Kenya amends its Copyright Act to ratify the Marrakesh Treaty and address a myriad of other issues

The Amendment Act does not repeal the entirety of the Principal Act. It only repeals certain sections of the Principal Act such as section 21 (appeals against the decision of the Copyright Board to now lie to the Copyright Tribunal); section 26 (nature of copyright now separated from provisions on limitations and exceptions); section 48 (jurisdiction previously held by a “competent authority appointed by the Minister” now held by the Copyright Tribunal appointed by the Chief Justice); etc.

Some highlights of the Amendment Act include:
Sui-generis approach to the protection of traditional knowledge and traditional cultural expression: Section 2(e) deletes the definition of “folklore”. With this, it appears the protection of folklore has been removed from “main stream” IP (the copyright bit, at least). The terms “traditional knowledge” and “cultural expressions” are broadly defined under the Act for the Protection of Traditional Knowledge and Cultural Expressions and would include “folklore”.

Wider range of protected subject matter: “Works” are defined under the Amendment Act to include translations, adaptations, new versions, or arrangements of pre-existing works, and anthologies or collections of works, once they are original by reason of the selection and arrangement of their content. See section 2(g). This clarification is notable particularly with respect to the question of whether musical arrangements are protectable in the same manner as primary works. For instance, in South Africa, there have been issues with Southern Africa Music Rights Organisation (SAMRO)’s Distribution Rules, in which arrangements of folk music are treated as non-original works and partly in the public domain. See discussion on The IPKat here.

Ratification and domestication of the Marrakesh Treaty: The Amendment Act contains exceptions that address access by people with disabilities to works that are protected by copyright and related rights. The exceptions go beyond the Treaty to include other forms of disabilities beyond visual impairment and print disability. See the definition of “beneficiary person” in section 2(m).

AI-generated artworks are recognised: Section 2(m) defines “artwork” to include original work of visual art produced under the authority of an artist. It seems that AI-generated artworks may be deemed as produced under the authority of an artist. By extension, it may be possible to recognise the “authorising” artist as the author of the artwork.

Register of copyright works: Section 10 of the Amendment Act requires the Copyright Board to keep a register of copyright works. Extracts from the register, where certified by the Board, may be admissible in evidence. The use of certified extracts in evidence would be quite helpful to authors and copyright owners seeking to prove the existence of their creative outputs. However, there is the question of the feasibility of maintaining such register physically as opposed to a digital or electronic register. Also significant is the question of whether the collation and recording of relevant information into the register will include retrospective information.

Digital advertising may remove safe harbour for ISPs: Section 24 of the Amendment Act provides safe harbour for internet service providers which exempts them from liability for copyright infringement subject to specified conditions. One of these conditions is that such ISP does not “in any way promote the content or material being transmitted”. This raises the question of whether ISPs like YouTube that create automatic playlists may be considered as “promoting” the contents of such playlists.

Takedown notice requirements may be too onerous: A new section 35B requires persons filing a takedown notice to inter alia “identify the rights being infringed”. See section 35B(2)(e). Further, a malicious takedown notice is a crime and attracts a fine and/or imprisonment. See section 35B(8). In the case of the former, filing a takedown notice may be cumbersome for less savvy authors who may not be able to identify the rights being infringed under the Copyright Act. Criminalising the filing of a malicious takedown notice appears too severe especially given that the filing of a takedown notice does not guarantee a takedown nor does it necessarily remedy the (previous) act of infringement.

Fair dealing v fair use: The Second Schedule to the Amendment Act contains the exception to copyright protection. According to paragraph 1, “the exclusive rights under section 26 shall not include the right to control— (a) the doing of any of those acts by way of fair dealing for the purposes of scientific research, private use, criticism or review, or the reporting of current events”. The expression, “fair dealing” is not defined in the Act. However, Kenya’s Supreme Court has had the opportunity in 2014 to consider whether the purposes considered as fair dealing (scientific research, private use, criticism or review, or the reporting of current events) were closed. In Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others, the court held that the “must-carry” rule in Kenya’s Broadcasting Regulations fell under the fair dealing provisions of the Copyright Act despite not being enumerated within the list of purposes. See In the public interest: how Kenya quietly shifted from far dealing to fair use for some in-depth discussion. 

In the opinion of this Africa Correspondent, one of the positive things about the Copyright Amendment Act 2019 is the extensive provision regarding the corporate governance of collective management organisations (CMOs). See section 31 of the Amendment Act generally. The Amendment Act (section 46B(2) stipulates a requirement that I have advocated here as a panacea to the corporate governance woes of collecting societies in Nigeria – provide a tenure for directors and chairpersons of CMOs. The Amendment Act also touches on a matter that forms part of this Africa Correspondent’s current research for the Open AIR project: gender representation in the corporate governance of collecting societies. Section 34 of the Amendment Act requires the Cabinet Secretary to make regulations that may prescribe “guidelines on the gender representation and participation of persons with disability and other marginalized groups on the boards of collective management organizations”. While recognition of gender “blindness” on the boards of CMOs is laudable, there are concerns around the frequent lumping of gender issues with disability issues and unique concerns and interests of “marginalized groups”. How to address the question of representation without conflating the obvious unique needs of each “marginalised group”? 

There are several other interesting provisions of the Amendment Act. However, as I always say, the taste of any statute is in the application and/or enforcement. We wait to see how Kenya’s Copyright (Amendment) Act will be applied and/or enforced.