Kenya: Amendments to copyright law

The Kenyan Copyright Act of 2001 was recently amended by the Copyright (Amendment) Act 2019 of 19 September 2019. These are some of the more important changes:

Folklore removed from copyright law

Folklore has been taken out of the ambit of copyright law and it is now dealt with in legislation called the Act for Protection of Traditional Knowledge and Cultural Expressions. The definition of ‘folklore’ has therefore been removed from the Copyright Act.

Works

The definition of the term ‘works’ that are eligible for copyright protection is expanded to include translations, adaptations, new versions or arrangements of pre-existing works, as well as anthologies or collections of works if they are original as a result of the selection that took place.

Marrakesh Treaty

This treaty has been ratified and domesticated in Kenya. This is the treaty that creates exceptions that enable people with disabilities to access works that are protected by copyright. As a result of the new legislation there are now specific exemptions from infringement.

AI-generated artworks

The new definition of the term ‘artwork’ says that it is ‘an original work of visual art created by an artist or artists, or produced under their authority.’ There is speculation that this might pave the way for the protection of Artificial Intelligence (AI)-generated artworks.

Artist resale right

The new legislation makes provision for an artist resale right.

Register of copyright works

The Copyright (Amendment) Act requires the Copyright Board to keep a register ‘of all works under this Act’, with extracts certified by the Board being admissible as evidence in court proceedings.

It is apparently not yet clear just how this registration process will work, and whether it will apply to older (already-existing) works. The general consensus is that registration is merely intended as an aid to copyright owners, and that registration will not now be a requirement for copyright to exist. This is, of course, a very important issue and it will need to be monitored closely.

Protection for ISPs

The Copyright (Amendment) Act exempts internet service providers (ISPs) from liability for copyright infringement if certain conditions are met. One such condition is that the ISP must not in any way promote the content or material being transmitted.

There are also provisions dealing with the role of ISPs.

Takedown notices

There is provision for takedown notices. Anyone filing a takedown notice will need to identify the actual rights that are being infringed. A malicious takedown notice will be a criminal offence.

Collective management

There are extensive provisions relating to the corporate governance of collective management organisations (CMOs).

The changes constitute a modernisation of the law and are therefore broadly welcome.

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Date published: 6 December 2019
Author: Spoor & Fisher

Tags: Kenya copyright Kenyan copyright law