The Copyright (Amendment) Bill, 2017 THE COPYRIGHT (AMENDMENT) BILL, 2017 A Bill for AN ACT of Parliament to amend the Copyright Act, 2001 ENACTED by the Parliament of Kenya, as follows― Short title. 1. This Act may be cited as the Copyright (Amendment) Act, 2017. Amendment 2. Section 2 of the Copyright Act,2001, in this Act of section 2 referred to as the “principal Act” is amended in subsection of No. 12 of (1)― 2001. (a) in the definition of “author”― (i) by deleting the word “film” appearing in paragraph (d) and substituting therefor the word “work”; (ii) by deleting the word “working” appearing in paragraph (h) and substituting therefor the word “making”; (b) in the definition of “broadcast”, by deleting the word “broadcast” and substituting therefor the word “broadcasting”; (c) in the definition of “copy”, by inserting the word “audio” immediately before the words “or visual”; (d) in the definition of “copyright”, by inserting the words “related rights” immediately after the 1 The Copyright (Amendment) Bill, 2017 word “copyright”; (e) by deleting the definition of “forklore”; (f) in the definition of “infringing copy”― (i) by deleting the word “manufacture” appearing in paragraph (a) and substituting therefor the word “making”; (ii) by inserting the following new paragraph immediately after paragraph (a)― (aa) the transmission of a work or live performance through wire or wireless means to the public, including the making available of a work or a live performance to the public in such a way that members of the public may access the work or live performance from a place and at such a time individually chosen by them; (iii) by deleting paragraph (b) and substituting therefor the following new paragraph― (b) where imported, a copy the making of which would have constituted an infringement of such rights if made in Kenya by the importer; (g) by deleting the definition of “musical work” and substituting therefor the following new definition― 2 The Copyright (Amendment) Bill, 2017 “musical work” means a work consisting of music, and includes any graphical notation of such work; (j) in the definition of “school”, by deleting the (Cap. 211) expression “Education Act” and substituting therefor the expression "Basic Education Act, No....of 2013"; 2013 (k) by deleting the definition of “work” and substituting therefor the following new definition― “work” means literary, musical, artistic work, audio visual work and sound recordings and includes translations, adaptations, new versions, or arrangements of pre-existing works, and anthologies or collections of works which, by reason of the selection and arrangement of their content, present an original character: Provided that the visually impaired persons work shall be limited to literary and artistic works whether published or made available in any media; (l) in the definition of “technical measure”, by inserting the word “protection” immediately after the word “technical”; (l) by inserting the following new definitions in their proper alphabetical sequence― “accessible format copy” means a copy of a work in an alternative manner or form which 3 The Copyright (Amendment) Bill, 2017 gives a beneficiary person access to the work, including permitting the person to have access as feasibly and comfortably as a person without visual impairment or other print disability; “art market professional” includes an auctioneer, owner or operator of a gallery, museum, an art dealer or any other person involved in the business of dealing in artworks; “artwork” means an original work of visual art created by an artist or artists, or produced under their authority; “authorized entity” means an entity that is authorized or recognized by the government to provide education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis and includes a government institution or non- profit organization that provides the same services to beneficiary persons as one of its primary activities or institutional obligations; “beneficiary person” means a person who― (a) is blind; (b) has a visual impairment or a perceptual or reading disability which cannot be improved to give visual function substantially equivalent to that of a person who 4 The Copyright (Amendment) Bill, 2017 has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or (c) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading, regardless of any other disabilities; “buyer” means a person to whom ownership is transferred in an artwork under commercial resale; “commercial resale” means the subsequent re-transfer of ownership in artwork from one person to another for monetary consideration with the involvement of an art market professional; “Copyright Tribunal” means the tribunal established under section 48 of the Act; “exclusive licence” means a licence in writing signed by or on behalf of an owner or prospective owner of copyright or related rights, authorizing the licensee to the exclusion of all other persons, including the person granting the licence, to exercise a right which by virtue of this Act would apart from the licence be exercisable exclusively by the owner of copyright or related rights; 5 The Copyright (Amendment) Bill, 2017 “information system” means a system for generating, sending, receiving, storing, displaying or otherwise processing data and includes internet; “information system services” includes the provision of connections, the operation of facilities for information systems, the provision of access to information systems, the transmission or routing of data between or among points specified by a user and the processing and storage of data, at the individual request of the recipient of the service; “Internet Service Provider” is any person providing information services, systems, or access software provider that provides or enables computer access by multiple users to a computer server including connections for, the transmission or routing of data; “organisation” means a collective management organisation approved and authorized by the Board which has as its main object, or one of its main objects, the negotiating for the collection and distribution of royalties and the granting of licenses in respect of the use of copyright works or related rights; “owner of the copyright” means the first owner, an assignee or an exclusive licensee, as the case may be, of the relevant portion of the copyright; 6 The Copyright (Amendment) Bill, 2017 “original work of art” includes batiks, carvings, ceramics, collages, drawings, engravings, fine art jewelry, glassware, lithographs, fashion design, paintings, photographs, pictures, prints, sculptures, graphics, weavings, or any other works as may be included by regulation: Provided they are made by the artist himself or copies considered works of art in themselves; “performance” means the representation of a work by such action as dancing, playing, reciting, singing, declaiming or projecting to listeners by any means whatsoever; “performer” means an actor, singer, declaimer, musician or other person who performs a literary, musical work or a work of folklore and includes the conductor of the performance of any such work; “public display” means the showing of original or a copy of a work― (a) directly; (b) by means of a film, slide, television image or otherwise on screen; (c) by means of any other device or process; (d) in the case of an audio-visual work, showing of individual images 7 The Copyright (Amendment) Bill, 2017 consequentially at a place or places where persons outside the normal circle of a family and its closest social acquaintances are or can be present irrespective of whether they are or can be present at the same place and time or at different places or times, where the work can be displayed without communication to the public; “publication” means a work or a sound recording, tangible copies of which have been made available to the public in a reasonable quantity for sale, rental, public lending or for other transfer of the ownership or the possession of the copies: Provided that, in the case of a work, the making available to the public took place with the consent of the author or other owner of copyright, and in the case of a sound recording, with the consent of the producer of the sound recording or his successor in title; “public performance” means― (a) in the case of work other than an audio-visual work, the recitation, playing, dancing, acting or otherwise performing the work, either directly or by means of any device or process; (b) in case of an audio-visual 8 The Copyright (Amendment) Bill, 2017 work, the showing of images in sequence and the making of accompanying sound audible; and (c) in the case of a sound recording, making the recorded sounds audible at a place or at places where persons outside the normal circle of the family and its closest acquaintances are or can be present, irrespective of whether they are or can be present at the same place and time, or at different places or times, and where the performance can be perceived without the need for communication to the public; “record” means any device in which sounds or the representations of sounds are embodied which are capable of reproduction there from with or without the aid of another instrument; “related rights” mean rights neighboring on copyright, including those subsisting under sections 27(2), 28, 29 and 30 of this Act; “resale royalty right” means the right of artist or group of artists or successors to receive resale royalty on commercial resale of an artwork; 9 The Copyright (Amendment) Bill, 2017 “seller” means the person who transfers ownership of the artwork under commercial resale; and “specialized formats” means Braille, audio, or digital text or any other media which is exclusively for use by visually impaired or other persons with disabilities, and with respect to print instructional materials, includes large print formats when such materials are distributed exclusively for use by visually impaired or other persons with disabilities. Amendment 3. Section 5 of the principal Act is amended— of section 5 of No. 12 of 2001. (a) in paragraph (c), by inserting the word “regional” immediately after the word “national”; (b) by inserting the following new paragraph immediately after paragraph (f)— (fa) license all dealers of copyright works; and (c) in paragraph (g), by inserting the words “and enforce” immediately after the word “administer”. Amendment 4. Section 6(1) of the principal Act is amended— of section 6 of No. 12 of 2001. (a) in paragraph (k) by deleting the words 10