Losing lives and livelihoods to piracy

**Piracy has been the biggest problem facing the music industry.** [Courtesy: iStockphoto]

“Does it mean I should also copyright my nickname,” Nderitu Daniel asks during a raging discussion on piracy and copyright.

“No. You cannot register a copyright for a name,” says Cyrus Kinyungu, the Kenya Copyright Board (Kecobo) head of communications, who happens to be the moderator of the discussion.

The heated discussion is happening at a meeting attended by the creative industry stakeholders. Present are content creators, creatives associations, music streaming companies and enthusiastic individuals curious to gain insight into the piracy and copyright issue that has become creatives nightmare across the globe.

Dubbed Partners Against Piracy (PAP), the forum is one that seeks to fight the vice.

Over the years, copyright infringement of music and film tapes, CDs and DVDs as well as literary works has been one of the biggest challenges affecting the entertainment industry in Kenya.

With more than 50 recording and producing studios, Nairobi’s River Road has been the bedrock of piracy, with cartels churning millions of pirated works out to a demanding and needy industry.

“Piracy has been the biggest problem facing the music industry. It is a problem we can almost no cure for, those who pirate do operate as cartels. It is a million-dollar business that has cost people’s lives as groups fight to control the industry,” says Musaimo wa Njeri, a veteran Kenyan musician who has produced over 200 songs since he started his music career in the 1980s.

He adds, “Sometimes, musicians have to compromise and sell their works to producers and distribute as a fraction of what they would make for the sales else they will end up making nothing, even as the curtails sell millions of copyrighted copies to consumers. Local and foreign movies get pirated in River Road every day in the dozens. Musicians die poor as pirates turn millionaires.”

According to the World Intellectual Property Organisation, the copyright industries in Kenya contribute close to 5.32 per cent, translating to Sh85.21 billion to Kenya’s GDP.

Much of the original creatives work revolves around the hands of pirates, and the government and regulatory partners admit the big impact that content piracy has on the Kenyan economy.

“No single stakeholder can address this issue successfully. It requires a collaborative effort from stakeholders including policymakers, law enforcement agencies, media, business and community partners across Kenya to curb these illegal activities that are costing the economy and endangering the lives of citizens,” says Kecobo Executive Director Edward Sigei.

He notes that copyright protection is motivated by the State’s desire to balance the interests of the public and those of creators, emphasising that it ensures creators of artistic works are motivated in order for them to promote their creativity.

“Creative industries such as music, computer programmes and books are the driving force behind economic recovery and development.

“Copyright is a private right and the copyright owner is expected to monitor the market to detect any infringement and initiate legal action. The public needs to understand that government agencies, including Kecobo and the police, cannot act without a complaint being made to them,” says Sigei.

“Where a complaint is made and arrest made, the complainant should be ready to assist with investigations and testify in court to secure a conviction. Besides, we are proud to be partnering in this campaign to shed light on and educate our communities about the dangers of content piracy,” he says.

The Kenyan Copyright Amendment Act of 2019 came into effect in 2019, repealing and amending various sections of the Copyright Act 12 of 2001 (Chapter 130), with the aim of helping the industry deal with new and contemporary challenges of management of the copyright sector.

The Amendment Act introduced dramatic works as a separate category of work while redefining a musical work by requiring it to include a graphical notation of the work in order to qualify for protection.

For instance, the amendment introduced the concept of Internet Service Provider liability for online copyright infringement, which was hitherto lacking in the legislation.

This came with the necessary safe harbour provision, takedown procedure and the extent of liability after the takedown notice was served under section 35 of the Act.

“The amendments to the Copyright Act were meant to bring the law in line, for the most part, with the technological developments that continue to affect the exploitation and protection of copyright works. This ensures that authors of copyright works get value for their property in the digital environment, and enhances enforcement noting that most of the piracy is currently done online,” says Sigei.

Illegal practices take many forms across Africa and globally, ranging from pirate platforms, illegal screening and streaming; pirated DVDs and storage devices, cable and signal piracy.

Aggressive growth

The past three decades have witnessed aggressive growth in the vigour of social-economic consequences of abuse of information technology. The digital era has created new avenues for digital piracy – also known as soft-lifting - and other forms of copyright infringement.

And the rise of online-based piracy and drops in legitimate sales by rights holders has turned piracy into a hotly debated issue.

Sometimes, pirates take advantage of the limited availability of legal content distribution channels, a service demand factor that should be sorted if piracy has to be significantly reduced.

For example, in 2007, NBC removed its TV content from the iTunes video store and that caused piracy of the station’s content to increase by 11 per cent as demand for the same went high. When the TV station got the content back to the iTunes store, piracy stopped.

The digital era has influenced new ways of music consumption. Digitisation of the music business has in effect meant that people do not have to rely on traditional ways of music consumption such as live music, cassettes, CDs and vinyl. Instead, with a smartphone or computer, one can access any song online.

The digitisation of the music business has also led to a shift in piracy from traditional physical models to online. This continues to immensely deny artistes and record companies their revenue.

In the Sub-Saharan Africa region, for instance, piracy is marked by illegal streaming and download sites as well as stream manipulation and stream-ripping sites. All these piracy forms are partly enabled by a culture that hardly appreciates music as intellectual property. The situation is exacerbated by weak content protection laws in most Sub-Saharan Africa countries.

According to the International Federation of the Phonographic Industry (IFPI) Sub-Saharan Director Angela Ndambuki (pictured above), related organisations and governments should enforce laws that curb infringement of intellectual property rights.

“Piracy is theft of intellectual property. It results in loss of income to owners of works as well as loss of income to governments in terms of tax. The fact that the crime goes on unabated in many African countries is something that should concern us,” says Angela.

In Kenya for instance, she says, between June 2018 and June 2019, there were 62 million visits to piracy sites, and between June 2019 and June 2020, the number went up by 22.1 per cent (75.7 million visits). The method of piracy dominant in this period was web downloading, stream-ripping and illegal streaming; both local and foreign works were pirated on these sites.

“We have been working closely with governments all over the world to ensure that the national IP and related laws support investment in artistes and music production and the development of thriving creative economies,” she says.

Global action

At the global level, IFPI partners with its members including the recorded music industry majors such as Universal Music, Sony Music and Warner Music as well as Europol and European Cybercrime Centre to execute action against piracy sites.

Some of these actions are multi-country and multi-agency and have successfully resulted in the suspension of domain names of sites involved in piracy and counterfeiting.

In countries with effective content protection and enforcement laws, the practice is that owners of works identify infringing content and notify Internet Service Providers (ISPs) that are then required to immediately act on a “notice and stay-down” basis since ISPs have the capacity to stay down such content.

Kenya, however, still has ‘notice and take-down’ requirement for ISPs and owners of works are required to issue this in writing for the ISP to act on it.

“We are hoping that the law will be amended to introduce “notice and stay-down” as opposed to the current “notice and take-down”,” says Angela.

Internationally, there are demand-side anti-piracy policies that focus on enforcement by targeting individuals engaged in illegal downloading of copyrighted works.

France was the first country to pass the law followed by Sweden, which implemented a copyright reform policy based on the European Union’s Intellectual Property Rights Enforcement Directive.

This move made it easier for rights-holders to detect and identify file-sharers.

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