In the past two years, there have been considerable changes to Kenya’s copyright legal framework. The Copyright (Amendment) Act, 2019 was enacted, the Copyright Regulations, 2020 and Copyright (Collective Management) Regulations, 2020 were issued, and the National Rights Registry (NRR) was established. While these changes may seem uncontroversial (and possibly iterative), this post focuses on an implicit but potentially drastic effect of these changes: the introduction of formalities.

To understand these reforms, it is necessary to highlight some clear motivations that contributed to the process. In 2019, a section of Kenyans (predominantly those in the music industry) took to social media to express frustration at the negligible amount of royalties remitted to artists by Collective Management Organisations (CMOs). A large part of this scorn was directed at the Music Copyright Society of Kenya (MCSK).

Establishment of National Rights Registry

A few months after this public outcry, the President of Kenya, in an address to the nation, made a few practical directives. With the aim of increasing the amount of disbursed royalties by tenfold, the President ordered a restructuring of the compensation structure. Referencing a Memorandum of Understanding (MOU) signed between three CMOs (MCSK, KAMP and PRSK), under the guidance of Ministry of ICT (MoICT) and the Kenya Copyright Board (KECOBO), the President announced a centralisation of the compensation structure. Hoping to remove ‘middlemen’ from the chain of remuneration (mainly Content Service Providers such as Viusasa), the President urged all CMOs to channel payments of royalties through KECOBO. Crucially, he also stated that his ‘practical directive’ was to have all rightsholders register with KECOBO in order to ensure compensation.

Stating that rightsholders need to register to facilitate their compensation is largely uncontroversial; the Copyright (Amendment) Act, enacted a few months prior to the President’s address, provides for registration of copyright works in Section 22A. The Copyright Regulations supplement this position, providing the procedure for such registration under Regulation No. 4. Under Section 22 (5) of the Copyright Act, registration of copyright is not mandatory. The use of registration for evidentiary purposes and as a means to facilitate enforcement has been the norm in Kenya for over two decades. However, one thing make this Directive stand out – the mention of a newly established NRR.

After the President’s address, KECOBO announced the NRR. In a Frequently Asked Questions (FAQ) press release seeking to demystify the new registry, KECOBO clarified that there would be two unique but related systems: the NRR and a Royalty Management System (RMS). The latter consists of three distinct sub-systems: a licensing system; media monitoring system; and distribution system. The NRR, administered by KECOBO, is a digital repository of copyright works. The RMS on the other hand, is administered by CMOs under the supervision of KECOBO. Ideally, once works are registered on the NRR, CMOs will be able to facilitate the licensing of such works, monitor their use, and disburse royalties. How they will go about this remains unclear.

The move to introduce a digital registry, in light of a highly digitising copyright ecosystem, is laudable. However, a critical appraisal of this policy (of pursuing registration of works) raises two questions. These are considered below.

Re-formalisation of Copyright

The first question is whether Kenya has, de facto, reintroduced formalities to ownership and protection of copyright. Formalities here refer to any process rightsholders must comply with in order to obtain an exclusive right/guarantee protection over works e.g., registration, affixing a mark to indicate ownership, or depositing the works at a statutory copyright office.

In conformance with the dictates of the Berne Convention, Kenya does not impose formalities to copyright ownership. Copyright, the world over, accrues without any formalities to registration. While this is the case, formalities to enjoy or exploit the rights do exist and are largely in use. For example, the registration rightsholders go through in order to procure the services of a CMO, or to manage their rights on platforms such as YouTube with programs like ContentID, are formalities. However, these do not violate the Berne Convention as they are voluntary and non-constitutive; they are not a pre-requisite to protection.

The NRR would appear to be similar in the sense that the owners will still have copyright whether they register or not meaning they are non-constitutive. However, the fact that opting into that system directly impacts one’s access to royalties raises the concern that it is not fully voluntary. In essence, since CMOs will be making use of the RMS to disburse royalties, and the RMS would be reliant on the records in the NRR, rightsholders would have to register with the NRR so as to receive royalties. This is compounded by the President’s address which seem to present the registration with a CMO as a mandatory requirement. While owners would still be able to exploit their rights without going through the NRR, the economic incentive of opting into the system, and the considerable effort put into promoting the system by KECOBO could be construed as minimising owners’ agency in the matter.

A reintroduction of formalities, though a drastic change, may not necessarily be a bad thing. In fact, over the past two decades, a few academics such as Reid, Gompel, and Samuelson have proposed the reintroduction of formalities in a Berne compliant format. The core argument for most of these scholars is that Berne’s prohibition was based on logistical reasons more than it was natural rights. With technology easing the use of formalities, across borders especially, the use of non-constitutive formalities could very well be Berne compliant.

Privacy Concerns

The second question that arises from this policy, is with regard to its operationalisation. According to KECOBO, the RMS is to be administered by CMOs. One of the sub-systems that the RMS comprises, is a monitoring one. As long as a piece of work is registered on the NRR, it will be possible for CMOs to monitor its use on different media under the supervision of KECOBO.

It is apparent that this monitoring system would be a content recognition software, much like Content ID (both YouTube’s and Audible Magic’s) seeing as these technologies are commonly used in online copyright enforcement. Though the use of such software has been normalised in recent years, its use by CMOs is particularly intriguing seeing as this may constitute a broad invasion of user privacy. The running of such a software on varied media, such as on ISPs platforms, would mean that private entities (CMOs) would have access to large swaths of user data. The CMOs may not necessarily be bound by such platforms’ privacy policies and the duty of care imposed by the Copyright Act may not be sufficient in addressing user privacy. At present, there isn’t much information on how such a system would work, and what limitations (if any) exist on CMOs’ access to user data.

It is noteworthy that CMOs are tasked with managing rights on behalf of their members and this would invariably include monitoring the use of owners’ content. Sections 46E to 46F of the Copyright Act provide a raft of corporate governance measures and accountability mechanisms for the CMOs to ensure transparency. However, a recent audit of these CMOs revealed, among other things, systemic inefficiencies, fraud and failures to remit statutory deductions. With such reports, it is apparent that CMOs continue to be a cause for concern.

Conclusion

The introduction of the NRR and RMS systems, though an iterative reform, constitutes a major shift in the practice of copyright law in Kenya. As registrations increase and the relevant systems are rolled out, it is crucial to address issues such as the rate of CMO involvement and the extent to which KECOBO’s supervision is necessary. All in all, a shift towards burdening rightsholders with registration for purposes of enforcement is a fair compromise and a positive step considering the difficulties associated with rights clearance online. Such a trend should however not be done in a manner that precludes rightsholders who may opt not to take part in the system from exploiting their rights.