Creative Developments: A highlight of the changes proposed by the Copyright (Amendment) Bill, 2017

Introduction

The Copyright (Amendment) Bill, 2017 (the Copyright Bill) proposes to amend the Copyright Act (No.12 0f 2001) (the Copyright Act) significantly. In particular, it makes various definitive amendments, as well as changing the legal conceptualization of copyright and related rights in Kenya. It further proposes to reinforce the administration of collective management organisations (CMOs) while expressly proposing the establishment of a Copyright Tribunal. 

The Copyright Bill also seeks to domesticate the provisions of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (the Marrakesh Treaty) that came into force in Kenya on 2^nd September 2017. The Copyright Bill also provides contemporary developments like internet service provider (ISP) liability in copyright infringement.

This article seeks to highlight some of the key amendments proposed by the Copyright Bill.

Changes in Definitions

The passing of the Copyright Bill in its current state will have the effect of introducing some definitions in the Copyright Act. Of relevance, is the proposed redefinition of “musical work” to mean “a work consisting of music, and includes any graphical notation of such work”. This new definition is more expansive as it will include what is known as sheet music, thus also protecting the creations of composers which were not adequately captured before.

The Copyright Bill also introduces the definition of “publication” as “a work or a sound recording, tangible copies of which have been made available to the public in a reasonable quantity for sale, rental, public lending or for other transfer of the ownership or the possession of the copies”. Of note, is the use of the phrase “reasonable quantity” which raises uncertainty as to how exactly to ascertain reasonableness.

The definition of “record” is also proposed as “any device in which sounds or the representations of sounds are embodied which are capable of reproduction there from [sic] with or without the aid of another instrument”. This definition contrasts with that presently given by the Copyright Act as “any disc, tape, perforated roll or other device in which sounds or the representations of sounds are embodied which are capable of reproduction therefrom with or without the aid of another instrument”. The proposed amendment is interpretively broader and will be able to capture modern forms of sound recordings especially for infringement enforcement actions under the Copyright Act.

The Nature of Copyright and Related Rights

The Copyright Bill proposes to grant a copyright holder the exclusive right to “the making available of the work” in Kenya. This inclusion is extremely wide-ranging and introduces a level of ambiguity as to the intention of the law maker. Further proposed amendments create new exceptions to enforcement of copyright that are more expansive yet in keeping with the global development of norms in copyright law. These will be a necessary consideration in the negotiation and execution of any future copyright-related agreements.

The Copyright Act currently provides for the unique nature of copyright in sound recordings. It specifically provides for what is known as a blank tape fee that is levied as a royalty against any audio recording equipment or blank tape intended for recording copyrighted sounds in Kenya. The Copyright Bill proposes to change the point of levying this blank tape fee from the point of first sale to the point of first manufacture or entry into Kenya of such recording medium. 

Collective Management Organisations (CMOs)

The Copyright Bill seeks to replace the term “collecting society” with “collective management organisation” which are more conventionally known. 

Deregistration of CMOs

The Copyright Bill attempts to streamline the process of deregistration of CMOs. These changes will create more clarity and certainty in the process to be followed for deregistration of CMOs. It will also offer greater comfort to disgruntled members as is presently the case in some CMOs, and to CMOs themselves that may be aggrieved by the manner in which the Kenya Copyright Board (KECOBO) conducts itself in the deregistration process.

 Most importantly, the Copyright Bill proposes an offence for any person who purports to collect royalties without the authority of KECOBO. It is proposed that such person should be liable to a fine of not more than Kenya Shillings Five Hundred Thousand (KES 500,000 /=) or prison term of not more than four (4) years, or both. This is a welcome amendment, as it carries a significant deterrent for otherwise fraudulent conduct. This should help prevent the dubious collection of money in the name of CMO members. 

Administration of CMOs

The Copyright Bill further proposes to introduce the criteria for directors and chairpersons of CMOs. The Bill also proposes term limits for which the directors and chairpersons of a CMO should hold. These term limits will ensure sufficient institutional memory and consistency of personnel thus allowing predictability and relatability with both internal and external stakeholders. The term of office will also be short enough to enable occasional revitalization of CMO operations through new leadership.

Inspection and Supervision of CMOs

The Copyright Bill proposes that KECOBO be granted the mandate to inspect, investigate and supervise various aspects of a CMO’s operations. This would also extend to the books of accounts and organizational records of a CMO.  Consequently, the Copyright Bill further proposes that KECOBO be empowered to order and direct a CMO to undertake various remedial actions.

Enhanced oversight and enforcement actions against CMOs that do not effectively manage the interests of their members will arguably reign in conduct that has decreased the effectiveness of collective management of copyright in Kenya. This will significantly boost the governance of CMOs to the benefit of artistes and other copyright owners.

Collection of Royalties

The Copyright Bill proposes the Kenya Revenue Authority or a body designated by KECOBO to collect royalties on behalf of CMOs. This can be viewed as an effort to bolster accountability and verifiability in the collection and remittance of royalties. 

Copyright Register

The Copyright Bill proposes that KECOBO be mandated to maintain a publicly accessible copyright register. This proposal appreciates the need to create a verifiable record of registered works according to the author, owner, assignee or exclusive licensee thereof. 

Copyright Tribunal

The Copyright Bill proposes to create the Copyright Tribunal which will replace the present “competent authority” that acts as the arbiter between KECOBO and collecting societies registered under the Copyright Act. The proposed Copyright Tribunal will have exactly the same scope of duties as the “competent authority” as currently referred to under the Copyright Act. It will not have the power to determine disputes between CMOs and their members even though substantive provisions on such potential conflicts have been proposed. The power to give directions on such disputes has been reserved for KECOBO and its Executive Director.

Other Amendments

The Copyright Bill proposes to amend the Copyright Act in line with global trends in copyright law, these being aside from copyright in musical works and sound recordings as discussed in this article. For example, it proposes the protection of ISPs against liability for the transmission of copyright-infringing material through the network and bandwidth they provide to customers as part of their ordinary course of business. If enacted, an ISP’s role shall be to action any takedown notice received from a copyright holder relating to infringing material and to provide information to investigative agencies where necessary. There will be no general obligation to monitor transmitted material or actively seek out circumstances of infringing material on its networks.

These protections are known as “safe harbour” provisions. They are a recognition of the pervasive nature of infringement of copyright by utilisation of the internet, and the role that ISPs play as a conduit of data and provider of internet connections. They respect the perception of an ISP’s role as merely providing a ‘dumb pipe’ for data to flow between various points on a network. Presently, the Copyright Act is silent on liability of ISPs for such infringement. However, services such as peer-to-peer (P2P) file transfer applications like BitTorrent (commonly known as torrenting), and websites that index or host infringing material such as The PirateBay result in significant losses for copyright holders. These proposed amendments reflect the generous protections granted to ISPs in the United States of America’s Digital Millennium Copyright Act (DMCA) and are highly welcome to eliminate the present uncertainty.

Conclusion

The Copyright (Amendment) Bill, 2017 is a significant step in the clarification of various uncertainties that exist in Kenya’s copyright legislation. Considering the clamour for reform on the role of CMOs in the management of copyright, the proposed provisions make ideal suggestions that could help secure the interests of artistes. It could also relieve other stakeholders of persistent debates on pertinent issues of law through the certainty of having both an official copyright register and a distinct Copyright Tribunal to adjudge relevant disputes. It is in the best interests of all stakeholders to support this Copyright Bill, with the necessary suggested amendments that would prevent the introduction of ambiguities where they arise.