Copyright Amendment Bill a threat to music and newspaper businesses
By Edward Sigei
| November 24th 2021
The Kenya Copyright Board has noted with concern some proposed changes to the Copyright Act contained in the Copyright Amendment Bill published by the National Assembly on October 22, 2021.
The Bill proposes changes to the Copyright Act to entrench the National Rights Registry, set minimum income for ring back tones and a repeal of sections 35B, 35C and 35 D of the Copyright Act.
While the entrenchment of the National Rights Registry is a welcome development, the Board has concerns about fixing ring back income in the Act and unwarranted repeal of Internet Service Providers (ISP) Liability Provisions.
On fixing of ring back tones, our considered opinion is that the matter could be better handled in regulations rather than in the Act as it is easier to amend regulations from time to time as opposed to the Act.
In addition, while most content service providers earn a fee of 5 per cent of the gross income in addition to any other amounts agreed with the rights-holder, the proposal to increase the amount to 7 per cent is a step back from the current position.
On the matter of ISPs Liability, the proposal to repeal the provision represents the biggest setback in the history of copyright and is akin to completely disarming Kenyan authors and right-holders.
In a bid to create a framework to bring back the control of copyright works placed online, the World Intellectual Property Organisation (WIPO) passed the WIPO Internet Treaties in 1996. The treaties set down international norms aimed at preventing unauthorised access to and use of creative works on the Internet or other digital networks.
The WIPO Internet Treaties set the framework for countries to incorporate in their laws the protection of author and work information (Rights Management Information) and access and copy measures (Technical Protection Measures) to guard the integrity of information regarding copyright works and prevent circumvention of technical measures by pirates.
While Kenya enacted its first internet era copyright law in 2002, it took the country 17 years to incorporate provision on intermediary liability.
That is why the enactment of Copyright Amendment Bill in 2019 represented a milestone in the Copyright Law as the provision on intermediary liability is now an essential requirement in a copyright legislation for the digital era.
Infringement of copyright through hard copies is almost non-existent because content theft has shifted online. This is the area where intermediary liability comes in handy.
The Copyright Act now provides safe harbours for ISPs and a procedure for notice and takedown in line with international standards.
While the provisions of the law are not perfect, it can be improved with suitable amendments.
However, merely proposing amendments for repeal just because one can, without a basic understanding of the rationale for a provision and without providing cogent basis is both suspicious and unacceptable.
It is even worse when it is done without consultation with the relevant government agency dealing with copyright matters.
The proposed repeal of intermediary liability provisions in the amendment Bill, therefore, represents a huge existential risk not just for music but to films, newspaper and the whole content generating sector with potential to wipe out any content-based business, and ought to be removed.
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