Copyright Infringement and Piracy Threats to Creativity
Kenya’s film, music and literature industry has witnessed tremendous growth over the years. This is evidenced by the increased number of radio and television stations, where for instance as at June 2017, Kenya had 66 television channels and 139 FM radio stations. In addition, there has been a steady increase in employment in publishing, motion picture, video and television programme activities. This has seen the introduction of programming in various areas, including local music videos, religious programmes, talk shows, children’s shows, reality, drama and comedy.
As a result, the industry is making significant contribution to Kenya’s economy. For instance, as at 2007, when a comprehensive study on the copyright-based industry was undertaken, it was established that the industry’s GDP contribution was 5.32%, accounting for a value addition of Ksh 85.21 billion and employing over 300,000 persons directly. When compared to GDP contribution of other sectors in Kenya the same year, the sector’s contribution, though lower than for traditional sectors like agriculture and manufacturing, was higher than for financial intermediation, which was 4.7% yet the numbers employed are similar to those in Kenya’s manufacturing sector. Kenya’s film, music, theatre, radio and television as estimated in the study accounted for only Ksh 2.599 billion in terms of value added (0.16% of GDP). However, the Kenya Film Commission indicates the total value addition of the film industry in 2011 as Ksh 74 billion (accounting for 2.45% GDP).
To boost creativity and growth of the industry, several efforts are being undertaken by the government and the private sector. For example, in the television and radio programming industry, the Communications Authority of Kenya (CAK) prescribed the minimum amount of time for the broadcast of local content at 40 per cent with the aim of increasing it to 60 per cent within four years. This came into force in July 2016 and applies to all broadcasters of local content programming excluding news and advertising. According to CAK, as at September 2017, compliance of the 40% quota was at 82.4%.
Other than the provision for broadcasting local content, the government has also proposed other interventions to boost this sector; including the recently launched ‘Studio Mashinani’ project aimed at establishing recording studios across the country; and the operationalization of the Kenya Film School. The private sector also seems keen to nurture talents as evidenced by projects such as Tusker Project Fame, Coke Studio Africa, and Airtel Trace Music Star among others.
Kenya currently exports television content largely within East Africa and even beyond the region. One example is the TingaTinga Tales, where African folklore is delivered through animation. However, most of the writers of these materials are not Kenyans. The introduction of digital technology has expanded the audiences. Exports for the core copyright base accounted for Ksh 3.4 billion in 2007, which is 1.30% of the national economy. Majority of these exports were in publishing.
That said, piracy stands as a major challenge in realizing the full potential of the industry. For example, in music, unauthorized sale of songs in form of ring tones or caller ringback tones and copying of original works are threatening to undo gains made thus far in addition to impoverishing the owners. Owners of copyrights often use Collective Management Organizations (CMO) to negotiate and collect royalties on their behalf. One such organization is the Music Copyright Society of Kenya (MCSK). In 2015, MCSK reported local royalties’ payable of Sh91.3 million up from Sh75.7 million in 2014. This was a remarkable growth from Sh24.7 million in royalties in 2008/09. This is despite reports of poor governance in the organization. In 2017, the regulator, Kenya Copyright Board declined to renew MCSK’s license when it failed to produce its audited financial statements.
A new generation of book authors is emerging, including Yvonne Adhiambo Owuor who authored ‘Dust’, which received rare reviews in the New York Times in 2014. Also, Okwiri Oduor was awarded the 2014 Caine Prize for African Writing for her short story entitled ‘My Father’s Head’. These two authors build on Kenya’s literary works established by renowned authors such as Ng?g? wa Thiong’o, Grace Ogot and Kinyanjui Kombani, just to name a few. However, the growing number of pirated books may constrain nurturing such creativity. For example, the Kenya Copyright Board in March 2017 destroyed over 50,000 pirated books valued at Ksh 15 million. Further, 10,000 copyrighted books valued at Ksh 5.5 million were seized from Nairobi’s River Road. The value of these two cases alone is equivalent to 10% of the estimated value added contribution of authors, music composers and other artists in one year.
Copyright piracy has been amplified by increased internet access. Google, for instance, receives in excess of 15 million requests a month globally to remove content that infringes copyrights, which include music, movies, images and software. In addition, domestic laws seem inadequate to address these developments. For example, until recently in Kenya, there was no law covering copyright infringement on online content. The current Copyright (Amendment) Bill 2017 attempts to address this gap by giving internet service providers the responsibility to address copyright infringement once a complaint has been raised by the copyright owner. This is through taking down the content or disabling access, ensuring it is no longer disseminated online.
Despite, Kenya’s Copyright Act (No 12 of 2001) rendering copyright piracy and copyright infringements as a punishable offense, copyright piracy has continued. The law stipulates a fine to offenders not exceeding Ksh 400,000 or imprisonment not exceeding 10 years or both if found culpable of making, distributing or importing infringing copies. Further, selling or possessing infringing copies aimed for commercial purposes attracts a larger fine not exceeding Ksh 800,000 or imprisonment not exceeding two years or both.
Lack of awareness is often cited as a contributor as majority copyright violators seem ignorant that they are infringing on a person’s right. Further, the consumers have limited ability to distinguish between genuine and pirated materials, while at the same time they go for pirated materials because they are cheaper. The other challenge relates to weak enforcement where institutions mandated to enforce the copyright law including the Kenya Copyright Board, the Kenya Police and the Anti-Counterfeit Agency have resource and capacity gaps especially due to the specialist nature of copyright cases. In addition, although the Copyright Act (2001) provides that the Kenya Copyright Board maintains a copyright register, the challenge is that registration of copyrighted works is not compulsory. Copyrights by their nature are granted automatically upon ‘creation or fixation of the expression’ and therefore do not require registration. As a result, the register is not comprehensive to even guide enforcement of law.
How can the government enhance its efforts in combating copyright piracy and hence protecting local copyright-based industry?
Creating awareness on copyrights, on infringements and piracy is a priority in nurturing and protecting the industry. The Copyright Board is mandated to promote and provide training on copyright and related rights. This is done through a number of platforms including the board’s website, which has relevant literature. However, awareness should not be limited to the board alone. Stakeholders should also play a role. Internet service providers, for instance, especially now with the take down notice, are likely to enhance awareness creation. Schools also play an important role, particularly when participating in forums such as national music and drama festivals. Incubation hubs, particularly those that host software developers, also present a forum for awareness creation, which can be achieved through partnerships with Kenya Copyright Board.
Capacity to value intellectual property, in this case copyrights, needs to be enhanced to enable putting in place more punitive penalties. The Copyright Amendment Bill (2017) links the penalty to five times the value of legitimate work infringed. For instance, in the case of the copyright books valued at Ksh 15 million and Ksh 5.5 million, the person found guilty would be liable to a fine of Ksh 75 million and Ksh27.5 million respectively. In addition, given that copyrights are now considered as collateral, which can secure commercial loans as established by the recently enacted Movable Property Security Act 2017, this would support industry players in securing finance to grow their business.
Promote anti-piracy mechanism by using authentication systems to improve on enforcement of piracy law.
The law, for example, provides for the use of Kenya Copyright Board authentication devices on ‘sound and audiovisual recordings, which are availed to the public for commercial purposes’. In this regard, it is illegal to sell audio or audio-visual works without the authentication device; which therefore works as an effective anti-piracy mechanism as it presents an opportunity for consumers to identify legitimate products in the market. A similar approach can be adopted for books, as this would assist buyers in confirming that the book is indeed genuine and not pirated. Earlier this year, the Kenya Publishers Association (KPA) in partnership with the Ministry of Education and Kenya Institute of Curriculum Development (KICD) introduced a mobile phone mechanism that empowers buyers to authenticate books they purchase by sending an SMS of the unique code affixed to the books. This service, however, focuses on school text books only. Building on these two initiatives, an authentication system for copyright products needs to be introduced as a legal requirement. This would grant the consumer the ability to undertake due diligence. Further, it will provide the enforcement agencies with necessary information while undertaking surveillance, enabling them to differentiate between original and copyrighted material.
A review of the current institutional framework is necessary to deal with CMOs’ governance challenge. An option is to revise the copyright law to enhance the regulator’s regulatory function. This should aim at enhancing the oversight function on CMOs and dispute settlement procedures. The Copyright (Amendment) Bill 2017 has taken this approach. The Bill for instance empowers the board to undertake inspections of CMOs; introduces additional clauses to remove ambiguity which include; collection and payment of royalties; de-registration of CMOs and specifications on the qualification and tenure of CMO officials. The Bill further mandates the board to develop compliant handling procedures. These additions, if well implemented, will enhance transparency and accountability within CMOs.
All in all, unfair practices as relates to copyrights need to be addressed as the country continues to embrace the value embedded in this industry. Further, inadequate data limits informed policy interventions. This calls for enhancing the scope to data collection, monitoring and analysis.
Authors: Anne Gitonga-Karuoro and Githinji Njenga, Policy Analysts, Private Sector Division