1. Introduction

On 11^th September 2023, the Kenya Copyright Board (KECOBO), a state corporation effected the Blank Tape Levy.¹ The collections were set to commence on September 15, 2023.² The blank tape levy is a fee imposed on items that may be used to carry copyright content for private copying, such as blank CDs, DVDs, USB drives, and smartphones.³ It is payable at the point of entry into Kenya or the point of first manufacture locally.⁴ The blank tape levy aims at compensating copyright holders for the losses they incur when people make copies of their work.⁵ This is especially important in the digital age when it is easier than ever to copy and share copyrighted content.⁶ This blog explores the legal foundation of Kenya’s blank tape levy, the essence of the levy and the levy share proposal.

2. Legal Foundation of the Levy: The Copyright Act

Section 3 of the Copyright Act, establishes the Kenya Copyright Board and gives it powers to perform all things or acts as may be necessary for the proper performance of its functions under the Act.⁷ This lays the foundation for Section 28 (3) on the rights of a copyright owner to receive the right to receive fair compensation consisting of a royalty levied on audio recording equipment or audio blank tape suitable for the recording.⁸ This is payable at the point of first entry in Kenya or manufacture by the importer or manufacturer.⁹

Section 28(6) provides that any person, who for commercial purposes, makes available any recording equipment for his personal or private use, without payment of the royalty levied, shall be guilty of an offense and shall be liable to a fine not exceeding two hundred thousand shilling or to imprisonment for a term not exceeding four years or to both.¹⁰

Section 30(6) reiterates that, although the rights of a copyright owner are not infringed by the making of a single copy of the performance for private use. Nevertheless, the owner of copyright enjoys the right to receive fair compensation consisting of a royalty levied on audiovisual recording equipment or audio-visual blank media suitable for recording, payable at the point of first manufacture or entry in Kenya by the manufacturer or importer for commercial purposes of such equipment.¹¹

3. Essence of the Blank Tape Levy

   1. How will it work and who is affected?

The blank tape levy will be collected by KECOBO and distributed to copyright holders through Collective Management Organizations (CMOs).¹² CMOS are organizations that represent the interests of copyright holders and distribute royalties on their behalf. KECOBO has drafted a proposal for the distribution of the blank tape levy.¹³ From this share proposal, the CMOs will be responsible for the distribution of the income received from the levy to copyright holders.¹⁴ They will also be responsible for the management and distribution of amounts collected to copyright holders, subject to their distribution rules.¹⁵

KECOBO is also proposing the establishment of a creator’s fund to be managed by an Ad Hoc Committee to be appointed by the Cabinet Secretary from time to time.¹⁶ This Ad Hoc Committee will represent the interests of copyright holders and distribute royalties to them on their behalf.¹⁷

The blank tape levy affects anyone who imports or manufactures items that may be used to carry copyright content for private copying.¹⁸ This includes retailers, manufacturers, and importers.

4. Blank Tape Levy Share Proposal

The Kenya Copyright Board’s proposal for the distribution of the blank tape levy takes into account the estimated rate of consumption of copyright works in different sectors and the practices of other African countries.¹⁹ It considers the approaches taken by Malawi, Nigeria, and Ghana. Below is a brief overview of the share proposal:

1. 1. 1. 20% allocation to KECOBO: This is intended to allow KECOBO to carry out its important functions of administration, advocacy, and enforcement.

      2. 9% allocation to the agency commission: This is intended to compensate agents for collecting and distributing royalties on behalf of copyright holders.

      3. 71% allocation to the creative sector: This is intended to support the creation and distribution of high-quality Kenyan content.

The allocation to the creative sector is further distributed as itemized below:

1. 1. 1. Music and sound recording: There is a proposed distribution of 36% of the creative’s share to authors, composers, and publishers. This proposed distribution will also apply to producers of sound recordings and performers of sound recordings. This reflects the significance held to these creators in the music industry.

      2. Audiovisual rights holders: There is a proposed distribution of 15% of the creative’s share to audiovisual rights holders, which will also apply to scriptwriters, performers and actors.

      3. Literary works right holders: There is a proposed distribution of 20% of the creative’s share to literary works right holders. This share applies to book authors, book publishers, and visual arts and related creative sectors.

Overall, the Kenya Copyright Board’s proposal for the distribution of the blank tape levy is fair and is likely to have a positive impact on the Kenyan creative sector. However, it may be worth considering a slightly larger share for audiovisual rights holders and literary rights holders, given the growing importance of the audiovisual sector in Kenya. This measure will positively impact the sector and possibly encourage the publication of more books and promote the audiovisual sector.

5. Potential Benefits of the Blank Tape Levy

The blank tape levy has a number of benefits for copyright holders, consumers, and the creative economy as a whole. First, copyright holders ideally would benefit from greater compensation as they are beneficiaries of the proceeds collected from the blank tape levy. This, in turn, will promote the creative industry and act as an incentive for the creation and distribution of high-quality content.²⁰ Second, consumers are expected to benefit from the blank tape levy because it helps to ensure that creatives can continue to create and distribute high-quality content.²¹ It also helps to promote fair competition in the marketplace by ensuring that all businesses are contributing to the compensation of copyright holders.²² Third, the blank tape levy supports the creative economy by helping to create a sustainable environment for copyright holders to operate in.²³ This will benefit everyone involved in the creative industries, from artists and performers to producers and distributors.

6. Potential Challenges of the Blank Tape Levy

While the blank tape levy promises huge benefits to the creatives industry, there are potential drawbacks. Firstly, the blank tape levy can be costly to administer, as it requires the government to track the import and manufacture of items that may be used to carry copyright content for private copying.²⁴ Typically, the importers or manufactures of the blank media or devices pay the levy.²⁵ It is however not clear how the levy wil/l be administered. Secondly, it will be difficult to ensure that the blank tape levy is fair to all stakeholders.²⁶ For example, consumers may argue that they are being unfairly penalized for making copies of copyrighted content for their own personal use. Copyright holders may argue that the levy does not adequately compensate them for the losses they incur.²⁷ Thirdly, consumers and businesses may not be aware of the blank tape levy, which could lead to non-compliance.²⁸

Fourthly, the proposal does not mention any transparency and accountability measures. KECOBO should publish detailed information about how the levy will be collected and distributed. This will avoid instances of corruption leading to misuse of funds collected from the blank tape levy. Fifthly, the proposal suggests the establishment of a creator’s fund to be overseen by an ad hoc committee appointed by the Cabinet Secretary periodically. There is a requirement for greater transparency concerning the management of this creator’s fund. Additionally, there is a need for a comprehensive policy to ensure accountability within the ad hoc committee. Sixthly, KECOBO should work with copyright holders and other stakeholders to ensure that the distribution of the blank tape levy is efficient and effective. Lastly, KECOBO should monitor the distribution of the blank tape levy over time and make adjustments as needed to ensure that it is meeting its objectives.

Despite these challenges, the blank tape levy has the potential to be a valuable tool for compensating copyright holders in Kenya. The government and other stakeholders should work together to address the challenges and ensure that the levy is implemented fairly and effectively.

7. Conclusion

The blank tape levy has the potential to be a positive development for copyright protection in Kenya. If properly implemented and administered it has the potential to help compensate copyright holders for the losses they incur when people make copies of their work. This will allow them to continue to create and distribute high-quality content, which will benefit consumers and the creative economy as a whole.

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