DRAFT COPYRIGHT REGULATIONS 2015 ARRANGEMENT OF REGULATIONS. PART I Preliminary and Definitions. The Copyright Register PART III

Transcription

1 DRAFT COPYRIGHT REGULATIONS 2015 ARRANGEMENT OF REGULATIONS PART I Preliminary and Definitions Reg. 1: Citation and Commencement Reg. 2: Interpretation Reg. 3: Forms Reg. 4: Fees PART II The Copyright Register Reg. 6: The Copyright Register Reg. 7: Change of Ownership PART III Verification of Assignments Reg. 8: PART IV Authentication of Copyright works Reg. 9: PART V Inspections Reg. 10: PART VI Renunciation of Copyright PART VII Registration and Oversight of Collecting Societies Reg. 11: Page 1 of 11

2 PART VIII PROCEENDINGS BEFORE AUTHORITY Reg. 12: PART IX EXTENSION OF APPLICATION OF THE ACT Reg. 13: PART X General and Miscellaneous Provisions Reg. 14- Reg.19 First Schedule Second Schedule Original Nos. & Title Part 1- Preliminary New Nos. and Title Part 1- Preliminary & interpretations New Text 1. CITATION AND COMMENCEMENT 2. INTERPRETATION In these regulations, unless the context otherwise requires- Authority means the Competent Authority 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 the Act would (apart from the licence) be exercisable exclusively by the owner of copyright or related rights And exclusive licensee shall be construed accordingly; 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; or (d) in the case of an audio-visual work /ill/showing of individual images 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 different places or times, and where the work can be Page 2 of 11

3 Part ii Administration Part ii Administration displayed without communication to the public; public performance means- (a) in the case of a 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 the case of an audio-visual work, the showing of images in in sequence and the making of accompanying sounds audible; and (c) in the case of a sound recording, making the recorded sounds at a place or at places where persons outside the normal circle of the family and its closed acquaintances are or can be present, irrespective of whether they are or not present at the same place and tie, or at different places or times, and where the performance can be perceived without the need for communication to the public. related rights mean rights neighbouring on copyright, including Those subsisting under sections 27(2), 28, 29,30, and 30A of the Act; 3. FORMS The forms referred to in these Regulations are the forms set out in the First Schedule. 4. FEES (1) The fees set out in the Second Schedule shall be the prescribed fees for the purposes of these Regulations. (2) If, for a fee, a corresponding form is referred to in the Schedule, The fee is payable when the Form is used. (3) Any fees paid in error shall be refunded upon proof of the error to satisfaction of the Executive Director. 5.1) Pursuant to the provisions of paragraph (f) of section 5 of the Act, theexecutive Director shall open and maintain a register known as the Copyright Register where in the following particulars shall be recorded in respect of any copyright work that the owner elects to register; i. Title of the Copyright work; ii. The name, physical, postal and address of the Author and the Copyright holder; iii. The date of registration of a copyright work; iv. Any other information that the Executive Director may consider relevant to be recorded in the Copyright Register. v. The Copyright Register may be in form of an online database or physical register or both.. 2) The subsistence, enjoyment and enforceability of copyright and related rights shall be independent of whether or not it is registered under these Regulations. 3) Where the owner of a work wishes to have it registered in accordance with paragraph (1), he shall submit a copy of such work to the Executive Director for verification such copies may be returned upon verification. However in the case of books and magazines, proof Page 3 of 11

4 of deposit at the National Library shall suffice. 4) An application for registration of a work under this regulation shall on Form No.CR.1 and a Declaration CR NO.1A and shall be accompanied by the prescribed fees set out in the Second Schedule. 5) An Application for Registration of Copyright works may be made online through the Kenya Copyright Board website. And upon completion of the online registration form, the applicant shall submit data; print, commission and submit the form as per sub-paragraph 3 for registration. Such details shall be entered on the online database automatically. 6) On receipt of an application in respect of any copyright work, the Executive Director may after making such enquiries as he may deem fit enter the particulars referred to in paragraph (1) in the Copyright Register. 7) A certificate of registration in Form No.CR.2 shall be issued by the Executive Director in respect of an application for registration of a Copyright work made pursuant to paragraph (4). 8) Where an application has been made through the online Registration portal, the Board may issue an e-certificate to the Applicant. The Certificate shall be validated by the application of the Seal of the Kenya Copyright Board. 9) (a) The Executive Director shall also keep and maintain such indexes of the Copyright Register as he may deem fit. 10) The Copyright Register shall be prima facie evidence of the Particulars entered therein and documents purporting to be copies of any entry therein, or extracts there from certified by the Executive Director or any other officer authorized by the Board and sealed with the seal of the Board shall be admissible in evidence in all courts without further proof or production of the original. 11) The Executive Director may, for good cause or upon an application by any interested party, on such conditions as he may deem fit, amend the Register to correct errors. 12) The Executive Director, may upon an application by a person aggrieved, and upon hearing the parties concerned, order the rectification of the Copyright Register bya) Making an entry wrongly omitted into the Copyright Register b) Removing an entry wrongly made in, or remaining on the Copyright Register c) Correcting an error or defect on the Copyright Register 13) Every entry made in the Copyright Register or particulars of any work entered therein shall be made accessible to the public in a manner as the Board may deem fit. 14) An application for change of name or address of copyright holders shall be made on Form No.CR.3. 15) Where there is a change of ownership in respect of any copyright work pursuant to these Regulations, an application for change of ownership shall be made on Form No.CR.4 and supported by a certified Page 4 of 11

5 Part iii Verification of assignment of copyright works from outside Kenya Part iv Authentication of copyright works Part vi Inspection Part ii Verification of assignment of copyright works from outside Kenya Part iii Authentication of copyright works Part iv Inspection and Enforcement copy of the relevant instrument of transfer. 6. (1) This provision applies to section 33(3) of the Act (2) An application to the Board for Verification of an assignment of Copyright works from outside Kenya shall be made on Form CR.5 and shall be supported by a certified copy of the deed of Assignment. (3) A certificate of verification shall be issued in Form CR.6. (4) Such verified Assignments shall be entered in the Copyright Register upon payment of a Registration fee as set out in the Second Schedule. (5) Where there is no counterpart offices charged with copyright registration, the Executive Director shall publish such application in the Kenya Copyright Board website inviting objections and such works shall be deemed as verified after three months of such publication. 7. (1) This provision applies to section 36 of the Copyright Act (2)(a) Every sound recording and audio-visual work imported into Kenya, intended for sale or offered for sale, hiring, lending or intended for distribution to the public for commercial purposes in Kenya, shall have affixed on the media an authentication stamp. (b) The Authentication Stamp to be issued by the Board shall b e Tamper proof and serially numbered. (c) The Authentication device shall be affixed by the Copyright holder whose works have been entered in the Copyright Register before release to the market. (d) An application of copyright works under section 36 (1) shal l be made on Form No.CR.7 (e) An application under paragraph (2) shall be accompanied by the relevant documentary evidence as proof that the author of the works or any other copyright holder of such works has authorized the manufacturer or production of such sound recording or audio-visual works in Kenya. 8.(1) Inspectors appointed under section 39 (1) of the Act sh all at all times carry and display Board Identification Card bearing the Board seal while executing their duties under the Act or these Regulations. (2) The names of all copyright inspectors appointed under section 39 (1) of the Act shall be published in the Kenya Gazette. (3) The Identification Card issued by the Board under section 39(1) of the Act shall be in form No.CR. 8. (4) Any notification shall be in the form of an Inventory of Seized goods issued pursuant to section 41(3) of the Act shall be in the Form CR.9. (5) Such notification shall contain the date, physical address of seizure, number, type, brand and description of the items seized as far as practicable to include; in case of high quantities single items need not be described and may be listed as a block. (6) The inventory shall be filled in triplicate and a copy issued to the accused person who may choose to sign or not. The inventory must be witnessed and signed by the person who prepares it. Page 5 of 11

6 Part v Renunciation of copyright Part vii Renunciation of collecting societies under section 46 of the Act Part v- Renunciation of copyright - new Part vi- Renunciation of collecting societies under section 46 of the Act (7) A Licensing Officer of a Collecting Society in relation to section 38(2) of the Act shall prepare an inventory of items used for public performance and thereafter issue summons to the management of a business which has failed to pay for a public license to appear before a Copyright Inspector to explain non-compliance. Such The Copyright Inspector may record a statement from the person to whom summons have been issued and may bring him to a court of law to answer charges under the section. Seizure of items of trade prohibited in the absence of a Copyright Inspector. 9. An author who wishes to renounce a Copyright work shall be required to copy such written renunciation to the Executive Director of the Board. The Board shall publish such renunciation in a manner to be determined for public information and keep a record thereof. 10. (1) An application for registration of a collecting society under section 46(2) of the Act shall be made on Form No.CR 10 by the following- (a) Certified copy of the certificate of incorporation as a company Limited by guarantee. (b) Certified copy of the memorandum and Articles of association (c) Certified copies of the annual returns filed with the Registrar General (d) A report of its operations during the year preceding the Application. (e) A full list of the names and addresses of all the members of the society accompanied by their signatures and valid identification documents (f) Certified copies of deeds of assignment of rights by the Members, where applicable. (g) A business plan showing financial infrastructural and Personnel capacity for collection and distribution of the royalties. (h) Any other documents as may be determined by the Board from time to time (2) Where no Collective society exists in respect to certain category of rights, or the license for a collecting Society in the category has been revoked, the Kenya Copyright Board shall through a public notice in a newspaper with largest circulation invite applications. Where more than one organization has applied for the same class of works, the Board shall be guided by the provisions above and shall evaluate each application separately. (2) A certificate of registration of a Collecting Society shall be in Form No.CR.11. (3) The Application for renewal of Registration shall be made at least 3 months prior to the expiry of the subsisting license and should include; (a) Certified copy of the certificate of incorporation. (b) Certified copy of the memorandum and Articles of Association. (c) Statement of any changes made to the Articles and memorandum of Association during the year Page 6 of 11

7 (d) Certified copies of the audited accounts for the year preceding application. (e) The organizational structure of the collecting society and the names and qualifications of the senior management (f) Any changes in the senior management and reasons thereof. (g) A statement of the amount of money collected and distributed as royalties in the year preceding the application. (h) The list of their members which has to have their signatures and national Identity card/passport numbers. (i) A detailed report of its operations during the year preceding the application. (j) Deeds of assignment of the relevant rights by the members. (4) Some of the requirements may be waived by the Board on a case by case basis. (5) The Kenya Copyright Board has to be satisfied that the society has the capacity to collect and distribute the royalties and in addition, it shall consider among others:- (a) Whether Collecting Society is registered as a company limited by guarantee (b)whether there is demonstrated integrity, transparency and accountability in collection and distribution of the royalties. (c) Whether the Collecting Society adheres to National values and principles of governance provided for under Article 10 of the constitution of Kenya (d) Particulars of the directors and their antecedents (e) Whether membership is fully representative of the class that it collects and distributes royalties for. (f) Whether the administrative costs are as a matter of policy minimal. In this regard, the Board will be guided by the international rules whereby the administrative costs do not exceed 30% if the royalties collected. (g) Whether the royalties are regularly and properly distributed using the popularly approved distribution rules. (h) The particulars of the senior management and the number Staff and their qualifications. (i) The systems put in place to ensure that the royalties are collected and properly distributed efficiently. (j) The audited accounts submitted (k) Submission of quarterly reports before the 10 th day of the next quarter. (l) Any further information and clarification that may be useful in determining the application for renewal. (m) Where such information is not available or provided, the Executive Director shall send an auditor to the Collecting Society to conduct systems, forensic or financial audit as may be relevant. (5) The Board may at any time demand regular periodic reports to be submitted to it on any matter touching on members interests including Page 7 of 11

8 Part viii Filing of annual reports and audited accounts by collecting societies Part ix Part ix Proceedings before the Part vii Filing of annual reports and audited accounts by collecting societies Part viii Use of folklore Part ix- Proceedings before the accounts and minutes of a collecting Society s ordinary, special or general meetings. The Board may also cause a special Audit to be undertaken by audit firms appointed by it. (6) The Board shall be entitled to receive all notices of meetings at least 7 days before the meeting and may from time to time send a representative to attend collecting societies meetings. Such representative shall not be eligible to a director s allowance. (7) An application for renewal of registration of a collecting society and certificate of renewal of registration of such society shall be in Form CR.12 and Form CR.13 respectively (8) The Board shall cause the society to be de-registered only after notice delivered or sent to the society at its last declared address, requiring the Collecting Society to make written representations, within a period of 14 days from the date of the notice, with respect to any such failure. (9) And after consideration of any written representations made in terms of subsection (1), if the Board is of the opinion that the failure in question on the part of the collecting society is materially prejudiced its members, it may withdraw the registration thereof and publish the deregistration in the Kenya Gazette. 11. (1) This regulation applies with respect of filing of annual reports and audited accounts under section 47 of the Act. (2) Every registered collecting society shall within three months after the end of each financial year, submit to the Board on Form No.CR.14 an annual report for that year accompanied by a copy of its audited accounts in respect of that year. (3) The annual report referred to in paragraph (2) shall contain- (a) a comprehensive report of all the society s activities during the year; (b) a list of its members as at the end of the financial year; (c ) the total amount of royalties collected by the society; (d) the amount of royalties paid to each member (e) the amount of money spent by the society on the administration of the society and for all its operations; (f) the name, postal and physical address of the Auditors of the collecting society; (h) the amount of money used for the social fund (i) Non distributed royalties and reasons for the non-distribution (j) Any other information that the Board may require. No change cr.no (1) The section applie s to provisions of section 21; 26;28;30A of the Act (2) The Competent Authority shall be administered by Secretary Page 8 of 11

9 Competent Authority Competent Authority appointed by the Cabinet Secretary for the time in charge of Copyright matters and it shall operate under the direction of that Cabinet Secretary. (3) An application or appeal under the Act shall be in form of an Affidavit files with the Competent Authority setting out the following details; (a) Name and address of the Applicant/appellant (b) Name and address of the other party (c ) Decision appealed against (d) Grounds on which appeal/application is based (e) Orders or reliefs sought (4) The applicant or appeal shall be accompanied by evidence in support in the sworn affidavit (5) The Authority shall consider the application or the appeal and if the Authority is of the view that a prima facie case has not been made out for the relief sought, the following shall apply (a) the Authority shall notify the applicant or the appellant that the Authority is of the view that a prima facie case has not been made out and that the applicant or the appellant may, within thirty days after the notification, request for an opportunity to be heard. (b) if the applicant or appellant requests for an opportunity to be heard within the time period prescribed in sub-paragraph (a), the Authority shall give the appellant such an opportunity and, the Authority is still of the view that a prima facie case has not been made out, the Authority shall dismiss the application or the appeal; and (c) if the applicant or the appellant does not request an opportunity to be heard within the time period prescribed in sub-paragraph (a), the Authority shall dismiss the application or the appeal. (6) Unless the Competent Authority dismisses an application or appeal under sub-paragraph (4) (b) or (c), the Authority shall order the appellant/applicant to serve a copy of the application or the appeal and the accompanying statement of the facts and supporting evidence required under sub-paragraph (3), upon the Board or the collecting society within a period of 21 days. (7) The Board or a collecting society may oppose the application or the application or the appeal by filing with the Authority a reply by way of affidavit setting out fully the grounds of its opposition and serve the Appellant/Applicant within 14 days of being served under subparagraph 5. (8) The reply shall be accompanied by a statement of the facts being relied upon and the supporting evidence. (9) The applicant or appellant who made the application or the appeal may, within 21 days after being served under sub-paragraph (9) file with the Authority further evidence confined to matters strictly in reply. (10) No further evidence shall be filed except by leave or direction of the Authority. Part x Part ix- 13. (1) Pursuant to the provisions of section 49 (b) of the Act, the Page 9 of 11

10 Extension of application of the Act Part xii - General and miscellaneous Extension Part x General and miscellaneous Application of the Act is extended- (a) in respect of literary works, musical works and artistic works to individuals or bodies corporate who are citizens of, domiciled or resident in or incorporated under the laws of a party and which provides for protection of copyright and related rights; and (ii) those works and audio-visual works first published in a country which is a party to treaty to which Kenya is also a party and which provides for protection of copyright and related rights; and (iii) individuals or bodies corporate who are citizens of, domiciled in those audio-visual works and photographs first made available to the public or first published in a country which is a party to a treaty to which Kenya is also a party and which provides for protection of copyright and related rights. 14. A person who wishes to obtain a copy of a document kept by the Board shall make a request in form No.CR.15 for a certified copy or in Form No.CR 17 for uncertified copy upon payment of the prescribed fees. 15. (1) The Board may issue a copy of a lost or destroyed Certificate. (2) A request for a copy of a lost or destroyed Certificate shall be in Form No. CR.17 (3) A request for a copy of a lost or destroyed Certificate shall be accompanied by a statutory Declaration or an affidavit supporting the assertion that the certificate has been lost or destroyed 16. (1) The Board or the Authority may extend the time for doing an act or taking proceedings, other than a time expressly provided for in the Act, on such conditions as it may specify. (2) A request for extension of time shall be made on Form No.CR (1) A form that is required to be signed on behalf of a corporation shall, unless an agent signs it, be signed by a director or the secretary of the corporation. (2) The following provisions shall apply if a form is required to be signed on behalf of a partnership- (a) Unless the form is signed by an agent, the form shall be signed by a partner or by a person who satisfies the Board or the Authority that the person is authorized by the partnership to sign on its behalf; and (b) the form shall set out the names and addresses of the partners in full. 18. Statutory Declarations Act shall apply with respect to a statutory declaration or an affidavit under the Act or these Regulations 19. (1) Documents provided to the Board under section 21 (1) and (3) and shall be in English. (2) If a copy of a document that is not in English is required to be provided to the Board or the Authority, the following shall apply- (a) an English translation of the document shall be provided along with the copy of the document; (b) the translation shall be certified to be an accurate translation; Page 10 of 11

11 (c) if more than one copy of the document is required, one copy of the translation shall be provided for every copy of the document required; (d) if the Board or the Authority believes the translation is not accurate, the Board or the Authority may refuse it and require an accurate translation; and (e) The copy of the document shall be deemed not to have been provided until the required translation and copies are provided. Page 11 of 11