On 3rd February 2022, the Copyright (Amendment) Bill 2021 [National Assembly Bill No.44 of 2021] went through its second reading in Parliament. Thereafter, there have been media reports stating that the Copyright (Amendment) Bill 2021 will deter cases of content piracy.
Partners Against Piracy (PAP), a multi-sectoral coalition of stakeholders for the creative industry of Kenya, said this is incorrect. On pages 1262 and 1263 of Kenya Gazette Supplement No. 192 (National Assembly Bills No.44), the Copyright (Amendment) Bill 2021 (dated 22nd October 2021) seeks the Repeal of Sections 35B, 35C & 35D already in the Copyright Act.
Assented into Law by President Uhuru Kenyatta, in October 2019, these Sections 35B, 35C & 35D are game-changing provisions for Kenya, and the first of their kind in Africa, though common internationally. These provisions protect the creative industry in Kenya by providing incentives and a legal basis for better co-operation with Internet Service Providers (ISPs) to support rights holders in their fight against piracy.
In short, the repeal of Sections 35B, 35C & 35D is now legalising piracy, as it removes the first line of defence against piracy: the ISPs.
Economically, the net result is a Ksh4.31 billion per year loss to the creatives of Kenya and a Ksh6.25 billion per year loss in taxes to the government, which could be used for development the industry. And the total Loss is Ksh92 billion per year, due to most of the digital content consumed being international, plus the costs of platforms, distributors, retailers.
“While PAP welcomes the increase in share of Caller Ring Back Tune (CRBT) revenue to creatives, we request our MPs to compare this gain for all creatives versus the continued losses from piracy, if Sections 35B, 35C & 35D of the Copyright Act are repealed,” PAP said in a statement.
According to PwC’s Entertainment & Media Outlook 2019-2023, the forecast for Caller Ring Back Tunes (CRBT) in 2022 is $15 million (Ksh1.71 billion). Based on local music consumption habits, about 56% of this content may be from Kenyans, equaling Ksh855 million. Therefore, the proposed increase in share, from 16% to 52% (i.e. another 36%) is Ksh308 million.
In comparison, the piracy loss recorded by creatives in Kenya stands at Ksh14.31 billion per year. So, the annual loss to piracy of Ksh14.31 billion is 46 times more detrimental to creatives than the Ksh308 million gain from an increase in CRBT share.
PAP says it is not opposed to the increase in share of CRBT revenue to creatives. However, for the Copyright (Amendment) Bill 2021 to be truly beneficial to the artists and creatives in Kenya, any proposals for the repeal of sections 35B, 35C & 35D must be deleted before the third reading in Parliament.
“While we appreciate Hon. Wanga and other MPs for legislating an increase in CRBT revenue,” says Moriasi Omambia, the General Counsel for Sauti Sol Entertainment and Sol Generation Records, “the repeal of the Internet Service Providers’ responsibilities to prevent piracy, would be a total d******r! The number jobs for youth our label alone could create with the extra 99% of online earnings would be 100 times.”
Mr Omambia said piracy is the leading roadblock to growth in Kenya, Africa and the world. If MPs really want to help Kenya’s creative industry, he said, they should delete any reference to the repeal of Sections 35B, 35C & 35D in this Copyright Amendment Bill 2021.
Chair of Kenya Film & Television Professionals’ Association (KFTPA), Mr Martin Munyua, echoes this sentiment. “Repealing the Sections 35B, 35C & 35D, will cost our members and the creative industry dearly. Instead, why can’t our MPs ensure that ISPs actually comply with this excellent law, already assented to by President Uhuru Kenyatta in October 2019, which can unlock Ksh92 billion per year for our industry? This would accelerate our recovery from COVID-19 overnight,” Mr Munyua said.
The proposed Repeal of Sections 35B, 35C & 35D, by the Copyright (Amendment) Bill 2021 contravenes provisions of the Constitution of Kenya”, according to Liz Lenjo, intellectual property lawyer of MyIP Studio, “which affirms that Intellectual Property Rights are akin to any other proprietary rights, whereby the state has a fundamental responsibility and promises to safeguard intellectual property rights of the people of Kenya.”
Roy Gitahi, of Art at Work, concludes: “The Kenyan Government recognised years ago that the youth do not have security for loans in the form of buildings, logbooks, land or income. This is why the Moveable Property Security Rights Act of 2017 was born, to empower our youth to use art, music rights, film rights, book rights, etc as security for loans.”
The provisions ensuring the swift takedown of unauthorised content, also benefit the ISPs, who are now becoming owners of content and platforms.
The repeal of sections 35B, 35C & 35D takes away this opportunity for the youth to get the loans they need for businesses. It’s like owning a building with 10 units and using the rent as security for a loan. But then the Law allows anyone to come and collect rent from your building, thus robbing you of the income required to repay the loan. “Kenyan law protects owners against such t***t in real estate, so why is intellectual property – also an Asset, as defined by our Constitution – being left unprotected with the proposed repeal of Sections 35B, 35C & 35D?”
Furthermore, the Repeal of these important Provisions will abet the i*lēgal operations involved in offering pirated content online, including crimés like tax evásion, identity thèft, data rànsom, money laundering and fráud. These same crimè groups are also involved in tràfficking of humans, organs, drúgs, wéapons and more, as well as terròrism, contract kìlling and counterfeiting, among others.
Instead of repealing, Parliament should consider changes to make the law clearer and more effective, in full co-operation with the ISPs, thus ensuring the sustainability of the Kenya creative industry and the safety of from such crimès.
Furthermore, the provisions ensuring the swift takedown of i*légal content, also benefit the ISPs, who are now becoming owners of content and platforms. A Repeal will result in those ISPs not being able to recoup their investments, as online piracy steals up to 99% of potential revenue.
“Let us remember that piracy k**lèd our music industry in the early 1980s,” says Partners Against Piracy, “until then, Nairobi was the headquarters for international labels in Africa and Benga was the root of many genres across the continent that have seen immense success. Kenya’s creative industry was destroyed, and it’s taken over 40 years to rebuild.”
