DEVELOPMENTS IN KENYA’S COPYRIGHT LAW: THE COPYRIGHT (AMENDMENT) ACT OF 2022

You have probably made a phone call once or twice in your lifetime, and when you did there was a ring back tone that played as you waited for the receiver of the call to pick up. A ring back tone is the subscription music or a tone which is played by a telecommunication operator to the originator of a call.¹ In other words, it is that ringing sound you hear when you try to call someone. The carrier network provides this sound to callers when they are trying to connect to the receiver of a respective call.²

Instead of using the normal, often monotone, ring back tone, callers can and have opted to have the tunes of artists and creators they love and adore as their ring back tones. Such services, in Kenya, can easily be identified by titles such as Skiza Tune (administered by Safaricom) and Skiza na Citizen (administered by Royal Media Services). These types of ring back tones often cost the caller. For instance, Safaricom’s Skiza Tune service costs its users “Ksh 1.5 daily for Local and International tunes”.³

In October 2021, The Copyright (Amendment) Bill 2021 (the Bill), sponsored by Homa Bay Woman Representative Gladys Wanga, was published. The Bill had two main objectives; firstly, to amend the Copyright Act to provide for a fair formula for sharing of revenue from ring back tunes between the artistes/copyright holders and the telecommunications companies; and secondly, to repeal the provisions on takedown notices and requirements, the role of internet service providers and application for injunctions.⁴

Keen on the first objective, prior to this Bill, revenues obtained from ring back tunes were shared in the following way: artistes would receive only 16 per cent of the revenue generated from their Skiza tune while 25 per cent would go to the Kenya Revenue Authority and 51 per cent retained by the telecommunication service provider.⁵ The Bill proposed that the revenue sharing formula be as follows: the premium rate service provider at 7 percent, the telecommunication operator at 16 percent, and the artist or copyright holder at 52 percent.⁶

In February 2022, Parliament passed the Bill,⁷ which was later signed into law by President Uhuru Kenyatta in April 2022.⁸ With slight variations from what the Bill proposed, The Copyright (Amendment) Act No 14 of 2022 now provides that the sharing of revenue will be as follows: premium rate service provider shall be entitled to 8.5 percent; telecommunication operator 39.5 percent; and the artist or owner of the copyright shall be entitled to not less than 52 percent of the revenue.⁹ Additionally, The telecommunication operator is expected to remit directly to the artiste or owner of the copyright the ring back tune net revenue share allocated to them.¹⁰

For artists, this can be considered to be a win. This is because, first, the new revenue sharing formula has it that they will be the receivers of the lion’s share of the revenues obtained from these tunes. Moreover, by cutting middlemen and having telecommunication operators remit revenues directly to them, artists will be able to avoid loss due to extra costs, such as management fees, that would otherwise have been paid to entities collecting the revenue on their behalf.

It is, however, worth noting that, the proposal to repeal the provisions on takedown notices and requirements, the role of internet service providers and application for injunctions was not passed by Parliament. This is because, according to the recommendations by the Departmental Committee on Communication, Information and Innovation, the respective sections were important, progressive provisions that are fairly recent and in need of implementation, and as such should be retained.¹¹ Moreover, the Copyright (Amendment) Act No. 14 of 2022 went on to establish and provide for the National Rights Registry (NRR), which is the central repository collating details pertaining to ownership of various copyright works.¹² The NRR is a portal used by copyright holders allowing them to register and view/download copyright certificates.¹³ You can read more about the NRR here. Such registration, according to section 22(D) (3) of The Copyright (Amendment) Act No 14 of 2022 may be subject to payment of the prescribed fees; however, at the moment, registration is free, and will remain so until 30th June 2022.

The framework of copyright law within Kenya has experienced several changes over the past few years all in the aim of improving and ensuring the law works for the artists and creatives it is meant to protect. These amendments can be seen as a step towards achieving that objective.

The image is fromwww.orange.jo