Kenya Digital Reading Summit 2015: Digital Rights in Book Publishing – Revisiting Authors Agreements

print book versus electronic book a visual overview zoe sadokierski

“In Kenya, the publishing industry is estimated to be about 12 billion Kenyan shillings a year (US $150 million) but 95% of that comes from the sales of textbooks. The sales of trade books has not been growing that quickly, I am afraid, but we are trying to change that. And bookstore sales are down as well. But as a small publisher, we have to respond to the market.” – Publishing Perspectives Interview with David Waweru, CEO of WordAlive Publishers on January 11, 2013.

“Our publishers—a good number of who are plain dishonest and shady individuals—are obsessed with publishing for the school market. They fight tooth and nail to have their books accepted as approved school texts. That is not a good thing at all because incidents of bribery have been reported in the process, which ends up putting dubious books in students’ hands. Outside of this there hasn’t really been a vibrant market for fiction. As a result writers have been bending over backwards to produce work that can fit in this mould. This in my thinking, isn’t healthy. Writers, as social commentators and critics, need the space to think creatively without inhibition. Some authors try to break out of this straight-jacket by self-publishing, but usually they don’t go far. Soon they encounter the biggest pest in the business, the book pirate, who is vicious in Kenya and operates with impunity, earning from what he didn’t sow in—we suspect—collusion with the law enforcers.” – Africa39 Blog Interview with Kenyan author, Stanley Gazemba on August 11, 2014.

“I love reading much more than I love writing. I suspect if I did not like reading, I would not be a writer. The well-written books inspire me to be a better writer. The badly written books teach me how not to write. Kenyan publishers are, sadly, not doing much to ensure that other readers and I get more of the former and less of the latter. Their inability to respond to submissions timeously; poor editing; unfavourable contracts; and poor marketing are but some of the problems beleaguering the publishing industry.” – Daily Nation, January 10, 2015: “Problem with Kenyan publishers” by Zukiswa Wanner.

Editor’s Note: The Digital Reading Summit 2015 themed “Immerse Yourself in the Digital Era”, has been organised by the Kenya Publishers Association (KPA) and Worldreader and is scheduled to be held between 21-22 April 2015 at Pride Inn Hotel in Nairobi. The following day, April 23rd, is World Book and Copyright Day!

The business of publishing rests on a contract between creators (authors) and those who invest in bringing their work to market – publishers. In many jurisdictions (including Kenya) it is necessary that the contract adopt a written form and this is also the advisable way to proceed even where verbal agreements are valid. To avoid misunderstandings a written contract should always be issued at the conclusion of discussions and verbal agreement between the parties.

In the contract with the publisher the author licenses the rights of reproduction and distribution over a work, thus providing the publisher with the legal means necessary for publication. In Kenya, section 33(3) of the Copyright Act requires that any exclusive license between an author and a publisher must be in writing. An important Kenyan case in the area of book publishing and copyright law is Njeri Wangari & Another v. Oxford University Press (E.A) Ltd. [2012] eKLR discussed previously here.

Traditionally, publishers asked mainly for the right to publish authors’ book, sometimes in multiple formats and languages. Now many publishers demand broader rights, often including electronic/digital rights.

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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..

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.