TURNING A NEW LEAF: NEW APPOINTMENTS TO KENYA’S COPYRIGHT TRIBUNAL

On Monday, 26^th September 2022, Kenya’s Chief Justice, Martha Koome, presided over the swearing-in ceremony of the new Chairperson and Members of the Copyright Tribunal.¹ The Chairperson and Members of the Copyright Tribunal were appointed on 20th September, 2022, through Gazette Notice No. 11263, which was published on 23^rd September 2022.

The team that will serve the Judiciary in the Copyright Tribunal for the next five (5) years, effective from the 1^st of October 2022 are:

• Ms. Elizabeth Mkamboi Lenjo – Chairperson

• Ms. Helen Kiende Mungania – Member

• Mr. Wilfred Ogot Lusi – Member

• Ms. Caroline Apiyo Omaya – Member

• Mr. Joseph Ndungu Kihanya – Member

The Copyright Tribunal Mandate

The Copyright Tribunal is established under section 48 (1) of the Copyright Act, 2001 (as amended in 2022). Section 48(4) provides that “the Copyright Tribunal has the jurisdiction to hear and determine—

1. a dispute over registration of copyright; and

2. an appeal against—

   1. the Kenya Copyright Board’s refusal to grant a certificate of registration to a collective management organization;

   2. imposition of unreasonable terms or conditions by the Kenya Copyright Board for the grant of a certificate of registration;

   3. unreasonable refusal by a collective management organization to grant a licence in respect of a copyright work; or

   4. imposition of unreasonable terms or conditions by a collective management organization for the grant of a licence in respect of a copyright work”

In addition, The Copyright Tribunal may order the grant of a certificate of registration or the grant of a license in respect of a copyright work subject to the payment of the applicable fees.² Section 27 of the Copyright Act also provides that “where a broadcasting authority broadcasts audio-visual works in which a musical work is incorporated, the owner of the right to broadcast the musical work shall, subject to the provisions of this Act, be entitled to receive fair compensation from the broadcasting authority, and in the absence of an agreement the amount of compensation shall be determined by the Copyright Tribunal.”

Moreover, the Copyright Tribunal is empowered to issue orders such as Anton Piller orders.³ An Anton Piller order (also known as a search order) is an order from the Court which permits the inspection of a defendant or respondent’s premises and civil search for and seizure of relevant materials and documents.⁴ The purpose of an Anton Piller order is to preserve evidence which may be in danger of destruction or concealment.⁵

In conclusion, Chief Justice Martha Koome said that “the success of the Copyright Tribunal has an impact on ‎fostering creativity and a bearing on the success of our arts and ‎cultural industry”, adding that “this is because these ‘post-industrial’ aspects of ‎our economy rely upon copyright law to establish property rights ‎and protect revenues.” ‎Congratulations to the newly appointed Chairperson and Members of the Copyright Tribunal! We look forward to your service, hoping it will bring a positive shift in Kenya’s creative industry.

Photo by EKATERINA BOLOVTSOVA from Pexels