theimpactof covid-19
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CopyrightNews
It was the Best of Times; It was the Worst of Times for Musicians
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How the Copyright Industry in Kenya Responded to the Pandemic
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HIS
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UE How the Covid-
19 Pandemic is Affecting the Book Publishing Industry
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@KenyaCopyright Kenya Copyright Board Kenya Copyright Board Kenya Copyright Board GET US ON:HOTLINE: +254 703 885 033
7 A Publication of the Kenya Copyright Board ISSUE 37
COVID-19CREATIVEINDUSTRYON
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CONTENTS
Kenya Copyright Board enforcement officers displaying a copy of suspected infringed artwork that was seized at Ndanga International Hotel, Ruiru.
EDITORIAL TEAM
Editor in chief: Edward Sigei
Editor: Cyrus Kinyungu.
Subeditor: Lucian Mue.
Contributors: Sharon Chahale , Edward Sigei, David Waweru, Cyrus Kinyungu, Liz Lenjo, John Syekei &Sidharth Shah, Reuben Kigame, Andrew W. Ngurumi, Faith Amatika Omondi & Lucian Mue
Design and Layout: Sanabora Design House Limited.
Kenya Copyright Board
NHIF Building, 5th Floor, Ragati Road,P. O. Box 34670-00100, Nairobi-Kenya.Tel: +254 20 253 3869/59,Email: [email protected]: www. copyright.go.keTwitter: @KenyaCopyrightFacebook: Kenya Copyright BoardInstagram: Kenya Copyright BoardYoutube: Kenya Copyright Board
FEEDBACK:We welcome your comments, suggestions & contributions to our newsletter via;E-mail: [email protected]: www.twitter.com/@KenyaCopyrightFacebook: Kenya Copyright BoardInstagram: Kenya Copyright BoardYoutube: Kenya Copyright Board
3 The Impact of the Covid-19 Pandemic on the Creative Industry- Challenges and Opportunities
5 How the Covid-19 Pandemic is Affecting the Book Publishing Industry
6 Going Online: The Reality of Trademark Protection in times of COVID-19
7 Compulsory Licensing in the Age of Covid-19 Pandemic
8-9 Pictorial
10 How Copyright Amendment Act (2019) Helped KECOBO Save Artistes From CMOs
11 It Was The Best Of Times; It Was The Worst of Times For Musicians
12 Online Platforms Open New Frontiers For Visual Artists
13 Intangible Assets: A Glimmer Of Hope In KQ's Mayday
14 The KECOBO Board Forwards CMOs Forensic Audit Report To DCI, DPP For Fraud Investigation
14 KECOBO launches new National Rights Registry
15 Kenya Copyright Board (KECOBO) Tribute to Carole Croella, Senior Counsellor-Copyright Law Division, WIPO
16 Enforcement Activities Held Between July – September 2020
Kenya Copyright Board enforcement officers displaying a copy of suspected infringed artwork that was seized at Ndanga International Hotel, Ruiru.
Michael Musyoka’s Time and Other Constructs 2 Exhibition at One Off Gallery
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ISSUE 37
By. Sharon Chahale
Intellectual property is the kind of property that results from the creations of the mind, basically the fruits of one’s mental labour.
Intellectual property law therefore deals with the rules for securing and enforcing legal rights to inventions, designs, and artistic works. Just as the law protects ownership of personal property and real estate, so too does it protect the exclusive control of intangible assets. Intellectual Property is protected in law by, for example, patents, copyright and trademarks, which enable people to earn rec-ognition and/or financial benefit from what they invent or create. The IP systems aims to foster an environment in which creativity and innovation can thrive by striking the right balance between the interests of innovators and that of the wider public.
Intellectual property is recognised as a fundamental human right as depicted in the Universal Declaration of Human Rights. Ar-ticle 27.2 states“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”The Con-stitution of Kenya 2010 also recognizes IP as an important right in Articles 11 (2)(c), 40(5) and 69 (1) (c). In Kenya protection of IP is anchored in several legislations such as the Copyright Act, The Industrial Properties Act, Trademark Act among others. Intellectual Property is therefore gaining more recognition and space in the commercial platform worldwide.
Creative Industries are those which have
their origin in individual creativity, skill and talent. They also include industries which have the potential to create wealth and jobs through the development, production or exploitation of intellectual property. Generally speaking, the term ‘creative industries’ refers to a broad range of economic activities that are concerned with the generation and commercialisation of creativity, ideas, knowledge and information.The creative industries are the lifeblood of the creative economy and they include; Advertising and marketing, Architecture, Crafts, Design: product, graphic and fashion design, Film, TV, video, radio and photography, IT, software and
computer services, Publishing, Museums, gal-leries and libraries, Research and Development (R & D), Music, performing and visual arts. The creative industry has become very impor-tant in boosting productivity, competitiveness and employment. Most companies in this in-dustry are always expanding and their role is becoming more important by the day.
The Covid-19 health crisis has been unprec-edented in its impact on lives and livelihoods. All aspects of life including economic, social and cultural have been severely impacted. Al-most all sectors of the economy including cul-tural industries have been badly hit with long-term implications.
For musicians for example one of the ways the pandemic has hit them is that it has live performance income stream. It has also had an impact on their creativity both negatively and positively. Negatively in that most have found themselves struggling to make an income and it is very hard for one to be creative when they are experiencing pressure on their income. On a positive note many have composed songs around the Covid 19 pandemic to educate peo-ple on safety precautions to take to stop the spread of the pandemic. Another group that has been adversely affected are the DJs since mostly they perform live in nightclubs or par-ties. This pandemic has seen the ban on social gatherings in many countries therefore affect-ing the income stream for DJs.
Most artists, musicians, actors, and per-formers have had to find new ways to sup-plement their income. How to do this is the big question. During the Covid 19 pandemic period, President Uhuru Kenyatta announced
The Impact of Covid-19 Pandemic on the Creative Industry- Challenges and Opportunities
Photo Courtesy: Creative Commons
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a release of Sh100 million stimulus package dedicated to local artist. But most have said this is not enough and there should be a better long-term plan in place. As the COVID-19 crisis deepens, many artists are now flocking to both well-known and emerging online platforms to eke out a living and connect with audiences and consumers. And while digital solutions cannot replace the value and beauty of a live show, they are helping the artists survive. This trend is now giving motivation to e-commerce channels for creatives. However, there seems to be some e-commerce gaps which will need to be addressed. The uptake of digital platforms has also unveiled underlying challenges in the creative industry sector in Kenya accord-ing to businesses surveyed by UNCTAD. The challenges include; the collection of fees and royalties for artists, privacy and personal data protection rules, illegal downloads, piracy, and counterfeiting.
The pandemic has also seen some artists stranded in foreign countries having to live off their own resources while not able to make any money out of their creativity. Some in Kenya were locked in villages where internet con-nectivity is weak and are unable to do much. A revamped presence on social media platform has however helped to keep many artists afloat. In so far as there have been many challenges with this pandemic, there are still opportunities for artists to make a living. Pandemic related losses for artists can be mitigated by revenues generated via some platforms like YouTube. The Kenya Copyright Board also in this period unveiled an online registration platform for art-ist works which has seen artists register their works quickly and at no cost. This is an oppor-tunity for artists to make sure they receive their copyright certificates which will go a long way in helping them in the future.
Another industry that has suffered a mighty
blow by this pandemic is the tourism industry. Cultural tourism based on heritage sites is a significant portion of the creative industry. The crafts sector for example which is one of the largest employment sectors, is in a severe crisis affecting livelihoods of many craftspeople and thousands of craft enterprises. Most crafts peo-ple rely on tourists to sell their merchandise to and without tourists they are not able to make as much as they would. Some in this sector im-port their goods to Europe and other foreign na-tions and again with the travel ban and closure of borders this has made things extremely dif-ficult for them.
Similarly, the jua kali artisan sector is also under tremendous pressure. This is an infor-mally organised sector where most people work under temporary contracts and lack adequate protection of artists’ works especially in the digital sphere. The government in abid to sup-port this sector advertised for jua kali artisans to tender for production of desks that will be procured by the government ahead of resump-tion of physical learning in schools. This is an opportunity for artisans in his sector to make a living as part of the government’s economic stimulus programmes. This period has also seen creatives design local hospital beds from metal and the government was ready to procure them.
The book publishing sector has also not been left behind. With closure of schools eve-
rywhere the consumption of books has seen a tremendous dip. This sector has also seen au-thors and publishers move their books and pub-lications to online digital platforms. This has, however, also seen the increase in infringement of published works online.
To respond to this massive disruption in the arts and cultural sector, it will be impera-tive for government to conduct a study to as-sess the impact of the pandemic on the creative sector focusing on the different sectors. Since the arts and culture sector has always been more vulnerable during times of disasters and emergencies, it is hoped that this initiative will contributes towards building more resilience in the sector.
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ISSUE 37
Covid-19 weakens publishing industry’s capacity to contribute to the economy
By. David Waweru
The first ever global mapping of the cultural and creative industries (CCIs), conducted by EY (Ernst & Young) in
2013,showed that the sector generated rev-enues of US$2.25 trillion and employed near-ly 30 million people. The book publishing industry alone contributed US $143 billion and employed over 3.6 million people world-wide. This makes the industry an integral part of the global economy.Kenya has a rich and diverse cultural heritage. Throughout our history, the cultural and creative sector has offered diverse cultural content, even in times of major political and economic upheavals. For over 20 years after independence, the Kenyan publishing landscape was dominated by multinational, mostly British, book publishers who focused on textbook publishing for the school market.
These multinationals would commission content creation locally, export it to their home countries for publishing and production and then import printed books for sales, marketing and distribution. Hence, most of the jobs local knowledge created were in the multinationals’ mother countries, where profits would also be repatriated.
The situation has changed significantly over the last three decades. Today, there are over 100 indigenous publishing houses in Kenya and only one multinational. While publishing is still heavily tilted towards textbooks, the fiction and nonfiction genres are nonetheless gaining ground. Notwithstanding, the strength of the book supply chain hinges on the health of text-book publishing which dominates the industry with about 85% market share.
Schools are the biggest market for books in Kenya, and most of sub-Saharan Africa. With the closure of institutions of learning for over six months due to the Covid-19 pandemic, sales of textbooks and general books have plum-meted to a record low. Some booksellers, espe-cially those who depend on textbooks sales to survive, have been forced to close shop while others have only struggled on.
Bookshops are the main channels of dis-tribution through which customers interact with books. With fewer channels available, and with an unprecedented low demand, publishersand booksellers are left holding high inventory. Their working capital is not only tied up in inventory, their cash too has dried up owing to high fixed costs.
Consequently, some publishers have scaled back the release of new titles. With fewer new titles being published, writers, freelance edi-
tors and proofreaders, illustrators and other service providers are going with-out work. Further, published authors are either earning measly sums from royalties,or nothing at all.
Closure of bookshops and reduced activity in publishing houses has led to employ-ee layoffs across the book industry or at best, employees have had to take pay cuts.Covid-19 has therefore weakened the publishing indus-try’s capacity to contribute to the economy and to employment at the level commensurate to its potential.
Furthermore, actors in the book industry organise festivals throughout the calendar year to ensure books and reading stay within people’s consciousness. Such events include literary festivals, author appearances and open mic poetry performances. These are important touch points for readers to experi-ence books and meet authors, as well as op-portunities for shaping cultural consumption. The industry must therefore now work harder and more creatively to have their efforts no-ticed.
Notwithstanding, Covid-19 has only ac-celerated a digital transformation that has been ongoing for over 20 years. It is clear that digital business will usher in an era of extreme velocity. When the internet came along, it threatened to turn some industries upside down – music, newspapers, movies, TV and much later, books. While some adapted to the pace of change, the book industry has lagged behind in understanding what it takes to build an organisation in a digital age.
Hence, for the book industry to survive and thrive, it is essential that actors in the supply chain understand what’s necessary to
build new business models with disruptive technology. Further, book businesses would be better positioned if they forged their own digital journeys by infusing a digital mindset into the organisational DNA. The real problem is fig-uring how to get from here to there – a good leadership challenge.
Covid-19 has also exposed the publishing industry’s under-investment in non-textbook genres. But perhaps the underlying problem is a weak culture of reading. For the book industry to succeed in supplying more fiction and non-fiction titles, it must first succeed in increasing the number of people reading general books and in creating a more literate environment – an environment in which individuals and groups can acquire, nurture, sustain and use literacy skills.
To unlock the full potential of this essen-tial industry, government can create a more enabling business environment through public policies that support book development, culture of reading, as well as schools and community libraries.
David Waweru is a publishing consultant and author. He is also a member of the UNESCO
Expert Facility for the 2005 Convention on the Protection and Promotion of the Diversity
Cultural Expressions. He has previously served as a director of KECOBO.
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Going Online: The Reality of Trademark Protection in times of Corona
By. Liz Lenjo
The global pandemic has seen quite an inevitable reliance on the internet space as a business tool and social
media and social interaction platforms as the business premise. The notion that intel-lectual property rights is a personal right is now coming to a realization. Kenyans as well as international businesses are now becoming more vigilant and policing their intellectual property rights in the digital space. Like any phenomenon, a craze is assured when something becomes popular either in a negative or positive light. We have always seen popularization and elevation of fad names to business brand names. This certainly can pose a challenge to a growing business as the reputation of the so-called craze may be absorbed by the new business. Sometimes it may be by design but sometimes it may just be spur of the moment vision to ride on a contentious or popular wave. Nonetheless, any business or brand owner should tread carefully. An example to demonstrate how naming a brand after a craze may be demonstrated to a large extent by the famous Mexican Corona beer. Though globally they registered losses because of the restriction of movement and curfew enforcement around the world; jokes around association of the beer with the pandemic did not go unnoticed, especially in Kenya. It is likely, the sales of the beer declined due to this association and possible conviction that the beer is related to the unexpected pandemic. It is also important to remember that one of the general rules of thumb when registering a trademark is that the chosen name, symbol, combination of letters or words are not immoral. Immoral may be subjective at times, especially where a translation is required or if the word is controversial in another language that may be known to Kenyans. Thus, the foresight is very much needed when branding;
which is readily available and accessible through basic internet searches. The pandemic has since forced us to embrace the digital space as a business platform; and with that comes very interesting challenges on trademarks and the digital space. As we are yet to legislatively tackle this issue on an international and national level, we have to find sanity in the prevailing laws and systems. Territoriality becomes a big question on the digital space yet the ethos behind trademark registration is to protect the brand from the likelihood of confusion. This has seen the inter-relation between trademark
law and copyright law in so far as take down notices are concerned.Since March, we have seen various Kenyan businesses receive take down notice warning either in regards to copyright or trademarks. On the argument of trademarks, there are brand names for example in the fashion industry that are a kin to well known marks. The threshold of this can be argued to apply to the proprietor’s or applicant’s primarily before sprawling to the consumer. Why? Any prudent proprietor should foresee the likelihood of association or confusion with the famous brand they purport to register or use. As such, it may be a disservice to the new mark that is yet to enter the Kenyan market. Accordingly, proprietor’s should also ensure that all materials posted on their business platforms are original, and where they are not, they have the necessary permissions in the form of written licenses to use the said content from the owners. In absence of this the take down notices instituted will also affect the brand presence online; some of which have seen total deletion of infringing accounts.
In light of these emerging situations, all hope is not lost. The online space is
opening opportunities to franchising and distribution deals to those who see such opportunities. Such come with reduced marketing expenses because a proprietor can easily ride on the franchisor’s existing efforts and platforms to market the products into a new market en masse.In these unprecedented times, there is a call to innovate or perish as a business. Innovation can be achieved through education and awareness of intellectual property rights and laws thereof. Ignorance of the
law is no defence and cannot cushion a business
from any imminent liability.
Liz Lenjo is the Founder,
MYIP Legal Studio
COPYRIGHT PROTECTION
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ISSUE 37
By John Syekei and Sidharth Shah
As the COVID-19 pandemic continues to spread rapidly across the globe and claim numerous lives, healthcare
systems of countries are coming under severe pressure. Governments globally, includ-ing Kenya, are taking measures to combat the effects of the COVID-19 pandemic and some, in liaison with pharmaceutical com-panies and research groups in the private sector, are continuously ramping up efforts to find a cure or vaccine, likely to be protected through patents.
In light of the race to develop and patent a vaccine, the question that arises concerning af-fordable and universal access, is whether the Kenyan government can secure affordable ac-cess to a vaccine, when one becomes available?
There is real danger that access to a vaccine maybe restricted by factors such as the need to meet local demand (for a country producing the vaccine), price, fragmented supply lines and patent protection. However, it is possible to overcome these restrictions through govern-mental co-operation and creation systems to fa-cilitate easy access of the COVID-19 vaccine. For example, low and middle class countries may access an affordable vaccine that is cur-rently on trial, as a result of an access project led by Geneva based Vaccine Alliance (GAVI). Kenya may be one of 92 countries, benefitting from the GAVI project.
In the absence of any global solution or co-operation, countries like Kenya which is party to the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and the Doha Declaration on the TRIPS Agreement and Public Health, 2001(the Doha Declara-tion), may rely on compulsory licensing provi-sions contained in these treaties and local laws, to tackle concerns around patent rules limiting Kenyans’ access to affordable medication.
Compulsory LicensingCompulsory licensing enables a government to override a patentee’s power to control the manufacture, supply and licensing of patented inventions. The Doha Declaration affirms that member nations may take measures to protect public health, including the right to grant and determine the grounds upon which compulsory licences are granted. Kenya has domesticated the provisions of the Doha Declaration in the Industrial Property Act of 2001, providing that a patentees’ rights are amenable to limitation through compulsory licensing, where there is public interest, interdependence of patents or where the government desires to exploit the patented invention.
The Cabinet Secretary for Industry, Trade and Cooperatives may authorise the exploita-tion of a patented invention, where public inter-est so requires. Relevant public interest ema-nates from health or national security concerns, or anything significant affecting the develop-ment of any other vital interest of Kenya. A compulsory licence may also be granted where the CS determines that a patent is not being ex-ploited in a competitive manner.
Given that the World Health Organization declared the COVID-19 pandemic a health emergency of international concern, any ac-tion to fight and prevent its spread and effects qualifies as a public health reason and thereby, a ground to grant a compulsory licence.
The TribunalIf the CS fails to take action, an interested party may make an application to the Industrial Prop-erty Tribunal, for a compulsory licence. The Tribunal may grant a compulsory licence where there has been a failure to put the patent to use or there is a clear interdependence of patents.
Additionally, the applicant must establish that they have attempted but failed, to reach an agreement with the patentee, for a contrac-tual licence on reasonable commercial terms. However, where the compulsory licence is re-quired to address a national emergency or other extreme emergency, like the COVID-19 pan-demic, the Act waives this requirement. That said, the applicant must also furnish the Tribu-nal with sufficient guarantees that they will put the patent to use.
It is clear that the grant of a compulsory licence washes away protection against un-
authorised use, rendering a patent somewhat useless, as a patentee cannot derive any com-mercial benefit on its own terms. This may dis-courage innovators from investing in research and development, going against the very nature of intellectual property rights protection, which is to incentivise invention. The Kenyan regu-latory framework is aware of this fact and ac-cordingly, the Act limits the ways in which the patented invention may be exploited, including for example, limiting the scope and duration of the licence. Notably, it is mandatory for the patentee to be compensated for exploitation of the patent.
Kenya has never issued a compulsory li-cence. However, it is likely that the COVID- 19 pandemic may present an opportunity for these provisions to be tested.
To satisfy its duty to ensure Kenyans have access to affordable healthcare, it is mandatory for the Kenyan Government to take appropriate action and facilitate access to a vaccine for the COVID-19. This is achievable through coop-eration with the international community, like participating in access projects led by institu-tions such as GAVI; or by invoking the provi-sions of the compulsory licensing laws.
Compulsory Licensing in theAge of Covid-19 Pandemic
EDITORIAL OPINION
Copyright News
PICTORIAL
Artists displaying copies of suspected infringed artworks that were seized at Ndanga International Hotel, Ruiru during a raid by KECOBO enforcement officers .
Staff of Paradise Children’s Home in Kibra receive assorted items including foodstuff donated by KECOBO and Simama na Kibra as part of the Board's CSR during the Covid 19 pandemic.
Kenya Copyright Board Executive Director Edward Sigei with Directors from Kenya Association of Music Producers (KAMP) Performers Rights Society of Kenya (PRiSK) and Music Copyright Society of Kenya (MCSK) during a meeting at KECOBO offices.
Kenya Copyright Board Executive Director Edward Sigei (left) and National Transport and Safety Authority Director General George NJao signing a deal that will help boost collection of Music royalties from Public Service Vehicles. Present to witness were KAMP CEO Clifford Wefwafwa and his PRISK counterpart Joseph Njagi.
Kenya Copyright Board representative with Simama na Kibra members after KECOBO shared assorted items in support of Paradise Children’s Home in Kibra as part of CSR during the Covid 19 pandemic.
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PICTORIAL
Some of the artworks suspected to have been infringed which were seized by KECOBO officers during a raid at Ndanga International Hotel, Ruiru.
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KECOBO officers and Simama na Kibra members interact with children from Paradise Children’s Home in Kibra after the Board donated assorted items as part of its Corporate Social Responsibility during the Covid 19 pandemic.
DSTV cables seized during a copyright raid at Superflex Media, Ruiru.
Kenya Copyright Board Executive Director with Directors from Kenya Association of Music Producers (KAMP) Performers Rights Society of Kenya (PRiSK) and Music Copyright Society of Kenya (MCSK) over the licensing of the CMOs.
Kenya Copyright Board Executive Director Edward Sigei (left) and National Transport and Safety Authority Director General George NJao display an MOU they signed to help boost collection of Music royalties from Public Service Vehicles.
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How Copyright Amendment Act (2019) Helped KECOBO Save Artistes from CMOS
By. Edward Sigei
Collective Management Organisations (CMOs) are private companies estab-lished under the Copyright Act to
manage rights belonging to a class of own-ers, which cannot be managed individu-ally. A Collective Management Organisation is mandated to negotiate royalties for the use of the members’ works and remit the incomes in accordance to rules prepared by its membership.
At a minimum, a rights holder who has as-signed their rights expects the CMO to oper-ate at minimum costs thereby pay a major part of its income as royalties and render accounts to them in a transparent manner. A collecting organisation is required to diligently serve the interest of its members and be accountable to them failing which they could face sanctions from the licensing authority, the Kenya Copy-right Board (KECOBO).
In ideal circumstances, CMOs are sup-posed to operate in perfect autonomy guided and appreciated by its members. However, in Kenya members and non-members of the CMOs have complained over the years about the performance of their collective organisa-tions over lack of transparency and account-ability- both key ingredients for member-cen-tred organisations.
For that reason, the Kenya Copyright Board began the process of reforming the operations of the Collective Management Organisations with the enactment of the Copyright Amend-ment Act, 2019.
Those amendments to the Copyright Act
established a new framework that empowered the Kenya Copyright Board to take actions including ordering for inspection of books of accounts, forensic audit, the making of far reaching Regulations and generally direct rel-evant corrective actions instead of revoking the license of the Society.
The main objective of the changes to the law was to ensure that government could intervene to secure the interests of the members before things get out of hand and avoid destabilisation caused by any revocation of licenses.
The complaints prompted the KECOBO Board of Directors to order a three-year fo-rensic audit on Music Copyright Society of Kenya (MCSK), Kenya Association of Music Producers (KAMP) and Performers Rights So-ciety of Kenya (PRISK) to enable it identify management gaps, possible risks and investi-gate allegations of mismanagement of royal-ties in line with the powers bestowed by the Copyright Act.
The forensic audit found some evidence of negligence, possible fraud, Board overreach, overspending, lack of essential policies and management weaknesses making the CMOs op-erations at this moment not fully fit for purpose.
The KECOBO Board recently resolved to submit the forensic reports to the relevant investigative agencies and in due course role out several administrative measures to ensure the issues are fully resolved before the end of the year.
The latest action is part of a continuing ef-fort to ensure artists get maximum value for their talents to sustain themselves and contrib-ute more to the economy.
This works in tandem with earlier interven-
tion that introduced the automation of the col-lection, media monitoring and disbursement of royalties function at the CMO side to ensure end-to-end transparency, accountability and credibility of all related records. The royalty collection system makes payment of royalty easy for music users thus avoiding conflict with CMO staff. The system also links with critical databases including Kenya Revenue Authority (KRA) Business Registration Ser-vices (BRS) and the National Transport and Safety Authority (NTSA) to support the roy-alty collection process.
The new royalty collection module pro-motes ease of doing business by enabling us-ers to self-license subject to prescribed tariffs incorporated into the USSD and web portal therefore reducing incidences of harassment of business owners and chances of collusion with licensing staff as well as removing the use of police services in that process.
The system ensures that only funds required for administration by CMOs are paid to them and payments to artists based on both general and scientific rules from a master account are made with regularity.
The policy and administrative reforms are being fast tracked to be complete within the calendar year. The Kenya Copyright Board (KECOBO) expects to build into the reporting structure adequate early warning tools as envis-aged by the Copyright Amendment Act 2019 to assure users and artists of the integrity of the collective management system remains intact.
The writer is the Executive Director, Kenya Copyright Board [email protected]
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ISSUE 37
By. Reuben Kigame
Back in 1859, novelist Charles Dickens opened his book, “A Tale of Two Cities” with some words which seem
to capture Kenya musician’s experience in 2020: “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of light, it was the season of darkness, it was the spring of hope, it was the winter of despair.”
As we stayed up to scream, dance and usher in 2020 with song and fireworks on that cold Meru night, several close friends and I believed that 2019 had been a tough year and so prayed for a prosperous new year. The optimistic gaze into 2020 was not just at the CITAM Meru sanctuary where we were gathered. The Mai Sisters (Dijok and Teejae) were at Sands Club in Kilimani with their R&B, the “Time Ma-chine concert” presented by Jamuhuri Events starred the famous Sauti Sol at Blue-Door in Westland’s. Country guru, Sir Elvis was at the Ngong Race Course and the Churchil Show was filming at Garden City.
In retrospect, none of us imagined that com-pared to the year we were leaving behind, the New Year would plunge us into a social, po-litical, economic and religious crisis unequalled by anything we had seen. None of us saw the Corona virus coming and no government, fam-ily or institution was prepared for the approach-ing darkness. The World Health Organisation (WHO) soon took the lead in telling us what sur-
rounded us and how to cope. We were soon edu-cated and navigated around what Health C.S. Mutahi Kagwe told us was the “new normal”.
Nobody knew that concerts would cease, conferences get cancelled, churches, hotels and clubs ordered closed and every musician challenged to reinvent themselves along the online media culture. Despite the disruption of the lives and work of Kenya’s musicians, there were challenges as well as some interesting op-portunities.
CHALLENGES First, there were no more crowds to sing to un-der the “new normal”. Social distancing was now mandatory, meaning there would be no live concerts, road shows, church conferences or crusades. Even church services were no longer possible, hence no choirs and receiving congregations. Bars and restaurants were not allowed to operate and the long curfew seasons just made things gloomier for Kenya’s musi-cians. During a radio interview one morning on Hot 96, veteran musician Kidum, was heard lamenting that for him it seemed like the end of a career.
Second, performance was affected. Mu-sic-making became increasingly difficult for groups that previously performed together. Stu-dios and practice rooms became no-go zones. Choir meetings were discouraged. Proximity and band coordination was disallowed, just in case band members got the virus. Sharing of microphones and music instruments was dis-couraged. Depending on where lockdowns
such as those in Nairobi and Mombasa found musicians, it would be difficult to meet and per-form together. Everything had changed.
Third, many musicians were hit by an eco-nomic crash. They could no longer afford to fend for their families. It was now difficult to pay rent or keep up with the elegant public im-age through grooming. A spot check on a What-sApp group I moderate showed that a majority of musicians had no savings or retirement plan. It took fellow musicians with counselling skills to walk the group through economic readjust-ments as well as posts to cushion them against depressive tendencies.
OPPORTUNITIES Despite these and several related challenges, Covid-19 became a great eye-opener for Ken-ya’s musicians, bursting open opportunities they had never envisioned before. For instance, the closure and limitation of physical spaces forced many to discover the power of social media and how platforms such as YouTube, Instagram and Facebook could become significant perfor-mance and business spaces. Through trial and error, countless musicians set up YouTube chan-nels and learned the hitherto neglected art of self-promotion by asking their fans to subscribe to their channels or like their pages.
Second, musicians learned new ways of har-nessing social media as a public sphere from where they could both perform and receive instant or delayed feedback through fan com-ments expressed through brief messages and emojis. They could publicise coming events, do live shows or even raise financial support from virtual audiences.
Lastly, the “new normal” opened the eyes of many musicians to the importance of copyright-ing their works. YouTube algorithms awoke many musicians to the reality that you cannot just perform or publish someone’s song without consequences. Indeed, for the first time, pay-ing attention to what was taking place on the worldwide web exposed many musician to the evidence that rogue companies had infringed on their intellectual property rights. This forced them to seek legal help for the registration of their works.
These challenges go to demonstrate that behind every cloud there is a silver lining and, as the Bible would put it in Genesis 50:19-20, sometimes what seems marked out for evil, may be turned around to produce some of the greatest goods.
The writer is a media consultant, teacher of apologetics and African history as well as a performing and recording artist since 1987
with a diskography of nearly 30 albums.
It was the Best of Times;It was the Worst of Times for Musicians
12
Copyright News
By Andrew W Ngurumi
Increasingly, visual art is exhibited and transacted in online platforms such as Invaluable for conducting Art Auctions,
Artsy for hosting online exhibitions and Art logic for creating artist’s portfolios. COVID-19 pandemic propelled increased use of these online platforms. In so doing, artists, gal-leries, art fairs and museums increased their presence on the digital platforms for commer-cial benefits and also to create accessibility for the works of art to the consumers.
Unfettered access to works of art in the on-line platforms, however, facilitates making of reproductions which are a perfect substitute to the original works of art. Consequently, through agreements, visual artists exercise increased control over their economic rights under Copy-right. These are agreements for sale, consign-ment, licensing, release and transfer to articulate in great detail the extent to which a party is au-thorised to utilise such economic rights.
In order to promote works of art, online gal-leries create videos, GIF images, podcasts and online portfolios. In addition to effectively out-lining the rights and responsibilities while con-signing works, galleries and visual artists enter into agreements setting out who owns intellec-tual property rights in such videos and how they will be managed.
Additionally, visual artists collaborate in
creating works of art using digital tools such as augmented reality and virtual reality. In these collaborations, agreements are integral and will continue playing a critical role by outlin-ing authorial rights, ownership of the works and in case of licensing, how royalties ought to be apportioned and shared.
Companies, institutions and individuals commission visual artists to create works of art addressing COVID 19 pandemic. Specifically, works of art communicate positivity and hope in these challenging times. These works of art are used for that particular purpose whilst suf-ficiently acknowledging the authors.
Traditionally, tracking the movement of a work of art in the secondary market was chal-lenging. Through record keeping mechanisms available in the online platforms, visual artists can now effectively monitor secondary market sales. In so doing they can claim for artist resale right as a share in the increased value of their works of art at 5 per cent of the net sale price.
Costs of putting up works of art in the online platforms are met by galleries but the costs of incorporating technological protection meas-ures are unmet as they possibly outweigh the sale price of the work of art. It is challenging how an infringement of these technological protection measures would be enforced due to the territorial nature of intellectual property rights while infringement activities online are extra territorial.
In most cases these online platforms use
click wrap agreements. The online platforms are deemed to be intermediaries and as such disassociate themselves from direct liability for intellectual property rights infringement. These intermediaries also dictate dispute reso-lution governing laws to be countries where their businesses are registered. At the very least, these intermediaries do guarantee to takedown infringing works upon notification.
To further reduce cases of infringements, rights holders and their galleries will put in place measures to limit access to images of their works of art in online portfolios through either subscriptions or by use of technological protection measures. In some instances, rights holders use their followers and a critical mass on social media platforms to enforce copyright in case of infringement.
In the digital age, as infringement increases copyright certificates become essential and contracts with particularised intellectual prop-erty clauses quintessential in enforcement. The Kenya Copyright Board through its new online copyright registration portal (nrr.copyright.go.ke) and its temporary waiver on the regis-tration fees should enable many visual artists to register their works and get certificates. This will make it easy to proof ownership in case of copyright infringement.
Importantly, increased access to works of art improve visual artists’ brand reputation and recognition. Now more than ever, visual artists in Kenya ought to protect their distinguishing
marks and brand in respect to their works of art and services as trade-marks. Registerable marks could be the artist’s name, signature or logo.
Amidst uncertainties created by COVID 19 and unpredictability of the art market, use of Copyright and Trademarks as collateral to ac-cess credit can’t be overemphasised. This is made possible in the Mov-able Properties Security Rights Act, 2017. Perhaps, this can be achieved through collaboration between art market industry players and lend-ers. A collective management as-sociation for visual artists can lead such discussions.
Certainly, we are in challenging times though full of opportunities. Rights holders, consumers and en-forcement officers ought to work to-gether in order to maximise on these opportunities while addressing the challenges.
Online Platforms Open NewFrontiers for Visual Artists
13
ISSUE 37
Intangible Assets: A Glimmer of Hope in KQ’s Mayday
By. Faith Amatika-Omondi
The COVID-19 pandemic has dealt a major blow on all businesses across the globe. The Airline industry has been one of the most affected as governments closed their borders to international travel around mid-March 2020. With what appears to be a containment of the spread of the virus, coupled with the desire to revive their economies, most governments have over time eased the lockdown measures and allowed limited movement of people both locally and internationally. This has also seen the resumption of international travel across countries.
The resumption notwithstanding, all air-lines made untold losses due to the lockdown measures. The Kenyan carrier, Kenya Airways (KQ), is no exception. However, KQ’s woes did not start with the COVID-19 pandemic. They have been there for a while. The airline has been reported to have made losses in billions of shillings. COVID-19 was just one of the last straws on the back of the already haemorrhag-ing KQ. In mid-2019, treasury took a Sh20 bil-lion loan in a bid to bail out KQ from a loan it owed African Export-Import Bank (Afrexim). Other measures have been proposed to succour the airline, but their efficacy remains uncertain.
One is left to wonder whether KQ has some assets that are under utilised that could other-wise be used to raise some funds to offset the debts. Can KQ borrow (not money but ideas) from sister airlines for instance, United Air-
lines, which is planning to raise $5 billion by borrowing against its frequent flier program? The Frequent flier program is one of the intan-gible, yet valuable assets owned by United Air-lines. Does KQ possess some of such intangible assets that it has not tapped into? Its member-ship to the Sky Team alongside KLM and Delta Air gives it a competitive edge coupled with the fact that it is the only African airline belonging to the prestigious group of sky giants. Addition-ally, it also runs the ‘Flying Blue Loyalty Pro-gram’ together with KLM, Air France, Transa-via and others. These are valuable intangible assets that can boost KQ’s net worth if applied appropriately.
The major challenge, however, is that banks and financial institutions are not open to the idea of intangible assets yet. They do not see the value in intangible assets and are reluctant to advance loans on their strength. As Elon Musk puts it, “All bankers did was copy what every-one else did. If everyone else ran off a bloody cliff, they’d run off a cliff with them. If there was giant pile of gold sitting in the middle of a room and nobody was picking it up, they wouldn’t pick it up, either.” For banks, if an item is not captured in the financial statements as an asset, it is not worth thinking about.
Think about the following scenario. When Company A invests Sh10million in research and development (R&D) to manufacture cut-ting edge technology, say for tractors, it will have in its financial statements a deficit of Sh10million captured either as expenses or costs. On the other hand, Company B investing Sh10 million in buying new tractors that use the
technology developed by Company A will have the tractors reflected in its financial statements as assets valued at Sh10 million. This account-ing system is skewed as it does not reflect the exact position of company A which could be owning copyrights, patents, technical know-how, trademarks, design rights or even trade secrets (all of which are valuable intangible as-sets) in the technology it has developed. Such accounting systems do not consider the unique nature of intangible assets.
It is therefore high time accounting systems were revised to capture all assets. Banks and other financial institutions also ought to start recognising that intangible assets are also as-sets which can be used as collateral. After all, the Kenyan Moveable Property Security Rights Act No. 13 of 2017 recognises intangible assets including Intellectual Property Rights (IPRs)as assets against which loans can be advanced. In the same vein, companies, including SMEs, ought to forage their ‘attics’ as there are likely to be several ‘Rembrandts’ lying there.
(This article was first published in the Busi-ness Daily)
The author is an Intellectual Property Law expert working at the Kenya Copyright
Board as a Senior Legal Counsel)
14
Copyright News
KECOBO Board Forwards CMOs Forensic Audit Report to DCI, DPP for Fraud Investigation
By. Cyrus Kinyungu
The Board of Directors of the Kenya Copyright Board (KECOBO) met to review the final report of the three-
year forensic audit on the operations of Music Copyright Society of Kenya (MCSK), Performers Rights Society of Kenya (PRISK) and Kenya Association of Music Producers (KAMP). The Board noted that the responses received from the three CMOs were not suf-ficient to change the findings of an earlier Draft Forensic Report.
Amongst the resolutions reached by the KE-COBO Board of Directors include the decision to submit the final audit reports to law enforce-ment agencies to investigate suspected fraudu-lent transactions in the CMOs. To facilitate quick investigations, the Board directed that the CMO staff and Board members mentioned in connection with possible loss of members’ funds step aside as required under section 46F of the Copyright Act.
The investigations and any prosecutions will be conducted in a professional manner, the rights of all individuals, including the pre-sumption of innocence, will be respected and guidance of the Office of the Director of Public Prosecutions will be sought in respect of res-titutive considerations, such as in cases where individuals opt to return funds and property of the organisation in question.
Further, the Board of Directors ordered for an overhaul of the management of royalties by CMOs by commissioning KECOBO Manage-ment to develop new policies and regulations to facilitate closer oversight to be announced by the end of October 2020.
“KECOBO management has been directed to issue new policies and regulations to be im-plemented before the new licensing period,” KECOBO Chairman Mutuma Mathiu said.
The decision will not affect the current year’s collection licenses of the three CMOs as the Copyright Amendment Act 2019 cushions the societies from the actions of its managers.Some of the intended reforms are:1. Administrative and oversight measures
to strengthen ICT deployment, Human Resource Management, Audit, Accounts, Procurement, record keeping and Corporate Governance functions;
2. Provision of a new audit tool for biannual review to reshape the CMOs reporting structures;
3. Restructuring of CMO management with a view to efficiency and cost saving;
4. New measures for the election of CMO directors and process of managing skill gaps by inclusion of independent professional directors to the CMO Boards;
5. Identifying issues with the Memorandum and Articles of Association for KAMP,
PRISK and MCSK with a view to making changes to align to the new framework in time for the respective CMOs Annual General Meeting; and
6. Amendment of the Copyright Act to establish mandatory forensic audits by an independent audit firm once every three years.
The above policies and regulations are intended to cure the major issues noted by the Final Forensic Audit, which include:
m Diversion of royalties, poor corporate governance and separation of roles;
m Lack of critical policy documents or breach of existent policies in human resource, finance, procurement, operations and ICT;
m Non-remission of statutory deductions and non-compliance with other statutory requirements;
m Negligence in asset management, debt recovery and irregular payments;
m Suspected fraudulent transactions;
m Significant structural and administrative gaps in management;
m Ghost or duplicate members; and
m Poor record keeping in general
15
ISSUE 37
By Paul Kaindo
As soon as Kenya confirmed its first case of COVID-19 on 13th March 2020, the country was thrown into a
tail spin. Suddenly and without warning our normal way of living and working was inter-rupted. The conventional functioning of the copyright system as we knew it was disrupted on a massive scale.
Following confirmation of the first COVID 19 case, the government instructed people to work from home to prevent local transmission. Social distancing became the norm, public gatherings were prohibited, schools were closed, countrywide night curfew was announced, clubs, restaurants and non-essential businesses were closed, international flights were suspended, partial lockdowns in hotspots areas were put in place and international borders were closed.
This affected a large number of creatives such as visual and performing artists whose main source of income depended on social gatherings and public performances. Most artists turned to the internet to connect with their audience. But that came with its own challenges. Education was disrupted affecting the way copyright in literally works was exploited. Teaching and meetings shifted to online platforms which led to an upsurge of mobile and computer applications aimed at meeting the demand for virtual meeting platforms.
According to UNESCO by the end of March 2020, at the peak of the global lockdown, in excess of 1.5 billion learners in 193 countries were directly affected by country-wide or localised closures of learning institutions. The closures happened so instantaneously and in the middle of the academic year. This left no time for teachers and students to get ready. For education to continue, it moved from face to face learning to online learning opening a new challenge and opportunities for copyright.
Because of the pandemic, most galleries and shops that specialise in visual arts were closed. The Trust for Indigenous Culture and Health, a non-profit organisation in Kenya, launched an initiative to provide a platform for artists to sell their works while promoting COVID-19 health messages. The project brought together artists who created a mobile art installation in line with the theme. These artists were able to continue showcasing their work to the public.
Before Covid-19, cinema enthusiasts would make long queues to buy tickets for
shows, then sit in a dark room to watch either a film or theatrical performance. As cinemas and theatre halls remain closed, film screenings and theatrical performances have been limited either to digital festivals or shared watch parties using platforms such as Netflix Party or Facebook live.
During the pandemic, copyright was not a priority for many people. Health and continuation of education took priority. A lot of copyright work was used over the internet without permission of the copyright owners. Some use fell under the exceptions and limitations while some were used without authority of the author out of lack of awareness, and for some, opportunistically. This gave right holders an opportunity to test the effectiveness of the new provisions of the Copyright Act on takedown notice.
In the wake of the pandemic and in response to the economic crisis that affected the creative industry, the Ministry of Sports, Culture and Heritage availed Sh100 million from the Sports Fund to artists, actors and musicians to help them alleviate the strain of the pandemic. It is during this period that the Kenya Copyright Board (KECOBO) in corroboration with Collective Management Organizations (CMOs) came up with a Rights Management System (RMS) which is an ICT solution that reduces physical contact in copyright management and licensing. The RMS incorporated three modules.
The national rights registry module allows one to undertake online copyright registration
including uploading their works virtually; view and manage all their registered copyright works; make payment against the application where applicable and receive and print their copyright registration certificates from the comfort of their homes. Registration through this module was offered for free in the initial stages. Since the launch of the system in May 2020, there has been over 5000 certificates of registrations issued through this module as at mid October 2020. This has enabled KECOBO enrich its data bank of authors and their works.
The licensing module is a self-licensing system linked to the relevant sector tariffs as well as the National Transport and Safety Authority (NTSA), Business Registration Services (BRS) and the Kenya Revenue Authority (KRA) that allows users of copyright works to secure public performance licenses online.
The Media Monitoring Module makes it easy to monitor the exploitation of copyright works by broadcasting houses and collect accurate data on usage of the works hence making scientific distribution of royalties verifiable.
The impact of the pandemic opened a new debate on whether copyright interventions should be put in place to enable exploitation of copyright works in times of similar crisis. These interventions would ensure the least interruption in exploitation of copyright works while safeguarding the interest of copyright owners.
How the Copyright Industry in Kenya Responded to the Pandemic
IN SUPPORT OF
# COMPLAINT CHANNEL: CONTACTS:
1. KECOBO Postal Address: The Executive Director, Kenya Copyright Board,P. O. Box 34670 – 00100, Nairobi.
2. KECOBO Emails: [email protected], [email protected], [email protected]
3. KECOBO Hotline: +254 703885033
4. KECOBO Office Telephone Lines: +254 20 253 3859/69, +254 713 761 758/739 062 643
5. Website: www.copyright.go.ke
6. Twitter: @KenyaCopyright
7. Facebook: Kenya Copyright Board
8. CAJ’s Postal Address: The Chairperson, Commission on Administrative Justice (CAJ)P. O. Box 20414 - 00200, Nairobi
9. CAJ’s Email: [email protected]
10. CAJ’s Office Telephone Lines: +254 20 227 0000
The Kenya Copyright Board (KECOBO) views complaints as being key to the continuous improvement of its services. If you have a complaint about KECOBO, its staff or the standard of our services please submit it via either of the listed complaints channels;
The management promises to respond promptly and appropriately. The Kenya Copyright Board also guarantees confidentiality and privacy of all communications.
“Protecting Copyright, Encouraging Creativity” l ISO: 9001:2015
COMPLAINTS PROCEDURE
CopyrightNews
Enforcement Activities Held Between July – September 2020
A Publication of the Kenya Copyright Board ISSUE 37
1. Raids Conducted
Broadcast (DSTV) Area
6 raids Nairobi
2. Court casesCases reported 6
Cases Investigated 6
Cases finalized Nil
Cases pending under investigation 6
Cases pending before Court Nil
Arbitration Cases Nil