Comments on Draft Copyright Amendment Bill 2017

The Copyright (Amendment) Bill 2017 is currently pending before Parliament (Committee stage). In the Bill, there are 13 areas of changes to the Copyright Act identified as follows: Definitions; Functions of the Board; Composition of the Board; Qualifications of Executive Director; Copyright and Related Rights (Exclusive Licensing); Artist Resale Right; Copyright in Broadcasts; Rights of performers (Royalty Collection); Infringement (Intermediary Liability); Collective administration of copyright; Copyright Tribunal; Exceptions and Limitations (Fair Dealing). A copy of the Bill is available here. This blogpost will briefly highlight some of the areas of concern arising from the proposed amendments.

In the interpretations section, the surprise deletion of the word ‘broadcast’ is notable. According to section 22 of the Act, broadcasts fall under the category of works eligible for copyright therefore a definition of this subject matter must be retained in the Act. There is also need to re-consider the definition of ‘copy’ since as it is currently worded it  may have the unintended consequence of criminalising transient copying that occurs in web browsing.  The section on functions of Kenya Copyright Board (KECOBO), the proposed introduction of a new mandate to ‘licence all dealers of copyright works’ is problematic since the nature and scope of this regulatory power is not clearly set or defined anywhere in the Act. In addition, there is need to align the Act with the provisions of the Traditional Knowledge and Cultural Expressions Act, 2016. This 2016 Act includes an express mandate for KECOBO related to the ‘traditional knowledge digital repository’. This mandate ought to be reflected in the Copyright Act. Under section 11 of the Act, the Bill proposes amendments to the qualifications for the Executive Director to the effect that the latter office holder must have a “Master of Laws degree in the field of intellectual property”. This may discourage other competent copyright professionals with other non-law academic qualifications from seeking appointment to the office of Executive Director.
The proposed section 26D introduces the artist resale right. While a resale right, or “droit de suite”, has been introduced in a number of European jurisdictions, there is no universal consensus on its benefits, even for the artists it supposedly seeks to benefit. What empirical evidence is there to suggest that the Kenyan art market, and indeed artists, would benefit from a resale right? Furthermore, the question of who will administer the resale right royalty collection and distribution has not been addressed. Section 35A proposes that ISPs remove or disable access to content within 48 hours which is problematic. The section proposes a two-step notice-and-takedown procedure for ISPs to disable access to allegedly infringing material having regard to the circumstances of the particular takedown request). As it has been suggested previously on the blog here an intermediate step ought to be introduced between notice by the copyright owner and action by the ISP. This middle step would require the copyright owners to obtain an injunction order from the court. Thus it is the court that would instruct the ISPs to disable access to infringing content.
On collective administration of copyright, the term “administrative shortfalls” is not defined. More fundamentally, there is need to have a rationalised graduated escalation of sanctions starting with a caution, a warning, a penalty and finally deregistration with reasonable right of response ensuring natural justice is observed.
In Second Schedule on General exceptions and limitations, the five factor test for fairness provided by the Supreme Court of Kenya in the ‘Digital Migration’ case should be included so as to aid in determining ‘fairness’. The Bill ought to consider an open list of purposes for dealing so as not to be restrictive for users of copyright works.
Finally, this blogger wonders whether there may be need to consider a repeal of the current Act and drafting of a new Act given the continuous piece-meal amendments made to the Act in consecutive Statute Law (Miscellaneous Amendments) Acts in recent years. The current Amendment Bill, with its substantial additions and improvements, joins this long line of changes to the Act in a relatively short period of time.

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