Uncertain Future for Reprographic Rights in Kenya as KOPIKEN Collecting Society Registration Not Renewed

KOPIKEN Launch Collective Management Reproduction Rights Society of Kenya

In a public notice by Kenya Copyright Board (KECOBO) published on February 4th 2016, we are informed that KECOBO at its Board Meeting of January 28th 2016 considered the application for renewal of registration as a collecting society made by the Reproduction Rights Society of Kenya (Kopiken). After consideration of Kopiken’s application, KECOBO decided not to renew Kopiken’s registration. This means that as of January 1st 2016, there is no registered collecting society for reprographic rights in Kenya. In this regard, KECOBO in its public notice states as follows: “KECOBO will be consulting stakeholders of KOPIKEN to determine its future sometimes (sic) in March 2016.”
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Sights and Sounds of World IP Day 2015: The East African Edition

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Recently, countries around the world celebrated World Intellectual Property (IP) Day 2015 under the theme: “Get Up. Stand Up. For Music”. This blogger is pleased to report that Kenya, Uganda and Tanzania each held their own exciting events to mark World IP Day 2015.

Here are some of the important highlights:-

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Copyright Act (Amendment) Regulations 2015: Attorney General Hikes Registration and Renewal Fees

The fees payable to the Kenya Copyright Board are only going up by “this much”

The Honourable Attorney General (pictured above) in exercise of the powers conferred by section 49 of the Copyright Act has made new regulations.

Contrary to the picture caption above, the thrust of these new regulations is a substantial increase in the fees for applications for registration and renewal of registration of a collecting society.

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ARIPO Roving Seminar Comes to Kenya: Copyright in the Digital Environment, 16 – 17 March 2015

ARIPO ROVING SEMINAR 2015 KENYA COPYRIGHT IN THE DIGITAL ENVIRONMENT KECOBO

The African Regional Intellectual Property Organization (ARIPO) in collaboration with the Kenya Copyright Board (KECOBO) will be hosting a seminar on copyright and related rights as part of the on-going series of ARIPO roving seminars. The Seminar will be held on 16 and 17 March 2015 in Nairobi.

The theme of the Seminar is “Copyright in the Digital Environment”. According to the host organisations, digital networks have had a major impact on the way we access, use, reproduce and disseminate copyright works such as music, film, software, visual arts among others. Therefore the Seminar is aimed at providing an opportunity for stakeholders to interact with experts and players in the industry to discuss topical issues related to the theme.

Some of the speakers at the Seminar will include:

– Githu Muigai, Attorney General of Kenya
– Tom Mshindi, Chairman KECOBO
– Sylvance Sange, Ag. Managing Director, KIPI
– Fernando Dos Santos, Director General, ARIPO
– Adejoke Oyewunmi, MIP Professor, Africa University, Zimbabwe
– Ben Sihanya, IP Professor, University of Nairobi, Kenya
– Henry Mutai, Former Managing Director, KIPI
– Hezekiel Oira, Former Corporation Secretary, KBC
– David Muriithi, Board Member, KECOBO
– June Gachui, Principal, JGIP Consultants
– Lawrence Njagi, Chairman, Kenya Publishers Association
– Sharon Chahale Wata, General Manager, KOPIKEN

KECOBO asks that those who are interested in attending the roving seminar should send their details to info@copyright.go.ke as soon as possible.

Kenya Copyright Board and Collecting Societies: Myths and Facts

Kenya Copyright Newsletter 8th Edition 2013

The subject of this article is to critically analyse some of the questionable statements made by KECOBO in the latest edition of its newsletter, “Copyright News”. This particular edition is themed: Collective Management Organisations (CMOs). As many may know, there are currently four registered CMOs in Kenya namely (from oldest to youngest): the Music Copyright Society of Kenya (MCSK), the Reproduction Rights Society of Kenya (KOPIKEN), the Kenya Association of Music Producers (KAMP) and the Performers Rights Society of Kenya (PRiSK).

In a previous article here, this blogger commented on KECOBO’s poor performance in licensing and supervision of CMOs. Therefore this recent publication by KECOBO is useful in identifying certain areas of concern in the regulation of CMOs.

Take for instance, the statements on page 4 made by KECOBO’s second-in-command, Mr. Edward Sigei:

In the last few years, there has been some progress and a few of setbacks in this area [regulation of CMOs] as can be seen elsewhere in this publication.

One wonders why no mention is made of KECOBO’s deregistration of MCSK in 2011 and the ensuing court battle spanning over a year. One may also be curious to know why KECOBO fails to address the increasing reports of anti-competitive and/or unethical practices by the three CMOs operating within the music industry namely, KAMP, PRiSK and MCSK. How does KECOBO propose to deal with this emerging issue?

In this regard, this blogger submits that competition between CMOs may provide the solution to increase their productivity and efficiency. The one society per category of works rule entrenched in the Act ought to be amended so as to allow other entrants in the collective management business. This move would ensure that members and users alike benefit more from the collective administration of copyright.

Currently, there is a popular push for further reform in the sector to strengthen the oversight role of the Kenya Copyright Board in the absence of vibrant membership within the CMOs.

The absence of a vibrant membership within CMOs is due to ignorance. CMO members may not be fully aware or fully appreciative of their power as shareholders in the CMO. The creation of this awareness or appreciation among these members ought to be stated openly and clearly as an integral part of KECOBO’s outreach and sentisation agenda in collaboration with the CMOs.

Users generally complain of arbitrary license hikes to already high tariffs and they are subsequently demanding controls. Small kiosks and shops are being threatened thereby.

One of the novel features of the revised 2001 Copyright Act was the Competent Authority whose mandate includes reviewing CMO tariffs. However KECOBO has not pushed hard enough or fast enough for the Government to set up this Competent Authority. This Authority, once fully in place, would act as a Copyright Tribunal to hear and determine cases brought against CMOs by users of copyright works.

Drawing from this campaign to reform the law and recent developments globally, some of the legislative interventions under consideration include:

• Empowering the Kenya Copyright Board to order forensic or other audit on CMOs based on credible information

Who is to bear the costs of KECOBO’s decision to order forensic and other audits of CMOs where these audits are treated separately from the normal audits carried out by CMOs in every financial year? Will the members of the CMO still have a final say in the firm of auditors to be appointed?

• Introduction of the Attorney General’s power to approve and review tariff and to exempt small businesses from time to time.

Why not empower the AG to examine the entire licensing system including terms and conditions of license agreements as well as licensing procedures?

• Empower the Kenya Copyright Board to disband CMO Boards in cases of gross mismanagement and call for fresh elections and/or disqualify outgoing Board members.

Such a statutory power to disband CMO Boards by KECOBO ought to be carefully worded and exercised sparingly. For instance, in section 76 of Uganda’s Copyright Act, the Registrar of Copyright is empowered to order the cancellation of registration of a CMO after the findings of ad-hoc committee of inquiry or inspection or an application made by two-thirds of the members of a CMO.

(…)
• Reconsider utility of Section 38(2) of the Copyright Act in view of the rising cases (sic) alleged harassment arising out of its enforcement.

This section deals with the restricted act of public performance in copyright and related right in a musical work and sound recording, respectively. This section creates the offence of wilfully causing a public performance without the authorisation of the rights holders in the works. It is this blogger’s opinion that rights holders or their respective CMOs have the right to enforce this provision and pursue criminal action against all infringers under this section. Such infringers include all commercial premises, public service and commercial vehicles, telecomunications companies, broadcasters, content service providers and premium rate service providers, operating countrywide.

However CMOs lack trained prosecutors to deal with copyright infringement cases brought forward by CMOs as complainants. In 2012, the Director of Public Prosecutions appointed five (5) individuals employed at KECOBO to serve as public prosecutors for the purposes of cases arising under the Copyright Act. These prosecutors are required to handle all copyright infringement cases countrywide, including infringement cases brought by CMOs. To date, KECOBO has not provided any guidance or assistance to CMOs in prosecuting cases arising out of section 38(2) of the Act.

Let’s now consider some of the statements made by the KECOBO Chief Executive, Dr. Marisella Ouma on the subject of CMOs in Kenya.

On page 5 of the Newsletter, she states:

Their [CMOs’] licences are renewable annually subject to each CMO fulfilling their obligations under the Copyright Act, Companies Act as well as the implementing regulations.

From a practical point of view, the duration of the CMO license ought to be reviewed. One calendar year is too short a period to adequately assess the performance of a CMO. This reality is compounded by the statutory requirement to submit annual reports and audited accounts. How does KECOBO evaluate the performance of a CMO throughout an entire year on the basis of one single report submitted at the end of the licensing period?

A cursory look at the license conditions in other African countries is also instructive. In South Africa, a CMO license is granted for 5 years, whereas in Nigeria, the CMO license runs for 3 years and in Uganda, license duration is perpetual.

However, if KECOBO is adamant on retaining the one year license duration, the Act ought to be amended to require at the very least semi-annual if not quarterly reports from the CMOs.

The legality of KECOBO’s CMO Guidelines and Licensing Agreement for CMOs is worth mentioning. These two documents developed by KECOBO have no basis in the Copyright Act and yet they continue to be enforced against CMOs. Both CMOs and other key stakeholders ought to have a say on how KECOBO exercises its public powers in licensing and supervision of CMOs.

The collection of royalties has to be done within the provisions of the laws of Kenya. Thus the Collective Management Organisations have no right to confiscate any property such as radios, TVs and other equipment from users unless they have followed the due process for instance obtained a warrant or a court order to detain the property.

This blogger respectfully disagrees with this position. Section 39(2) states clearly that in addition to the copyright inspectors appointed under the Act, any police officer may perform the functions of an inspector under the Act. Section 41 vests powers of seizure on inspectors and section 42 deals with the powers of arrest. For the offence relating to public performance under section 38(2) of the Act, the prosecution must produce in court the device used to cause the public performance.

Looking generally at the Newsletter’s content, it may be of interest to note that the interviews with the CMO leaders do not disclose certain key information that would be of great use to the public. Apart from MCSK, none of the other CMO interviews deal with the issue of royalty distribution. The facts and figures on distributions vis-a-vis expenditures is an important area of collective management that ought to have been addressed across all CMOs interviewed.

Still on the question of partial interviewing, the responses by the star interviewee, Mr. John Katana are also questionnable. Firstly, this interview totally fails to address the responsibility of CMO members to hold their CMO accountable and the powers of members to take charge and make decisions on the governance and operation structures of their respective CMOs.
Secondly, the interview blatantly suggests that there is a standard worldwide cost-royalty ratio of 30:70 whereby 70% is paid to musicians and 30% is used for administrative costs. This blogger would be interested to know the source of this assertion.
Finally, the interview conveniently fails to disclose that the interviewee is a Board Director at KECOBO. Therefore any reasonable reader of the newsletter would read in between the lines of this interview and see clear statements made by KECOBO to advance its own agenda on regulation of CMOs.

In the final analysis, the total value addition of copyright-based industries to Kenya’s Gross Domestic Product (GDP) is estimated to be over Kshs. 85.21 Billion. It is submitted that this fact underscores the important role played by KECOBO as the state agency responsible for the administration of copyright and related rights in Kenya. Part of this weighty mandate is the licensing and supervision of Collective Management Organisations (CMOs) who represent the bulk of Kenya’s creators and copyright owners.

To Photocopy or Not to Photocopy: The Role of the Reproduction Rights Society in Kenya

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One of the local newspapers recently published an article titled: “Can’t someone stop this photocopying madness?”, which raises the alarm over high levels of illegal photocopying especially in tertiary institutions of learning, namely our universities. The writer explains:

We were taught in classes that photocopying a book without the requisite permission of the copyright holder would be against the law, except for the very strict exemptions made on the copyright page of the book. Yet at student centres and other photocopying areas in institutions of higher learning, the exact opposite of this lesson goes on in the open.
Students photocopy entire books. Some shop owners photocopy books in advance and store them for sale. With such scenarios, what does the student learn? That the lessons on copyright law are a mere hot air?

Recently, a news feature was published by Al Jazeera titled: “Photocopying courts India campus controversy” which was premised on the on-going Indian High Court case of Oxford University Press and Others vs Rameshwari Photocopy Services and Delhi University. In this case, Cambridge University Press (CUP), Oxford University Press (OUP) and Taylor & Francis, the three of the world’s largest publishers have filed a case in court seeking to stop the reproductions of their work into study packs and course packs for students.

Authors and publishers all over the world contend that they fully support free access to information. But they have come to realise that their contended principle of free flow of information must not be confused with the idea of the flow of free information. After all, books, journals, newspapers etc. cost money to produce and the same must apply to the right to reproduce them, particularly through photocopying. The only way authors and publishers have been able to deal with this situation has been through collective administration of rights. It is widely agreed that no single author or publisher can effectively police the use or abuse of its bundle of rights throughout a whole national territory let alone the world at large. Thus, collective administration is a solution devised to overcome the many difficulties which individuals authors and other rights holders face in the enforcement of their rights separately by themselves in the face of fast-growing technologies of the modern world.

In the case of reproduction rights, one of the practical, instrumental and utlity organs in the process of this collective administration is the reprographic rights organisation (RRO). Simply put, the RRO aims to deal with both unauthorised reproduction of copyright works for internal use as well as for the market place. This reproduction is dealt with through licensing. The RRO is therefore an intermediary organisation. It brings the rights holders in contact with the users. It facilitates understanding between the owners and users of copyright rights. Most importantly, it negotiates with, and grants licenses to the users to use the works of authors on the one hand; and on the other, it ensures that authors and publishers are justly remunerated for their works and investments.

This blogger believes that in both the Indian and Kenya scenarios highlighted in the media reports above, the RRO is clearly missing from the picture yet the latter plays an important role in striking the right balance between the rights of the copyright holders on the one hand, and the interests of the users on the other hand. This blogger is indeed surprised that the reprographic society in India (IRRO) has not sought to be enjoined in the Delhi University court case yet it is an interested party given the issues for determination by the judges in that case.

KOPIKEN Launch Collective Management Reproduction Rights Society of Kenya

Meanwhile, here in Kenya, we have the Reproduction Rights Society of Kenya (KOPIKEN) which is fully functional but seems not to have attained the critical mass in terms of licensees for reproduction of printed works yet all indications are that the photocopying business is booming in most urban centres countrywide. Regarding the universities in Kenya, this blogger would be correct in stating that over 95% of them are not licensed by KOPIKEN yet these institutions are actively engaged in photocopying both for internal use and also as indirect commercial activity.

Therefore, the time has come for KOPIKEN to assert itself on behalf of all the local and foreign authors, publishers and other rightsholders in the print medium whom they duly represent. Borrowing from the situation in India, this bloggers contends that time has come for KOPIKEN to consider litigation as a means of ensuring compliance with the copyright law, deterring infringers and creating jurisprudence in this silent area of the law. In respect to the last point of jurisprudence, litigation by KOPIKEN against one of the local universities would also allow the courts to revisit the questions surrounding the exceptions and limitations (fair dealing) provisions contained in section 28 of the Copyright Act, particularly as they relate to educational institutions, libraries and archives.

The Creativez Meetup This Sunday – Let’s Talk Intellectual Property

IPKenya would highly recommend that all attend an important event dubbed “The Creativez Meet-up – Intellectual Property” taking place this Sunday 3rd June from 14h00 to 17h00.

Here are just a few reasons why:

1. The calibre of speakers:

Almost all the presenters are LL.M holders in Intellectual Property and have extensive experience in their respective areas of work in the copyright and industrial property branches of IP.

IPKenya has previously done a mini profile of the three female presenters: Angela, June and Sharon under the title: “Women Leaders of Copyright in Kenya”

As for the two gents:

Paul is a Legal Officer at KECOBO and a Copyright Inspector. He is also in charge of KECOBO’s social media presence through the insightful facebook updates and twitter tweets: @KenyaCopyright.

David is a man who needs no introduction. He’s been a prominent figure in Kenya’s Industrial Property scene and is currently the Assistant Chief Patent Examiner at KIPI. You may also know him as “Njuguna” on the widely read “Afro-IP” blog.

2. The wide selection of topics up for discussion:

With such an illustrious panel of speakers, no topic in intellectual property is off limits. IPKenya encourages all participants to come prepared to engage the panelists on practical issues they’ve encountered and how the IP system would be of use to them.

Of course IPKenya’s focus borders mainly on IP developments generally. Topics of particular interest include: progress on the Traditional Knowledge Bill, the Geographical Indications Bill, need for a National Policy on IP, progress on the establishment of the Copyright Tribunal, the debate over software patents in Kenya, the fight against copyright piracy, the wrangles surrounding regulation of collective management organisations in Kenya, strategic plan to operationalise Articles of the Constitution dealing with IP, among many others.

3. Networking:

If it’s your sort of thing, ofcourse!

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Hoping to see you all on Sunday at the i_Hub*. Be sure to register for the event here.

Happy Madaraka Day (in advance) everyone!