The Kenyan Copyright Amendment Act of 2019 came into effect on 2 October 2019, repealing and amending various sections of the Copyright Act 12 of 2001 (Chapter 130).
The new Amendment Act brings with it several notable changes, briefly highlighted below.
The Amendment Act seeks to redefine the nature of copyright subsisting in works that are eligible for protection. Specifically, the Amendment Act introduces dramatic works as a separate category of work while redefines a musical work by requiring it to include a graphical notation of the work in order to qualify for protection. Additionally, it deletes the definition of “folklore” from the Main Act.
Section 10 of the Amendment Act introduces section 22A in the Main Act, which envisages the registration of copyright by, inter alia, the author or owner of a work. The Kenyan Copyright Board (KECOBO) is required to maintain a register of all works, which is prima facie proof of copyright.
The Amendment Act introduces an artist’s resale royalty right (section 26D of the Main Act), which will apply for as long as the copyright remains effective or subsists in the work in question. It also prescribes the value of royalties payable, as well as the various circumstances in which the right falls away. For instance, it does not apply in situations where the work is sold for charity purposes.
The Amendment Act introduces the definition of an Internet Service Provider (ISP) and, inter alia, excludes liability for copyright infringement on the part of ISPs in certain circumstances. Notably, the Amendment Act introduces section 35B and 35D in the Main Act. The former envisages a copyright take-down procedure with an ISP, and the latter enables an aggrieved person to apply for an injunction with the High Court in Kenya against a person facilitating the infringement of copyright.
Collection societies are now known as collective management organisations, with the Kenyan Revenue Authority responsible for the collection of royalties on behalf of these organisations.
The Amendment Act requires that assignments of copyright made under section 33(3) of the Main Act be recorded with KECOBO and a certificate of recordal issued by the board to be valid.
The Amendment Act prescribes the creation of a Copyright Tribunal by the Chief Justice. The jurisdiction of the Tribunal will include appeals from KECOBO and disputes concerning the registration of copyright.
The amended Second Schedule to the Main Act sets out several exclusions to copyright infringement. Parody is specifically listed as an exclusion, but this is subject to an acknowledgement of the author of the work.
The addition of Section 26C to the Main Act will also see an exclusion or defence to copyright infringement in circumstances where a work has been adapted to accommodate the blind or visually impaired persons. There are also several exclusions applicable to educational institutions and libraries.
Overall, the changes implemented by the Copyright Amendment Act are welcome and will affect the protection of intellectual property (IP) and conduct of business in Kenya.
Therefore, it is advisable to seek legal advice regarding the protection or use of works eligible for copyright protection in Kenya.