Copyrights
Copyrights denote exclusive rights enjoyed by the owner creator of the original work[1]. Copyrights in Kenya is governed by the Kenya Copyright (Amendment) Act 2019, which repealed the copyright Act, No. 12 of 2001. The incumbent Act, however, did not repeal the principal Act in its entirety. It amended some sections that failed to effectively address copyright issues in Kenya, thus bringing out differences between the two statutes.
Firstly, the Kenya Copyright (Amendment) Act 2019 provides for creating a Copyright tribunal that was not present in the Principal Act. The copyright tribunal shall replace the ‘competent authority’ referred to in Section 37(1) of the Copyright Act, 2001[2]The tribunal shall listen to appeals against the Kenya Copyright Board’s decisions and any other matter regarding copyright registration.
Secondly, the Act also provides some vital exclusions in infringement of copyrights missing in the principal Act. For instance, the Kenya Copyright (Amendment) Act adheres to the Marrakesh treaty requirement, which operates in Kenya by dint of Article 2(6) of the Constitution. This treaty requires contracting parties to introduce a set of exceptions in copyright rules while reproducing and distributing published works to the visual impaired and the Otherwise Print Disabled (MVT).
Furthermore, the Act also introduces a Second schedule, appearing immediately after the First Schedule of the Principal Act. The second schedule provides for the limitation of copyright infringement[3]. For instance, acts by way of parody are excluded from being regarded as copyright infringement, as long as it is done with acknowledging the owner of the work[4].
Additionally, the principal Act provided that an assignment or license to copyright would be valid if it had a written signature of the assignor and the board’s verification. The Amendment Act, however, provides more protection on copyrights. It is required that the assignment be recorded with the board, which then issues a certificate of record for the assignment to be deemed valid.
The Copyright (Amendment) Act 2019 institutes dramatic works separately as a distinct category of work. Musical work is also redefined under the Act to include graphical notations in qualifying for protection[5].Whereas in the former Copyright Act of 2001, musical works were defined as any musical work irrespective of its musical quality and included works that are usually composed for musical accompaniment[6].
Moreover, the Copyright (Amendment) Act provides that the Kenya Revenue Authority shall be tasked with collecting royalties on behalf of the collective management organizations licensed to represent performers or owners of sound recording. Previously, the Copyright Act of 2001 provided that the user pay the performers remuneration through collective management organization[7].
The Amendment Act also introduces the artist resale royalty rights provided for under section 26D. The artist resale right entitles authors/owners of works to a royalty/benefit every time their work is resold elsewhere[8]. This provision is an exception to the renowned international doctrine of exhaustion of copyright. The right shall only be valid, providing that the copyright stays operative.
The Act also introduces section 35B and 35D, which provide for a limitation on copyright infringement regarding content offered by Internet Service Providers. Section 35B provides for the takedown procedure with an Internet service provider states that the person whose copyright rights have been infringed can request the Internet Service Provider to take down the infringing content. The takedown notice should be in writing with the right addresses, with full names, email, and telephone contact, and signed by the complainant. Section 35D provides someone whose copyright has been infringed to apply for an injunction against the infringement’s culprit.
[1] Ben Sihanya, Intellectual Property and Innovation Law in Kenya and Africa.
[2] Kenya Law, chapter 130, Laws of Kenya.
[3] Second Schedule, Section 1, Copyright (Amendment) Act,2019.
[4] Second Schedule, Section 2, Copyright (Amendment) Act,2019.
[5] Section 2a, Copyright (Amendment) Act 2019.
[6] Section 2i, Copyright Act No. 12 of 2001.
[7] Section 30A, Copyright Act No. 12 of 2001.
[8] Section 2a, Copyright (Amendment) Act 2019.