- Kenya: Senate held a session with reps from the creative industries to understand how to support creativity and talent in the film industry [Web]
- South Africa’s New IP Policy: A Human Rights Perspective [Emmanuel Oke]
- Kenya has created an electronic registry for collateralisation of IP and other rights [The East African]
- “I See a Boat on a River” – The Copying of Vehicular Shapes [Afro-IP]
- Online platform to streamline collection of fees owed to Kenyan musicians [Capital FM]
- Kenya: Artistes, hoteliers in pact to collect music royalties [Business Daily]
- East Africa brand-owners take stake in protecting their brands [Captain Obvious]
- Kenya: Curb book theft without killing firms [DN]
- EA Cables cries for help over Chinese fakes [Nation]
- Kenya: Chinese accused of cultural heist on indigenous cottage industries [Oh Boy]
- Pay artistes’ royalties or lose licences, Sakaja warns media houses, night clubs [The Star]
- Blockchain and IP Law: A Match made in Crypto Heaven? [WIPO Magazine]
For more news stories and developments, please check out #ipkenya on twitter and feel free to share any other intellectual property-related items that you may come across.
Have a great week-end!
This blogger has come across a recent judgment in the case of Mercy Munee Kingoo & Anor v. Safaricom Limited & Anor [unreported] Malindi High Court Constitutional Petition No. 5 of 2016 delivered by Mr. Justice S.J Chitembwe on 3rd November 2016. At the heart of this Petition was the claim that section 30A of the Copyright Act is unconstitutional. This Petition raised two important issues for determination: firstly, whether the petition is ‘res judicata’ in light of two earlier decided High Court Petitions (discussed previously here and here) in which section 30A was not found to be unconstitutional and secondly, whether the amendment of the Copyright Act and introduction of section 30A is unconstitutional for failure to observe the principles of public participation.
Previously we reported here that two content service providers and three individual copyright owners had filed a constitutional petition at the High Court challenging the content of the equitable remuneration right in section 30A of the Copyright Act, the application and implementation of section 30A by the collective management organisations (CMOs) and the manner of licensing and supervision of the CMOs by Kenya Copyright Board (KECOBO).
Recently in the case of Petition No. 317 of 2015 Xpedia Management Limited & 4 Ors v. The Attorney General & 4 Ors Lady Justice Mumbi Ngugi (known to many readers for her landmark decision on anti-counterfeit law and access to medicines here) delivered a judgment at the High Court dismissing claims by content service providers and the copyright owners that the contents and implementation of section 30A are unconstitutional.
This blogpost has been prompted by two recent developments in Kenya and Namibia. In Kenya, the High Court recently delivered a ruling in the case of Music Copyright Society of Kenya Limited & another v Multichoice (K) Limited & another  eKLR in which the court dismissed the copyright infringement suit filed by the collective management organisation MCSK against Multichoice. Meanwhile in Namibia, a recent report here reveals one of the reasons why Southern African Music Rights Organisation (SAMRO) which receives royalties from Multichoice has failed to distribute them to other concerned African copyright societies.
Where to begin?
Section 6(a) of the Copyright Act states that the Board of Kenya Copyright Board (KECOBO) shall consist of “a chairman, who shall be appointed by the Minister from amongst the members of registered copyright societies”. The Copyright Act as read with the Interpretation and General Provisions Act defines “Minister” as the Attorney-General who is “the Minister for the time being responsible for matters relating to copyright and related rights.” Under Article 156(4)(a) of the Constitution of Kenya states that the Attorney-General is the “principal legal adviser to the Government” which presumes that the A-G, in the case of public appointments, would have been consulted on their legality or lack thereof especially where those appointments touch on the A-G’s own docket!
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  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.
Recently, Kenya Copyright Board (KECOBO) published on its website here the proposed 2016 collecting society joint tariffs for musical works, sound recordings and audio-visual works. A copy of these joint tariffs is available here. In order to ensure public participation before the approval of these tariffs, KECOBO will convene an open half-day public forum to be held next week on February 10th 2016 at the Auditorium of NHIF Building starting at 8:30am.
This blogpost will focus on the tariffs for sound recordings since they have recently been the subject of thorough debate and analysis in South Africa’s Supreme Court of Appeal. It is hoped that the South African experience will be useful to Kenyan users in their negotiations with collecting societies on reasonable tariffs to pay for use of copyright works.
This blogger has recently come across an astute ruling by the High Court in the case of Music Copyright Society of Kenya v Chief Magistrate’s Court & Inspector General of Police  eKLR. Justice L. Kimaru sitting in the High Court was approached by the authors’ collecting society, Music Copyright Society of Kenya (MCSK) to stay orders issued by the Magistrate’s Court freezing all the bank accounts of MCSK following a request by the Serious Crimes Unit under the Directorate of Criminal Investigations (DCI). DCI requested that MCSK’s accounts be frozen as it investigates complaints made by MCSK members in regard to alleged misappropriation and theft of funds at the collecting society.
After carefully evaluating the facts before him, Kimaru J ruled that the investigations were lawful and based on several complaints received by DCI from MCSK members and that the orders to freeze MCSK’s accounts were within the precincts of the law.
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.
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.