Ring back tunes and provisions regarding ISPs and takedown notices
Background, the 2019 amendments
In 2019 Kenyan copyright law was amended significantly. Amongst the more notable changes:
• protection for internet service providers (ISPs);
• provision for takedown notices;
• provisions dealing with the governance of collective management organisations.
A further important change was a provision requiring the Copyright Board (the Board) to keep a register ‘of all works under this Act’, with extracts certified by the Board to be admissible as evidence in court proceedings. It was, however, not made clear how this registration process would work, and whether it would apply to older (already-existing) works. The general consensus was that the new registration process was merely intended as an aid to copyright owners, and that registration would not be a requirement for copyright to exist.
The 2021 changes – the Copyright (Amendment) Bill 2021 (the Bill)
The National Rights Registry
A new Section 34C of the Copyright Act provides that the Board shall establish an office and create and maintain an online portal for the registration of copyright works, both to be known as the National Rights Registry (‘the Registry’). Functions of the Registry will include the:
• digital registration of rights holders;
• digital registration of copyright works;
• authentication and authorization of consumers of copyright works;
• media monitoring of registered copyright works;
• tracking, monitoring and dissemination of data related to access of registered copyright works; any other functions as may be assigned by the Board.
The legislation provides that the Cabinet Secretary may prescribe fees for accessing the Registry, the format for registration, the types of copyright works that can be registered, and anything that may be necessary for the performance of the functions of the Registry.
Registration is not compulsory
Significantly the amendment makes it quite clear that registration is not compulsory – it says that the author of copyright works or a holder of copyright may register his or her works at the Registry.
The amendment further makes it clear that third parties may access copyright works through the Registry, on payment of a fee.
The Bill provides that the Cabinet Secretary may prescribe the types of work that can be registered, a format and fees for copyright registration, and anything else necessary for the performance of the Registry.
Ring back tunes
The Bill also deals with ring back tunes – it defines a ring back tune as ‘subscription music or a tone which is played by a telecommunications operator to the operator of a call.’
A new Section 30C creates a formula for the sharing of revenues between the following parties:
• The premium rate service provider.
• The telecommunications operator.
• The artist or copyright holder.
Repeal of, inter alia, Sections 35B, 35C and 35D of the Act
The Bill proposes to repeal Sections 35B, 35C and 35D of the Act, which relate to the role of an internet service provider (ISP) to comply with requests for the takedown of copyright infringement items – significantly Section 35B provides for the procedure to be followed by an ISP in processing a takedown request, whereas Section 35C sets out the role of an ISP to provide subscriber information to investigative agencies and to also designate an agent or electronic address for receiving such notices under its terms and conditions. The repeal of these provisions will have the effect of reducing the regulatory compliance obligation unduly placed on ISPs in connection with infringing content. The provisions of the Act on the intermediary liability of ISPs in respect of copyright infringement have, however, been retained.
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