The enactment of the Copyright Bill 2017 which proposes radical changes to the Copyright Act will see the country’s musicians, producers, actors, performers, film makers and creatives enjoy better revenues and accountability in as far as the collection of their royalties is concerned.
The amendment Bill proposes that the Kenya Revenue Authority be tasked with the responsibility of collecting and remitting royalties for artistes as opposed to individualCollective Management Organizations (CMOs).
“This can be viewed as an effort to bolster accountability and verifiability in the collection and remittance of royalties. Considering the national scope of collection of such royalties, it is arguable that the KRA has greater collection capability as already applied with taxes and County revenue collection compared to individual CMOs,” said MMC Africa Law Partner Bernard Musyoka.
He added that this particular clause if adopted and enacted might also reduce the exceptional administrative costs that CMOs bear, which artistes have consistently complained of.
“However, the increased number of intermediaries raises the risks of transactional charges eating into collected royalties just as CMOs’ administrative costs have in the past,” Mr Musyoka added.
The Copyright Bill also proposes that The Kenya Copyright Board (KECOBO) be granted the mandate to inspect and supervise various aspects of CMOs’ operations that will extend to the books of accounts and organizational records.
It goes ahead to state that the person authorised in writing by KECOBO to investigate the CMO will submit a report on any arising issues that in their opinion requires a forensic audit or remedial action.
Some of the details in the Bill that would lead to a CMO being investigated include failure to account for exploitation of works assigned or licensed to it, allegations of a CMO acting beyond its power, alteration of a CMO’s memorandum or internal rules to change its core business or exclude a section of its members and a failure by a CMO to comply with a request for information or records among others.
“The proposed section 46D (6) states that this investigative action can be triggered by a petition of at least forty-five percent of the membership of a CMO alleging the breach of the CMO’s constitutive rules or the regulations and the Copyright Act. These proposals would significantly boost the governance of CMOs to the benefit of artistes and other copyright owners,” Mr Musyoka said.
Mr Musyoka however suggests that a few of the proposed amendments should be amended further giving an example of the section 30A of the Copyright Act, 2001 which was deleted by the Statute Law (Miscellaneous Amendments) Act, No.11 of 2017.
“We propose that this section is reintroduced so as to ensure equitable remuneration for all artistes. This section recognizes the rights of producers and performers in sound recordings and audio-visual works. It also appreciates the role of collective management organizations that manage royalties on behalf of various stakeholders,” he said.
The Bill also proposes to amend section 48 of the Copyright Act thus creating the Copyright Tribunal. This according to Mr Musyoka would ideally replace the present competent authority that acts as the arbiter between KECOBO and collecting societies registered under the Copyright Act especially relating to the licensing thereof.
Other proposed amendments on the new Bill will include the introduction of section 35A, relating to the protection of internet service providers (ISPs) against liability for the transmission of copyright-infringing material through the network and bandwidth they provide to customers as part of their ordinary course of business.
“It is in the best interests of all stakeholders to support this Copyright Bill. The Bill is a significant step in the clarification of various uncertainties that exist in Kenya’s copyright legislation and it could also relieve other stakeholders of persistent debates on pertinent issues of law through the certainty of having both an official copyright register and a distinct Copyright Tribunal to adjudge relevant disputes,” Mr Musyoka said.
