The World Intellectual Property Organization (WIPO) and Kenya Copyright Board (KECOBO) have taken a lead role in the development of a Copyright Regulatory Framework for the Audiovisual Sector in the Digital Age. From an intellectual property (IP) perspective, digital television has presented the opportunities and challenges for the audiovisual industry. In this regard, the Communications Authority of Kenya (CA) has come under fire from several quarters due to its apparent lacklustre performance thus far in promoting and protecting the rights of copyright owners whose works are blatantly infringed by CA licensees. Similarly, some have tasked CA to explain the local content quota requirement for CA broadcast licensees, including how the quota will be calculated and enforced.
In the specific case of copyright law in the audiovisual sector, the point of departure was section 26(j) of the Copyright Act which sets out a fair dealing provision that protects broadcasting organisations who use audiovisual works that are already published. This section provides that a rights holder does not control the broadcasting of a literary, musical or artistic work or audiovisual work already lawfully made accessible to the public with which no licensing body is concerned. Broadcasters thus have a possibility to show published audiovisual works freely, where there is no CMO functioning in the audiovisual industry. Therefore it is only when rights holders mandate a CMO to manage their broadcasting rights in their audio-visual works that broadcasters will need to ask for their permission, i.e. get a license from the CMO.
Currently there is no CMO in Kenya functions for copyright owners of audiovisual works. However if a company limited by guarantee for the collective management of audiovisual rights would be set up, the number of rights holders it would potentially represent is a central issue. However from as early as 2011, KECOBO, the body that accredits and regulates CMOs, has expressed its willingness to set up a CMO “for the audio visual works which will collect for the rental and use of audio visual works such as films on behalf of the rights holders”.
Finally, it must be noted that the administration of the blank tape levy (private copying levy) provided under the Copyright Act is yet to commence. According to Section 28(5) of the Act (as amended in 2014) the blank tape levy shall be collected by KECOBO and then distributed to “the respective copyright collecting society registered under section 46”. As many may know, the private copying levy (or the audio blank tape levy as it known in Kenya) is currently the only efﬁcient mechanism which allows creators to be compensated for widespread copying of their works for private/domestic use. It therefore follows that the blank tape levy would be applicable to blank CDs, tapes, cassettes, DVDs, VCDs, USB Disks, MiniDiscs, Memory Cards, Mobile Phones among others. It will be interesting to see how owners of audiovisual works will benefit from this levy.