As readers may know, there has several media reports by book publishers, book authors and their supporters raising an alarm about the rising level of piracy of printed texts. Japhet Otike, a professor at Moi University, offers a user’s perspective in a recent newspaper article titled: “Photocopying of a copyrighted book is not quite illegal”. His overall argument, which this blogger concurs with, is that copyright is and should be balanced to take into account the rights and interests of owners and users of copyright works respectively. In this regard, Otike argues that the term ‘piracy’ should be reserved only for those involved in mass production of copyrighted materials for commercial purposes. Thus students and teachers who produce a few pages from a book for non-commercial purposes should not be lumped together with hardcore pirates making a fortune from making, distributing and selling unauthorised copies of printed works.
As many readers may know, this blogger is affiliate faculty teaching the CopyrightX course in Nairobi, Kenya. CopyrightX is a 12 week course, affiliated with the Harvard Law School and Harvard Berkman Center for Internet and Society and led by Prof. William W. Fisher III, WilmerHale Professor of Intellectual Property, Harvard Law School. CopyrightX includes three sets of students and teachers: roughly 90 students attending a course at Harvard Law School taught by Prof. Fisher; roughly 570 students attending an online course taught by 23 Harvard teaching fellows; and roughly 500 students attending 19 courses taught by faculty at affiliated universities and institutions.
Nagalakshmi Solutions Ltd (NLS) is a Nairobi-based ICT company which specialises in provision of banking and financial innovations, which includes Nuron, its offline branch solution. One of its solutions, Tera Integration Platform (TIP) is used by a number of banks and financial institutions in Kenya including National Bank, National Industrial Credit Bank (NIC Bank), Sidian Bank and of course, Kenya Commercial Bank (KCB). According to media reports, NLS and KCB had entered into a 5-year “agreement”/”contract” between 2011 and 2016. It is alleged that negotiations to renew the contract failed and the contract was terminated by NLS in November 2016 but KCB continued to use the NLS software without permission. As a result, NLS filed suit against KCB.
Kenya Copyright Board (KECOBO) has registered a new collective management organisation (CMO) to collect license fees and distribute royalties on behalf of authors, composers and publishers of musical works. The registration is for the normal statutory period of one year from March 2017 to February 2018. According to KECOBO, the new CMO, Music Publishers Association of Kenya (MPAKE), had satisfied the requirements of Section 46 of the Copyright Act, 2001 and Regulation 15 and 16 of the Copyright Regulations, 2004.
This blogger’s attention has been drawn to a set of draft copyright regulations on collective management published online here which appears to have been prepared by two consultants: Nicolas Jondet and Smita Kheria listed as such here. A link to this website and the draft regulations therein appears on the official website of Kenya Copyright Board (KECOBO) here.
Under section 49 of the Copyright Act, the Attorney General (AG) has the powers to make regulations for the better carrying out of the provisions of the Act. In exercise of these powers, the AG made the Copyright Regulations 2004. Sections 15, 16, 17 and 18 of these Regulations contain several provisions relating to collective administration of copyright. In this regard, the draft regulations propose a new standalone framework for “collective management”. This blogger has perused the draft and sections requiring comment have been addressed seriatim below.
During the 25th Administrative Council Session held in Accra, Ghana in November 2001 the Republic of Malawi made a proposal to extend the mandate of African Regional Intellectual Property Organization (ARIPO) to include Copyright and Related Rights to enable ARIPO coordinate copyright and related rights at regional level. ARIPO has since taken steps to implement the mandate through policy development, capacity building and advocacy. At the Fortieth Session of the Administrative Council that took place in Harare, Zimbabwe on 5 to 7 December 2016, the Council approved the roadmap for the establishment of a voluntary copyright registration and notification system of ARIPO.
In a recently reported judgment in the case of Michael Branham Katana t/a Harsutak Bar & 4 others v Kenya Association of Music Producers (KAMP) & 3 others  eKLR, a claim was made that Kenya Copyright Board (KECOBO) acted unreasonably by licensing two collective management organisations (CMOs) namely, KAMP and Performers Rights Society of Kenya (PRiSK) to collect royalties. The Petitioners claim that by the act of collecting and enforcing royalty collection, the CMOs violated their constitutional rights including the right to equality, and property and that by virtue of the act of licensing the CMOs to operate, KECOBO is complicit in the alleged violation of the Petitioners’ constitutional rights.
Christmas carols in the public domain, Copyright Act, Copyright free, English carol, Fair Use, Joy to the world, Kenyan Copyright Act, Public domain, s45 of the Copyright Act, s45(c) of the Copyright Act, Silent Night, Twelve days of Christmas, We wish you a Merry Christmas, We wish you a Merry Christmas song, Works in the public domain
The holiday season has come upon us and during this time of the year, some of us sing Christmas carols, as well as sing or hum the song, “We wish you a Merry Christmas”. This song is synonymous with the Christmas and festive season. You will probably hear this song blaring from shopping malls and hubs, eager reveller’s phones as their ringtone and down many streets, especially as December 25th approaches and the New Year. This blogger would like to explore the fact that certain versions of “We wish you a Merry Christmas” and a number of other Christmas carols are “copyright free” as they are considered to be works in the public domain.
In 2013, three local free-to-air (FTA) broadcasters filed a suit at the High Court of Kenya claiming that certain digital broadcasters were illegally re-broadcasting their programme-carrying signals pursuant toa so-called “must-carry” rule in the Kenya Information and Communication Broadcasting Regulations. The “must-carry” rule compels all signal distributors to carry a prescribed minimum number of Kenyan broadcasting channels, as a precondition to retaining their licences. Although the High Court dismissed the FTA broadcasters’ claims, this dismissal was later reversed in the Court of Appeal. As a result, the matter was appealed before the highest court in the land – the Supreme Court in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others  eKLR.
For our purposes, the central issue to be determined by the Supreme Court was whether the ‘must-carry’ rule infringes upon the intellectual property rights of the FTA broadcasters.
Content Service Providers, Copyright, CSPs, Draft Music Bill 2016, KAMP, KECOBO, Kenyan music industry, MCSK, Music Bill, Music Talent Academy, National Music Council, National Music Fund, National Music Tribunal, permanent presidential music commission, PRiSK, Royalties, Safaricom, skiza
Photo credit: Julian Manjahi
As alluded to in a previous blogpost here, the Draft National Music Bill 2016 has been touted as a proposed solution to the payment of artists’ royalties in Kenya, in light of the recent issues raised about the constitutionality of section 30A of the Copyright Act. The back and forth regarding the payment of royalties from platforms such as Skiza and subsequent music platforms that may be created, might be found in the Draft National Music Bill. The Bill has been put forward by the Permanent Presidential Music Commission (PPMC) and was published for public comment in June 2016.