Ten Years Later: Dismal Performance Scorecard for Kenya’s Anti-Counterfeit Agency

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In 2008, Anti-Counterfeit Agency (ACA) was birthed as Kenya’s TRIPS-plus experiment to spearhead intellectual property (IP) rights enforcement by coordinating efforts among various state agencies. In our humble opinion, ACA deserves no score higher than 3/10 for its performance in fulfilling its overall statutory mandate in Kenya.

It was envisioned that ACA would be a shining example of an inter-agency approach to IP rights enforcement with private sector coordination. Ten years later, it is safe to say that ACA has failed to live up to its potential. The reason? Two words: Institutional Corruption.

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ARIPO Copyright Office Publishes Survey Findings on Status of African Collective Management Organizations

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On the eve of its 40th anniversary, the Harare-based African Regional Intellectual Property Organization (ARIPO) has recently published the findings of a survey on collective management organisations (CMOs) conducted among its member states. A copy of the survey is available here. In the foreword, ARIPO Director General Mr. Fernando Dos Santos explains that:

“The findings [of the survey] indicate that CMOs in the ARIPO Member States are growing in numbers. It was also found that there is growth in collections of royalties and distributions. However, CMOs are also facing challenges which include insufficient or lack of awareness of copyright laws by users and the general public, users’ unwillingness to pay royalties, piracy of the copyrighted works, inadequate resources and manpower within the CMOs and inadequate availability of technologies that can be used by the CMOs.”

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Ten Years Later: Dismal Performance Scorecard for Kenya’s Copyright Office

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As discussed previously, this month marks the 10 year birthday of Kenya’s Copyright Office (KECOBO) and this blogger promised to rate KECOBO’s performance over the past decade. In this blogger’s humble opinion, KECOBO deserves no score higher than 4/10 for its performance in overall administration of copyright and related rights in Kenya. In arriving at this score, this blogger looks at two key result areas for KECOBO, namely fighting piracy and regulation of CMOs in Kenya.

A good starting point would be to interrogate the theory behind the creation of institutions like KECOBO in our laws. From the landmark work of Richard Posner, one may term KECOBO a public interest regulator. The public interest theory of regulation holds that institutions like KECOBO exist to correct inefficiencies and inequities in the operation of the free market. Therefore government intervention generally is assumed to benefit society as a whole rather than particular vested interests. The regulatory body is considered to represent the interest of the society in which it operates rather than the private interests of the regulators.

An important component of KECOBO’s outcomes as a regulator under the public interest theory is the considerable costs to be borne by members of the public in order to know what KECOBO is doing and thereby, supervise its actions. This situation results in what public interest theory terms as “principal-agent slack”, whereby KECOBO enjoys a fair amount of slack because you and I require large amounts of time, information and organisation to supervise KECOBO’s activities.

Let’s test this public interest theory of regulation with respect to KECOBO’s performance in fighting piracy and regulating CMOs.

KECOBO’s Scorecard on the Fight Against Piracy: 3/10

It is no secret that KECOBO’s enforcement unit consists solely of 8 copyright inspectors and 5 prosecutors covering the entire country. This fact alone underscores the uphill task KECOBO faces in dealing with the menace of piracy. For instance, in 2003 when the Attorney General launched KECOBO, software piracy levels were at 78% in Kenya.

BSA estimates indicate that between 2010 and 2011 software piracy levels oscillated between 78% and 79% corresponding to a commercial value of US$85 million. KECOBO has acknowledged that this insignificant change in the piracy rate is evidence that little progress has been made in reducing piracy. It is important to note that aside from pirated software, the overwhelmed enforcement unit at KECOBO has to deal with other forms of piracy relating to music, film, broadcasts and books.

From an enforcement perspective, this blogger has often wondered why KECOBO has never made any real head-way in the fight against piracy in Kenya. Indeed it is difficult to recall any notable raids against large-scale piracy operations. In reality, KECOBO’s enforcement actions seem to target small to medium piracy operations instead of large-scale manufacturers and suppliers of pirated goods. It is based on this reality that many have argued that there must an inter-agency approach to intellectual property (IP) enforcement led by the newly formed Anti-Counterfeit Agency (ACA) whose empowering legislation is much broader in scope and stringent on violations of IP rights. With ACA solely in charge of IP enforcement, KECOBO will be able to re-focus its limited resources away from fighting piracy to its other functions under the Copyright Act such as the regulation of collective management organisations (CMOs).

KECOBO’s Scorecard on Regulation of Collecting Societies: 4/10

During the launch of KECOBO 10 years ago, the Attorney General’s speech noted that KECOBO faced the herculean task of creating a conducive environment for Kenya’s music industry to thrive amidst a climate of disorder, disagreements and mismanagement. At the time, the Music Copyright Society of Kenya (MCSK) was already 24 years old and was in operation as an unregulated CMO. In this blogger’s humble opinion, KECOBO ought to have pushed for CMO Regulations (like Nigeria and South Africa) to address the gaps in the Act relating to licensing and supervision of CMOs. The Copyright Regulations of 2004 pay little attention to important issues relating to regulation of CMOs. This lack of clear regulations for CMOs may have led to the deregistration of MCSK in 2011-2012.

In the meantime, KECOBO seems to have opted for several short-term extra-statutory means of regulating CMOs including performance contracting, developing a license agreement and licensing guidelines. In 2012, KECOBO failed to seize a second opportunity to amend the Act so as to empower it to adequately monitor the activities of CMOs. The amendments to the Act in 2012 did very little to improve the shaky legal framework within which CMOs are regulated.

Another important failure on the part of KECOBO is the Competent Authority under the Act aka the Copyright Tribunal. The Chair and members of this Tribunal were gazetted in 2009 however this Tribunal has never heard or determined any cases relating copyright. One of the key functions of the Tribunal is to consider certain licensing practices of CMOs deemed to be unreasonable by users.

The next 10 years?

In truth, many stakeholders would want the Copyright Office to allow the mandate of fighting piracy to be taken over by one sole agency eg. ACA. This would allow KECOBO to do better at its functions as a copyright registry through improvements and technical enhancements to the information technology platforms that support registration and recordation functions, including an online registration system. Generally, KECOBO would be expected to do a host of new things to help make copyright law more functional. For example, some people would like KECOBO to administer enforcement proceedings (such as a small copyright claims tribunal), offer arbitration or mediation services to resolve questions of law or fact, issue advisory opinions, and engage in countrywide awareness campaigns.

Of course, much of this will depend on the availability of technical capacity and resources.

Uganda Performing Rights Society vs MTN: Importance of Evidence in Copyright Litigation

 

This blogger has recently had occasion to revisit the judgment in the case of Uganda Performing Rights Society v. MTN (U) Ltd, Civil Suit No. 287 of 2010. This case was discussed earlier this month over at the Afro-IP Blog under the title: “A step forward for Uganda’s copyright law – landmark case”, where it was concluded that:

“Although UPRS was not able to recover damages due to a technical glitch in its legal maneuvers, the fact that the Commercial Court came out with a pronouncement on the powers of a Collecting Society to demand for royalties in music performances, is a step in the right direction.”

One may wonder, what was this “technical glitch” that cost UPRS the case? What could UPRS have done differently?

Having perused the judgment of the Honourable Lady Justice Hellen Obura in this case, this blogger is of the view that there were some fundamental mistakes made by UPRS that serve as important lessons for those seeking to increase their odds of success in copyright litigation.

Read the rest of this article over at the CIPIT Law Blog here.