Proposed Domestication of Marrakesh Treaty in Kenya

The Government of the Republic of Kenya, on June 2, 2017, deposited with World Intellectual Property Organization (WIPO) its instrument of ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, adopted at Marrakesh on June 27, 2013. The Treaty entered into force, with respect to Kenya, on September 2, 2017.

According to the Memorandum of Objects and Reasons of the Copyright (Amendment) Bill 2017, there are 29 separate groups of amendments that have been proposed to the Copyright Act. The affected sections may be classified as follows: Part I: Short Title and Interpretation – Section 2; Part II: Administration – Sections 5, 6, 11 and 19; Part III: Copyright and Related Rights – Sections 22, 26, 28, 29, 30 and 33; Part IV: Sections 35, 36, 38 and 43; Part VII: Sections 46, 47 and 48 and Part VIII: Section 49. This blogpost will focus on proposed amendments to sections 2 and 26 which are intended to domesticate the provisions of the Marrakesh Treaty in Kenya.
On 28 June 2013, Kenya was among the WIPO member states who signed Marrakesh Treaty. In order to effectively domesticate the Treaty, Kenya’s proposed amendments to the Act are two-pronged, namely:
1. Inclusion of certain new terms and definitions contained in the Treaty.
2. Review and amendment of the fair dealing provisions under section 26 of the Act.
With respect to the first set of amendments, the Bill proposes to include certain new terms and definitions in Article 2 of the Treaty such as: “Accessible format copy”, “Authorised Entity”, “Beneficiary Person” and “works” (in relation to visually impaired persons).
With respect to the second set of amendments, the Act proposes to contain an exception/limitation to copyright specifically aimed at allowing access for visually impaired persons. This new provision of the Act would make it possible for the making, importation, sharing of accessible format copies by beneficiary person or Authorised entities or persons acting on their behalf of a beneficiary person including circumventing any technical protection measures that may be in place.
The reality that informed the Marrakesh Treaty is that there are 285 million visually impaired persons (VIPs) in the world and 90% of them are in developing countries with less than 5% of printed materials in accessible formats. In addition, there are only 57 national copyright laws with exceptions that specifically cater for VIPs. Following ratification and entry into force of the treaty in Kenya, the government will have to be wise about the ways in which it chooses to implement the provisions in the Marrakesh Treaty, for if it is not then the entire exercise might very well amount to zero. Merely domesticating the Marrakesh Treaty into the Copyright Act will not be enough. In implementing the Marrakesh Treaty, Kenya must take into account several contentious issues namely, Kenya would need to make use of certain avenues the Marrakesh Treaty has for the realisation of its rights through alternative measures, such as bypassing the need for authorised entities to act as middle-men in the importation of accessible format reading materials, and excluding the ‘commercial availability’ requirement from its national legislation. If it does not make these tactful decisions, then its accession to the Marrakesh Treaty will greatly been watered down and it will probably fail to rectify the wrongs of the current copyright legislation.

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