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WHY ARE IP-RELATED AMENDMENTS SO HAPHAZARDLY EXECUTED IN KENYA? LET’S QUASH THE WANGA BILL!

On November 15th, 2021, the National Assembly received a Copyright Amendment Bill 2021, from Hon. Gladys Wanga, Women Rep Homa Bay.  This Bill should annoy any creative entrepreneur especially rights holders in the music and entertainment industry. These include musicians, songwriters, music producers, film producers, gaming companies, book publishers, visual artists, comedians, influencers, and broadcasters. Copyright holders in content creation are in for quite ride. 

The proposed amendments want to get rid of Section 35B, 35C, and 35D. Why are these provisions crucial? Well, Take Down Notices are the best chance at the control for copyright holders and related rights holders. Take-Down Notices give power to copyright holders and related rights holders to control their work and the ability to make it available on online platforms. Most of us have experienced works being made available online by third parties who have no legal right or authority whatsoever to make the work available.  Such acts constitute a copyright infringement; the right to make available, display or communicate to the public, reproduce and distribute is the EXCLUSIVE right of the copyright holder (see Section 26). 

Due to the nature of control Internet Service Providers (ISPs) have, the international IP community had robust discussions over years around securing copyright holder rights and related rights holder rights in the digital space, as a result, Take-Down Notice procedures were born. Therefore, this is not just a Kenyan concept but an international concept to safeguard the intellectual property rights of copyright holders in their works. 

Take Down Notices create an obligation and responsibility on ISPs to create mechanisms to receive copyright complaints on infringement cases/ infringing uploads online and to ensure that such uploads are suspended until the copyright issue is resolved either by the parties independently through mediation or through a formal process by litigation or arbitration, upon which the content may be restored if the parties agree or have the content delegated entirely if it is the wish of the copyright holder. 

Imagine taking away this power from the copyright holders… Can you see the legal conundrum that our creative industry and entrepreneurs shall face? It is my view that this is an absurd proposal. This move literally legitimizes piracy in the digital space and takes us back to about 10 years ago when we were fighting tooth and nail to quash the existence of platforms like Waptrick that distributed Kenyan music without the authorization of the copyright holders and with zero compensation. We have come a long way, and this is not the trajectory we should be taking. 

To add insult to injury, the Amendments propose to take away a copyright holder and related rights holder’s right to apply for an injunction to the High Court to stop conduct or actions that encourage or fuel continued infringement of their copyright online. This provision is very crucial in granting copyright- holders the power to take action to secure their copyright. This provision also bolsters a legal strategy for any copyright holder in the event of infringement online. This is unacceptable! We should be “beefing up” S.35A, 35B, and 35D. 

In my view, we should be proposing the addition of Content Service Providers (CSPs) to also have the obligation to provide for Take-Down Notices. This provision also protects content businesses from potential frivolous cases and from unexpected losses or seizures of businesses because of lawsuits. Take-Down Notice procedures are like a “fire jacket” for ISPs and CSPs, which is a good compromise for the Gig Economy to flourish and access to information and entertainment in the digital age to be enjoyed as best as it can be. 

If we take away the Take-Down Notices, then ISPs and CSPs may not have any content to distribute on behalf of copyright holders. Any knowledgeable copyright holder is not likely to accept such a reality and would likely withdraw their works from such platforms. They would be better off creating their own platforms to distribute their content. 

Further to this, the proposed amendments attempt to legislate how net revenue share should be split between the premium rate service providers (PRSPs), telecommunication companies, and the copyright holders. While that 52% for the artists may look appealing, this is a business/ contractual decision between the concerned parties that are affected by the economic trends. However, should the rights holders decide to retain this provision, the ball is in your court. As you make your bed, so must you lie on it. 

There is already such bureaucracy in changing legislation to conform with the times and changes in business practices. If and when the copyright holders and other stakeholders want to negotiate, they shall need to move parliament and propose amendments to their requests. If a new business model/ stakeholder comes into the market, they will likely have to follow suit, which means, innovating and innovations in this space are likely to be curtailed.

These amendments are a BAD IDEA!!! PERIOD! 

These proposed amendments are UNCONSTITUTIONAL and attempt to take away rights granted under our Constitution.

Copyright holders and related rights holders have the right to property and to protect their property.

It gets worse though!  On Saturday 11th of December, 2021, a gazette notice was published for Public Participation by Submission of a Memoranda by stakeholders with a deadline of 28th of December 2021. It is Mid-December! Most stakeholders are away for the Holidays or preparing to close for the holidays. There isn’t adequate time to convene consultation meetings and draft the Memoranda as requested. 

Why the rush? The limited-time of the notice is unreasonable and defeats the legal principle of public participation. Even though we have no law yet that prescribes how public participation should be executed, any person who has reviewed the Gazette Notice can see how unreasonable and suspicious this action is. 

Also, why do Politicians wait until the campaign period is nigh to purport to care about the creative industry? 

The proposed amendment is an absurdity and should be quashed. As for Bunge, the notice period is unreasonable. Let’s go make merry and come back in January and have candid conversations on the bills that have been mentioned in this contentious notice. A new and practical deadline is inevitable!