PUBLIC PARTICIPATION: REGULATION 11 OF THE COPYRIGHT (COLLECTIVE MANAGEMENT) REGULATIONS, 2020
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Be strong enough to stand alone, smart enough to know when you need help, and brave enough to ask for it.
The Copyright (Collective Management) Regulations, 2020, under Regulation 11, provides for ‘Public Participation in the registration of Collective Management Organisations’ (CMOs). Therefore, in this piece, the aim will be to discuss the question of public participation within CMOs.
Regulation 11 of the Copyright (Collective Management) Regulations, 2020
Regulation 11(1) states that The Board (The Kenya Copyright Board) shall ensure effective public participation in the registration of collective management organizations by according an equal and fair chance to any interested party to apply and be considered for registration or licensing as a collective management organization under the Act (the Copyright (Amendment) Act,2019).
In looking at the procedure to be followed, sub regulation 2 provides that the Board shall, at least sixty days before the expiry of a license or validity of registration, by notice in the Gazette, invite any interested person to apply for grant of CMO’s license. After fourteen days of the notice being issued, those interested in applying for a license shall be expected to submit their applications to the Board in the prescribed form.
The Board, then, within fourteen days of receiving applications, will publish in the Gazette the list of applicants and invite written comments from any interested person on the suitability of the applicants to be licensed or registered. Within seven days of receiving written comments, the Board will then hold at least one public hearing to receive oral views from the general public on the suitability of each applicant. Lastly, within seven days of holding the public hearing, the Board will notify, in writing, each applicant of the its decision, setting out its reasons and publish in the Gazette a summary of its decisions regarding the applications for licensing or registration.1 Sub-regulation 3 requires that publication of any notice under the Regulations to be in at least in one newspaper of national circulation.
Fig 1 Public participation timeline
In reading these regulations, the entire public participation process is expected to be done in 42 days, with only 8 days of the process being given to receiving the input and comments from the public and affected stakeholders.
It is also interesting to note that there lacks an appeal process for those aggrieved with the decision of the Board. However, Section 21 of the Copyright Act, all appeals from the Board lie with the Competent Authority.
The question of Public Participation within CMO Registration
According to URAIA, public participation is defined as an action or a series of actions a person takes to involve themselves in affairs of government or community. It can be understood as the chance of all those concerned and/or interested, in a particular subject area, to present and/or stand up for their interests or concerns in the development of plans, programmes, policies, or legal instruments.2 This principle is founded on the Constitution of Kenya, 2010. Article 1(1) states that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the Constitution. This provision acknowledges the importance of involving the public in matter that affect them as, in essence, the power belongs to them. Additionally, Article 10(2) (a) provides that participation of the people is one of the national values and principles of governance; that is binding to all State organs, State officers, public officers and all persons. Public participation increases the likelihood that actions taken or services provided by public agencies adequately reflect the needs of the people and that the benefits of development are equitably shared.3
This principle is applied in various situations; some that have been expressly provided for 4 and others where the application is implied. In order to ensure effective public participation, especially as provided under Regulation 11, some principles should be taken into consideration. Some of these principles, as highlighted by the Standards of Public Participation, Recommendations for Good Practice,5 include;
Involvement and Facilitation
Integration of the public in the development of their policies, plans, programmes, and/or legal instruments may lead to jointly supported solutions that can be implemented more smoothly. Under articles 1(1) and 10(2) (a) of the Constitution involving the public in matters affecting them is necessary and important. In Robert N. Gakuru& Others v Governor Kiambu County & 3 others, Justice Odunga, referencing a South African case6, stated that facilitation of public involvement in the legislative process, means taking steps to ensure that the public participate in the legislative process. In his view huddling a few people in a 5 star hotel one day cannot be termed as public participation for the purposes of meeting constitutional and legislative threshold. In addition, a one day newspaper advertisement in a country where a majority of the populace survive on less than a dollar per day and to whom newspapers are a luxury, leave alone the level of illiteracy, may also not suffice for the purposes of seeking public views and public participation.
Information and Clear Language
Article 35 of the Constitution of Kenya, 2010 provides that every citizen has a right to access information; which includes the right to access information held by another person and required for the exercise or protection of any right or fundamental freedom. In Doctors for Life International vs. Speaker of the National Assembly and Others, highlighted by Justice Odunga in Robert N. Gakuru (supra) the court held that parliament and provincial legislatures must provide notice of and information about the legislation under consideration and the opportunities for participation that are available. Also public involvement in the legislative process requires access to information and the facilitation of learning and understanding in order to achieve meaningful involvement by ordinary citizens.
This calls for educating the public, about CMOs what they do, their roles and obligations especially in relation to enforcement of rights.
Fairness and equal opportunities
The yardstick for public participation is that a reasonable opportunity is given to the public and all interested parties to know about the issue and to have an adequate say. Regulation (11)1 provides for an equal and fair chance to any interested party to apply and be considered for registration or licensing as a CMO. Additionally, the provision invites the views of interested parties and the general public on the registration and licensing of CMOs. Against the background of the frustrations raised by artists on the royalties they received, two years ago, the Board, through this provision, has taken a positive step to push for fair involvement of all stakeholders in the registration of CMOs.
Time and deadlines
Prior to action being taken, sufficient time for information, consultation or cooperation ought to be given. Justice Odunga in Robert held that members of the public cannot participate meaningfully if they are given inadequate time to study the Bill, consider their stance and formulate representations to be made. To provide meaningful participation, interested parties must be given adequate time to prepare for a hearing and heard before a final decision is taken.
Challenges that may affect implementation of Regulation 11
In applying Regulation 11, the Board is likely to face some challenges which may include high costs to facilitate the process, minimal participation of interested and targeted participants and a knowledge gap between target participants and the Board. Possible solutions would consider the use of electronic platforms to engage with targeted participants and to possibly lower the costs of facilitating the process. Previously, the Presidential Task Force on Parastatal Reforms invited the public and interested stakeholders to give their feedback/input on the Intellectual Property Bill, 2020 via e-mail (see here and here). Other measures such as increasing the periods of participation and educating and sensitizing the public on copyright matters may assist in achieving sufficient participation.
It is the duty of the Board to ensure that there are sufficient parameters to ensure effective participation and involvement of copyright holders, members of CMOs, already licensed CMOS and all affected stakeholders. The process should be open and transparent to increase the confidence of the affected and interested parties leading to better enforcement of copyrights.
1 Regulation 11(2) of the Copyright (Collective Management) Regulations, 2020
2 Standards of Public Participation, Recommendations for Good Practice, 2008; https://unece.org/fileadmin/DAM/env/pp/ppeg/Austria_pp_standards.pdf accessed 11.02.2021
3 A Primer to Public-Private Partnerships in Infrastructure Development; https://www.unescap.org/ttdw/ppp/ppp_primer/344_the_need_for_public_participation.html, accessed 11.02.2021
4 The Constitution of Kenya, 2010 expressly provides for circumstances where public participation is mandatory; see articles 69(1)(d); 118(1)(b); 196(1)(b); and 201(a)
5 The Standards of Public Participation were prepared by an inter-ministerial working group with the participation of legally established representations of interest, NGOs and external experts as part of a project commissioned by the Austrian Federal Chancellery and the Austrian Federal Ministry of Agriculture, Forestry, Environment and Water Management and were adopted by the Austrian Council of Ministers on 2 July 2008.https://unece.org/fileadmin/DAM/env/pp/ppeg/Austria_pp_standards.pdf accessed 11.02.2021
6 Doctors for Life International vs. Speaker of the National Assembly and Others (CCT12/05)  ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC)