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Copyright News
Tightening the Noose: New Offences
in the Copyright (Ammendment) Act 2019
By Caroline Waithera Thuo
T
he amendment of the Copyright Act
has brought in necessary changes to
regulation of Copyright in Kenya.
Prior to that, the existing regime was ade-
quate but not sufficient. Copyright essen-
tially protects the expression of ideas. With
the continuous advancement of technology,
the law will always play catch up. This
Amendment Act is more conformed to cur-
rent realities such as Copyright in the digital
environment which is a positive leap in regu-
lation of Copyright and Related Rights.
This Amendment Act is important as it seeks
to make the Copyright regulation in Kenya
more relevant. It assists the achievement of
KECOBO’s mandate as it is all inclusive as
evidenced by the incorporation of the recently
ratied Marrakesh Treaty for Visually impaired
persons.
Another notable change is the provision
for registration of Copyright works. Now, KE-
COBO is mandated to maintain a register of all
copyright works which if certied by the board,
shall be admissible evidence without further
proof of the same. The main issue with Copy-
right cases was proof of ownership. Copyright
subsists the minute a work is created. Registra-
tion of Copyright is important for enforcement.
The Amendment Act has also made provi-
sions for resale rights for visual artists which
are inalienable. This allows artists or their
successors to receive resale royalties from the
commercial resale of their artwork. Basically,
artists who could only sell their works once can
now share in the appreciation of the art market
by receiving royalties from the sale of a work,
when it is resold.
The Amendment Act has also provided new
offences and sanctions with regards to Copy-
right and Related Rights. It has provided for
liability of internet service providers (ISPs) in
infringement of Copyright. This provision cov-
ers Copyright in the digital single market which
initially was non-existent in our laws. With the
advancement of technology, it is hard to con-
trol what happens over the internet. It provides
for safe harbours whereby an ISP may avoid
liability for use of Copyright and take down
procedures where there is an infringement of
Copyright.
Where there is an infringement of Copy-
right, the ISP shall be issued with a takedown
notice after which it is required to notify the
person responsible for the infringement. Fail-
ure to notify the infringer shall constitute an
offence and upon conviction, the ISP could be
liable to a ne and/or imprisonment. The ISP is
also required to disable access to the infringed
material within 48 hours unless it receives a
counter notice contesting the contents of the
takedown notice. Failure to disable access to
such material, the ISP shall be liable to dam-
ages. It is also noteworthy that any person who
maliciously or falsely issues a takedown or
counter notice to ISP also commits an offence
and is liable to a ne, imprisonment or both.
The Amendment Act has also brought in
major changes on the regulation of Collective
Management Organisations (CMOs) in Kenya.
There have been major complaints among art-
ists on the management of CMOs in Kenya.
There are various provisions on CMOs Acting
as checks and balances and promoting corpo-
rate governance and corporate social respon-
sibility. KECOBO may at any time, and from
time to time, allow an inspection by any person
authorised in writing, of a Collective Manage-
ment Organisation, and its books, accounts and
records. It shall be an offence to fail to produce
that information as required and one may be li-
able to a ne or imprisonment or both.
The Amendment Act also empowers KE-
COBO to suspend or remove any ofcer of a
CMO who contravenes the law, issue directions
regarding measures to improve management of
CMOs, order reconstitution of a CMO board,
place a CMO under statutory management
or revoke the collecting license. It shall be an
offence to collect royalties on behalf of art-
ists without the authority of Kenya Copyright
board.
The Amendment Act has also provided for
offences by a body corporate. Every person
in charge of a body corporate where during
its dealings, the body corporate commits an
offence in the Act shall be liable for prosecu-
tion. If the offence is due to the wilful negli-
gence of that person, he/she shall be guilty of
that offence and therefore liable to sanctions
provided.
From the foregoing, it is clear that this
Act not only tightens the noose on infringers
but also those involved in the management of
Copyright. It has provided objective criterion
for sentencing of convicted offenders based on
each offence.
However, the Act is not so rigid that it snuffs
out creativity; there are exceptions that have
been set out in the new schedule such as fair use
of Copyrighted works. This is indeed a great
achievement in Copyright regulation in Kenya.
Source: PSCU