Devil in the Details of Joint Collection of License Fees for Musical Works and Sound Recordings

KECOBO Public Notice on Renewal Registration License KAMP PRISK MCSK KOPIKEN February 2016 Collecting Society Kenya Copyright Board

Last week, the ever-busy Kenya Copyright Board (KECOBO) published a public notice stating that it had approved the renewals of registration as collecting societies for Music Copyright Society of Kenya (MCSK), Kenya Association of Music Producers (KAMP) and Performers Rights Society of Kenya (PRiSK) for the period January 1st to December 31st 2016. According to KECOBO, the collection by the three collecting societies in the area of music will be “jointly undertaken as per the work plan agreed by the three societies in the interest of cutting costs and reducing business disruption.” 

Further, KECOBO explains that: “Each [collecting] society shall be required to undertake certain reforms in the course of the first half of the year with a review scheduled for July 2016. KECOBO shall issue an advertisement in July [2016] inviting companies established for the purpose to express interest and bid to collect in 2017 to facilitate transitions if a new establishment is granted a license.” 

For KECOBO and the collecting societies this is no mean feat given the long journey thus far towards a single license regime for users of musical works and sound recordings in Kenya. However, KECOBO’s notice leaves out some crucial details which will ultimately determine whether this latest attempt at joint collection will succeed or fail.

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In Regulation We Trust: Kenya Copyright Board Proposes New Set of Administration and Enforcement Provisions

kenya copyright board kecobo

To date, Kenya Copyright Board (KECOBO) has published two sets of draft proposals of amendments to the Copyright Act on collective management organisations (CMOs) available here and on intermediary liability for internet service providers available here. KECOBO has now published a third set of draft legislative proposals namely a draft copyright regulations 2016 available here. These three sets of draft proposals will be the subject of a day-long consultative public forum to be held next week on February 11th 2016 at the Auditorium of NHIF Building starting at 8:00am. For those who will not be able to attend the public forum, KECOBO has set up an email account to receive your comments on the drafts, which is: publicforum@copyright.go.ke. This blogpost is a commentary of the key features of the draft copyright regulations 2016 proposed by KECOBO.

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Proposed Copyright Act Amendments on Liability of Internet Service Providers

kecobo kenya copyright board

In an earlier post here, this blogger discussed a set of draft amendments published by Kenya Copyright Board (KECOBO) for public comments on the subject of internet service providers (ISPs) and web blocking measures in cases of online copyright infringements in Kenya. Subsequently this blogger discussed here several comments submitted to KECOBO on the draft ISP provisions.

This week, KECOBO has published a revised set of draft amendments on ISP liability available here. KECOBO is once again requesting the public to give comments on these ISP provisions through the email account: publicforum@copyright.go.ke. In this regard, KECOBO has confirmed that it shall convene a consultative public forum on February 11th 2016 at the Auditorium of NHIF Building starting at 8:00am.

This blogpost is a commentary of the key changes in the revised draft ISP provisions from KECOBO.

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Kenya Copyright Board Suggests Guernsey Approach to Image Rights Protection

Kenya Copyright Board Publication Copyright News Issue 18 2015 Cover

The most recent edition of Kenya Copyright Board (KECOBO) newsletter (cover pictured above) focuses on photography and image rights. A copy of the full Issue 18 is available here.

In the lead article starting on page 4 by KECOBO Executive Director, a compelling case is made in favour of specific legal protection of image rights, particularly in the case of celebrities. The article uses the oft-cited case of Dennis Oliech v. EABL (previously discussed here) to illustrate the limitations of existing intellectual property (IP) regimes in cases of commercial appropriation of one’s personality and/or image.

The article reads in part as follows:

“The use of images and personality rights is gaining currency and there is need to ensure that the same is well regulated and third parties do not take undue advantage of the commercialisation of the same. Guernsey provides a good example and maybe we should follow suit.”

This view from the Copyright Office begs the question: will Kenya be better off with a specific law on image rights like Guernsey? This blogger argues that the answer must be “No”.

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Quick Recap from the 39th Session of ARIPO Administrative Council and 15th Session of ARIPO Council of Ministers in Lusaka, Zambia

ARIPO Kahinda Otafiire Chair Council of Ministers Margaret Mwanakatwe Nov 2015 Lusaka Zambia

Hon Kahinda Otafiire (outgoing Chair Council of Ministers) handing over to the Incoming Chair Council of Ministers Hon Margaret Mwanakatwe – Lusaka, Zambia November 2015

Readers may know that last week the 39th and the 15th Sessions of the Administrative Council and Council of Ministers of African Regional Intellectual Property Organization (ARIPO) respectively, took place in Lusaka, Zambia.

Zambia’s Minister of Commerce Margaret Mwanakatwe opened the 39th Session which saw Patents and Companies Registration Agency (PACRA) Chief Executive Officer Anthony Bwembya take over as Chairperson of the ARIPO Administrative Council.

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Jurisdiction is Everything: Time to Merge Tribunals for Copyright, Industrial Property, Seed and Plant Varieties

tribunal judiciary kenya cms-image-000005230

As readers may know, a government taskforce had earlier recommended the merger of the three intellectual property (IP) offices dealing with copyright, industrial property and anti-counterfeit matters. The implementation of these recommendations appears to have stalled with no progress made to-date. In addition to the IP offices, there is also the matter of the various IP dispute resolution bodies created under the various IP laws: the Industrial  Property  Act establishes the Industrial  Property  Tribunal, the Copyright Act establishes the Competent Authority (akin to a Copyright Tribunal), the Anti-Counterfeit Act  establishes the Anti-Counterfeit Agency and the Seeds and Plant Varieties Act establishes the Seeds and Plant Tribunal.

Recently, the Judiciary Working Committee on Transition and Restructuring of Tribunals developed a Draft Tribunal Bill 2015 to help domicile all tribunals under the Judiciary. This is an important step that could benefit IP owners and users in the quick and expert settlement of various IP-related disputes.

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Copyright Regulations Amended and Collecting Societies’ Tariffs Gazetted

KAMP PRISK

Most IP observers will concur that in the recent past the related rights collecting societies namely Kenya Association of Music Producers (KAMP) and Performers’ Rights Society of Kenya (PRiSK) have done exceedingly well for themselves in the area of legislative and policy reforms by leveraging on the goodwill from Kenya Copyright Board (KECOBO). As a result, KAMP and PRiSK have been the major beneficiaries of consecutive amendments to the Copyright Act and Copyright Regulations in 2012, 2014 and now 2015.

Recently, the Attorney General made Copyright Amendment Regulations which expressly deal with the private copying levy or blank tape levy payable to KAMP and PRiSK under sections 28 and 30 respectively of the Copyright Act. In addition, the Attorney General has also recently approved and gazetted the tariffs to be used by KAMP and PRiSK to collect royalties from various categories of users including broadcasters, telecommunications companies, service providers, business premises and vehicles both public as well as corporate.

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Proposed 2015 Intellectual Property Law Amendments: Kenya Copyright Act

nhif

Recently, the Statute Law (Miscellaneous Amendments) (No. 2) Bill, 2015 was published in Kenya Gazette Supplement No. 165 (Bills No. 58). The Bill seeks to one section of the Copyright Act, namely section 30(8). A copy of this Bill is available here (See pages 3229-3230). This proposed amendment inserts the following words at the end of the section: “and the compensation shall be collected by the Board and distributed to the respective copyright collecting society registered under section 46.”
According to the Memorandum of Objects and Reasons in the Bill, the proposed amendment to section 30(8) is intended to provide for structured compensation of performers and producers of sound recordings for private copying of works in line with international norms and practices.

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Government Invites Public Views on Liability of Online Intermediaries for Copyright Infringement

wapkid sauti sol

In recent media reports here and here, Kenya Copyright Board (KECOBO) reveals that it has proposed draft legal provisions to deal with the liability of internet/online intermediaries. KECOBO Chief Legal Counsel (CLC) has been kind enough to share with this blogger a copy of the proposed draft legal provisions available here. KECOBO CLC has also indicated to this blogger that there are plans underway to hold a public forum in the coming months to discuss the draft provisions and receive comments from the public.

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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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