What changes are in the Copyright (Amendment) Bill?

COPYRIGHT AMMENDMENT BILL, 2017

Clause 1

It sets out the short title of the proposed Act.

Clause 2

It proposes to amend section 2 by including new definitions so as to domesticate the Marrakesh Treaty, ISP Liability and the Resale Royalty Right. It also proposes new definitions.

The table below outlines the changes to the definitions:

Term that is being Defined

Current Word/Paragraph in Copyright Act, 2001

Proposed Word/Paragraph in the Copyright Amendment Bill, 2017

Author

‘film’

‘work’ (paragraph (d))

Author

‘working’

‘making’(paragraph (d))

Broadcast

‘broadcast’

‘broadcasting’

Copy

‘or visual’

Insertion of ‘audio’ before ‘or visual’

Copyright

‘copyright’

Insertion of ‘or related rights’ after ‘copyright’

Forklore

‘forklore’

To be deleted

Infringing copy

‘manufacture’

‘making’ (paragraph (a))

Infringing copy

-

Introduction of new paragraph (aa) that defines infringing copy as ‘the transmission of a work or live performance through wire or wireless means to the public.’

Infringing copy

Paragraph (b)

Deletion of paragraph (b) and insertion of ‘where imported, a copy the making of which would have constituted an infringement of such rights if made in Kenya by the importer’

Musical work

-

Deletion of definition and to be replaced with ‘a work consisting of music, and includes any graphical notation of such work’

School

‘Education Act, (Cap. 211)’

‘Basic Education Act,2013’

Work

-

Deletion of definition and introduction of new definition which is ‘literary, musical, artistic work, audio visual work and sound recordings and includes translations, adaptations, new versions, or arrangements of pre-existing works, and anthologies or collections of works which, by reason of the selection and arrangement of their content, present an original character: Provided that the visually impaired persons work shall be limited to literary and artistic works whether published or made available in any media’

Technical measure

‘technical’

Insertion of ‘protection’ after ‘technical’.

 

 

 

There is also the proposal to insert new words such as; accessible format copy, art market professional, artwork, authorized entity, beneficiary person, buyer, commercial resale, Copyright Tribunal, exclusive license, information system, information systems services, Internet Service Provider, organization, owner of the copyright, original work of art, performance, performer, public display, publication, record, related rights, resale royalty rights, seller and specialized formats. Inclusion of these words will clarify their definition.

Clause 3

It proposes to amend section 5 of the Act by making clearer the Board’s directive. It proposes to add words such as ‘national and regional’ and ‘administer and enforce’.

Clause 4

It contains provisions of amendment of section 6 of the Act in line with the Constitution of Kenya, 2010. ‘Permanent Secretary’ is to be substituted with ‘Principal Secretary’ and ‘Commissioner of Police’ is to be substituted with ‘Inspector-General of Police’.

Clause 5

The clause proposes to amend section 11 of the Act to provide for the appointment of the Executive Director by the Board and further enhances the qualifications for appointment to be appointed to the position of Executive Director. There is the inclusion that the person must hold a Master of Laws degree from a university recognized in Kenya in the field of Intellectual Property.

Clause 6

It proposes to amend section 19(2) of the Act by deleting the words ‘Auditor General (Corporations)’ and substituting it with ‘Office of the Auditor General.’

Clause 7

It further amends the heading in Part III for clarity.

Clause 8

It proposes to amend 22(1) of the Act by inserting the words "or related rights" immediately after the word "copyright" for clarity.

Clause 9

It further proposes to introduce a new section 22A into the Act to provide for voluntary registration of copyright by the owner(s), author(s), assignee(s) or exclusive licensee(s) and for the Board to keep records of such persons in a publicly available register subject to such terms to be determined by the Board.

Clause 10

This clause seeks to repeal section 26 in its entirety and replace it with a new section that increases the scope of copyright material in literary, musical or artistic and audio-visual works.

Clause 11

It proposes to insert section 26A, 26B, 26C and 26D that include computer programs, technological protection measures, visually impaired persons and persons with other disabilities and artist resale rights. It contains proposals that allow visual artists to form a collective management organization to manage this right and in case there is no such organization, the Attorney General is given the power to designate the function to any registered collective organization.

Clause 12

It proposes to clarify and facilitate the operationalization of blank tape fee in respect to copyright in sound recordings.

Clause 13

It proposes to repeal section 29 of the Act and substituting it with a rephrased and more detailed version of the nature of copyright in broadcasts.

Clause 14

It proposes to amend section 30 that a copyright owner’s rights are not infringed when a person makes a single and personal copy of the performance for their own enjoyment and use.

Clause 15

Introduction of section 30B that instructs on collection and payment of royalties. Royalties that are payable to authors, producers, performers, visual artists, publishers etc. will be collected by the Kenya Revenue Authority or any other designated entity by Kenya Copyright Board. Royalties will be collected on behalf of Collective Management Organizations that are licensed under law to represent performers and owners of sound recording. This is a brilliant and effective mechanism on collection of royalties that bypasses the hurdle of getting from businesses and public transport entities.

Clause 16

It proposes to amend section 33 to cater for assignments and their validity under the Act.

Clause 17

It seeks to amend section 33A with regard to when two more people make an application to the Board and provides guidelines as to how the Board should handle such a matter.

Clause 18

It proposes to delete section 35(1) and substitute it with a section that deals with the rights of performers and infringement of their copyright.

Clause 19

It proposes to insert new sections 35A, 35B and 35C for the protection of ISP via ISP liability, safe harbor, and takedown and outlines the resultant offences.

Clause 20

It proposes to insert new subsection (9) that deals with destruction of material seized upon an order of the Court.

Clause 21

It seeks to amend section 38 by forming new offences and also provides guidelines of an objective standard that should be adopted by courts in sentencing for infringement offences.

Clause 22

It proposes to insert a new section 38A that outlines copyright offences that can be committed by corporate bodies.

Clause 23

It proposes to substitute ‘Attorney General’ with the ‘Director of Public Prosecutions’ in line with the Constitution of Kenya, 2010.

Clause 24

It fundamentally seeks to amend “collecting society” to “collective management society”.

Clause 25

It proposes qualifications for Directors and Chairpersons of Collective Management Societies. It also outlines their tenure and whether they can be eligible for re-election. For one to hold the post, one must hold a certificate, diploma or any other post-secondary qualification obtained over a period of at least more than a month of study.

There is also the provision of the Collective Management Organizations that collect, manage and distribute royalties and other remuneration accruing to their members.

Clause 26

It amends section 47 of the principal Act by deleting the words “a collecting society” wherever it appears and substitute it “a collective management organization”.

Clause 27

It amends section 48 by providing for the establishment of the Copyright Tribunal and the guidelines on how many members it should have.

Clause 28

It amends section 49 by introducing new provisions that outline the duties also required for Copyright Protection.

Clause 29

It introduces the Second Schedule that clarifies the matter of fair dealing under the Act.

This article was published on Nov. 3, 2017.

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