective Management

skiza safaricom caller ringback tone service copyright license collective management society


Previously we reported here that two content service providers and three individual copyright owners had filed a constitutional petition at the High Court challenging the content of the equitable remuneration right in section 30A of the Copyright Act, the application and implementation of section 30A by the collective management organisations (CMOs) and the manner of licensing and supervision of the CMOs by Kenya Copyright Board (KECOBO).

Recently in the case of Petition No. 317 of 2015 Xpedia Management Limited & 4 Ors v. The Attorney General & 4 Ors Lady Justice Mumbi Ngugi (known to many readers for her landmark decision on anti-counterfeit law and access to medicines here) delivered a judgment at the High Court dismissing claims by content service providers and the copyright owners that the contents and implementation of section 30A are unconstitutional.

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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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#PharmaGate: South Africa’s Push for Patent Law Reforms Exposes Both Government and Drug Companies

The Mail and Guardian (M&G) newspaper in South Africa published a story titled: “Motsoaledi: Big pharma’s ‘satanic’ plot is genocide” where it is reported that Health minister Aaron Motsoaledi is livid about a pharmaceutical company campaign he says will restrict access to crucial drugs. This plan which was leaked to the press is now at the heart of the so-called #PharmaGate scandal which has received widespread condemnation.

All in all, this blogger submits that #PharmaGate exposes the South Africa government’s criticized track record with regard to implementation of existing laws relating to access to medicines. In addition, the Trade and Industry’s Ministry unsatisfactory drafting of the DNIPP is exposed once more. Therefore the Health Minister’s latest sensationalist remarks reported by the M&G appear to be intend to deflect attention from the above issues of poor implementation and drafting by the Executive branch. As for the drug companies, #PharmaGate only exposes the capitalist and pro-intellectual property (IP) ownership stance of Big Pharma, aptly captured in the critically acclaimed documentary, “Fire in The Blood”, whose trailer is featured above.

Read the full story here.

Amalgamation of Collecting Societies, Compulsory Licensing and the Role of the Copyright Tribunal

Currently, copyright and related rights licensing within the music industry generates approximately Kshs 308 million in total. From this total income, MCSK takes home over 80% with the remaining 20% shared between the related rights CMOs: KAMP and PRiSK. If you ask any of the CEOs of these three CMOs (pictured above), they will tell you that collecting just over a quarter million in license fees is barely scratching the surface of the millions of shillings in uncollected royalty payments. However, the singular challenge in collecting these missing millions has been the division among the three CMOs.

KECOBO, the government regulator of CMOs, has midwifed several failed attempts to structure a joint partnership between these three CMOs with the most notable attempt in April 2011 with the support of the Norwegian Copyright Development Association (NORCODE). The bone of contention appears to have been whether the three parties ought to be treated as equal partners in the joint revenue collection venture. At the time, this blogger was an observer and recalls that MCSK seemed particularly opposed to the idea of “a partnership among equals” for several valid reasons.

Out of this failed attempt, the seed of partnership appeared to have been sown between the related rights CMOs – KAMP and PRiSK. In July 2011, the Boards of KAMP and PRiSK agreed to start a joint collection exercise for revenue from Communication to the Public Stream of Revenue on a commission basis. Two years, KAMP and PRiSK are now carrying out joint royalty collections countrywide. The two CMOs are also sharing offices and other resources including staff which has drastically reduced their operation costs allowing them to have more income for royalty distribution to their respective members.
The related rights CMOs also appear to have been the biggest beneficiaries of the 2012 amendments to the Copyright Act which introduced the right to equitable remuneration under section 30A.

Section 30A introduces compulsory licensing into Kenya’s copyright law. This section requires that all users must pay producers (through KAMP) and performers (through PRiSK) where a sound recording or its reproduction is published or used in broadcasting, communication to the public or public performance. Furthermore, the user is required to pay performers (through PRiSK) where a fixation of a performance or its reproduction is published or or used in broadcasting, communication to the public or public performance.

It is for this very reason that this blogger has been particularly harsh on KECOBO for not ensuring that the Copyright Tribunal is up and running. This Copyright Tribunal is vested with powers under the Copyright Act to hear and determine matters brought by users relating to CMO tariffs and other license conditions. In the meantime, the average user of music in Kenya must contend with two sets of royalty invoices, one from MCSK and another KAMP and PRiSK. This prevailing situation has resulted in increased hostility and resistance from users who feel overburdened and thus refuse to pay license fees all together.

In addition to pushing for the setting up of the Copyright Tribunal, this blogger submits that KECOBO should actively encourage the amalgamation of the collecting societies operating within the music industry for the sake of the overburden users of music in Kenya. One viable option for KECOBO would be to amend the Copyright Act to allow for the voluntary amalgamation of two or more registered CMOs. Such an amendment would allow for several CMOs to form one single CMO while remaining registered companies limited by guarantee. This proposal is inspired by section 71 of Uganda’s Copyright and Neighbouring Rights Act of 2006 which reads as follows:-

71. Voluntary amalgamation of societies

(1) Any two or more registered societies may, with the prior approval of the Registrar, amalgamate into a single society.

(2) An amalgamation referred to in subsection (1) shall not take place unless—
(a) a general meeting of each of the societies has been called;
(b) each member of the society has had a clear notice of fifteen days of the meeting; and
(c) a preliminary resolution has been passed by a two-thirds majority of the members present at the meeting for the amalgamation.

(3) An amalgamation of registered societies into one society under this section may be effected without dissolution of the societies concerned or a division of the assets and liabilities of the amalgamated societies and a resolution of the society passed for the amalgamation shall be sufficient for the transfer of the assets and liabilities of the amalgamated societies to the new society.

This proposed amendment to Kenya’s Copyright Act would send a strong and clear message to the user that KECOBO supports the growing public sentiment against a multiplicity of registered CMOs levying fees for the same or similar works. Such a legal provision would also enable members to put pressure on their respective CMOs to amalgamate and create a one-stop shop for licensing of their rights and distribution of royalties.