Kenya – The Copyright (Amendment) Bill, 2021

The object of the Bill is to amend the Copyright Act (hereinafter referred to as the “principal Act”), so that provision is made for a formula for sharing of revenue from ring back tunes between artists/copyright holders and the telecommunication companies. The Bill provides the following:

• the artist should get a greater share of the revenue at fifty two percent (52%);
• to repeal the provisions on takedown notice and requirements;
• the role of interest service providers; and
• application for injunction.

The Bill is intended to remove the ambiguity in the role of interest service providers. This being stated, the Bill does not state the ambiguity it intends to resolve.

The principal Act is amended by inserted Section 30C, which provides that in the case of ring back tunes, the parties shall share the net revenue from the sale of ring back tunes, as follows:

• the premium rate service provider as seven percent (7%);
• the telecommunication operator at sixteen percent (16%); and
• the artist or copright holder at fifty two percent (52%).

A further amended to the principal Act is the insertion of Sections 34A, 34B and 34C, which detail the National Rights Registry, the functions of the Registry as well as the development and maintenance of an online portal for registration of copyright works. The online portal is to be known as the National Rights Registry.

It is stated that registration of works on the National Rights Registry is voluntary and any person upon payment of the prescribed fees, may access the copyright works through the National Rights Registry. This is of course subject to any conditions as may be prescribed by the Board.

The following Sections of the Act are being repealed:

Section 35B of the Act, which provides for detailed procedures (i.e. by way of takedown notice) to be followed by a person whose rights have been infringed by content to which access is being offered by an Internet Service Provider (ISP).

Section 35C of the Act, deals with the role of the ISP. In terms of this Section, the ISP may be required to provide information to investigative agencies regarding, inter alia, the identity of the subscribers of their service suspected to be engaging in infringement of contents, on orders of the Court, upon application by the copyright owner whose rights have been the subject of a takedown notice. The ISP may also be required to designate an agent or electronic or other addresses for receiving such notices, under its terms and conditions of service section.

Section 35D of the Act provides that a person may apply to the High Court for the grant of interim relief where he or she has resonable grounds to believe that his or her copyright is being or may be infringed by a person situated in or outside Kenya.

Its appears that the above repealling of the provisions will likely reduce the burden that it placed on ISPs regarding infringing content.

[1] The Copyright (Amendment) Bill, 2021