News and Updates

By. Edward Sigei, Executive Director, Kenya Copyright Board

Following the assent of the Copyright Amendment Act, 2019 by the President, The Kenya Copyright Board welcomes the changes heartily and looks forward to its full implementation.
This write-up provides a perspective on the origin, reason and importance of the changes by the amendment.


The Copyright Amendment Act was first prepared and published in 2017 by the Kenya Copyright Board (KECOBO) in line with section 5(d) of the Copyright Act which mandates the organisation to: ‘Organise legislation on Copyright and related rights; propose other arrangements that will ensure its constant improvement and continuing effectiveness’. The effort is partially related to execution of the mandate under section 5(a) of the Copyright Act which is: ‘Implementation of laws and international treaties and conventions which Kenya is a party’.
The Copyright Act was first enacted in 2001 and had fallen back in relevance with changes in technology and influence by experiences that KECOBO has gathered in executing the mandate under the Act.


The amending provisions is meant to the Copyright Act and bring it in line for most part with the technological developments that continue to affect the exploitation and protection of copyright works. This will ensure that Authors of Copyright works get value for their property in the digital environment. The new law came after intensive and extensive consultations with the stakeholders in public forums organised by KECOBO and later the National Assembly Committee on ICT.


The main issues the Amendment Act seeks to solve are as follows:
Definitions. The Act contains definitions of terms of three types that required to be added to section 2 of the Copyright Act:

a. New definitions to cater for provisions newly proposed under Bill. The new definitions are dealing with ISP Liability, Resale right for visual artists and domesticating the Marrakesh Treaty.

b. Old definitions moved from the Copyright Regulations into the main Act since they affect the proper implementation of the Act.

c. Amendments to existing terms to conform to current realities including the Constitution.

Board of Director and Executive Director Qualification
The Act changes the titles of the members of the Board due to the provisions of the Constitution 2010 especially touching on government Directors under section 3 of the Copyright Act.
Section 11 of the Act makes changes touching on the qualifications for appointment as Executive Director of the Kenya Copyright Board. The changes were prompted by Mwongozo policy provisions and the constitution of Kenya 2010.

Registration of Copyright
The new Act makes provision for Registration of Copyright Works that was missing in the old provision by amending section 22 of the Copyright Act. The Act has been silent on this core function of the Organisation. The proposal therefore closes that gap.

Fair dealing and new rights in line with the domestication of the Marrakesh Treaty
The new Act has recast section 26 to take into account the creation of new Artist’s Resale Right, rights of visually impaired persons and extent of technical protection measures. The section makes provision for a new right for visual artists and access to reading material by Visually Impaired Persons in line with the Marrakesh Treaty.  As a result there is a new schedule added to the Act to be read with section 26 of the Act. The schedule provides details of the extent of public rights or fair dealing provisions that arise from the use of certain Copyright works. This section is intended for clarity and to expand the Copyright user rights.

Blank Media Levy
The Act has changed section 28 of the Act to reflect the manner in which blank media subject of this provision generally enters the Kenyan market through importation hence determines where the fee is paid. The Act also amends section 28 and 29 by a new proviso to better provide for the collection of Blank Media Levy under section 30B. The provision is intended to support the operationalisation of the Blank Tape Levy provisions currently not collected as required.

Assignments and Licenses of Copyright
The section proposes changes to the procedure of managing Assignments and Licenses of Copyright works to better serve the interests of copyright owners as provided under section 33 of the Act. It removes the requirement to obtain letters of verification from KECOBO for assignments from abroad. The provision will provide for clarity in the management of Copyright.

Internet Service Provider Liability for Online infringements
The new Act introduces the concept of Internet Service Provider Liability for copyright infringement online currently lacking in our Legislation. It comes with the necessary safe harbours provision, take down procedure and the extent of liability after the takedown notice has been served under section 35 of the Act. This will enhance enforcement noting that most of the piracy is now online.

New Copyright offences and sentences
The Bill provides new Copyright offences in line with the technological development and proposes new objective criteria for sentencing of convicted offenders based on value of the goods seized and the market price. It also provides for a situation where offences are committed against rights managed by collective management organisations. This is an amendment to section 38 of the Act. The provision is to provide objective criteria for sentencing to manage the clamour for the raising of fines and jail terms.

Reform of the Collective Management Organisation (CMO) oversight function
The Act proposes name change for the entities from collecting Societies to collective management organisations in line with the international standard and to better reflect the role.
The Act deals with the process of receiving and processing applications for licenses and the manner of oversight resulting from experience and calls from members of the societies. The section also provides for the process of de-registration of such organisations. The provision amends section 46 of the Act.


The Act now has term limits and qualification of a director of a collective management organisation and oversight measures that can be taken instead or before the process of de-registration begins. This was not provided for under the Act previously. The Act has changed the name of the Competent Authority to Copyright Tribunal established under section 47 of the Act and directs for its management under the Office of the Attorney General.


The provisions on the supervision of CMOs had been inadequate under the former legislation. The amendment to the Copyright Act makes adequate provisions to enable KECOBO intervene if CMO member interests are threatened and allow for continued existence of the organisation hence making de-registration an act of last resort.

CONCLUSION
The Kenya Copyright Board considers the Amendment Act as critical in achievement of its mandate. This mandate touches the core of the creative sector, a sector critical in the economic future of Kenya. The passage will support the achievement of the Big Four Agenda and the Vision 2030 as it provides employment and business opportunities to youth. The law now contains new provisions which will support enforcement of Copyright and better oversight of agencies established by the Act.


The law updates the legislation in this area by inclusion of Internet Service Provider (ISP) provisions and Visual artist Resale rights as well as access to reading material for the Visually Impaired Persons. In the case of visually impaired persons, it satisfactorily domesticates the Marrakesh Treaty that Kenya ratified a while ago. In areas of Internet Service Provider (ISP) provisions and the new offences, it takes into account the experience of recent years and technological stage that Kenya is at.