Parliament Set to Pass Important Amendments to the Kenya Copyright Act

The Statute Law (Miscellaneous Amendments) Bill, 2012 published in Kenya Gazette Supplement No. 34 (Bill No. 17) is on the way to becoming law.

A full copy is available here.

This Act of Parliament purports to make minor amendments to statute law, as and when necessary for the proper functioning of various creatures of statute.

With the passing of this Act, four sections of the Copyright Act were amended, namely sections 15, 30, 36 and 42.

Section 15:

This entire section has now been deleted from the Copyright Act.

This section dealt with the liability of the Kenya Copyright Board (KECOBO) for damages. More specifically, the section provided that although individuals working for KECOBO are protected from personal liability, KECOBO itself could be liable to pay compensation or damages to any person for any injury to him, his property or any of his interests caused by the exercise of the powers conferred on KECOBO by the Copyright Act or by any other written law.

This blogger views this amendment by deletion as a way of reducing the number of suits filed against KECOBO especially by premises owners who object to the manner in which enforcement raids, seizures and arrests are carried out by Copyright Inspectors. However this does not bar any person from relying directly on the Constitution in particular, Article 28 (Human dignity), Article 29 (Freedom and security of the person), Article 21 (Privacy) and Article 40 (Protection of the right to property).

Section 30:

This section has been extensively transformed through deletion of certain provisions and addition of new provisions.

Section 30 deals with performers rights. In a previous post, we discussed the proposed amendments to this section and attached a copy of the provisions that were being proposed by the Performers’ Rights Society and KECOBO, particularly the provision on equitable remuneration.

Section 36:

This section has been fundamentally amended.

Section 36 deals with authentication of copyright works. Last year, in a piece titled: “Revenue Service and Copyright Office: Strange bedfellows?”, IPKenya explains why some of the provisions of Section 36 have been the proverbial thorn in the side of KECOBO. Indeed this section alone has been the subject of numerous court battles between KECOBO and users of copyright works.

The contention has been that KECOBO is not empowered by statute to sell authentication devices to rights holders since the Act provides that this function should be performed by the Kenya Revenue Authority (KRA).

In this regard, Section 36(1) now states that the authentication device to be affixed on copyright works is that which is prescribed by KECOBO i.e. the Anti-piracy security device (APSD). To remove all doubt, S36 has been amended by deleting the words: Kenya Revenue Authority.

Another important amendment is that s36 now places an onus on an applicant for authentication device to prove authorisation by the copyright owner to manufacture, reproduce, sell, import, rent or otherwise distribute the work.

An additional problem KECOBO has encountered with section 36 was the complaint that s36(6) creates a strict liability offence whereby any person who sells or offers for sale any copyright work that requires an APSD without an APSD affixed thereto is guilty of an offence.
The amendment addresses this concern by adding the word: “knowingly” thereby introducing the requirement of mens rea (guilty mind) to the actus reus (guilty act) as ingredients of criminal liability.

Two further amendments must be noted in connection to section 36:

1. A new rebuttal presumption is created. Any work requiring an APSD that is sold or offered for sale without an APSD is presumed to be an infringing copy.

2. New offences are created in relation to unauthorised reproduction of the APSD.

Section 42:

The wording of this section has been narrowed down.

This section deals with the powers of arrest of police officers under the Copyright Act.

 

All in all, This blogger is of the view that it is unfortunate that Kenya’s legislative amendment process is so lengthy that state organs are forced to use Miscellaneous Amendments to amend substantial provisions of their empowering statutes. In the case of the Copyright Act, there are several other sections that are in need of amendment including, but not limited to, the provisions on composition of the Board of Directors of KECOBO, the “fair dealing” provisions, “Competent Authority” jurisdiction, “folklore” definition and protection etc..

Advertisements

Performers’ Rights: Positive Amendments to the Kenya Copyright Act

The Business Daily reports that the Attorney General has proposed amendments to the Kenya Copyright Act 2001 (No 12 of 2001) by inserting a new clause (30A) which now gives performers the right to claim and equitably share remuneration for sound recordings and visual works among themselves.

In a quote reported from the Kenya Gazette Supplement, AG Muigai explains that

“If a sound recording is published for commercial purposes or a reproduction of such recording is used directly for broadcast or other communication to the public performed, a single equitable remuneration for the performer and the producer of the sound recording shall be paid by the user through their respective collecting management organisation,”

Angela Ndambuki, the GM of Performers Rights Society of Kenya (PRSK) is reported to be in support of the new amendment and said as follows:

“(The new law will) put Kenya at par with international best practice and introduce this right which I would say is an advantage to all users of music as they can now play what they want to play without any restrictions as before (…) The equitable remuneration right is actually not about KAMP and the performers society but about the producers and performers as a whole.”

A full copy of the proposed amendments to Section 30 of the Copyright Act is available here.

Comment:

IPKenya believes that this is indeed a positive amendment to the Copyright Act because it finally provides that a performer of a sound recording or a visual recording is entitled to an equitable remuneration for the use of sound recordings or visual recordings. The importance of enshrining these rights to remuneration for performers cannot be overstated. The rights to remuneration which by law are shared between different categories of right holders are not transferable, contrary to the exclusive right which is continuously under pressure from the performers’ interlocutors (producers and broadcasters who want to obtain the transfer of the performers’ rights to their benefit).

Independently from what has been agreed between a performer and producer, the share between both (and also of the author in the case of private copying) must be done as legally provided and can not be contractually modified. This is a very important advantage of the rights to remuneration over exclusive rights.

As IPKenya has previously reported, the collecting societies for performers and producers of sound recordings, PRSK and KAMP respectively, have entered into a partnership whereby annual license fees for royalty payments are collected jointly. Therefore this proposed amendment is timely and provides much needed clarity in copyright and related rights administration in the country.