New Rules for Intellectual Property Business as Companies Bill 2015 Signed into Law

Uhuru Kenyatta Companies Bill 2015

This week President Kenyatta (pictured above) signed into law the Companies Bill 2015 that does away with the Companies Act Chapter 486 of the Laws of Kenya which is an archaic piece of legislation dating back to 1948. The new Companies Act is aimed at revolutionising business in the country by removing various pre-existing legislative stumbling blocks to doing business in Kenya. From an intellectual property (IP) perspective, the new Act has several important provisions that will affect how IP assets are managed by various business entities.

With over 1,000 sections, the new Act is incredibly detailed (bulky) and comprehensive. It codifies common law principles – in particular, the indoor management rule and common law fiduciary duties of directors. Along with this, it modernises company law by recognising electronic communication and the use of websites and other electronic avenues for a company’s communications. The new Act has also increased the penalties and fines for offences relating to companies. This blogpost will highlight some of the major changes in the new Companies Act.

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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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Legality of Equitable Remuneration Challenged: High Court Petition of Xpedia & 4 Ors v. Attorney General & 4 Ors

equitable remuneration

Editor’s Note: On 31st July 2015, the urgent application in this Petition No.317 of 2015 dated 29th July 2015 was heard and certain interim orders were granted. A copy of the orders is available here.

This blogger has confirmed a recent media report that two content service providers and three copyright owners have jointly filed a petition challenging the constitutionality of the right to equitable remuneration under the now infamous section 30A of the Copyright Act. The Petition was filed against the Attorney General, Kenya Copyright Board (KECOBO), Kenya Association of Music Producers (KAMP), Performers Rights Society of Kenya (PRiSK) and Music Copyright Society of Kenya (MCSK).

As stated above, the crux of the Petition filed by Xpedia Management Limited, Liberty Afrika Technologies Limited, Elijah Mira, Francis Jumba and Carolyne Ndiba is that KAMP, PRiSK and MCSK should be stopped by the court from receiving or collecting royalties under section 30A of the Copyright Act in respect of works owned or claimed by the Petitioners.

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Nigeria’s Court of Appeal Attempts to Clarify Law on Copyright Collective Management

mcsn-coson-nigeria-music-copyright

This blogger has recently come across a judgment by the Court of Appeal in Nigeria in the long-running case of MCSN v. Details (Nig.) Ltd (CA/L/506/1999). In this case an exparte order had been obtained by MCSN against Details for unauthorized use of musical works. Details raised objections on the ground that MCSK lacked locus standi to bring the action. Details noted that since MCSN had provided evidence that it represented more than two million artistes, it was practically performing the functions of a collecting society and therefore required the approval of the Nigerian Copyright Commission (NCC) to carry on the activities of a collecting society.

MCSN denied suing as a collecting society but rather as an owner, assignee and exclusive licensee as contemplated in Section 15 of the Act. Having considered all the evidence, inclusive of the deed of assignments executed with members of MCSN which clearly spelt out that the activities to be undertaken were those within the purview of the attributes of a collecting society, the court ruled that: “it is for the foregoing reasons that I have come to the inexorable conclusion, after deep reflection, that the plaintiff is a collecting society. Not having been registered pursuant to Section 32B(4) of the Copyright Act, it cannot be permitted to operate as such body. To do so would be tantamount to subverting not only the letter but also the spirit of the copyright laws of this country”.

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World Intellectual Property Day 2015: “Get up, stand up. For Music.”

world intellectual property day 2015 poster get up stand up for music worldipday

“When Bob Marley and the Wailers laid down the opening track on Burnin’ in a Kingston recording studio some four decades ago, they likely had little idea how far their simple, straightforward tune would resonate, becoming an enduring international anthem for human rights.

Such is the power of music.” – WIPO, 2015.

The theme for World Intellectual Property (IP) Day 2015 is out: “Get up, stand up. For music”. In its press release, the World Intellectual Property Organization (WIPO) describes music as the “most universal of creative expressions” which “transcends borders and connects with some primal beat within all of us”. Through this theme, WIPO also appears to be paying tribute to the “inspiration and hard work of thousands of creative people around the world – singers and songwriters; musicians and publishers; producers, arrangers, engineers and many others” who are responsible for the music that we enjoy today.

This year’s World IP Day theme invites us all to explore some of the changes shaping the music industry today, and interact with those intimately involved in the business of making music about how they see the future. In this regard, WIPO asks:

“What is the future of our relationship with music? How will it be created and disseminated? How will we listen to it? And how will we ensure that all those involved in bringing us this universal pleasure can make a living from their craft?”

This blogger wishes everyone all the best as preparations to celebrate and reflect on this year’s #worldipday theme begin.

In the African context, this blogger highlighted Kenya’s successful 2014 World IP Day activities here and hopes that this year will be equally memorable.

Digital Migration Case: Flawed Reasoning by Court of Appeal on Intellectual Property Issues

Signet Kenya Limited, Star Times Media Limited, Pan Africa Network Group Kenya Limited and GOTV Kenya Limited are hereby prohibited from broadcasting any content from Royal Media Services Limited, Nation Media Group Limited and Standard Group Limited without their consent, pending the hearing and determination of the intended appeal. – Ojwang & Wanjala, SCJJ in Communications Commission of Kenya v Royal Media Services Limited & 10 others [2014] eKLR.

There’s an interesting saying about intellectual property (IP) adjudication in Kenya which states that: “most of the time, the outcome may be right but the reasoning is often wrong.” The recent decision by a three-judge bench of the Court of Appeal in the case of Royal Media Services Limited & 2 others v Attorney General & 8 others [2014] eKLR (digital migration case) is a clear illustration of the above saying. Although the matter is currently on appeal before the Supreme Court, this blogpost intends to analyse the reasoning of the Court of Appeal’s majority and minoirty judgments in this matter.

Two out of the three appellate judges (Nambuye and Maraga JJA) set aside the judgment of Majanja, J in the High Court (discussed by this blogger here) and made two IP-related findings in their separate but concurring judgments, namely:-

1. THAT the learned Judge erred in law in holding the Appellants’ intellectual property rights were not violated by the Respondents in broadcasting the Appellants’ programs and content without their consent.

2. THAT the learned Judge erred in law in holding that infringement of intellectual property rights could not be the subject of a constitutional Petition.

It is this blogger’s considered opinion that the above majority view of the Court of Appeal is fundamentally flawed as the Court of Appeal (curiously) arrives at two determinations on IP issues without any reference to any IP legislation.

For instance, the learned appellate judge Nambuye JA at paragraph 91 states that: “I do appreciate that the content both developed and acquired from 3rd parties fits the definition of intellectual property”. To support her position, the judge cites the definition of “property” under the Interpretation and General Provisions Act Cap 2 Laws of Kenya and Article 260 of the Constitution of Kenya.

It is trite that neither Cap 2 nor the Constitution contain a definition of “intellectual property”. The definition of intellectual property depends on the specific subject-matter and the correlated rights which are contained in various pieces of legislation.

In similar fashion, Maraga JA at paragraph 64 states that: “to allow any broadcaster to air FTA programmes of others without their consent amounts to infringement on the IPRs of the owners of those programmes.” However the learned appellate judge does not define and explain which specific intellectual property subject matter and/or specific right(s) in that subject-matter have been violated. In addition, Maraga JA does not set out any accepted test under intellectual property law for infringement.

Despite the Court of Appeal’s flawed reasoning as illustrated above, the outcome of the case is right on the issue of IP infringement. From an intellectual property perspective, all broadcasts are recognised as a category of copyright works under section 22(1). Therefore broadcasters are recognised as holders of neighbouring/related rights under copyright law, like producers and performers. Broadcasters have the right to authorize or prohibit the following acts as defined in the Copyright Act:
(a) Rebroadcasting of their broadcasts
(b) Fixation of their broadcasts;
(c) Reproduction of such fixations;
(d) Communication to the public of their television broadcasts if such communication is made in places accessible to the public against payment of an entrance fee

Section 35(1) provides that if any of the above acts are done by any person without the authority of the broadcaster, the latter’s rights under copyright are infringed. Subsection 4 of this section provides that infringement is actionable at the suit of the rights holder (assignee or exclusive licensee as the case may be) and the latter may be entitled to a wide array of reliefs including damages, injunction, accounts, delivery up, reasonable royalty, among others.
For this reason alone, this blogger agrees with Majanja J’s reasoning in the High Court that IP infringement claims cannot be the subject of a constitutional petition.

This blogger will continue to keenly monitor and update readers on the developments in this matter as it is heard by the Supreme Court.

On the Proposed Parastatal Merger of the Copyright Board, Industrial Property Institute and Anti-Counterfeit Agency

kenya intellectual and industrial property corporation

The Daily Nation reports that a special taskforce appointed by the President to streamline the operations of state corporations has proposed that KECOBO, KIPI and ACA be merged to form a single state corporation christened: “Kenya Intellectual and Industrial Property Corporation”. Before commenting on this proposed merger of intellectual property (IP) parastatals, we must put into context the full scope of the proposals by the Abdikadir-led taskforce.

At the heart of the taskforce’s proposals is that all parastatals be categorised into two, namely, state corporations and state agencies. It is proposed that power and oversight of these corporations and agencies be moved from “parent ministries” to two new entities, namely, Government Investment Corporation (GIC) and the National and County Agencies Oversight Office (NACAAO). As their names suggest, GIC and NACAAO will regulate state corporations and state agencies respectively. All regulatory authorities, public universities and research institutions will be classified as state agencies while all commercially-oriented institutions where the government controls more than 50 per cent shareholding will be categorised as state corporations.

Comment:

At present, there are two “parent ministries” in charge of IP in Kenya namely, the Ministry of Industrialisation and Enterprise Development which is in charge of KIPI and ACA and the Office of the Attorney General which is in charge of KECOBO. These three IP parastatals administer four IP laws namely, the Industrial Property Act, the Trademarks Act, the Anti-Counterfeiting Act and the Copyright Act. In addition, these parastatals administer several ratified international instruments on IP including the Paris and Berne Conventions, TRIPS Agreement and a host of other regional and international IP-related treaties and protocols.

From the outset, this blogger is in full support of the move to have one state corporation dealing with all the administration and enforcement of all the branches of IP in Kenya. Among the benefits of this merger would be better service delivery to Kenya especially enforcement of IP rights and awareness creation as well as the promotion of creativity and innovation among Kenyans. In the case of IP enforcement, ACA has been at the forefront of conceptualising and implementing an “inter-agency approach to IP protection and enforcement” along with KRA, KEBS, KIPI, KEPHIS and KECOBO, among other public and private partners. In this regard, the discussion has centred mainly on ACA’s empowering legislation the Anti-Counterfeiting Act 2008 which provides ACA with broad enforcement powers with relation to both copyright and trademark infringements.

In addition, this merger appears to have taken into account several constitutional factors. First and foremost, Articles 11, 40 and 60 all impose an obligation on the State to support, protect and promote the IP rights of the people of Kenya Secondly, under the proposed parastatal structure, the President as the Head of the National Government shall the chair and board of the GIC, who shall in turn appoint appoint chairpersons and directors of all state corporations in Kenya. This is in line with the fourth schedule of the Constitution, which lists intellectual property among the functions of the national government.

However the proposed merger as it stands is problematic for two reasons. Firstly the name itself appears to be misinformed. By definition, “intellectual property” includes “industrial property” therefore there is no need to refer to the entity as “intellectual and industrial property corporation” is unnecessary. This blogger submits that the name “Kenya IP Corporation” would be more appropriate and sufficiently descriptive for all to understand.

The second problem with this proposed merger is that it leaves out plant breeders’ rights (PBRs). In fact, the taskforce proposes that the Kenya Plant Health Inspectorate Services (KEPHIS) which administers PBRs in Kenya should merge with the National Biosafety Authority. The crucial question to be asked in this regard is: Are PBRs recognised in Kenya as a branch of IP? During this blogger’s LLM studies, two leading IP professors offered two divergent answers to this question with Ben Sihanya saying “No” while James Otieno-Odek saying “Yes”. This blogger is swayed by the latter answer by Prof. Otieno-Odek, who has since left academia and currently serves as Judge of the Court of Appeal. According to Odek, industrial property was the first recognized category of intellectual property in 1893, followed by copyright in 1895 and Plant Breeders Rights in 1961. Odek explains that all these categories have been given legal recognition under the WTO TRIPS agreement. Odek states that Kenya was the first country in Africa to domesticate the UPOV Convention through the Seeds and Plant Variety Act Chapter 426 Laws of Kenya, which is modeled on UPOV 1961.

Politics and power play aside, this blogger is convinced that the merger would be good for IP in Kenya, especially if KEPHIS is included alongside KIPI, ACA and KECOBO. Let us wait and see whether the taskforce proposals will be adopted by the Executive and Legislative arms of government.

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.

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

kecobo-launch-768x504

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.