KENYA: REVIEW OF THE COPYRIGHT AMENDMENT BILL, 2021

By Sharon Odeny,Daniel Mwathe,John Syekei Wednesday, January 19, 2022
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As you may be aware, the Copyright Amendment Bill, 2021 (the Bill) was published in the Kenya Gazette dated 26 November 2021. The Bill is a private members’ Bill, and at the moment, it is not clear whether it will be supported by the Government side in Parliament. Even though the Memorandum in respect of the Bill indicates that it is intended to repeal sections relating to takedown notices to remove ambiguity on the role of internet service providers (ISPs), it is not entirely clear what ambiguity the amendment intends to cure.

The Bill proposes to repeal Sections 35B, 35C and 35D of the Act, which relate to the role of an internet service provider (ISP) to comply with requests for the takedown of copyright infringement item. However, the provisions of the Act on the intermediary liability of ISPs in respect of copyright infringement have been retained. You can access our previous article discussing the introduction of intermediary liability and takedown provisions here.

Section 35B of the Act provides for the procedure to be followed in processing a takedown request by an ISP, whereas Section 35C of the Act sets out the role of an ISP to provide subscriber information to investigative agencies and to also designate an agent or electronic address for receiving such notices under its terms and conditions. The repeal of these provisions will have the effect of reducing the regulatory compliance obligation unduly placed on ISPs in connection with infringing content.

The Bill also proposes to establish the National Rights Registry (Registry), which is an online portal for the registration of copyright works. The functions of the Registry are to include digital registration of right holders and copyright works, authentication and authorisation of consumers of copyright works, and monitoring and dissemination of data or logs related to access of registered copyright works. It is worth noting that the Registry is already operational and that no fees are charged for the services provided through the Registry at the moment.

The Bill provides that registration of copyright works through the Registry is voluntary. Since rights in copyright works usually vest automatically in the author upon the reduction of the work to a material form, non-registration of works subject to copyright will not affect the vesting of copyright. As such, while registration is not compulsory, the certificate of registration issued upon registration would make it easier to prove copyright in the event of a dispute.

Lastly, the Bill seeks to set the formula for sharing the net revenue from the sale of ring back tunes as between a premium rate service provider, a telecommunications operator, and the artist or copyright holder. Under the proposed formula, artists or copyright holders will receive the greatest share of the revenue at 52%, whereas premium rate service providers and telecommunications operators will receive 7% and 16%, respectively. This appears to be an attempt to address previous concerns by copyright holders since artists have for a long time caused substantial uproar within the music industry for what they consider to be unfair remuneration, which is not commensurate with the hard work put into recording and producing music. The objective of this amendment is, therefore, to provide for a fair revenue sharing formula.

The next step will be the introduction of the Bill in the National Assembly for the first reading, after which it is expected that the Bill will be subjected to public participation.