#ipkenya Weekly Dozen: 17/08

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“M1L3L3” is “MILELE”, a Swahili word which means “Forever”

  • Call for Articles – African Journal of Intellectual Property [Deadline Next Month]
  • Respect for IP – Growing from the Tip of Africa: International Conference [Registration Open]
  • Video: Using blockchain to prevent counterfeit drugs in Kenya [IBM Research]
  • The African music industry is gaining global interest [Axios]
  • Encourage imitation to boost creativity in Kenya [Captain Obvious]
  • Why India’s IP policy needs a South African tweak [The Hindu]
  • Adeokin v. MCSN: No CMO licence required for an exclusive licensee of copyright to enforce its licence [The 1709 Blog]
  • In Case You Missed It: Kenya Patent Office is Publishing List of Expired KE Patents [Big 4 Agenda]
  • South Africa: Department of Trade and Industry Film Incentive [DTI]
  • The New Face of Creative Commons in Kenya [Shameless Plug]
  • South Africa: IP Management and the Commercialization of Publicly Funded Research Outcomes [WIPO]
  • Kenya: Request for Comments on the Proposed Privacy and Data Protection Policy and Bill, 2018 [Deadline Next Month]

For more news stories and developments, please check out #ipkenya on twitter and feel free to share any other IP/ICT-related items that you may come across.
Have a great week-end!

#ipkenya Weekly Dozen: 15/06

Matthew Inman Oatmeal World Cup 2018 DfmH7qZVMAAkmZe

World Cup 2018 starts this week!

  • ARIPO holds the Second Symposium on Copyright and Related Rights [Official]
  • Tete Goat – First Geographical Indication of Mozambique [Inventa]
  • Namibia introduces new Industrial Property Act [A+ Bunch of Lawyers]
  • Competition Authority confirms Egypt’s right to air 22 World Cup games [Egypt Today]
  • Should Africa let Silicon Valley in? [The Guardian]
  • Kenya to publish draft data protection bill this month [Reuters]
  • Rethinking Uganda’s State Brand Strategy Using Intangible Assets [Amani IP Network]
  • Restriction on Parallel Imports Gets Red-Lighted By Competition Authority of Kenya [BD Africa]
  • Stolen melodies: Copyright law in Africa [Deutsche Welle]
  • Rwanda: Experts call for autonomous Intellectual Property office [The New Times]
  • Kenya: Sharing books online kills creativity, it’s outright theft [One-sided coin]
  • Anti-Counterfeit Agency Insults Intelligence of Stakeholders at ‘Consultative Forum’ on Proposed IP Law [Shameless Plug]

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!

Private Prosecutor Can Appear as Witness in Same Criminal Copyright Suit: Case of Albert Gacheru Kiarie and Wamaitu Productions

A recent judgment by the High Court in the case of Albert Gacheru Kiarie T/A Wamaitu Productions v James Maina Munene & 7 others [2016] eKLR is likely to have profound ramifications for the enforcement of intellectual property (IP) rights in Kenya. At the heart of this case is a catalogue of widely popular vernacular songs such as “Mariru (Mwendwa Wakwa Mariru)” which is featured in the video above by Gacheru and produced by the latter’s company, Wamaitu.

According to Gacheru, his music and those of other rights holders he was involved with through his Wamaitu label have all been the subject of piracy and copyright infringement for many years. From 2004, Gacheru was the complainant in a criminal copyright infringement case (Criminal Case No. PP 06 of 2004) and was later granted permission to privately prosecute the case but he was then barred from continuing to undertake the private prosecution for the reason that he intended to serve as a witness in the same case. Gacheru appealed this decision insisting that he should be allowed to act as private prosecutor and witness in his case. The present judgment settles this 12 year old dispute on this matter.

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High Court Judgment on Constitutionality of Equitable Remuneration Right and Copyright Collective Management

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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.

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No Making Available Right, No Royalties from Multichoice Signal Distribution

GRH Consulting Diagrammatical View of Broadcasting Copyright Satellite Signal Distribution

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 [2016] 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.

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Oh, the Irony: President Usurps Role of Legal Advisor to Make Illegal Kenya Copyright Board Appointment

PRISK Director Millicent Ogutu Kenya Copyright Board KECOBO Board Appointment Gazette Notice March 2016 Chairperson Uhuru Kenyatta

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!

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Devil in the Details of Joint Collection of License Fees for Musical Works and Sound Recordings

KECOBO Public Notice on Renewal Registration License KAMP PRISK MCSK KOPIKEN February 2016 Collecting Society Kenya Copyright Board

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 [2016] 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.

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Kenyans Pay Three Times More Than South Africans to Use Sound Recordings: Lessons from Appeal Court Judgment in SAMPRA v. Foschini Retail Group & 9 Ors

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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.

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Copyright Regulations Amended and Collecting Societies’ Tariffs Gazetted

KAMP PRISK

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.

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