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THE COPYRIGHT REGULATIONS, 2004
ARRANGEMENT OF REGULATIONS
PART I – PRELIMINARY
| 1. |
Citation and commencement
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PART II – ADMINISTRATION
| 5. |
Training, competitions and awards
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| 6. |
Office hours of the Board (Copyright Office).
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| 7. |
Appointment of advisors
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PART III – VERIFICATION OF ASSIGNMENT OF COPYRIGHT WORKS FROM OUTSIDE KENYA
| 10. |
Verification of assignment of copyright works from outside Kenya by the Board
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PART IV – AUTHENTICATION OF COPYRIGHT WORKS UNDER SECTION 36 OF THE ACT
| 11. |
Authentication of copyright
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| 12. |
Affixation of authentication device
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PART V – FINES PAYABLE TO THE BOARD
| 13. |
Fines payable to the Board
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PART VI – INSPECTION
| 14. |
Appointment of inspectors
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PART VII – REGISTRATION OF COLLECTING SOCIETIES UNDER SECTION 46 OF THE ACT
| 15. |
Application for registration of a collecting society
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PART VIII – FILING OF ANNUAL REPORTS AND AUDITED ACCOUNTS BY COLLECTING SOCIETIES UNDER SECTION 47 OF THE ACT
| 16. |
Annual reports and audited accounts
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PART X – EXTENSION OF THE APPLICATION OF THE ACT
| 19. |
Extension of the application of the Act
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PART XI – USE OF FOLKLORE
| 20. |
Application to use folklore
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PART XII – GENERAL AND MISCELLANEOUS PROVISIONS
| 22. |
Copy of lost or destroyed certificate
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| 24. |
Signing of forms on behalf of certain bodies
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| 25. |
Statutory Declarations and Affidavits
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| 26. |
Documents to be in English or translated
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| 27. |
Repeal of former Regulations
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SCHEDULES
| SECOND SCHEDULE (r.4 (2)) — |
FEES
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THE COPYRIGHT REGULATIONS, 2004
Revoked by Legal Notice 177 of 2020 on 18th September, 2020
PART I – PRELIMINARY
| 1. |
Citation and commencement
These Regulations may be cited as the Copyright Regulations, 2004.
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| 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 -
| (b) |
by means of a film, slide, television image or otherwise on screen;
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| (c) |
by means of any other device or process; or
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| (d) |
in the case of an audio-visual work, the 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 at different places or times, and where the work can be displayed without communication to the public;
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"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;
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| (b) |
in the case of an audio-visual work, the showing of images in sequence and the making of accompanying sounds audible; and
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| (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.
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| 3. |
Forms
The forms referred to in these Regulations are the forms set out in the First Schedule.
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| 4. |
Fees
| (1) |
The fees set out in the Second Schedule shall be the prescribed fees for the purposes of these Regulations.
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| (2) |
If, for a fee, a corresponding form is referred to in the Second Schedule, the fee is payable when the form is used.
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| (3) |
Any fees paid in error shall be refunded upon proof of the error to the satisfaction of the Executive Director.
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PART II – ADMINISTRATION
| 5. |
Training, competitions and awards
In carrying out its functions under paragraphs (c) and (e) of section 5 of the Act, the Board shall -
| (a) |
organize and conduct training relating to copyright matters at all levels, in collaboration or association with other relevant institutions, if necessary; and
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| (b) |
among other activities, organize competitions and contests and give prizes and awards Office hours of the
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| 6. |
Office hours of the Board (Copyright Office).
The offices of the Board shall be open to the public each day, other than on a Saturday, Sunday or public holiday, from 9.00 am to 1.00 pm and from 2.00 pm to 4.00 pm.
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| 7. |
Appointment of advisors
| (1) |
The Executive Director may, in consultation with the Board, appoint such experts, advisors or consultants in relation to any matter before the Board or to perform any other function or functions specified by the Executive Director.
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| (2) |
In exercise of his powers under paragraph (1), the Executive Director shall not make an appointment that the Board is authorized to make under section 12 of the Act.
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| 8. |
Copyright Register
| (1) |
Pursuant to the provisions of paragraph (f) of section 5 of the Act, the Executive Director shall open and maintain a register known as the "Copyright Register" wherein the following particulars shall be recorded in respect of any copyright work that the owner elects to register-
| (a) |
the number and title of the copyright work;
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| (b) |
the name, address and nationality of the copyright holder;
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| (c) |
the date of the application for registration of a copyright work;
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| (d) |
address for service of the copyright holder;
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| (e) |
a licence granted by the copyright holder;
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| (f) |
a notice of every document affecting a change in address or ownership of the work or purporting to give interest in it as security;
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| (g) |
if the copyright holder dies, a notice to that effect accompanied by a copy of the death certificate; and
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| (h) |
any other information required under the Act these Regulations or any other information that the Executive Director may consider appropriate to be recorded in the Copyright Register.
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| (2) |
The purpose of entering the particulars set out in paragraph (1) in the Copyright Register is to-
| (a) |
maintain a record of copyright works;
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| (b) |
enable the Board to establish and maintain an effective data bank on authors and their works; and
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| (c) |
publicize the rights of the owners of works.
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| (3) |
The subsistence, enjoyment and enforceability of copyright shall be independent of whether or not it is registered under these Regulations.
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| (4) |
The following shall apply with respect to names of persons entered in the Copyright Register-
| (a) |
if the person is a natural person, the person's surname shall be set out first followed by the given names; and
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| (b) |
if the person is not a natural person, the full name of the legal entity shall be set out.
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| (5) |
The following provisions shall apply to the addresses of the persons set out in the Copyright Register-
| (a) |
the address shall be sufficient to allow prompt delivery by post, fax, e-mail and hand;
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| (b) |
only one set of address shall be set out for each person; and
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| (c) |
address under this regulation includes electronic mail, postal and physical addresses.
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| (6) |
Where the owner of a work wishes to have it registered in accordance with paragraph (5), he shall submit two copies of such work to the Executive Director.
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| (7) |
An application for registration of a work under this regulation shall be made on Form No. CR I and shall be accompanied by the prescribed fees set out in the Second Schedule.
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| (8) |
On receipt of an application in respect of any copyright work under paragraph (6), 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.
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| (9) |
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 (7).
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| (10) |
| (a) |
The Executive Director shall also keep and maintain such indexes of the Copyright Register as he may deem fit.
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| (b) |
The Copyright Register and indexes kept under this paragraph shall at all reasonable times be open for inspection, and any person interested shall be entitled to take copies of or make extracts from such Register or indexes on payment of the prescribed fees.
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| (11) |
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 therefrom 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.
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| (12) |
The Executive Director may, for good causeor upon an application by any interested party, on such conditions as he may deem fit, amend the register by—
| (a) |
correcting any error in the name, address or other particulars of the applicant; or
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| (b) |
correcting any other error, which may have arisen in the register by accidental slip or omission.
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| (13) |
The Board may, on an application of the Executive Director or of any person aggrieved, and upon hearing the parties concerned, order the rectification of the Copyright Register by -
| (a) |
making any entry wrongly omitted to be in the Copyright Register;
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| (b) |
expunging any entry wrongly made in, or remaining on the Copyright Register; or
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| (c) |
correcting any error or defect in the Copyright Register.
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| (14) |
Every entry made in the Copyright Register or the particulars of any work entered therein under paragraph (8), and the correction of every entry made in the Copyright Register under paragraph (13), shall be published by the Executive Director in the Gazette or in such other manner as the Board may deem fit.
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| 9. |
Change of ownership
| (1) |
An application for change of name or address of copyright holders shall be made on Form No. CR 3.
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| (2) |
An application for recordal of a licence or sub-licence shall be made on Form No. CR 4 and shall be supported by a certified copy of the licence contract.
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| (3) |
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 5 supported by a certified copy of the relevant instrument effecting the change.
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PART III – VERIFICATION OF ASSIGNMENT OF COPYRIGHT WORKS FROM OUTSIDE KENYA
| 10. |
Verification of assignment of copyright works from outside Kenya by the Board
| (1) |
This regulation applies with respect to verification by the Board of an assignment of copyright work or works from outside Kenya under section 33(3) of the Act.
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| (2) |
An application to the Board for verification of an assignment of copyright works from outside Kenya shall be made on Form No. CR 6 and shall be supported by a certified copy of the deed of assignment.
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| (3) |
A letter of verification pursuant to an application under paragraph (2) shall be in Form No. CR 7.
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PART IV – AUTHENTICATION OF COPYRIGHT WORKS UNDER SECTION 36 OF THE ACT
| 11. |
Authentication of copyright
| (1) |
Every sound recording and audio-visual work imported into Kenya, intended for sale or offered for sale, rental, hiring, lending or otherwise distributed or intended for distribution to the public for commercial purposes in Kenya shall have affixed to it an authentication device:
Provided that this regulation shall not apply to computer programs embodied in a sound recording or an audio-visual work.
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| (2) |
The authentication device shall-
| (a) |
be a tamper proof sticker to be issued by the Board;
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| (b) |
be serially numbered; and
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| (c) |
be stuck on the sound recording or audio-visual work that is displayed for sale or distribution.
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| 12. |
Affixation of authentication device
| (1) |
The authentication device shall be affixed-
| (a) |
in the case of sound recordings and audio-visual works produced in Kenya, at the point of production or at such other point as the Board may, from time to time, designate; and
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| (a) |
in the case of sound recordings and audio-visual works imported into Kenya, except where such works are exclusively for personal use, before they are released into the channels of commerce in Kenya.
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| (2) |
The authentication device shall be affixed to every medium, except a computer program, in which a sound recording or audio-visual work is embodied except computer programs.
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| (3) |
An application for authentication of copyrighworks under section 36(1) shall be made on Form No. CR 8.
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| (4) |
An application under paragraph (3) 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 manufacture or production of such sound recording or audio-visual works in Kenya.
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| (5) |
A certificate of approval issued by the Board to an applicant to purchase an authentication device from the Kenya Revenue Authority shall be in Form No. CR 9.
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| (6) |
The authentication device referred to in this regulation shall be used for -
| (a) |
securing the right and interests of the holder of copyright and related rights;
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| (b) |
anti-piracy activities; and
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| (c) |
administering the anti-piracy security device.
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PART V – FINES PAYABLE TO THE BOARD
| 13. |
Fines payable to the Board
All fines payable to the Board under section 38 (10) of the Act shall be remitted to the Board by the Court on Form No. CR 10.
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PART VI – INSPECTION
| 14. |
Appointment of inspectors
| (1) |
Inspectors appointed under section 39(1) of the Act shall carry certificates of authority while executing their duties under the Act or these Regulations.
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| (2) |
The names of all copyright inspectors appointed under section 39(1) shall be published in the Gazette.
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| (3) |
A certificate of authority issued by the Board under section 39(1) of the Act shall be in Form No. CR 11.
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PART VII – REGISTRATION OF COLLECTING SOCIETIES UNDER SECTION 46 OF THE ACT
| 15. |
Application for registration of a collecting society
| (1) |
An application for registration of a collecting society under section 46(2) of the Act shall be made on Form No. CR 12 accompanied by the following documents-
| (a) |
a certificate of registration as a company limited by guarantee and incorporated under the provisions of the Companies Act Cap. 486
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| (b) |
a certified copy of a society's Memorandum and Articles of Association;
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| (c) |
where applicable, a certified copy of the society's annual return filed with the Registrar of Companies showing the corporate structure of the society during the period of January to December of the previous year:
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| (d) |
where applicable, audited accounts of the society for the five years preceding the date of its application for registration as a collecting society under the Act and these Regulations;
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| (e) |
a full list of the names and addresses of all the members of the society; and
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| (f) |
any other document or information that the Board may require the society to produce.
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| (2) |
A certificate of registration of a collecting society shall be in Form No. CR 13.
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| (3) |
An application for renewal of registration of a collecting society and certificate of renewal of registration of such society shall be in Form No. CR 14 and Form No. 15 respectively
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PART VIII – FILING OF ANNUAL REPORTS AND AUDITED ACCOUNTS BY COLLECTING SOCIETIES UNDER SECTION 47 OF THE ACT
| 16. |
Annual reports and audited accounts
| (1) |
This regulation applies with respect to filing of annual reports and audited accounts under section 47 of the Act.
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| (2) |
Every registered collecting society shall within three months after the end of each financial year, submit to the Board on Form No. CR 16 an annual report for that year accompanied by a copy of its audited accounts in respect of that year.
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| (3) |
The annual report referred to in paragraph (2) shall contain-
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| (3) |
The application or the appeal shall set out the relief sought and shall be accompanied by a statement of facts being relied upon and supporting evidence.
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| (4) |
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;
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| (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 applicant or appellant such an opportunity and, if 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
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| (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.
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| (5) |
Unless the Authority dismisses an application or appeal under sub-paragraph (4) (b) or (c), the Authority shall serve a copy of the application or the appeal and the accompanying statement of facts and supporting evidence required under sub-paragraph (3), upon the Board or the collecting society within a period of 21 days.
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| (6) |
The Board or a collecting society may oppose the application or the appeal by filing with the Authority a reply in Form No. CR 19 setting out fully the grounds of its opposition.
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| (7) |
The reply shall be accompanied by a statement of the facts being relied upon and the supporting evidence.
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| (8) |
The reply shall be filed within 21 days after the date of service of the application or the appeal.
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| (9) |
The Authority shall serve a copy of the reply and the accompanying statement of facts and supporting evidence required under sub-paragraph (7) upon the applicant or appellant who made the application or the appeal within a period of 21 days of the filing of the reply.
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| (10) |
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.
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| (11) |
The Authority shall serve a copy of the evidence filed under sub-paragraph (10) upon the Board or the collecting society.
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| (12) |
No further evidence shall be filed except by leave or direction of the Authority.
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| (13) |
After completion of the filing of the pleadings And the evidence, the Authority shall set down the application or the appeal for hearing within thirty(30) days.
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| (14) |
Upon hearing the application or the appeal, the Appeal, the Authority shall deliver its ruling in writing within sixty (60) days.
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PART X – EXTENSION OF THE APPLICATION OF THE ACT
| 19. |
Extension of the application of the Act
Pursuant to the provisions of section 49 (b) of the Act, the application of the Act is extended-
| (a) |
in respect of literary works, musical works and artistic works to
| (i) |
individuals or bodies corporate who are citizens of, domiciled or resident in or incorporated under the laws of 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; and |
| (ii) |
those works and audio-visual works first published in a country which is a party to a treaty to which Kenya is also a party which provides for protection of copyright and related rights; |
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| (b) |
in respect of sound recordings, and broadcasts to –
| (i) |
individuals or bodies corporate who are citizens of, domiciled or resident in or incorporated under the laws of a country which is a party to a treaty to which Kenya is also a party and which provides for the protection of copyright and related rights; and |
| (ii) |
those sound recordings, or broadcasts made 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; |
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| (c) |
in respect of audio-visual works and photographs made, first made available to the public, or first published to-
| (i) |
individuals or bodies corporate who are citizens of, domiciled 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; and |
| (ii) |
those audio-visual works and photographs first made, 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. |
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PART XI – USE OF FOLKLORE
| 20. |
Application to use folklore
| (1) |
This regulation applies with respect to use of folklore under section 49(d) of the Act.
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| (2) |
Any person who wishes to use any folklore for commercial purposes shall submit his application to the Board on Form No. CR 20, accompanied with the fees set out in the Second Schedule.
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| (3) |
Any person who uses folklore for commercial purposes in Kenya without the permission of the Board commits an offence.
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| (4) |
| (a) |
willfully misrepresents the source of an expression of folklore; or
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| (b) |
willfully distorts any expression of folklore in a manner prejudicial to the honour, dignity or cultural interests of the community in which it originates;
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| (5) |
Any person who commits an offence under it's regulation is liable on conviction, to a fine not exceeding six thousand shillings or for a term of imprisonment not exceeding six months or to both.
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PART XII – GENERAL AND MISCELLANEOUS PROVISIONS
| 21. |
Copies of documents
A person who wishes to obtain a copy of a document kept by the Board shall make a request in Form No. CR 21 for a certified copy or in Form No. CR 22 for uncertified copy upon payment of the prescribed fees.
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| 22. |
Copy of lost or destroyed certificate
| (1) |
The Board may issue a copy of a lost or destroyed certificate.
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| (2) |
A request for a copy of a lost or destroyed certificate shall be in Form No. CR 23.
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| (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.
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| 23. |
Extension of time
| (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 at it may specify.
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| (2) |
A request for extension of time shall be made on Form No. CR 24.
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| 24. |
Signing of forms on behalf of certain bodies
| (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.
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| (2) |
The following provisions shall apply if a form is required to be signed on behalf of a partnership-
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| (3) |
| (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
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| (b) |
the form shall set out the names and addresses of the partners in full.
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| 25. |
Statutory Declarations and Affidavits
The following provisions shall apply with respect to a statutory declaration or an affidavit under the Act or these Regulations-
| (a) |
a statutory declaration or affidavit shall have a heading indicating the matter or matters to which it relates;
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| (b) |
a statutory declaration or affidavit shall be divided into consecutively numbered paragraphs, each of which shall, if possible, be confined to a single subject-matter;
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| (c) |
a statutory declaration or affidavit shall fully identify the person making it and shall set out where the person resides; and
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| (d) |
a person signing a statutory declaration or an affidavit shall disclose his competence and authority to swear the statutory declaration or the affidavit.
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| 26. |
Documents to be in English or translated
| (1) |
Documents provided to the Board under sections 21(1) and 33 (3) and shall be in English.
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| (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;
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| (b) |
the translation shall be certified to be an accurate translation;
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| (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;
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| (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
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| (e) |
the copy of the document shall be deemed not to have been provided until the required translation and copies are provided.
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| 27. |
Repeal of former Regulations
The regulations made under the Copyright Act (Cap. 130 now repealed), are repealed.
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FIRST SCHEDULE
| (a) |
a comprehensive report of all tne society's activities during the year;
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| (b) |
a list of all its members as at the end of the financial year;
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| (c) |
the total amount of royalties collected by the society;
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| (d) |
the amount of royalties paid to each member;
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| (e) |
the amount of money spent by the society on the administration of the society and for all its operations;
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| (f) |
the name, postal and physical address of the auditors of the collecting society;
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| (g) |
the names, addresses and occupations of current officials of the society; and
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| (h) |
any other information that the Board may require.
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PART IX – PROCEEDINGS BEFORE THE COMPETENT AUTHORITY
| 17. |
Application for compensation or payment of royalties
An application for compensation or for payment of royalties under section 26(1) (j), 27(2), 28(2) and (4) of the Act shall be made on Form No. CR 17 and the provisions of regulation 18 shall apply mutatis mutandis to the application for compensation or payment of royalties.
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| 18. |
Application or appeal to the Authority
| (1) |
This regulation applies with respect to an application under section 48(2) or an appeal under section 21(1) of the Act.
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| (2) |
An application or appeal under section 21(1) of the Act shall be in Form No. CR 18 and shall be filed with the Competent Authority.
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THE COPYRIGHT REGULATIONS, 2004
Revoked by Legal Notice 177 of 2020 on 18th September, 2020
PART I – PRELIMINARY
| 1. |
Citation and commencement
These Regulations may be cited as the Copyright Regulations, 2004.
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| 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—
| (b) |
by means of a film, slide, television image or otherwise on screen;
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| (c) |
by means of any other device or process; or
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| (d) |
in the case of an audio-visual work, the 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 at different places or times, and where the work can be displayed without communication to the public;
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"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;
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| (b) |
in the case of an audio-visual work, the showing of images in sequence and the making of accompanying sounds audible; and
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| (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.
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| 3. |
Forms
The forms referred to in these Regulations are the forms set out in the First Schedule.
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| 4. |
Fees
| (1) |
The fees set out in the Second Schedule shall be the prescribed fees for the purposes of these Regulations.
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| (2) |
If, for a fee, a corresponding form is referred to in the Second Schedule, the fee is payable when the form is used.
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| (3) |
Any fees paid in error shall be refunded upon proof of the error to the satisfaction of the Executive Director.
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PART II – ADMINISTRATION
| 5. |
Training, competitions and awards
In carrying out its functions under paragraphs (c) and (e) of section 5 of the Act, the Board shall—
| (a) |
organize and conduct training relating to copyright matters at all levels, in collaboration or association with other relevant institutions, if necessary; and
|
| (b) |
among other activities, organize competitions and contests and give prizes and awards Office hours of the
|
|
| 6. |
Office hours of the Board (Copyright Office).
The offices of the Board shall be open to the public each day, other than on a Saturday, Sunday or public holiday, from 9.00 am to 1.00 pm and from 2.00 pm to 4.00 pm.
|
| 7. |
Appointment of advisors
| (1) |
The Executive Director may, in consultation with the Board, appoint such experts, advisors or consultants in relation to any matter before the Board or to perform any other function or functions specified by the Executive Director.
|
| (2) |
In exercise of his powers under paragraph (1), the Executive Director shall not make an appointment that the Board is authorized to make under section 12 of the Act.
|
|
| 8. |
Copyright Register
| (1) |
Pursuant to the provisions of paragraph (f) of section 5 of the Act, the Executive Director shall open and maintain a register known as the "Copyright Register" wherein the following particulars shall be recorded in respect of any copyright work that the owner elects to register—
| (a) |
the number and title of the copyright work;
|
| (b) |
the name, address and nationality of the copyright holder;
|
| (c) |
the date of the application for registration of a copyright work;
|
| (d) |
address for service of the copyright holder;
|
| (e) |
a licence granted by the copyright holder;
|
| (f) |
a notice of every document affecting a change in address or ownership of the work or purporting to give interest in it as security;
|
| (g) |
if the copyright holder dies, a notice to that effect accompanied by a copy of the death certificate; and
|
| (h) |
any other information required under the Act these Regulations or any other information that the Executive Director may consider appropriate to be recorded in the Copyright Register.
|
|
| (2) |
The purpose of entering the particulars set out in paragraph (1) in the Copyright Register is to—
| (a) |
maintain a record of copyright works;
|
| (b) |
enable the Board to establish and maintain an effective data bank on authors and their works; and
|
| (c) |
publicize the rights of the owners of works.
|
|
| (3) |
The subsistence, enjoyment and enforceability of copyright shall be independent of whether or not it is registered under these Regulations.
|
| (4) |
The following shall apply with respect to names of persons entered in the Copyright Register—
| (a) |
if the person is a natural person, the person's surname shall be set out first followed by the given names; and
|
| (b) |
if the person is not a natural person, the full name of the legal entity shall be set out.
|
|
| (5) |
The following provisions shall apply to the addresses of the persons set out in the Copyright Register—
| (a) |
the address shall be sufficient to allow prompt delivery by post, fax, e-mail and hand;
|
| (b) |
only one set of address shall be set out for each person; and
|
| (c) |
address under this regulation includes electronic mail, postal and physical addresses.
|
|
| (6) |
Where the owner of a work wishes to have it registered in accordance with paragraph (5), he shall submit two copies of such work to the Executive Director.
|
| (7) |
An application for registration of a work under this regulation shall be made on Form No. CR I and shall be accompanied by the prescribed fees set out in the Second Schedule.
|
| (8) |
On receipt of an application in respect of any copyright work under paragraph (6), 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.
|
| (9) |
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 (7).
|
| (10) |
| (a) |
The Executive Director shall also keep and maintain such indexes of the Copyright Register as he may deem fit.
|
| (b) |
The Copyright Register and indexes kept under this paragraph shall at all reasonable times be open for inspection, and any person interested shall be entitled to take copies of or make extracts from such Register or indexes on payment of the prescribed fees.
|
|
| (11) |
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 therefrom 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.
|
| (12) |
The Executive Director may, for good causeor upon an application by any interested party, on such conditions as he may deem fit, amend the register by—
| (a) |
correcting any error in the name, address or other particulars of the applicant; or
|
| (b) |
correcting any other error, which may have arisen in the register by accidental slip or omission.
|
|
| (13) |
The Board may, on an application of the Executive Director or of any person aggrieved, and upon hearing the parties concerned, order the rectification of the Copyright Register by—
| (a) |
making any entry wrongly omitted to be in the Copyright Register;
|
| (b) |
expunging any entry wrongly made in, or remaining on the Copyright Register; or
|
| (c) |
correcting any error or defect in the Copyright Register.
|
|
| (14) |
Every entry made in the Copyright Register or the particulars of any work entered therein under paragraph (8), and the correction of every entry made in the Copyright Register under paragraph (13), shall be published by the Executive Director in the Gazette or in such other manner as the Board may deem fit.
|
|
| 9. |
Change of ownership
| (1) |
An application for change of name or address of copyright holders shall be made on Form No. CR 3.
|
| (2) |
An application for recordal of a licence or sub-licence shall be made on Form No. CR 4 and shall be supported by a certified copy of the licence contract.
|
| (3) |
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 5 supported by a certified copy of the relevant instrument effecting the change.
|
|
PART III – VERIFICATION OF ASSIGNMENT OF COPYRIGHT WORKS FROM OUTSIDE KENYA
| 10. |
Verification of assignment of copyright works from outside Kenya by the Board
| (1) |
This regulation applies with respect to verification by the Board of an assignment of copyright work or works from outside Kenya under 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 No. CR 6 and shall be supported by a certified copy of the deed of assignment.
|
| (3) |
A letter of verification pursuant to an application under paragraph (2) shall be in Form No. CR 7.
|
|
PART IV – AUTHENTICATION OF COPYRIGHT WORKS UNDER SECTION 36 OF THE ACT
| 11. |
Authentication of copyright
| (1) |
Every sound recording and audio-visual work imported into Kenya, intended for sale or offered for sale, rental, hiring, lending or otherwise distributed or intended for distribution to the public for commercial purposes in Kenya shall have affixed to it an authentication device:
Provided that this regulation shall not apply to computer programs embodied in a sound recording or an audio-visual work.
|
| (2) |
The authentication device shall—
| (a) |
be a tamper proof sticker to be issued by the Board;
|
| (b) |
be serially numbered; and
|
| (c) |
be stuck on the sound recording or audio-visual work that is displayed for sale or distribution.
|
|
|
| 12. |
Affixation of authentication device
| (1) |
The authentication device shall be affixed—
| (a) |
in the case of sound recordings and audio-visual works produced in Kenya, at the point of production or at such other point as the Board may, from time to time, designate; and
|
| (a) |
in the case of sound recordings and audio-visual works imported into Kenya, except where such works are exclusively for personal use, before they are released into the channels of commerce in Kenya.
|
|
| (2) |
The authentication device shall be affixed to every medium, except a computer program, in which a sound recording or audio-visual work is embodied except computer programs.
|
| (3) |
An application for authentication of copyrighworks under section 36(1) shall be made on Form No. CR 8.
|
| (4) |
An application under paragraph (3) 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 manufacture or production of such sound recording or audio-visual works in Kenya.
|
| (5) |
A certificate of approval issued by the Board to an applicant to purchase an authentication device from the Kenya Revenue Authority shall be in Form No. CR 9.
|
| (6) |
The authentication device referred to in this regulation shall be used for—
| (a) |
securing the right and interests of the holder of copyright and related rights;
|
| (b) |
anti-piracy activities; and
|
| (c) |
administering the anti-piracy security device.
|
|
|
PART V – FINES PAYABLE TO THE BOARD
| 13. |
Fines payable to the Board
All fines payable to the Board under section 38 (10) of the Act shall be remitted to the Board by the Court on Form No. CR 10.
|
PART VI – INSPECTION
| 14. |
Appointment of inspectors
| (1) |
Inspectors appointed under section 39(1) of the Act shall carry certificates of authority while executing their duties under the Act or these Regulations.
|
| (2) |
The names of all copyright inspectors appointed under section 39(1) shall be published in the Gazette.
|
| (3) |
A certificate of authority issued by the Board under section 39(1) of the Act shall be in Form No. CR 11.
|
|
PART VII – REGISTRATION OF COLLECTING SOCIETIES UNDER SECTION 46 OF THE ACT
| 15. |
Application for registration of a collecting society
| (1) |
An application for registration of a collecting society under section 46(2) of the Act shall be made on Form No. CR 12 accompanied by the following documents—
| (a) |
a certificate of registration as a company limited by guarantee and incorporated under the provisions of the Companies Act Cap. 486
|
| (b) |
a certified copy of a society's Memorandum and Articles of Association;
|
| (c) |
where applicable, a certified copy of the society's annual return filed with the Registrar of Companies showing the corporate structure of the society during the period of January to December of the previous year:
|
| (d) |
where applicable, audited accounts of the society for the five years preceding the date of its application for registration as a collecting society under the Act and these Regulations;
|
| (e) |
a full list of the names and addresses of all the members of the society; and
|
| (f) |
any other document or information that the Board may require the society to produce.
|
|
| (2) |
A certificate of registration of a collecting society shall be in Form No. CR 13.
|
| (3) |
An application for renewal of registration of a collecting society and certificate of renewal of registration of such society shall be in Form No. CR 14 and Form No. 15 respectively
|
|
PART VIII – FILING OF ANNUAL REPORTS AND AUDITED ACCOUNTS BY COLLECTING SOCIETIES UNDER SECTION 47 OF THE ACT
| 16. |
Annual reports and audited accounts
| (1) |
This regulation applies with respect to 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 16 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—
|
| (3) |
The application or the appeal shall set out the relief sought and shall be accompanied by a statement of facts being relied upon and supporting evidence.
|
| (4) |
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 applicant or appellant such an opportunity and, if 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.
|
|
| (5) |
Unless the Authority dismisses an application or appeal under sub-paragraph (4) (b) or (c), the Authority shall serve a copy of the application or the appeal and the accompanying statement of facts and supporting evidence required under sub-paragraph (3), upon the Board or the collecting society within a period of 21 days.
|
| (6) |
The Board or a collecting society may oppose the application or the appeal by filing with the Authority a reply in Form No. CR 19 setting out fully the grounds of its opposition.
|
| (7) |
The reply shall be accompanied by a statement of the facts being relied upon and the supporting evidence.
|
| (8) |
The reply shall be filed within 21 days after the date of service of the application or the appeal.
|
| (9) |
The Authority shall serve a copy of the reply and the accompanying statement of facts and supporting evidence required under sub-paragraph (7) upon the applicant or appellant who made the application or the appeal within a period of 21 days of the filing of the reply.
|
| (10) |
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.
|
| (11) |
The Authority shall serve a copy of the evidence filed under sub-paragraph (10) upon the Board or the collecting society.
|
| (12) |
No further evidence shall be filed except by leave or direction of the Authority.
|
| (13) |
After completion of the filing of the pleadings And the evidence, the Authority shall set down the application or the appeal for hearing within thirty(30) days.
|
| (14) |
Upon hearing the application or the appeal, the Appeal, the Authority shall deliver its ruling in writing within sixty (60) days.
|
|
PART X – EXTENSION OF THE APPLICATION OF THE ACT
| 19. |
Extension of the application of the Act
Pursuant to the provisions of section 49 (b) of the Act, the application of the Act is extended—
| (a) |
in respect of literary works, musical works and artistic works to—
| (i) |
individuals or bodies corporate who are citizens of, domiciled or resident in or incorporated under the laws of 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; and |
| (ii) |
those works and audio-visual works first published in a country which is a party to a treaty to which Kenya is also a party which provides for protection of copyright and related rights; |
|
| (b) |
in respect of sound recordings, and broadcasts to—
| (i) |
individuals or bodies corporate who are citizens of, domiciled or resident in or incorporated under the laws of a country which is a party to a treaty to which Kenya is also a party and which provides for the protection of copyright and related rights; and |
| (ii) |
those sound recordings, or broadcasts made 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; |
|
| (c) |
in respect of audio-visual works and photographs made, first made available to the public, or first published to—
| (i) |
individuals or bodies corporate who are citizens of, domiciled 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; and |
| (ii) |
those audio-visual works and photographs first made, 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. |
|
|
PART XI – USE OF FOLKLORE
| 20. |
Application to use folklore
| (1) |
This regulation applies with respect to use of folklore under section 49(d) of the Act.
|
| (2) |
Any person who wishes to use any folklore for commercial purposes shall submit his application to the Board on Form No. CR 20, accompanied with the fees set out in the Second Schedule.
|
| (3) |
Any person who uses folklore for commercial purposes in Kenya without the permission of the Board commits an offence.
|
| (4) |
| (a) |
willfully misrepresents the source of an expression of folklore; or
|
| (b) |
willfully distorts any expression of folklore in a manner prejudicial to the honour, dignity or cultural interests of the community in which it originates;
|
|
| (5) |
Any person who commits an offence under it's regulation is liable on conviction, to a fine not exceeding six thousand shillings or for a term of imprisonment not exceeding six months or to both.
|
|
PART XII – GENERAL AND MISCELLANEOUS PROVISIONS
| 21. |
Copies of documents
A person who wishes to obtain a copy of a document kept by the Board shall make a request in Form No. CR 21 for a certified copy or in Form No. CR 22 for uncertified copy upon payment of the prescribed fees.
|
| 22. |
Copy of lost or destroyed certificate
| (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 23.
|
| (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.
|
|
| 23. |
Extension of time
| (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 at it may specify.
|
| (2) |
A request for extension of time shall be made on Form No. CR 24.
|
|
| 24. |
Signing of forms on behalf of certain bodies
| (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—
|
| (3) |
| (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.
|
|
|
| 25. |
Statutory Declarations and Affidavits
The following provisions shall apply with respect to a statutory declaration or an affidavit under the Act or these Regulations—
| (a) |
a statutory declaration or affidavit shall have a heading indicating the matter or matters to which it relates;
|
| (b) |
a statutory declaration or affidavit shall be divided into consecutively numbered paragraphs, each of which shall, if possible, be confined to a single subject-matter;
|
| (c) |
a statutory declaration or affidavit shall fully identify the person making it and shall set out where the person resides; and
|
| (d) |
a person signing a statutory declaration or an affidavit shall disclose his competence and authority to swear the statutory declaration or the affidavit.
|
|
| 26. |
Documents to be in English or translated
| (1) |
Documents provided to the Board under sections 21(1) and 33 (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;
|
| (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.
|
|
|
| 27. |
Repeal of former Regulations
The regulations made under the Copyright Act (Cap. 130 now repealed), are repealed.
|
FIRST SCHEDULE
| (a) |
a comprehensive report of all tne society's activities during the year;
|
| (b) |
a list of all 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;
|
| (g) |
the names, addresses and occupations of current officials of the society; and
|
| (h) |
any other information that the Board may require.
|
PART IX – PROCEEDINGS BEFORE THE COMPETENT AUTHORITY
| 17. |
Application for compensation or payment of royalties
An application for compensation or for payment of royalties under section 26(1) (j), 27(2), 28(2) and (4) of the Act shall be made on Form No. CR 17 and the provisions of regulation 18 shall apply mutatis mutandis to the application for compensation or payment of royalties.
|
| 18. |
Application or appeal to the Authority
| (1) |
This regulation applies with respect to an application under section 48(2) or an appeal under section 21(1) of the Act.
|
| (2) |
An application or appeal under section 21(1) of the Act shall be in Form No. CR 18 and shall be filed with the Competent Authority.
|
|
SECOND SCHEDULE (r.4 (2))
FEES
L.N 26/2015
|
|
Description of fee
|
Amount of feeK. Shs.
|
CorrespondingCR Form
|
|
1.
|
Fee for application for registration of a copyright work under regulation 8(7)
|
600.00
|
1
|
|
2.
|
Fee for change of name or address under regulation 9(1)
|
100.00
|
3
|
|
3.
|
Fee for recordal of a licence in the Copyright Register under regulation 9(2)
|
5,000.00
|
4
|
|
4.
|
Fee for recordal of change of ownership of a work under regulation (3)
|
5,000.00
|
5
|
|
5.
|
Fee for verification of an assignment of a copyright work under section 33(3) of the Act
|
1,000.00
|
6
|
|
6.
|
Fee for authentication of copyright work under section 36(1) of the Act
|
500.00
|
8
|
|
7.
|
Fee for authentication device for each copyright work
|
10.00
|
8
|
|
8.
|
Fee for application for registration of a collecting society under section 46(2) of the Act
|
250,000.00
|
12
|
|
9.
|
Fee for an application for renewal of registration of a collecting society under regulation 15(3) based on the revenue as per the last audited accounts—
|
|
14
|
|
|
(a) fifty million shillings;
|
1% of the revenue
|
|
|
|
(b) fifty one million to one hundred and fifty million shillings;
|
1.5% of the revenue
|
|
|
|
(c) one hundred and fifty one million to two hundred and fifty millionshillings; and
|
2% of the revenue
|
|
|
|
(d) Over two hundred and fifty million shillings.
|
3% of the revenue
|
|
|
10.
|
Fee for filing annual report and audited accounts under regulation 16(2)
|
500.00
|
16
|
|
11.
|
Fee for an application for a fair compensation or royalties under section 26(1)(j), 27(2), 28(2) or (4) of the Act
|
5,000.00
|
17
|
|
12.
|
Fee for application or appeal to the Authority under section 48(3) or 21(1) of the Act
|
10,000.00
|
18
|
|
13.
|
Fee for reply under regulation 18(6)
|
2,000.00
|
19
|
|
14.
|
Fee for application to use folklore under regulation 20(2)—
|
10,000
|
20
|
|
|
(a) Films;
|
10,000.00
|
|
|
|
(b) Broadcasting;
|
10,000.00
|
|
|
|
(c) Theatre;
|
10,000.00
|
|
|
|
(d) Publishing for educational property;
|
100.00
|
|
|
|
(e) Research Per Piece;
|
1,000.00
|
|
|
|
(f) Other Public interests per event per piece; and
|
100.00
|
|
|
|
(g) Feature film on a cultural event per piece.
|
1,000.00
|
|
|
15.
|
Fee for a certified copy of a document or extract under regulation 21
|
500.00
|
21
|
|
16.
|
Fee for uncertified copy of a document or extract under regulation 21
|
200.00
|
22
|
|
17.
|
Fee for a copy of a lost or destroyed certificate under regulation 22(2)
|
500.00
|
23
|
|
18.
|
Fee for an application for extension of time under regulation 23(2)
|
500.00
|
24
|
THE COPYRIGHT REGULATIONS, 2004
Revoked by Legal Notice 177 of 2020 on 18th September, 2020
PART I – PRELIMINARY
| 1. |
Citation and commencement
These Regulations may be cited as the Copyright Regulations, 2004.
|
| 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—
| (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, the 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 at different places or times, and where the work can be 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 sequence and the making of accompanying sounds 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.
|
|
| 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 Second 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 the satisfaction of the Executive Director.
|
|
PART II – ADMINISTRATION
| 5. |
Training, competitions and awards
In carrying out its functions under paragraphs (c) and (e) of section 5 of the Act, the Board shall—
| (a) |
organize and conduct training relating to copyright matters at all levels, in collaboration or association with other relevant institutions, if necessary; and
|
| (b) |
among other activities, organize competitions and contests and give prizes and awards.
|
|
| 6. |
Office hours of the Board (Copyright Office).
The offices of the Board shall be open to the public each day, other than on a Saturday, Sunday or public holiday, from 9.00 am to 1.00 pm and from 2.00 pm to 4.00 pm.
|
| 7. |
Appointment of advisors
| (1) |
The Executive Director may, in consultation with the Board, appoint such experts, advisors or consultants in relation to any matter before the Board or to perform any other function or functions specified by the Executive Director.
|
| (2) |
In exercise of his powers under paragraph (1), the Executive Director shall not make an appointment that the Board is authorized to make under section 12 of the Act.
|
|
| 8. |
Copyright Register
| (1) |
Pursuant to the provisions of paragraph (f) of section 5 of the Act, the Executive Director shall open and maintain a register known as the "Copyright Register" wherein the following particulars shall be recorded in respect of any copyright work that the owner elects to register—
| (a) |
the number and title of the copyright work;
|
| (b) |
the name, address and nationality of the copyright holder;
|
| (c) |
the date of the application for registration of a copyright work;
|
| (d) |
address for service of the copyright holder;
|
| (e) |
a licence granted by the copyright holder;
|
| (f) |
a notice of every document affecting a change in address or ownership of the work or purporting to give interest in it as security;
|
| (g) |
if the copyright holder dies, a notice to that effect accompanied by a copy of the death certificate; and
|
| (h) |
any other information required under the Act these Regulations or any other information that the Executive Director may consider appropriate to be recorded in the Copyright Register.
|
|
| (2) |
The purpose of entering the particulars set out in paragraph (1) in the Copyright Register is to—
| (a) |
maintain a record of copyright works;
|
| (b) |
enable the Board to establish and maintain an effective data bank on authors and their works; and
|
| (c) |
publicize the rights of the owners of works.
|
|
| (3) |
The subsistence, enjoyment and enforceability of copyright shall be independent of whether or not it is registered under these Regulations.
|
| (4) |
The following shall apply with respect to names of persons entered in the Copyright Register—
| (a) |
if the person is a natural person, the person's surname shall be set out first followed by the given names; and
|
| (b) |
if the person is not a natural person, the full name of the legal entity shall be set out.
|
|
| (5) |
The following provisions shall apply to the addresses of the persons set out in the Copyright Register—
| (a) |
the address shall be sufficient to allow prompt delivery by post, fax, e-mail and hand;
|
| (b) |
only one set of address shall be set out for each person; and
|
| (c) |
address under this regulation includes electronic mail, postal and physical addresses.
|
|
| (6) |
Where the owner of a work wishes to have it registered in accordance with paragraph (5), he shall submit two copies of such work to the Executive Director.
|
| (7) |
An application for registration of a work under this regulation shall be made on Form No. CR I and shall be accompanied by the prescribed fees set out in the Second Schedule.
|
| (8) |
On receipt of an application in respect of any copyright work under paragraph (6), 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.
|
| (9) |
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 (7).
|
| (10) |
| (a) |
The Executive Director shall also keep and maintain such indexes of the Copyright Register as he may deem fit.
|
| (b) |
The Copyright Register and indexes kept under this paragraph shall at all reasonable times be open for inspection, and any person interested shall be entitled to take copies of or make extracts from such Register or indexes on payment of the prescribed fees.
|
|
| (11) |
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 therefrom 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.
|
| (12) |
The Executive Director may, for good causeor upon an application by any interested party, on such conditions as he may deem fit, amend the register by—
| (a) |
correcting any error in the name, address or other particulars of the applicant; or
|
| (b) |
correcting any other error, which may have arisen in the register by accidental slip or omission.
|
|
| (13) |
The Board may, on an application of the Executive Director or of any person aggrieved, and upon hearing the parties concerned, order the rectification of the Copyright Register by—
| (a) |
making any entry wrongly omitted to be in the Copyright Register;
|
| (b) |
expunging any entry wrongly made in, or remaining on the Copyright Register; or
|
| (c) |
correcting any error or defect in the Copyright Register.
|
|
| (14) |
Every entry made in the Copyright Register or the particulars of any work entered therein under paragraph (8), and the correction of every entry made in the Copyright Register under paragraph (13), shall be published by the Executive Director in the Gazette or in such other manner as the Board may deem fit.
|
|
| 9. |
Change of ownership
| (1) |
An application for change of name or address of copyright holders shall be made on Form No. CR 3.
|
| (2) |
An application for recordal of a licence or sub-licence shall be made on Form No. CR 4 and shall be supported by a certified copy of the licence contract.
|
| (3) |
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 5 supported by a certified copy of the relevant instrument effecting the change.
|
|
PART III – VERIFICATION OF ASSIGNMENT OF COPYRIGHT WORKS FROM OUTSIDE KENYA
| 10. |
Verification of assignment of copyright works from outside Kenya by the Board
| (1) |
This regulation applies with respect to verification by the Board of an assignment of copyright work or works from outside Kenya under 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 No. CR 6 and shall be supported by a certified copy of the deed of assignment.
|
| (3) |
A letter of verification pursuant to an application under paragraph (2) shall be in Form No. CR 7.
|
|
PART IV – AUTHENTICATION OF COPYRIGHT WORKS UNDER SECTION 36 OF THE ACT
| 11. |
Authentication of copyright
| (1) |
Every sound recording and audio-visual work imported into Kenya, intended for sale or offered for sale, rental, hiring, lending or otherwise distributed or intended for distribution to the public for commercial purposes in Kenya shall have affixed to it an authentication device:
Provided that this regulation shall not apply to computer programs embodied in a sound recording or an audio-visual work.
|
| (2) |
The authentication device shall—
| (a) |
be a tamper proof sticker to be issued by the Board;
|
| (b) |
be serially numbered; and
|
| (c) |
be stuck on the sound recording or audio-visual work that is displayed for sale or distribution.
|
|
|
| 12. |
Affixation of authentication device
| (1) |
The authentication device shall be affixed—
| (a) |
in the case of sound recordings and audio-visual works produced in Kenya, at the point of production or at such other point as the Board may, from time to time, designate; and
|
| (a) |
in the case of sound recordings and audio-visual works imported into Kenya, except where such works are exclusively for personal use, before they are released into the channels of commerce in Kenya.
|
|
| (2) |
The authentication device shall be affixed to every medium, except a computer program, in which a sound recording or audio-visual work is embodied except computer programs.
|
| (3) |
An application for authentication of copyrighworks under section 36(1) shall be made on Form No. CR 8.
|
| (4) |
An application under paragraph (3) 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 manufacture or production of such sound recording or audio-visual works in Kenya.
|
| (5) |
A certificate of approval issued by the Board to an applicant to purchase an authentication device from the Kenya Revenue Authority shall be in Form No. CR 9.
|
| (6) |
The authentication device referred to in this regulation shall be used for—
| (a) |
securing the right and interests of the holder of copyright and related rights;
|
| (b) |
anti-piracy activities; and
|
| (c) |
administering the anti-piracy security device.
|
|
|
PART V – FINES PAYABLE TO THE BOARD
| 13. |
Fines payable to the Board
All fines payable to the Board under section 38 (10) of the Act shall be remitted to the Board by the Court on Form No. CR 10.
|
PART VI – INSPECTION
| 14. |
Appointment of inspectors
| (1) |
Inspectors appointed under section 39(1) of the Act shall carry certificates of authority while executing their duties under the Act or these Regulations.
|
| (2) |
The names of all copyright inspectors appointed under section 39(1) shall be published in the Gazette.
|
| (3) |
A certificate of authority issued by the Board under section 39(1) of the Act shall be in Form No. CR 11.
|
|
PART VII – REGISTRATION OF COLLECTING SOCIETIES UNDER SECTION 46 OF THE ACT
| 15. |
Application for registration of a collecting society
| (1) |
An application for registration of a collecting society under section 46(2) of the Act shall be made on Form No. CR 12 accompanied by the following documents—
| (a) |
a certificate of registration as a company limited by guarantee and incorporated under the provisions of the Companies Act Cap. 486
|
| (b) |
a certified copy of a society's Memorandum and Articles of Association;
|
| (c) |
where applicable, a certified copy of the society's annual return filed with the Registrar of Companies showing the corporate structure of the society during the period of January to December of the previous year:
|
| (d) |
where applicable, audited accounts of the society for the five years preceding the date of its application for registration as a collecting society under the Act and these Regulations;
|
| (e) |
a full list of the names and addresses of all the members of the society; and
|
| (f) |
any other document or information that the Board may require the society to produce.
|
|
| (2) |
A certificate of registration of a collecting society shall be in Form No. CR 13.
|
| (3) |
An application for renewal of registration of a collecting society and certificate of renewal of registration of such society shall be in Form No. CR 14 and Form No. 15 respectively
|
|
PART VIII – FILING OF ANNUAL REPORTS AND AUDITED ACCOUNTS BY COLLECTING SOCIETIES UNDER SECTION 47 OF THE ACT
| 16. |
Annual reports and audited accounts
| (1) |
This regulation applies with respect to 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 16 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—
|
| (3) |
The application or the appeal shall set out the relief sought and shall be accompanied by a statement of facts being relied upon and supporting evidence.
|
| (4) |
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 applicant or appellant such an opportunity and, if 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.
|
|
| (5) |
Unless the Authority dismisses an application or appeal under sub-paragraph (4) (b) or (c), the Authority shall serve a copy of the application or the appeal and the accompanying statement of facts and supporting evidence required under sub-paragraph (3), upon the Board or the collecting society within a period of 21 days.
|
| (6) |
The Board or a collecting society may oppose the application or the appeal by filing with the Authority a reply in Form No. CR 19 setting out fully the grounds of its opposition.
|
| (7) |
The reply shall be accompanied by a statement of the facts being relied upon and the supporting evidence.
|
| (8) |
The reply shall be filed within 21 days after the date of service of the application or the appeal.
|
| (9) |
The Authority shall serve a copy of the reply and the accompanying statement of facts and supporting evidence required under sub-paragraph (7) upon the applicant or appellant who made the application or the appeal within a period of 21 days of the filing of the reply.
|
| (10) |
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.
|
| (11) |
The Authority shall serve a copy of the evidence filed under sub-paragraph (10) upon the Board or the collecting society.
|
| (12) |
No further evidence shall be filed except by leave or direction of the Authority.
|
| (13) |
After completion of the filing of the pleadings And the evidence, the Authority shall set down the application or the appeal for hearing within thirty(30) days.
|
| (14) |
Upon hearing the application or the appeal, the Appeal, the Authority shall deliver its ruling in writing within sixty (60) days.
|
|
PART X – EXTENSION OF THE APPLICATION OF THE ACT
| 19. |
Extension of the application of the Act
Pursuant to the provisions of section 49 (b) of the Act, the application of the Act is extended—
| (a) |
in respect of literary works, musical works and artistic works to—
| (i) |
individuals or bodies corporate who are citizens of, domiciled or resident in or incorporated under the laws of 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; and |
| (ii) |
those works and audio-visual works first published in a country which is a party to a treaty to which Kenya is also a party which provides for protection of copyright and related rights; |
|
| (b) |
in respect of sound recordings, and broadcasts to—
| (i) |
individuals or bodies corporate who are citizens of, domiciled or resident in or incorporated under the laws of a country which is a party to a treaty to which Kenya is also a party and which provides for the protection of copyright and related rights; and |
| (ii) |
those sound recordings, or broadcasts made 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; |
|
| (c) |
in respect of audio-visual works and photographs made, first made available to the public, or first published to—
| (i) |
individuals or bodies corporate who are citizens of, domiciled 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; and |
| (ii) |
those audio-visual works and photographs first made, 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. |
|
|
PART XI – USE OF FOLKLORE
| 20. |
Application to use folklore
| (1) |
This regulation applies with respect to use of folklore under section 49(d) of the Act.
|
| (2) |
Any person who wishes to use any folklore for commercial purposes shall submit his application to the Board on Form No. CR 20, accompanied with the fees set out in the Second Schedule.
|
| (3) |
Any person who uses folklore for commercial purposes in Kenya without the permission of the Board commits an offence.
|
| (4) |
| (a) |
willfully misrepresents the source of an expression of folklore; or
|
| (b) |
willfully distorts any expression of folklore in a manner prejudicial to the honour, dignity or cultural interests of the community in which it originates;
|
|
| (5) |
Any person who commits an offence under it's regulation is liable on conviction, to a fine not exceeding six thousand shillings or for a term of imprisonment not exceeding six months or to both.
|
|
PART XII – GENERAL AND MISCELLANEOUS PROVISIONS
| 21. |
Copies of documents
A person who wishes to obtain a copy of a document kept by the Board shall make a request in Form No. CR 21 for a certified copy or in Form No. CR 22 for uncertified copy upon payment of the prescribed fees.
|
| 22. |
Copy of lost or destroyed certificate
| (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 23.
|
| (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.
|
|
| 23. |
Extension of time
| (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 at it may specify.
|
| (2) |
A request for extension of time shall be made on Form No. CR 24.
|
|
| 24. |
Signing of forms on behalf of certain bodies
| (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—
|
| (3) |
| (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.
|
|
|
| 25. |
Statutory Declarations and Affidavits
The following provisions shall apply with respect to a statutory declaration or an affidavit under the Act or these Regulations—
| (a) |
a statutory declaration or affidavit shall have a heading indicating the matter or matters to which it relates;
|
| (b) |
a statutory declaration or affidavit shall be divided into consecutively numbered paragraphs, each of which shall, if possible, be confined to a single subject-matter;
|
| (c) |
a statutory declaration or affidavit shall fully identify the person making it and shall set out where the person resides; and
|
| (d) |
a person signing a statutory declaration or an affidavit shall disclose his competence and authority to swear the statutory declaration or the affidavit.
|
|
| 26. |
Documents to be in English or translated
| (1) |
Documents provided to the Board under sections 21(1) and 33 (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;
|
| (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.
|
|
|
| 27. |
Repeal of former Regulations
The regulations made under the Copyright Act (Cap. 130 now repealed), are repealed.
|
FIRST SCHEDULE
| (a) |
a comprehensive report of all tne society's activities during the year;
|
| (b) |
a list of all 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;
|
| (g) |
the names, addresses and occupations of current officials of the society; and
|
| (h) |
any other information that the Board may require.
|
PART IX – PROCEEDINGS BEFORE THE COMPETENT AUTHORITY
| 17. |
Application for compensation or payment of royalties
An application for compensation or for payment of royalties under section 26(1) (j), 27(2), 28(2) and (4) of the Act shall be made on Form No. CR 17 and the provisions of regulation 18 shall apply mutatis mutandis to the application for compensation or payment of royalties.
|
| 18. |
Application or appeal to the Authority
| (1) |
This regulation applies with respect to an application under section 48(2) or an appeal under section 21(1) of the Act.
|
| (2) |
An application or appeal under section 21(1) of the Act shall be in Form No. CR 18 and shall be filed with the Competent Authority.
|
|
SECOND SCHEDULE (r.4 (2))
FEES
L.N 26/2015, L.N 26/2015
|
|
Description of fee
|
Amount of feeK. Shs.
|
CorrespondingCR Form
|
|
1.
|
Fee for application for registration of a copyright work under regulation 8(7)
|
600.00
|
1
|
|
2.
|
Fee for change of name or address under regulation 9(1)
|
100.00
|
3
|
|
3.
|
Fee for recordal of a licence in the Copyright Register under regulation 9(2)
|
5,000.00
|
4
|
|
4.
|
Fee for recordal of change of ownership of a work under regulation (3)
|
5,000.00
|
5
|
|
5.
|
Fee for verification of an assignment of a copyright work under section 33(3) of the Act
|
1,000.00
|
6
|
|
6.
|
Fee for authentication of copyright work under section 36(1) of the Act
|
500.00
|
8
|
|
7.
|
Fee for authentication device for each copyright work
|
10.00
|
8
|
|
8.
|
Fee for application for registration of a collecting society under section 46(2) of the Act
|
250,000.00
|
12
|
|
9.
|
Fee for an application for renewal of registration of a collecting society under regulation 15(3) based on the revenue as per the last audited accounts—
|
|
14
|
|
|
(a) fifty million shillings;
|
1 percent of revenue net of royalties
|
|
|
|
(b) fifty one million to one hundred and fifty million shillings;
|
1.5 percent of revenue net of royalties
|
|
|
|
(c) one hundred and fifty one million to two hundred and fifty millionshillings; and
|
2 percent of revenue net of royalties
|
|
|
|
(d) Over two hundred and fifty million shillings.
|
3 percent of revenue net of royalties
|
|
|
10.
|
Fee for filing annual report and audited accounts under regulation 16(2)
|
500.00
|
16
|
|
11.
|
Fee for an application for a fair compensation or royalties under section 26(1)(j), 27(2), 28(2) or (4) of the Act
|
5,000.00
|
17
|
|
12.
|
Fee for application or appeal to the Authority under section 48(3) or 21(1) of the Act
|
10,000.00
|
18
|
|
13.
|
Fee for reply under regulation 18(6)
|
2,000.00
|
19
|
|
14.
|
Fee for application to use folklore under regulation 20(2)—
|
10,000
|
20
|
|
|
(a) Films;
|
10,000.00
|
|
|
|
(b) Broadcasting;
|
10,000.00
|
|
|
|
(c) Theatre;
|
10,000.00
|
|
|
|
(d) Publishing for educational property;
|
100.00
|
|
|
|
(e) Research Per Piece;
|
1,000.00
|
|
|
|
(f) Other Public interests per event per piece; and
|
100.00
|
|
|
|
(g) Feature film on a cultural event per piece.
|
1,000.00
|
|
|
15.
|
Fee for a certified copy of a document or extract under regulation 21
|
500.00
|
21
|
|
16.
|
Fee for uncertified copy of a document or extract under regulation 21
|
200.00
|
22
|
|
17.
|
Fee for a copy of a lost or destroyed certificate under regulation 22(2)
|
500.00
|
23
|
|
18.
|
Fee for an application for extension of time under regulation 23(2)
|
500.00
|
24
|
THE COPYRIGHT REGULATIONS, 2004
Revoked by Legal Notice 177 of 2020 on 18th September, 2020
COPYRIGHT (JOINT COLLECTION TARIFFS), 2020
SCHEDULE
| 1. |
The licenses shall be payable annually (calendar year) with joint invoices being payable within one month of issue. Invoices shall be issued as they arise or within the first quarter of the calendar year.
|
| 2. |
A license shall be valid for one year from the date of issue.
|
| 3. |
The penalty for non-compliance shall be 5% of the tariff compounded for the period it remains unpaid.
|
| 4. |
For counties that do not have approved licenses, the users shall be charged a fixed license fee of ten thousand shillings.
|
| 5. |
There shall be a levy for supermarkets for sections that display visual without music or for electronics testing.
|
| 6. |
In the case of disc jockeys, the primary liability to pay shall belong to the organisation that causes the public performance of music. The tariff shall only include disc jockeys in unlicensed premises and exclude resident disc jockeys, teaching disc jockeys and disc jockeys at events held at places of worship.
|
| 7. |
For the purposes of broadcasters, national broadcasters shall be those with more than five radio or television frequencies.
|
| 8. |
The audio-visual tariff shall include actors.
|
| 9. |
The license shall not apply to charitable events or fundraisers.
|
| 10. |
Where a person who has been issued with a Single Business Permit is required to obtain more than one music license, that person shall pay for one music license of the higher value.
|
| 11. |
The levies may be paid in instalments upon the request of a user.
|
| 12. |
For public service vehicles and similar licensees, the license shall only be required if there is enhancement for the purposes of enjoyment of music.
|
THE COLLECTING SOCIETY TARIFFS
IN EXERCISE of the powers conferred by section 46A(a) of the Copyright Act (Cap. 130), the Attorney-General approves the collecting society tariffs set out in the Schedule, with effect from the date of publication to the 31st December, 2018. The Copyright Act (Kenya Association of Music Producers and Performance Rights Society of Kenya) Tariffs, 2015* is revoked.
SCHEDULE
THE JOINT MUSIC ROYALTY TARIFFS
|
Place of exploitation of music
|
Rate
|
Nature of rights exploited
|
|
Sound and musical rights
|
Visual, sound and music rights
|
|
Air craft
|
Per number of seats
|
|
|
For first 50 seats
|
@Kes. 1,039 per seat
|
@Kes. 1234 per seat
|
|
Next 50-100
|
@Kes 693 per seat
|
@Kes. 823 per seat
|
|
Over 100
|
@Kes. 428 per seat
|
Kes. 504 per seat
|
|
Small public service vehicles (tuk-tuks and motor cycles)
|
Per day
|
Kes. 300 per year for motor cycles
|
N/A
|
|
Kes. 900 per year for Tuk tuks
|
N/A
|
|
Video exhibitions or video halls
|
Annual, flat
|
N/A
|
Kes. 6,000
|
|
Juke boxes
|
Per unit, flat rate per year
|
Kes. 9,000
|
Kes. 12,000
|
|
Non-resident deejays and veejays
|
Per unit, flat rate per person, per year
|
Kes.12,000
|
Kes. 15,000
|
|
Music on hold
|
Per land line, per year
|
Kes.150
|
N/A
|
|
Concerts
|
Per day, number attending Upto 3,000 attending or annual max
|
Kes. 25,000 or 250,000 per year
|
Kes. 30,000 or Kes. 300,000 per year
|
|
Per day, number attending Over 3,000 attending or Flat rate per year or annual max
|
Kes. 35,000 or 350,000 per year
|
Kes. 40,000 or Kes. 400,000 Per year
|
|
Roadshows
|
Per truck day or per year for corporate, NGOs, Government and politicians or annual max
|
Kes. 30,000 per truck day or Kes. 620,000 per year
|
N/A
|
|
Place of exploitation of music
|
Rate
|
Nature of rights exploited
|
|
Sound and musical rights
|
Visual, sound and music rights
|
|
Per truck day or per year for small and medium enterprises or annual max
|
Kes l5,000 per truck day or kes. 285,000 per year
|
N/A
|
|
Per truck day or per year for individuals or annual max
|
Kes 7,500 per truck day or Kes. 160,000 per year
|
N/A
|
|
Promotional activities
|
Per activation location per day for corporate, NGOS, government and politicians or annual max
|
Kes. 30,000 per truck day or Max of Kes. 600,000 per year
|
N/A
|
|
N/A
|
|
Per activation location per day for small and medium enterprises or annual max
|
Kes. 15,000 per truck day or max of Kes. 300,000 per year
|
N/A
|
|
Per activation location per day for individuals or annual max
|
Kes. 7,500 per truck day or max of Kes. 150,000 per year
|
N/A
|
|
live music performances
|
Per venue or per performance less than 100 persons/seats or annual max
|
Kes. 25,000 or max of 500,000 per year
|
|
Per venue or per performance of 101- 400 pax/seats or annual max
|
Kes. 50,000 or max of Kes. 1,000,000 per year
|
|
Per venue or per performance of over 401 pax/seats or annual
|
Kes. 100,000 or max of 1,500,000 per year
|
|
Cover bands
|
Annual, per group
|
Ken. 150,000
|
|
Choirs
|
Annual, per group
|
Kes. 12,000
|
|
Nightclubs and discotheques (city) (Nairobi, Mombasa, Kisumu, Eldoret Nakuru)
|
Annual tier 1: 1 to 250 capacity
|
Ken 78,000
|
Ken 78,000
|
|
Annual tier 2: 251 to 500 capacity
|
Ken 150,000
|
Ken 150,000
|
|
Annual tier 3: 501 to 750 capacity
|
Kes. 300,000
|
Kes. 300,000
|
|
Annual tier 4: >750 capacity
|
Kes. 550,000
|
Kes. 550,000
|
|
Nightclubs & discotheques (urban centres)
|
Annual Tier 1: up to 250 pax
|
Ken. 58,500
|
Ken. 58,500
|
|
Annual Tier 2: 250.500 pax
|
Kes. 112,500
|
Kes. 112,500
|
|
Annual Tier 3: over 500-750 pax
|
Kes. 225,000
|
Kes. 225,000
|
|
Annual Tier 4: over 750 pax
|
Ken. 412,000
|
Ken. 412,000
|
|
elevators and lifts
|
Annual per carrying capacity subject to a minimum
|
Kes. 570
|
Kes. 700
|
|
Kes. 7,000
|
Ken. 8,750
|
|
Place of exploitation of music
|
Rate
|
Nature of rights exploited
|
|
Sound and musical rights
|
Visual, sound and music rights
|
|
Cinemas
|
Annual, per square foot up to 1000 sq. ft
|
Kes. 13
|
Kes. 16
|
|
Annual, per Square Foot 1001 -2000 sq. ft.
|
Kes. 12
|
Kes. 15
|
|
Annual, per Square Foot 2,0014,000 sq. ft
|
Kes. 10
|
Kes. 12
|
|
Annual, per Square Foot, over 4,000 sq. ft.
|
Kes. 10
|
Kes. 11
|
|
Annual minimum
|
Kes. 5,250
|
Kes. 6,250
|
|
Private members'clubs
|
|
|
Class A(>5,000 Members or 4-Star & above)
|
|
|
|
Annual, per Square Foot Tier1: up to 1,000 Square Feet
|
Kes. 13.20
|
Kes 16.45
|
|
Annual, per Square Foot Tier2: 1,001 to 2,000 Square Feet
|
Kes 11.60
|
Kes 14.60
|
|
Annual, per Square Foot Tier3: 2,001 to 4,000 Square Feet
|
Kes 9.60
|
Kes 12.10
|
|
Annual, per Square Foot Tier4: > 4,000 SquareFeet
|
Kes 8.50
|
Kes 10.75
|
|
Annual MinimumFee
|
Kes 5,250
|
Kes 6,250
|
|
Class B(<5,000 Membersor 3-Star & below)
|
|
|
|
Annual, per Square Foot Tier1:up to 1,000 Square Feet
|
Kes 11.20
|
Kes 13.03
|
|
Annual, per Square Foot Tier2: 1,001 to 2,000 Square Feet
|
Kes 9.60
|
Kes 11.27
|
|
Annual, per Square Foot Tier3:2,001 to 4,000Square Feet
|
Kes 7.60
|
Kes 8.93
|
|
Annual, per Square Foot Tier4:> 4,000 Square Feet
|
Kes 6.50
|
Kes 7.67
|
|
Annual, minimum
|
Kes 5,000.00
|
Kes 6,000
|
|
Halls, shops, stores,showrooms, banking and similar premises
|
Annual, per Square Foot up to 1000 sq. ft
|
Kes 13.20
|
Kes 16.45
|
|
Annual, 1001 to 2000 sq. ft
|
Kes 11.60
|
Kes 14.60
|
|
Annual, per SquareFoot,2001-4,000sq.ft
|
Kes 9.60
|
Kes 12.10
|
|
Annual, per Square Foot, over 4001 sq. ft.
|
Kes 8.50
|
Kes. 10.75
|
|
Annual, minimum
|
Kes 5,250
|
Kes. 6,000
|
|
Gymnasiums, fitness centres, hair salons,barbers, beauticians,spas, etc
|
Annual per Square Foot
|
—
|
—
|
|
Annual minimum
|
Kes 5,250
|
Kes 6,250
|
|
Place of exploitation of music
|
Rate
|
Nature of rights exploited
|
|
Sound and musical rights
|
Visual, sound and music rights
|
|
newmedia
|
Caller ring back tones percentage of net revenue(after VAT & Excise Duty)
|
50%
|
50%
|
|
Ring tones percentage of net revenue (after VAT & Excise Duty)
|
50%
|
50%
|
|
Sound recording downloads
|
12%
|
12%
|
|
Video downloads percentage 12% 12% of net revenue(after VAT & Excise Duty)
|
12%
|
12%
|
|
Sound recording streaming percentage of net revenue (after VAT & Excise Duty)
|
half of agreed tariff of radio
|
half of tariff of radio
|
|
Video streaming percentage of net revenue (after VAT & Excise Duty)
|
half of agreed tariff of TV
|
half of tariff of TV
|
|
Video webcasting percentage of net revenue (after VAT & Excise Duty)
|
half of agreed tariff of TV
|
half of tariff of TV
|
|
Sound recording simulcasting percentage of net revenue (after VAT & Excise Duty)
|
half of agreed tariff of radio
|
|
|
Video simulcasting percentage of net revenue (after VAT & Excise Duty)
|
half of agreed tariff of TV
|
half of tariff of TV
|
|
Sound recording webcasting percentage of net revenue (after VAT & Excise Duty)
|
half of agreed tariff of radio
|
half of tariff of radio
|
|
Hotels,restaurants and bars
|
4 and 5 star establishments, per square foot
|
Tier 1-Up to 1000 ft.: kes. 13.20
|
Kes. 16.45
|
|
Tier 2-1001 -2000 ft: kes. 11.60
|
Kes. 14.00
|
|
Tier 3-2001-4,000 ft: Kes. 9.50
|
Kes. 12.10
|
|
Tier 4-over 4000 ft: Kes. 8.50
|
Kes. 10.75
|
|
3 star establishments , persquare foot
|
Tier 1- Up to 1000ft: Kes. 11.20
|
Kes. 10.70
|
|
Tier 2- 1001-2000 ft: Kes.9.60
|
Kes. 8.93
|
|
Tier 3- 2001-4000 sq. ft: kes.7.60
|
Kes. 8.93
|
|
Tier4- Over 4000 sq.ft: kes. 6.50
|
Kes. 7.67
|
|
Place of exploitation of music
|
Rate
|
Nature of rights exploited
|
|
Sound and musical rights
|
Visual, sound and music rights
|
|
|
Others per square feet subject to a minimum of kes. 5,250
|
Tier 1- Up to 1000 sq.ft: kes.9.20
|
Kes. 10.70
|
|
Tier 2- 1001-2000 sq. ft: kes. 7.60
|
Kes. 8.93
|
|
Tier 3- 2001-4000 sq.ft: kes. 5.60
|
Kes. 6.60
|
|
Tier 4- Over 4000 sq. ft: kes. 4.50
|
Kes. 5.33
|
|
Industrial premises,factories, staff,canteens, engineeringworkshops,greenhouses,packhouses, etc
|
Annual, per Square Foot Tier1:up to 1,000 Square Feet
|
Kes 13.20
|
Kes 16.45
|
|
Annual, per Square Foot Tier2: 1,001 to 2,000 Square Feet
|
Kes 11.60
|
Kes 14.60
|
|
Annual, per Square Foot Tier3: 2,001 to 4,000 Square Feet
|
Kes 9.60
|
Kes 12.10
|
|
Annual, per Square Foot Tier4: >4,000 Square Feet
|
Kes 8.50
|
Kes. 10.75
|
|
Annual, minimum
|
Kes. 5,250.00
|
Kes. 6,250.00
|
|
Public service vehicles
|
Annual per Vehicle, company vehicles
|
Kes. 2,000
|
Kes.2,500
|
|
Annual per Vehicle, taxis
|
Kes. 2,000
|
n/a
|
|
Annual per Vehicle, tour vans
|
Kes. 5,000
|
Kes. 6,500
|
|
Annual per Vehicle, 14 seats
|
Kes. 7,000
|
Kes. 10,500
|
|
Annual per Vehicle, 15-35 seat
|
Kes. 14,200
|
Kes. 17,200
|
|
Annual per Vehicle, 36-55 seats
|
Kes. 24,550
|
Kes. 29,600
|
|
Annual per Vehicle, over 55 seats
|
Kes. 30,700
|
Kes. 36,550
|
|
Broadcasting (Radio)
|
Amount per month per commercial station using not more than 30% of music content with national coverage Flat rate
|
Kes. 450,000
|
|
Amount per month per commercial station using up to 70% of music content with national coverage Flat rate
|
Kes. 600,000
|
|
Amount per month per commercial station using more than 70% music content with national coverage
|
Kes. 700,000
|
|
Amount per month per commercial station using not more than 30% music content with regional coverage
|
Kes. 200,000
|
|
Place of exploitation of music
|
Rate
|
Nature of rights exploited
|
|
Sound and musical rights
|
Visual, sound and music rights
|
|
|
Amount per month per commercial station using not more than 70% music contentwith regional coverage
|
Kes.300,000
|
|
|
Rate per month per commercial station using more than 70% music content with regional coverage
|
Kes. 350,000
|
|
|
Non-commercial, nationalradio, per month
|
Kes. 150,000
|
|
|
Non-commercial, regional radio, per month
|
Kes. 120,000
|
|
|
Community and institutional radio, per month
|
Kes. 10,000
|
|
Broadcasting (Television)
|
Commercial, per month
|
Kes. 150,000
|
|
Non-commercial, per month
|
Kes. 50,000
|
|
Community or institutional, per month
|
Kes. 5,000
|
|
Professional training programmes, dance schools, deejay schools and music schools except primary, secondaryand Tertiary institutions,accredited by the ministry of education
|
Annual, per Class, up to 25 students
|
Kes. 1,050
|
Kes. 1,325
|
|
Annual, per Class between 26-50 students
|
Kes. 3,000
|
Kes. 3,750
|
|
Annual, per Class over 51 students
|
Kes. 4,000
|
Kes. 7,000
|
| 1. |
The license shall be payable annually with the joint invoice being payable within two months of issue.
|
| 2. |
The penalty for non-compliance shall be 5% of the tariff compounded for the period it remains unpaid.
|
| 3. |
Businesses starting during the license term will pay due amounts on pro-rats basis.
|
| 4. |
This tariff shall be subject to an annual increment pegged on the prevailing rate of inflation.
|
| 5. |
The following events are exempted from royalty payments—
| (a) |
small businesses that use transistor radios in their business premises;
|
| (b) |
charity and fund raising events.
|
|
THE COLLECTING SOCIETY TARIFFS
ARRANGEMENT OF SECTIONS
SCHEDULES
COPYRIGHT REGULATIONS, 2020
PART I – PRELIMINARY
| 1. |
Citation
These Regulations may be cited as the Copyright Regulations, 2020.
|
| 2. |
Forms
The forms referred to in these Regulations shall be the forms set out in the First Schedule.
|
| 3. |
Fees
The fees set out in the Second Schedule shall be the prescribed fees for the purposes of these Regulations.
|
PART II – REGISTRATION OF COPYRIGHT WORKS
| 4. |
Copyright Register
| (1) |
The Executive Director shall keep and maintain a databank of authors and their works known as the Copyright Register, in accordance with section 5 (f) of the Act, in which the following particulars shall be recorded with respect to any copyright work that the copyright owner elects to register—
| (a) |
the title of the copyright work;
|
| (b) |
the name of individual or organization, identity card number or certificate of incorporation for a company, of the author, owner, assignee or exclusive licensee of the copyright work;
|
| (c) |
a description of the work;
|
| (d) |
the physical, postal and email address of the copyright owner;
|
| (e) |
the date of affixation of the copyright work; and
|
| (f) |
any other information that the Executive Director may consider relevant.
|
|
| (2) |
The Executive Director may maintain the Copyright Register in electronic or physical form.
|
| (3) |
Where the owner of a work wishes to have it registered in accordance with paragraph (1), he or she may apply for its registration in Form C.R. 1 as set out in the First Schedule, accompanied with the prescribed fee, and submit a copy of the work to the Executive Director:
Provided that in the case of books and magazines, proof of deposit at the National Library shall suffice.
|
| (4) |
Where an application is successful, the Executive Director shall issue the applicant with a certificate of registration in Form C.R. 2 as set out in the First Schedule.
|
| (5) |
Where an application has been made in electronic form, the Executive Director may issue the applicant with an electronic certificate:
Provided that the electronic certificate shall have tamperproof security features.
|
| (6) |
The Executive Director shall keep and maintain an index or indexes of the Copyright Register as may be necessary.
|
| (7) |
The Executive Director may, for good cause or on application by an interested party and on such conditions as the Executive Director may deem fit, amend the Copyright Register to correct errors by—
| (a) |
entering relevant information in the Copyright Register that may have been wrongly omitted;
|
| (b) |
removing any entry that may have been wrongly made or remaining in the Copyright Register; or
|
| (c) |
correcting an error or defect in the Copyright Register.
|
|
| (8) |
Every entry made in the Copyright Register or particulars of any work entered therein shall be made accessible to the public in electronic form on the payment of a fee and in a manner as the Board may approve.
|
| (9) |
An application for the change of name or address of a copyright holder shall be made on Form C.R. 3 as set out in the First Schedule
|
| (10) |
Where there is a change of ownership in respect of any copyright work, the new or former owner of the copyright work shall apply for a change of ownership shall be made in Form No. C.R. 6 as set out in the First Schedule and accompanied by a certified copy of the relevant instrument of transfer.
|
|
| 5. |
Application for registration of copyright works from outside Kenya
| (1) |
This regulation shall apply to section 33 (3A) of the Act
|
| (2) |
An application for the recordal of an assignment or a license of a copyright work from outside Kenya shall be made in Form C.R. 5 as set out in the First Schedule and accompanied by a certified copy of the deed of assignment or similar instrument.
|
| (3) |
Where an application under paragraph (2) is successful, the Executive Director shall issue the applicant with a certificate of registration of assignment or license in Form C.R. 5 as set out in the First Schedule.
|
| (4) |
Such approved registration shall be entered in the Copyright Register upon payment of a Registration fee as set out in the Second Schedule.
|
|
| 6. |
Authentication of copyright works
| (1) |
This regulation shall apply to section 36 of the Act.
|
| (2) |
A sound recording or 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 device.
|
| (3) |
The authentication device shall be issued by the Board and be tamper-proof and serially numbered.
|
| (4) |
The authentication device shall be affixed by the copyright holder whose copyright work has been entered in the Copyright Register before it is released in the market.
|
| (5) |
An application for the affixing of an authentication device of copyright work under section 36 (1) shall be made in Form C.R. 7 as set out in the First Schedule and accompanied by relevant documentary evidence that the author of the work or copyright holder of the works has authorized the manufacture, production or distribution of the work in Kenya.
|
|
| 7. |
Copyright Inspectors
| (1) |
A Copyright Inspector appointed under section 39 (1) of the Act shall carry and produce on request by any person a Board Identification Card or Certificate of Authority bearing the Board's seal while executing his or her duties.
|
| (2) |
The Board shall publish in the Gazette the name of a copyright inspector appointed under section 39 (1) of the Act.
|
| (3) |
The Certificate of Authority referred to in paragraph (1) shall be in Form C.R. 8 as set out in the First Schedule.
|
|
| 8. |
Inventory of seized goods
| (1) |
A notification of seized goods under section 41 (1) of the Act shall be in Form C.R. 9 as set out in the First Schedule.
|
| (2) |
A notification of seized goods under section 41 (3) shall specify the date, physical address of the place of seizure, number, type, brand and description of the seized items and in the case of large quantities of seized items, single items need not be described and may be listed as a block.
|
| (3) |
A notification of seized goods under section 41 (3) shall be filled in triplicate and a copy shall be issued to the person from whom the goods have been seized and signed by the person who prepares it or seized the goods.
|
|
| 9. |
Renunciation of copyright
| (1) |
An author or copyright holder who wishes to renounce a copyright work shall notify the Executive Director in writing of his or her intention to renounce the copyright work.
|
| (2) |
The Board shall publish the notice of renunciation under paragraph (1) in the Gazette.
|
|
| 10. |
Extension of Regulationss
| (1) |
In accordance with section 49 (2) (b) of the Act, these Regulations shall also apply to—
| (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 another country and which provide for the protection of copyright and related rights;
|
| (b) |
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 the protection of copyright and related rights; and
|
| (c) |
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.
|
|
|
PART III – MISCELLANEOUS PROVISIONS
| 11. |
Application for copies of documents
A person who wishes to obtain a copy of a document kept by the Board shall apply to the Board in Form C.R. 11 as set out in the First Schedule for a certified copy or in Form C.R. 12 as set out in the First Schedule for an uncertified copy and on the payment of the prescribed fee.
|
| 12. |
Copies of lost or destroyed documents
| (1) |
The Board may, on application by any person, issue a copy of a lost or destroyed certificate.
|
| (2) |
An application for a copy of a lost or destroyed certificate shall be in Form C.R.13 as set out in the First Schedule.
|
| (3) |
An application for a copy of a lost or destroyed certificate shall be accompanied by a declaration or affidavit under oath with respect to the loss or destruction of the certificate in Form C.R.14 as set out in the First Schedule.
|
|
| 13. |
Extension of time
The Board may extend the time for doing an act or taking proceedings, other than the time expressly provided for in the Act, on such conditions as it may specify or on request or application of the person who has been time-barred.
|
| 14. |
Signing of forms
| (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 that the person is authorized by the partnership to sign on its behalf; and
|
| (c) |
the form shall set out the names and addresses of the partners.
|
|
|
| 15. |
Statutory declarations Cap. 15
The Oaths and Statutory Declarations Act shall apply with respect to a statutory declaration or an affidavit under the Act or these Regulations in Form C.R. 15 as set out in the First Schedule.
|
| 16. |
Documents to be in English language
| (1) |
A document submitted or provided to the Board under section 21 (1) and (3) of the Act and shall be in the English language.
|
| (2) |
If a copy of a document that is required to be submitted or provided under section 21 (1) or (3) is not in the English language, the following shall apply —
| (a) |
an English translation of the document shall be provided along with the copy of the original document;
|
| (b) |
the translation shall be certified to be an accurate translation;
|
| (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 determines that the translation is not accurate, the Board may refuse to accept it and may require an accurate translation to be provided or submitted; and
|
| (e) |
the copy of the document shall be deemed not to have been provided or submitted until the required translation and copies thereof are provided or submitted.
|
|
|
| 17. |
Repeal of L.N. 128/2004
The Copyright Regulations, 2004 are repealed.
|
| 18. |
Transitional provisions
| (1) |
A permit, license, certificate, authorization or any other document issued or granted under the repealed Regulations shall continue to be valid for the unexpired period thereof.
|
| (2) |
A person who had applied for a new permit, license, certificate, authorization or any other document under the repealed Regulations, shall continue to operate under the terms of the permit, license, certificate, authorization or any other document held by that person as if the application had been made under these Regulations until the application is determined.
|
|
THE COLLECTING SOCIETY TARIFFS
Revoked by Legal Notice 39 of 2020 on 30th April, 2020
THE COPYRIGHT (COLLECTIVE MANAGEMENT) REGULATIONS, 2020
| 1. |
Citation
These Regulations may be cited as the Copyright (Collective Management) Regulations, 2020.
|
| 2. |
Interpretation
In these Regulations, unless the context otherwise requires —
"Board" means the Kenya Copyright Board established under section 3 of the Act;
"general meeting" means the annual general meeting or the special general meeting through which members of a collective management organisation participate and exercise their membership rights;
"management fees" means the amounts charged, deducted or offset by a collective management organisation from revenue generated from rights or from any income from the investment of revenue generated from rights to cover the costs of the management of copyright or related rights;
"member" means a right holder or an entity representing right holders, including other collective management organisations and associations of right holders, who or which has fulfilled the membership requirements of a collective management organisation and admitted by it;
"non-distributable" in relation to amounts due to right holders,
shall be construed in accordance with regulation 13 (9);
"proxy" has the meaning assigned to it under the Companies Act, No. 17 of 2015.
"representation agreement" means an agreement between collective management organisations whereby one collective management organisation authorises another collective management organisation to manage the rights it represents;
"rights revenue" means income collected by a collective management organisation on behalf of right holders, whether deriving from an exclusive right, a right to remuneration or a right to compensation;
"royalty" means payment of an agreed rate to a right holder for the use of a copyright work; and
"user" means a person carrying out acts subject to the authorization of right holders, remuneration of right holders or payment of compensation to right holders.
|
| 3. |
Application for registration
| (1) |
An application under section 46 (2) for the registration of a collective management organisation shall be in Form CMO 01 as set out in the Schedule and accompanied by the following documents —
| (a) |
a certified copy of the certificate of registration as a company limited by guarantee and incorporated under the provisions of the Companies Act, 2015;
|
| (b) |
a certified copy of the Memorandum and Articles of Association of the collective management organisation;
|
| (c) |
where applicable, a certified copy of the collective management organisation's annual returns submitted in accordance with the Companies Act, 2015, showing the corporate structure of the organisation during the period ending on the 31st December of the year immediately preceding the date of the application;
|
| (d) |
where applicable, audited accounts of the collective management organisation for the five years preceding the date of the application;
|
| (e) |
the names, addresses and copies of valid documents of identity of the members of the collective management organisation;
|
| (f) |
any other document or information that the Board may require;
|
| (g) |
a detailed report of its operations during the year preceding the date of the application;
|
| (h) |
certified copies of the licenses or deeds authorizing the management of the rights; and
|
| (i) |
a business plan showing the collective management organisation's financial infrastructure, personnel and capacity for collection and distribution of royalties.
|
|
| (2) |
The certificate of registration of a collective management organisation shall be in Form CMO 02 as set out in the Schedule.
|
|
| 4. |
Action where there is no collective management organisatin for a category of rights
| (1) |
Where a collective management organisation has not been established in respect of any category of rights, or the license for a collective management organisation in a category has been revoked, the Board shall, by notice in a newspaper with the largest circulation, invite fresh applications for the registration of a collective management organisation with respect to that category.
|
| (2) |
Where more than one organisation applies for the same class of rights, the Board shall evaluate each application separately and register the organisation that best represents the interests of the right holders with respect to that category of rights.
|
|
| 5. |
Requirements for application for renewal of registration
At least three months before the lapse of its registration, a collective management organisation shall apply to the Board to renew its registration in Form CMO 03 as set out in the Schedule and the application shall be accompanied by —
| (a) |
a certified copy of the organisation's certificate of incorporation;
|
| (b) |
a certified copy of the organisation's Memorandum and Articles of Association;
|
| (c) |
a statement of changes made to the Memorandum and Articles of Association during the year preceding the application;
|
| (d) |
certified copies of the organisation's audited accounts for the year preceding application;
|
| (e) |
the organisational structure of the organisation and names and qualifications of its senior management;
|
| (f) |
a statement of changes in senior management and reasons thereof;
|
| (g) |
a statement of the monies collected and distributed as royalties in the year preceding the application;
|
| (h) |
a list of members of the organisation and copies of their documents of identity;
|
| (i) |
a detailed report of its operations during the year preceding the application; and
|
| (j) |
a representative sample of documents of authorisation by members of the organisation.
|
| (2) |
Where there is a single applicant for a collective management organisation license and the application does not fulfil any of the requirements for registration under the Act, the Board may waive the requirement if it determines that the failure to fulfil the requirement shall not adversely impact the effectiveness of the organisation:
Provided that the collective management organisation shall be required to comply with all the requirements for registration during the period of its registration by the Board.
|
| (3) |
The Board, in determining whether or not a collective management organisation has the capacity to collect and distribute royalties, shall consider the following factors—
| (a) |
whether or not there is demonstrated integrity, transparency and accountability in the collection and distribution of royalties by the organisation;
|
| (b) |
whether or not the organisation adheres to the national values and principles of governance prescribed by Article 10 of the Constitution;
|
| (c) |
the particulars of the directors and their antecedents;
|
| (d) |
whether or not the organisation's membership is representative of the holders of the category of rights that it claims to represent;
|
| (e) |
whether or not the administrative costs exceed thirty percent of the royalties collected by the organisation;
|
| (f) |
whether or not royalties are regularly and properly distributed using approved distribution rules;
|
| (g) |
the particulars of the senior management and their academic and professional qualifications;
|
| (h) |
the strategies and systems of the organisation for ensuring that royalties are collected and distributed efficiently;
|
| (i) |
the audited accounts of the organisation;
|
| (j) |
whether or not the organisation has submitted quarterly reports before the tenth day of next quarter; and
|
| (k) |
any further information or clarification that may be useful in determining the application for renewal.
|
|
| (4) |
Where the information required under paragraph (3) is not available, the Board shall appoint an auditor to conduct a systems', forensic or financial audit of the organisation as may be necessary.
|
| (5) |
The certificate of renewal of registration shall be in Form CMO 04 as set out in the Schedule.
|
|
| 6. |
Collective management organisations to report
| (1) |
Each collective management organisation shall submit at least once in every three months a report on any matter regarding its members' interests during the period the organisation is registered including accounts, and minutes of ordinary, special or general meetings of the organisation.
|
| (2) |
The collective management organisation shall submit to the Board the notices of its Board meetings at least seven days before the meeting and the Board may send a representative to attend the meetings of the organisation.
|
| (3) |
A person who attends a meeting of a collective management organisation as a representative of the Board under paragraph (2) shall not be eligible or entitled to be paid an allowance by the organisation for attending the meeting.
|
|
| 7. |
Qualification of an inspector
For the purposes of section 46D (i) of the Act, the Board shall appoint a person experienced and qualified as an accountant to undertake the inspection as may be required under the Act.
| (2) |
An inspector appointed under paragraph (1) shall not be an employee of the Board or the collective management organisation being inspected.
|
| (3) |
The costs and fees of an inspection shall be met by the Board on delivery of the inspection report.
|
|
| 8. |
Validity of appointment of an inspector
| (1) |
For the purposes of section 46E (1) (e), an inspector appointed by the Board may conduct the inspection of the collective management organisation for a period not exceeding three months.
|
| (2) |
For the purposes of section 46E (f), the Executive Director shall appoint a statutory manager by letter and such appointment shall be published in the Gazette and two newspapers with the largest circulation.
|
|
| 9. |
Format of reporting financial statements
For the purposes of section 46F (a) and in addition to the annual financial statement of the collective management organisation, the organisation shall submit a detailed summary of total revenue collected from each source of income, royalties paid, any income retained for administrative costs, taxes retained or paid on the income, and incomes not distributed.
|
| 10. |
Board's participation in meetings
| (1) |
Each collective management organisation shall submit to the Board a copy of the notice of each annual general meeting or extraordinary general meeting.
|
| (2) |
A member of a collective management organisation who intends to insert an item in the agenda of a meeting of the organisation shall submit his or her notice of intention to amend the agenda to the Company Secretary and the Board.
|
|
| 11. |
Public participation in the registration of collective management organisations
| (1) |
The Board shall ensure effective public participation in the registration of collective management organisations by according an equal and fair chance to any interested party to apply and be considered for registration or licensing as a collective management organisation under the Act.
|
| (2) |
The following procedure shall be applicable in the registration or licensing of collective management organisations —
| (a) |
the Board shall, at least sixty days before the expiry of a license or validity of registration, by notice in the Gazette, invite any interested person to apply for grant of collective management organisation license under the Act;
|
| (b) |
an application for a collective management organisation license shall be submitted to the Board in the prescribed format not later than fourteen days after the notice under subparagraph (a);
|
| (c) |
the Board shall, within fourteen days after the expiry of the period specified under paragraph (b), publish in the Gazette the list applicants and invite written representations from any interested person on the suitability of applicant to be licensed or registered;
|
| (d) |
the Board shall, within seven days after the expiry of the period specified in subparagraph (c), convene at least one public hearing to receive oral views from the general public on the suitability of each applicant to be licensed or registered; and
|
| (e) |
the Board shall, within seven days after the holding of the public hearing specified in paragraph (d)—
| (i) |
notify in writing each applicant of the Board's decision setting out its reasons thereof; and |
| (ii) |
publish in the Gazette a summary of its decisions regarding the applications for licensing or registration. |
|
|
| (3) |
Any notice required to be published under this regulation shall be published in one newspaper of national circulation.
|
|
| 12. |
General obligations of collective management organisations
Each collective management organisation shall—
| (a) |
act in the best interests of its members;
|
| (b) |
not impose on its members any obligations which are not objectively necessary for the protection of the members' rights and interests or for the effective management of the members' rights; and
|
| (c) |
shall act for the collective benefit of its members as its sole or main purpose and which fulfils one or both of the following criteria—
| (i) |
be owned or controlled by its members; and |
| (ii) |
be organised on a not-for-profit basis. |
|
|
| 13. |
Particular obligations of collective management organisations in relation to right holders
A collective management organisation shall ensure that—
| (a) |
its members have the right to authorise to the collective management of —
| (ii) |
categories of rights; and |
|
| (b) |
it manages the matters specified in paragraph (a):
|
Provided that the management of the matters specified in paragraph (a) falls within the scope of the organisation's activities or unless the organisation has objectively justified reasons to refuse management;
| (c) |
its members have the right to grant licenses for non-commercial uses of any of the matters specified in paragraph (a) ;
|
| (d) |
its members have the right—
| (i) |
to terminate the authorization to manage the matters specified in paragraph (a); or |
| (ii) |
to withdraw the authorisation from a collective management organisation the matters specified in paragraph (a) upon serving the organisations with a fourteen days' notice; |
|
| (e) |
if there are amounts due to a member for acts of exploitation which occurred under a license granted before the time termination or withdrawal under paragraph (d) took effect, the member shall retain the rights under regulations 12, 13, 19, 20 or 29;
|
| (f) |
it does not restrict the exercise of rights referred to in paragraphs (d) and (e) by requiring, as a condition for the exercise of those rights, that the management of the matters referred to in paragraph (a) which are subject to the termination or the withdrawal are entrusted to another collective management organisation;
|
| (g) |
where a member authorises a collective management organisation to manage that member's rights —
| (i) |
the member gives consent specifically for each of the matters referred to in paragraph (a), which the member authorises the collective management organisation to manage; and |
| (ii) |
that consent shall be in writing or in any other documentary form; |
|
| (h) |
it informs a member of member's rights under paragraphs (a) to (g) and any conditions attached to the right in paragraph (c) before obtaining the member's consent to the collective management organisation managing the matters set out in paragraph (a);
|
| (i) |
the rights under paragraphs (a) to (i) are set out in the memorandum and articles of association of the collective management organisation; and
|
| (j) |
in the organisation's memorandum and articles of association, there is an express provision that the organisation's primary objective is the collection and distribution royalties on behalf of its members.
|
|
| 14. |
Membership rules of collective management organisations
| (1) |
A collective management organisation shall —
| (a) |
accept as members, where they fulfil the membership requirements specified in the articles and memorandum of association —
| (ii) |
entities representing rights holders including other collective management organisations or associations of right holders; and |
|
| (b) |
in a case where the organisation refuses to accept an application for membership, provide in writing to the rights holder the reasons for its refusal.
|
|
| (2) |
A collective management organisation shall ensure that its membership requirements —
| (a) |
are based on objective, transparent and non-discriminatory criteria;
|
| (b) |
are included in its memorandum and articles of association; and
|
| (c) |
are made publicly available.
|
|
| (3) |
A collective management organisation may impose a subscription fee on its members:
Provided that the subscription fee shall be agreed upon at a general meeting of the members and approved by the Board.
|
|
| 15. |
Members of collective management organisations
A collective management organisation shall—
| (a) |
ensure that its memorandum and articles of association provides for appropriate and effective mechanisms for the participation of its members in decision-making;
|
| (b) |
ensure that the representation of the different categories of members in decision-making process is fair and balanced;
|
| (c) |
allow its members, and rights holders who are not members but who have a direct legal relationship with it by law, license or other contractual arrangement, to communicate with it by electronic means for the purposes of exercising members' rights; and
|
| (d) |
keep and maintain records of its members and regularly update those records.
|
|
| 16. |
General meeting of collective management organisations
A collective management organisation shall ensure that—
| (a) |
a general meeting of its members is convened at least once a year;
|
| (b) |
the general meeting shall decide on any amendments to the memorandum and articles of association of the organisation, and the membership terms of the collective management organisation;
|
| (c) |
the general meeting shall decide the appointment and dismissal of the organisation's officials, review the officials' performance and approve their remuneration and other benefits;
|
| (d) |
in accordance with regulations 11, 12 and 13, the general meeting shall decide —
| (i) |
the policy on the distribution of amounts due to members and right holders; |
| (ii) |
the policy on the use of non-distributable amounts; |
| (iii) |
the investment policy on rights revenue and any income arising from the investment of rights revenue; |
| (iv) |
the policy on deductions from rights revenue and any income arising from the investment of rights revenue; |
| (v) |
the risk management policy; |
| (vi) |
the approval of any acquisition of, sale of or charge on immovable property; |
| (vii) |
the approval of mergers and alliances with other organisations; and |
| (viii) |
retained amounts and the purpose of the retention of the amounts; |
|
| (e) |
the general meeting shall control the activities of the collective management organisation by appointing an independent external auditor to regularly audit its accounts;
|
| (f) |
all members participate in, and vote at, the general meeting;
|
| (g) |
every member has a right to a proxy to participate in, and vote at, the general meeting on the member's behalf:
Provided that the appointment shall be in writing and shall not result in a conflict of interest; and
|
| (h) |
subject to subparagraph (g)—
| (i) |
a proxy shall be valid for the general meeting at which it is used; |
| (ii) |
the proxy shall enjoy the same rights in the general meeting as those to which the appointing member would be entitled; and |
| (iii) |
the proxy shall cast his or her vote in accordance with the instructions issued by the appointing member. |
|
|
| 17. |
Supervisory function
| (1) |
A collective management organisation shall monitor the activities of, and performance of duties by, persons managing the business of the organisation.
|
| (2) |
The purpose of supervision shall be to ensure that —
| (a) |
there is a fair and balanced representation of the different categories of members in the body exercising the supervisory function; and
|
| (b) |
the body exercising the supervisory function reports on the exercise of its powers to the general meeting at least once in each year.
|
|
|
| 18. |
Management, etc.
| (1) |
A collective management organisation shall ensure that any person who manages its business does so in a prudent manner, using prudent administrative procedures, accounting procedures and internal control mechanisms.
|
| (2) |
A collective management organisation shall establish procedures —
| (a) |
for avoiding conflicts of interest; and
|
| (b) |
where conflicts of interest cannot be avoided, to identify, manage, monitor and disclose actual or potential conflicts of interest in such a way as to prevent them from adversely affecting the collecting interests of rights holders represented by the organisation.
|
|
| (3) |
The procedures referred to in paragraph (2) shall include an annual statement by the person referred to in paragraph (1) to the general meeting, stating —
| (a) |
any interests in the collective management organisation;
|
| (b) |
any remuneration received in the preceding financial year from the collective management organisation including benefits in kind and other types of benefits;
|
| (c) |
any amount received in the preceding financial year as a rights holder from the collective management organisation; and
|
| (d) |
a declaration concerning any actual or potential conflict between—
| (i) |
any personal interests and those of the collective management organisation; and |
| (ii) |
any obligations owed to the collective management organisation and any duty owed to any other person. |
|
|
| (4) |
A collective management organisation shall ensure that its training procedures for employees, agents and representatives include appropriate training on conduct that complies with its obligations under these Regulations.
|
|
| 19. |
Lifestyle audits
| (1) |
There shall be conducted, at least once in each year, a lifestyle audit of each member of staff of a collective management organisation.
|
| (2) |
The lifestyle audit shall be conducted by an auditor appointed at the general meeting.
|
| (3) |
The board of a collective management organisation shall ensure that members of its staff are not related to any member of the board.
|
|
| 20. |
Collection and use of rights revenue
| (1) |
A collective management organisation shall ensure —
| (a) |
that it is diligent in the collection and management of rights revenue;
|
| (b) |
that it keeps separate in its accounts —
| (i) |
rights revenue and any income arising from the investment of rights revenue; |
| (ii) |
any own assets it may have and income arising from such assets, from management fees, subscription fees or from other activities; and |
| (iii) |
administration and distribution amounts; |
|
| (c) |
that it does not use rights revenue or any income arising from the investment of rights revenue for purposes other than distribution to rights holders, except where it is allowed —
| (i) |
to deduct or offset management fees in accordance with the Act or these regulations; or |
| (ii) |
to use rights revenue or income arising from the investment of rights revenue in accordance with the Act or these regulations; and |
|
| (d) |
that where it invests rights revenue, or income arising from the investment of rights revenue, it does so —
| (i) |
in the best interests of the rights holders whose rights it represents; and |
| (ii) |
in accordance with the general investment and risk management policy of the organisation. |
|
|
| (2) |
The board of a collective management organisation shall seek the approval of distribution rules from the general meeting of its members.
|
| (3) |
Any income sought to be retained by the collective management organisation shall be with the approval of the members in a general meeting and be expended for the purpose members have resolved.
|
|
| 21. |
Deductions
| (1) |
A collective management organisation shall ensure that where a rights holder authorises it to manage the rights holder's rights, the organisation shall provide the right holder with information on—
| (b) |
any other deductions from the rights revenue and any income arising from the investment of the rights revenue before obtaining the right holder's consent to manage the right holder's rights.
|
|
| (2) |
A collective management organisation shall ensure that deductions —
| (a) |
are reasonable in relation to the services provided by the collective management organisation to right holders; and
|
|
| (3) |
A collective management organisation shall ensure that management fees do not exceed justified and documented costs incurred by the organisation.
|
| (4) |
A collective management organisation shall ensure that where it provides social, cultural or educational services out of deductions from rights revenue or income arising from the investment of rights revenue, such services shall be provided fairly.
|
|
| 22. |
Distributions of amounts to rights holders
| (1) |
A collective management organisation shall regularly, diligently and accurately distribute and pay amounts due to rights holders in accordance with the organisation's general policy on distribution.
|
| (2) |
A collective management organisation shall distribute and pay the amounts due to right holders promptly, but in any event not later than the beginning of the period which starts nine months from the end of the financial year in which the rights revenue was collected.
|
| (3) |
Notwithstanding paragraph (2), a collective management organisation may distribute or pay the amounts due to rights holders out of time if there are objective reasons for not distributing or paying the amounts including reasons relating to —
| (b) |
identification of rights or right holders; or
|
| (c) |
matching of information on works and other matters with rights holders.
|
|
| (4) |
A collective management organisation shall ensure that amounts due to right holders are kept separate in the accounts of the organisation where —
| (a) |
those amounts cannot be distributed within the specified time; and
|
| (b) |
paragraph (3) does not apply.
|
|
| (5) |
A collective management organisation shall take all necessary measures to identify and locate rights holders for the purposes of distribution and payments of amounts due to the rights holders including —
| (a) |
making available, not later than three months after the beginning of the period specified in paragraph (2), information on works and other matters for which a right holder has not been identified or located to —
| (i) |
the rights holders represented by the collective management organisation or entities which are its members and which represent rights holders; and |
| (ii) |
the collective management organisations with which it has concluded representation agreements; |
|
| (b) |
verifying the relevant records relating to a rights holder for the purposes of distribution or payment of due amounts; and
|
| (c) |
where rights holders remain unidentified or not located, making the information referred to in subparagraph (b) available to the public not later than one year after the period referred to in subparagraph (a).
|
|
| (6) |
The information referred to in paragraph (5) shall include, where available —
| (a) |
the title of the work or other matter;
|
| (b) |
the name of the rights holder;
|
| (c) |
the name of the publisher or producer of the work or other matter; and
|
| (d) |
any other relevant information which could assist in the identification of the rights holder.
|
|
| (7) |
Amounts due to right holders shall be non-distributable for the purposes of these regulations where —
| (a) |
they cannot be distributed before the end of the period of three years from the end of the financial year in which the collection of the rights revenue occurred; and
|
| (b) |
the collective management organisation has taken all necessary measures to identify and locate the right holders.
|
|
| (8) |
A collective management organisation shall provide its members with statements of the royalties paid within a given period.
|
|
| 23. |
Rights managed under representation agreements
| (1) |
A collective management organisation shall not discriminate against any rights holder whose rights it manages under a representation agreement.
|
| (2) |
Despite the generality of paragraph (1), a collective management organisation shall not discriminate against a rights holder whose rights it manages under a representation agreement with respect to—
| (c) |
| (i) |
the collection of rights revenues; and |
| (ii) |
the distribution of amounts due to right holders. |
|
|
|
| 24. |
Deductions and payments in representation agreements
| (1) |
A collective management organisation shall not make deductions, other deductions of management fees —
| (a) |
from the rights revenue derived from the rights it manages on the basis of a representation agreement; or
|
| (b) |
from income arising from the investment of rights revenue, unless the other collective management organisation that is party to the representation agreement expressly consents to the deductions.
|
|
| (2) |
A collective management organisation shall regularly, diligently and accurately distribute and pay amounts due to other collective management organisations.
|
| (3) |
A collective management organisation shall distribute or pay put amounts due under paragraph (2) promptly but in any event no later than the beginning of the period which starts nine months from the end of the financial year in which the rights revenue was collected.
|
| (4) |
Despite the generality of paragraph (3), a collective management organisation may not distribute or pay out amounts due under paragraph (2) if there are objective reasons for not distributing or paying including reasons relating to —
| (b) |
identification of rights or right holders; or
|
| (c) |
matching of information on works and other subject matter with right holders.
|
|
| (5) |
The other collective management organisation referred to in paragraph (1) or, where it has a member which is an entity representing rights holders, that member shall ensure that it distributes and pays the amounts due to rights holders promptly but in any event not later than the beginning of the period which starts six months from the receipt of amounts, save where paragraph (4) applies with the necessary modifications.
|
|
| 25. |
Licensing
| (1) |
A collective management organisation —
| (a) |
and a user shall negotiate the licensing of rights in good faith; and
|
| (b) |
and a user shall negotiate in good faith the tariffs for exclusive rights and rights to remuneration in relation to —
| (i) |
the economic value of the use of the rights in trade taking into account the nature and scope of the use of the work and any other relevant matter; |
| (ii) |
the economic value of the service provided by the collective management organisation; and |
| (iii) |
the value added by any service providers and individuals; and |
|
| (c) |
notify the user in writing of the criteria used for the setting of the tariffs specified in subparagraph (b).
|
|
| (2) |
A collective management organisation shall —
| (a) |
respond promptly to requests from users indicating, among other things, the information needed in order for the collective management organisation to offer a license;
|
| (b) |
upon receipt of all relevant information, promptly either —
| (ii) |
deny the user a license and notify the user in writing of the reason for the refusal; |
|
| (c) |
allow users to communicate with it by electronic means, including the purpose of reporting on the use of the license; and
|
| (d) |
after giving a user a license, treat that user in good faith.
|
|
| (3) |
Where more than one collective management organisation operates in one sector, the collective management organisations shall enter into a recognition agreement for joint negotiations of licensing and the joint collection of royalties.
|
|
| 26. |
Public participation in the development of copyright tariffs
Three months before tariffs approved under section 46A of the Act are due to expire, the Board shall—
| (a) |
notify the relevant collective management organisations to propose new tariffs for the next licensing period;
|
| (b) |
require the collective management organisations to compile a comprehensive list of users of their works by business association;
|
| (c) |
require the collective management organisations, within fourteen days after the expiry of the period specified in paragraph (a), to notify and share the proposals with users;
|
| (d) |
require the collective management organisations, within fourteen days after sharing the proposals with users, to hold a users' forum to discuss and negotiate the proposed tariffs for the purposes of approving the publication of the new tariffs in the Gazette;
|
| (e) |
require the collective management organisations, within seven days from the date of the meeting under paragraph (d), submit the discussed tariffs to the Board together with a copy of the resolution by the users agreeing to the new tariffs;
|
| (f) |
within seven days after receiving the approved tariffs under paragraph (e), invite, by notice in a newspaper with a nationwide circulation, the public, collective management organisations and any other interested party to a public forum to discuss the draft proposal and collect views on the proposal;
|
| (g) |
hold the public forum contemplated in paragraph (f) within fourteen days of the date of the notice specified in paragraph (f);
|
| (h) |
convene a group comprising of a member of the Board and a representative of the collective management organisations shall incorporate the views and comments from the public forum into the draft tariff proposal and submit it to the Board;
|
| (i) |
convene a validation workshop of the public, collective management organisations and any other interested party within seven days of the forum convened under paragraph (g) to approve the revised tariffs; and
|
| (j) |
submit the revised tariffs to the Cabinet Secretary within seven days of being approved under paragraph (i).
|
|
| 27. |
Users' obligations
| (1) |
A user and a collective management organisation shall enter into a written agreement on the information that the user shall provide to the collective management organisation where such information is necessary for —
| (a) |
the collection of rights revenues; and
|
| (b) |
the distribution and payment of amounts due to rights holders.
|
|
| (2) |
The collective management organisation and user shall ensure that they take into account, as far as possible, voluntary industry standards on the format for the information referred to in paragraph (1).
|
|
| 28. |
Information provided to other collective management
| (1) |
A collective management organisation shall make available by electronic means the information specified in paragraph (2) at least once in each year to the other collective management organisations on whose behalf it manages rights under a representation agreement for the period to which the information relates.
|
| (2) |
The information required to be made available under paragraph (1 shall include —
| (a) |
the rights revenue attributed for the rights managed under a representation agreement;
|
| (b) |
the amounts paid by the collective management organisation —
| (i) |
for each category of rights managed under the representation agreement; and |
| (ii) |
for each type of use for the rights managed under the representation agreement; |
|
| (c) |
rights revenue attributed which is outstanding for any period;
|
| (d) |
deductions made in respect of management fees;
|
| (e) |
deductions made for a purpose other than in respect of management fees;
|
| (f) |
any licenses granted or denied with regards to works and other matters covered by the representation agreement; and
|
| (g) |
resolutions adopted by the general meeting insofar as the resolutions are relevant to the management of the rights under the representation agreement.
|
|
|
| 29. |
Information provided to right holders, other collective management organisations and users
| (1) |
Subject to regulation 28, a collective management organisation shall make the information specified paragraphs (2) or (4), where applicable, available by electronic means and without undue delay, in response to a duly justified request, to —
| (a) |
a collective management organisation on whose behalf it manages rights under a representation agreement;
|
|
| (2) |
The information under paragraph (1) shall include —
| (a) |
the works or other subject matter the collective management organisation represents;
|
| (b) |
the rights the collective management organisation manages directly or the collective management organisation manages under representation agreements; and
|
|
| (3) |
Paragraph (4) shall apply where, due to the scope of the activity of the collective management organisation, the work or other subject matter which it represents cannot be determined.
|
| (4) |
The information specified in this paragraph is —
| (a) |
the types of works of other subject matter the collective management organisation represents;
|
| (b) |
the rights the collective management organisation manages; and
|
|
|
| 30. |
Disclosure ofbinformation to the public
| (1) |
A collective management organisation shall —
| (a) |
publish the information specified in paragraph (2); and
|
| (b) |
publish and keep up to date on its public website the information specified in paragraph (2).
|
|
| (2) |
The information specified in this paragraph is —
| (a) |
the collective management organisation's memorandum and articles of association;
|
| (b) |
the list of officials of the collective management organisation;
|
| (c) |
the collective management organisation's policy on the distribution of amounts due to right holders;
|
| (d) |
the collective management organisation's policy on management fees;
|
| (e) |
the collective management organisation's policy on deductions, other than in respect of management fees, from —
| (ii) |
income arising from the investment of rights revenue including deductions for the purposes of social, cultural and educational services; and |
| (iii) |
the complaint handling and dispute resolution procedures available or the collective management organisation; and |
|
| (f) |
the collective management organisation's annual reports and audited accounts.
|
|
|
| 31. |
Form and contents of annual report
| (1) |
This regulation shall apply to the filing of annual reports and audited accounts under section 47 of the Act.
|
| (2) |
Every registered collective management organisation shall, within three months after the end of the financial year, submit to the Board, in Form CMO 05 as set out in the Schedule, an annual report for that year accompanied by a copy of the organisation's audited accounts in respect of that year.
|
| (3) |
The annual report referred to in paragraph (2) shall contain —
| (a) |
a comprehensive report of the organisation's activities during the year;
|
| (b) |
a list of the organisation's members at the end of the financial year;
|
| (c) |
the total amount of royalties collected by the organisation;
|
| (d) |
the amount of royalties paid to each member by the organisation;
|
| (e) |
the amount of money spent by the organisation on administration and operations;
|
| (f) |
the name, postal and physical address of the auditors of the organisation;
|
| (g) |
the amount of money used for the social fund;
|
| (h) |
non-distributed royalties and reasons for the non-distribution;
|
| (i) |
the names, addresses and occupations of current officials of the organisation; and
|
| (j) |
any other relevant information as the Board may require.
|
|
|
| 32. |
Procedure of alternative dispute resolution
| (1) |
A collective management organisation shall make available to —
| (b) |
rights holders who are not its members but who have a legal relationship with it by law, assignment, license or other contractual arrangement;
|
| (c) |
collective management organisations on whose behalf it manages rights under representation agreement; and
|
effective and timely procedures for dealing with complaints.
|
| (2) |
The matters covered by the procedures for dealing with complaints referred to in paragraph (1) shall relate in particular to —
| (a) |
the authorisation to manage rights;
|
| (b) |
the termination or withdrawal of rights;
|
| (d) |
the collection of amounts due to right holders;
|
| (e) |
deductions and distributions;
|
| (f) |
the service provided; and
|
| (g) |
the conduct of members of staff during licensing.
|
|
| (3) |
A collective management organisation shall —
| (a) |
respond in writing to complaints; and
|
| (b) |
give reasons where it rejects a complaint.
|
|
|
| 33. |
Alternative dispute resolution
| (1) |
A collective management organisation shall ensure that the disputes to which paragraph (2) applies can be submitted to an independent and impartial alternative dispute resolution procedure:
Provided that the parties shall consent to the alternative dispute resolution procedure.
|
| (2) |
This paragraph shall apply to disputes between a collective management organisation and one of its members, a right holder, a user or another collective management organisation concerning compliance with these Regulations.
|
|
| 34. |
Notice for supply of information
| (1) |
The Board may give notice to —
| (a) |
a collective management organisation;
|
| (c) |
a right holder or a body representing the interests of right holders;
|
| (d) |
a user or body representing the interests of users,
|
requiring the person to whom the notice is given to supply the information or document required in the notice at a time and a place and in a form and manner specified in the notice.
|
| (2) |
The person to whom the notice is given shall supply to the Board the information or document which is specified or described in the notice.
|
| (3) |
Nothing in this regulation gives the Board any power to require a person to supply any information or document which the person would be entitled to refuse to supply on the grounds of advocate-client privilege, on the grounds of confidentiality of communications, confidential business information or any information the disclosure of which is protected or otherwise restricted by any other law.
|
| (4) |
Nothing in this regulation shall be construed as requiring a person to provide information if to do so might incriminate that person.
|
|
| 35. |
Notice of non-compliance
| (1) |
Where the Board finds that a collective management organisation has failed to comply with its obligations under these Regulations, the Board may give a compliance notice to that person, body or organisation.
|
| (2) |
A compliance notice shall be in writing and shall —
| (a) |
state the collective management organisation has not complied with a provision of these Regulations;
|
| (b) |
specify the provision in question and state the acts or omissions which contravene that provision;
|
| (c) |
request the collective management organisation, where non-compliance with the provision is continuing —
| (i) |
to end the non-compliance within such time as the notice may specify; and |
| (ii) |
provide evidence that the non-compliance has ended; |
|
| (d) |
if the Board thinks fit, request the collective management organisation to provide a written undertaking that non-compliance with the provision shall not be repeated; and
|
| (e) |
caution the collective management organisation that if —
| (i) |
the organisation does not comply with the compliance notice, or |
| (ii) |
the organisation fails to comply with a written undertaking provided in respect of the compliance notice, |
|
further action may be taken in accordance with the Act or these Regulations.
|
| (3) |
The Board may withdraw a compliance notice and in doing so shall give the collective management organisation notice of the withdrawal.
|
| (4) |
Where a compliance notice has been given, no action to impose a penalty under these Regulations may be taken in relation to that failure unless the collective management organisation to whom it has been given has failed —
| (a) |
to comply with the compliance notice; or
|
| (b) |
to comply with a written undertaking provided in respect of a compliance notice.
|
|
|
| 36. |
Penalty for non-compliance
| (1) |
The Board may impose a financial penalty on a collective management organisation if the Board is satisfied upon hearing the collective management organisation that the collective management organisation has failed to comply with its obligations under these Regulations.
|
| (2) |
Where the Board imposes a financial penalty on a collective management organisation under paragraph (1), the Board may also impose a financial penalty on a director, manager or similar officer of that collective management organisation.
|
| (3) |
The amount of the financial penalty shall be such amount as the Board considers appropriate.
|
| (4) |
In deciding what amount is appropriate the Board shall have regard to the nature of the failure of compliance.
|
| (5) |
A financial penalty may comprise of either —
| (a) |
a sum not exceeding one hundred thousand shillings; or
|
| (b) |
a sum not exceeding one hundred thousand shillings together with a sum not exceeding ten thousand shillings for each day that the person referred to in paragraph (2) continues to fail to comply with its obligations under these Regulations:
|
Provided that the aggregate sum payable by the director, manager or similar officer shall not exceed one hundred thousand shillings
|
| (6) |
A financial penalty shall be payable to the Board.
|
|
| 37. |
Demand for financial penalty
| (1) |
As soon as practicable after imposing a financial penalty,
the Board shall give notice of the financial penalty to the collective management organisation on whom it is imposed.
|
| (2) |
| (a) |
that the Board has imposed a financial penalty;
|
| (b) |
the amount of the financial penalty;
|
| (c) |
the acts or omissions which the Board considers contravene these Regulations;
|
| (d) |
the provisions of these Regulation which the Board considers are contravened
|
| (e) |
any other facts which the Board considers justify the imposition of a financial penalty; and
|
| (f) |
the period, which shall be not less than 28 days from the date the notice is received by the person, within which the financial penalty is to be paid.
|
|
| (3) |
The Board may rescind a penalty which has been imposed on a collective management organisation and give the collective management organisation written notice of the rescission.
|
|
| 38. |
Appeals
If a collective management organisation on whom a financial penalty has been imposed is aggrieved by the imposition or the amount of the financial penalty, the organisation may appeal to the Copyright Tribunal.
|
| 39. |
Recovery of unpaid penalties
Where a financial penalty, or any portion of it, has not been paid by the time which it required to be paid, the Board may recover from the collective management organisation on whom the penalty is imposed any of the penalty which has not been paid as a debt due to the Board.
|
| 40. |
Penalty not to be paid during pendency of appeal
Where an appeal or a court action is made against the decision of the Board to impose a financial penalty, the party filing the appeal is not under an obligation to pay the penalty pending the hearing and determination of the appeal and such non-payment shall not be deemed to be a continued violation of the penalty notice or the obligation giving rise to the penalty.
|
JOINT COLLECTION TARIFFS
Revoked by Legal Notice 84 of 2023 on 29th June, 2023
IN EXERCISE of the powers conferred by section 46A(a) of the Copyright Act (Cap. 130), the Cabinet Secretary for ICT, Innovation and Youth Affairs approves the joint collection tariffs set out in the Schedule hereto and revokes the Joint Collection Tariffs issued under Legal Notice No. 107 of 2019.
SCHEDULE
|
Tariff No.
|
Category
|
Parameters
|
Classification
|
Consolidated
Sound Recording and Audio-Visual Tariff
|
|
KPM-01
|
Aircraft
|
Seatingcapacity
|
Charge per passenger seat per annum subjectminimum annual fee of Sh. 20,000 per annum
|
Sh.750
|
|
KPM-02
|
Amusementparks, arcades and fairgrounds
|
Flat rate per class
|
Nairobi, Mombasa, Kisumu
|
Sh. 37,500
|
|
County headquarters
|
Sh. 25,000
|
|
All other areas
|
Sh. 12,500
|
|
KPM-03
|
Professional training programmes, dance schools, disc jockeyacademies and musicschools
|
Flat rate
|
Annual
|
Sh. 7,500
|
|
KPM-04
|
Cinemas
|
Flat rate per cinematheatre
|
Annual
|
Sh. 50,000
|
|
KPM-05
|
Private members' clubs
|
Flat rate
|
Nairobi, Mombasa, Kisumu
|
Sh. 60,000
|
|
County headquarters
|
Sh. 30,000
|
|
KPM-06
|
Discotheques and dance halls
|
Flat rate
|
Nairobi, Mombasa, Kisumu
|
Sh. 75,000
|
|
|
|
|
County headquarters
|
Sh. 45,000
|
|
All other areas
|
Sh. 30,000
|
|
KPM-07
|
Exhibition of video shows
|
Flat rate
|
Per hall
|
Sh. 5,000
|
|
KPM-08
|
Hotels, motels, lodgings, serviced apartments and similaraccommodation establishments including game lodges, restaurants, bars and similar establishments
|
Percentage of Single Business Permit and Liquor Licence subject to a minimum of Sh. 8,000
|
Per unit
|
35% of the sum of the cost of Single Business Permit and Liquor Licence or 65% ofthe cost of a Single Business Permit where there is no Liquor Licence
|
|
KPM-09
|
Private hospitals and other similar hospitals and medical facilities
|
Flat rate per unit
|
Level 1 and 2 hospitals
|
Sh. 35,000
|
|
Level 3 and 4 hospitals
|
Sh. 60,000
|
|
Level 5 hospitals
|
Sh. 100,000
|
|
Clinics
|
Sh. 12,500
|
|
KPM-10
|
Mobile disc jockeys
|
Flat rate or per event
|
Per disc jockey (Annual)
|
Sh. 10,000
|
|
Per disc jockey (Per event)
|
Sh.750
|
|
KPM-11
|
Motor vehicles - commercial vehicles, public service vehicles, tourist servicevehicles, taxi cabs and car hire for public use
|
Flat rate per cluster of seating capacity and perpassenger seat
|
1 to 5 seaters includingtaxi cabs
|
Sh. 2,500
|
|
6 to 14 seaters
|
Sh. 4,000
|
|
15 to 33 seaters
|
Sh. 6,250
|
|
34 seaters and largercapacity vehicles
|
Sh. 10,000
|
|
Motorcycles and tuk tuk taxi cabs
|
Sh.300
|
|
KPM-12
|
Concerts and live events
|
Flat rate per concert
|
Nairobi, Mombasa, Kisumu
|
Sh. 75,000
|
|
County headquarters
|
Sh. 35,000
|
|
All other areas
|
Sh. 20,000
|
|
KPM-13
|
Roadshows
|
Per event
|
Using trucks
|
Sh.31,250
|
|
Per event
|
Using other vehicles
|
Sh. 6,250
|
|
Annual
|
Corporate
|
Sh. 562,500
|
|
Annual
|
Others
|
Sh. 125,000
|
|
KPM -14
|
Other promotional activities
|
Entity per day
|
Corporate
|
Sh. 25,000
|
|
Others
|
Sh. 12,500
|
|
KPM-15
|
Halls, gyms, showrooms, banking halls, waiting rooms, offices, staff canteens, workshops and similar establishments
|
Flat rate
|
Nairobi, Mombasa, Kisumu
|
Sh. 25,000
|
|
County headquarters
|
Sh. 15,000
|
|
Other areas
|
Sh. 10,000
|
|
KPM-16
|
Hairdressing salons, barber shops, shopstores and similarestablishments
|
Flat rate
|
Nairobi, Mombasa, Kisumu
|
Sh. 4,000
|
|
County headquarters
|
Sh. 2,500
|
|
Other areas
|
Sh. 1,500
|
|
KPM-17
|
Broadcasting (radio and television)
|
Flat rate
|
Commercial (National-Radio)
|
Sh. 960,000
|
|
Commercial (National- Television)
|
Sh. 600,000
|
|
Commercial (Regional - Radio)
|
Sh. 480,000
|
|
Commercial (Regional - Television)
|
Sh. 160,000
|
|
Non-commercial(National- Radio)
|
Sh. 350,000
|
|
Non-commercial(National -Television)
|
Sh. 100,000
|
|
Non-commercial(Regional- Radio)
|
Sh. 100,000
|
|
Non-commercial
|
Sh. 50,000
|
|
|
|
|
(Regional- television)
|
|
|
Digital broadcasters (Radio)
|
Sh. 120,000
|
|
Digital broadcasters (Television)
|
Sh. 100,000
|
|
Institutional/educational(Radio)
|
Sh. 50,000
|
|
Institutional/educational(Television)
|
Sh. 20,000
|
|
Community (Radio)
|
Sh. 20,000
|
|
Community (Television)
|
Sh. 10,000
|
|
KPM -18ALT
|
Broadcasting (radio and television)
|
Per song per play
|
|
Sh. 10
|
|
KPM-19
|
Supermarkets and large shopping malls and similarestablishments
|
Flat rate and sizeper branch
|
Nairobi, Mombasa, Kisumu
|
Mini
|
Sh. 25,000
|
|
Medium
|
Sh. 60,000
|
|
Hyper
|
Sh. 300,000
|
|
Other areas
|
Mini
|
Sh. 15,000
|
|
Medium
|
Sh. 40,000
|
|
KPM- 20
|
Jukeboxes
|
Flat rate per machine per annum
|
|
Sh. 10,950
|
| 1. |
The licenses shall be payable annually (calendar year) with joint invoices being payable within one month of issue. Invoices shall be issued as they arise or within the first quarter of the calendar year.
|
| 2. |
A license shall be valid for one year from the date of issue.
|
| 3. |
The penalty for non-compliance shall be 5% of the tariff compounded for the period it remains unpaid.
|
| 4. |
For counties that do not have approved licenses, the users shall be charged a fixed license fee of ten thousand shillings.
|
| 5. |
There shall be a levy for supermarkets for sections that display visual without music or for electronics testing.
|
| 6. |
In the case of disc jockeys, the primary liability to pay shall belong to the organisation that causes the public performance of music. The tariff shall only include disc jockeys in unlicensed premises and exclude resident disc jockeys, teaching disc jockeys and disc jockeys at events held at places of worship.
|
| 7. |
For the purposes of broadcasters, national broadcasters shall be those with more than five radio or television frequencies.
|
| 8. |
The audio-visual tariff shall include actors.
|
| 9. |
The license shall not apply to charitable events or fundraisers.
|
| 10. |
Where a person who has been issued with a Single Business Permit is required to obtain more than one music license, that person shall pay for one music license of the higher value.
|
| 11. |
The levies may be paid in instalments upon the request of a user.
|
| 12. |
For public service vehicles and similar licensees, the license shall only be required if there is enhancement for the purposes of enjoyment of music.
|
JOINT COLLECTION TARIFFS
Revoked by Legal Notice 84 of 2023 on 29th June, 2023
THE COPYRIGHT REGULATIONS
ARRANGEMENT OF REGULATIONS
PART I – PRELIMINARY
PART II – REGISTRATION OF COPYRIGHT WORKS
| 5. |
Application for registration of copyright works from outside Kenya
|
| 6. |
Authentication of copyright works
|
| 8. |
Inventory of seized goods
|
| 9. |
Renunciation of copyright
|
| 10. |
Extension of Regulations
|
PART III – MISCELLANEOUS PROVISIONS
| 11. |
Application for copies of documents
|
| 12. |
Copies of lost or destroyed documents
|
| 15. |
Statutory declarations
|
| 16. |
Documents to be in English language
|
| 18. |
Transitional provisions
|
SCHEDULES
| SECOND SCHEDULE [r. 3] — |
FEES
|
THE COPYRIGHT REGULATIONS
PART I – PRELIMINARY
| 1. |
Citation
These Regulations may be cited as the Copyright Regulations.
|
| 2. |
Forms
The forms referred to in these Regulations shall be the forms set out in the First Schedule.
|
| 3. |
Fees
The fees set out in the Second Schedule shall be the prescribed fees for the purposes of these Regulations.
|
PART II – REGISTRATION OF COPYRIGHT WORKS
| 4. |
Copyright Register
| (1) |
The Executive Director shall keep and maintain a databank of authors and their works known as the Copyright Register, in accordance with section 5(f) of the Act, in which the following particulars shall be recorded with respect to any copyright work that the copyright owner elects to register—
| (a) |
the title of the copyright work;
|
| (b) |
the name of individual or organization, identity card number or certificate of incorporation for a company, of the author, owner, assignee or exclusive licensee of the copyright work;
|
| (c) |
a description of the work;
|
| (d) |
the physical, postal and email address of the copyright owner;
|
| (e) |
the date of affixation of the copyright work; and
|
| (f) |
any other information that the Executive Director may consider relevant.
|
|
| (2) |
The Executive Director may maintain the Copyright Register in electronic or physical form.
|
| (3) |
Where the owner of a work wishes to have it registered in accordance with paragraph (1), he or she may apply for its registration in Form C.R. 1 as set out in the First Schedule, accompanied with the prescribed fee, and submit a copy of the work to the Executive Director:
Provided that in the case of books and magazines, proof of deposit at the National Library shall suffice.
|
| (4) |
Where an application is successful, the Executive Director shall issue the applicant with a certificate of registration in Form C.R. 2 as set out in the First Schedule.
|
| (5) |
Where an application has been made in electronic form, the Executive Director may issue the applicant with an electronic certificate:
Provided that the electronic certificate shall have tamperproof security features.
|
| (6) |
The Executive Director shall keep and maintain an index or indexes of the Copyright Register as may be necessary.
|
| (7) |
The Executive Director may, for good cause or on application by an interested party and on such conditions as the Executive Director may deem fit, amend the Copyright Register to correct errors by—
| (a) |
entering relevant information in the Copyright Register that may have been wrongly omitted;
|
| (b) |
removing any entry that may have been wrongly made or remaining in the Copyright Register; or
|
| (c) |
correcting an error or defect in the Copyright Register.
|
|
| (8) |
Every entry made in the Copyright Register or particulars of any work entered therein shall be made accessible to the public in electronic form on the payment of a fee and in a manner as the Board may approve.
|
| (9) |
An application for the change of name or address of a copyright holder shall be made on Form C.R. 3 as set out in the First Schedule
|
| (10) |
Where there is a change of ownership in respect of any copyright work, the new or former owner of the copyright work shall apply for a change of ownership shall be made in Form No. C.R. 6 as set out in the First Schedule and accompanied by a certified copy of the relevant instrument of transfer.
|
|
| 5. |
Application for registration of copyright works from outside Kenya
| (1) |
This regulation shall apply to section 33(3A) of the Act
|
| (2) |
An application for the recordal of an assignment or a license of a copyright work from outside Kenya shall be made in Form C.R. 5 as set out in the First Schedule and accompanied by a certified copy of the deed of assignment or similar instrument.
|
| (3) |
Where an application under paragraph (2) is successful, the Executive Director shall issue the applicant with a certificate of registration of assignment or license in Form C.R. 5 as set out in the First Schedule.
|
| (4) |
Such approved registration shall be entered in the Copyright Register upon payment of a Registration fee as set out in the Second Schedule.
|
|
| 6. |
Authentication of copyright works
| (1) |
This regulation shall apply to section 36 of the Act.
|
| (2) |
A sound recording or 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 device.
|
| (3) |
The authentication device shall be issued by the Board and be tamper-proof and serially numbered.
|
| (4) |
The authentication device shall be affixed by the copyright holder whose copyright work has been entered in the Copyright Register before it is released in the market.
|
| (5) |
An application for the affixing of an authentication device of copyright work under section 36 (1) shall be made in Form C.R. 7 as set out in the First Schedule and accompanied by relevant documentary evidence that the author of the work or copyright holder of the works has authorized the manufacture, production or distribution of the work in Kenya.
|
|
| 7. |
Copyright Inspectors
| (1) |
A Copyright Inspector appointed under section 39 (1) of the Act shall carry and produce on request by any person a Board Identification Card or Certificate of Authority bearing the Board's seal while executing his or her duties.
|
| (2) |
The Board shall publish in the Gazette the name of a copyright inspector appointed under section 39(1) of the Act.
|
| (3) |
The Certificate of Authority referred to in paragraph (1) shall be in Form C.R. 8 as set out in the First Schedule.
|
|
| 8. |
Inventory of seized goods
| (1) |
A notification of seized goods under section 41(1) of the Act shall be in Form C.R. 9 as set out in the First Schedule.
|
| (2) |
A notification of seized goods under section 41(3) shall specify the date, physical address of the place of seizure, number, type, brand and description of the seized items and in the case of large quantities of seized items, single items need not be described and may be listed as a block.
|
| (3) |
A notification of seized goods under section 41(3) shall be filled in triplicate and a copy shall be issued to the person from whom the goods have been seized and signed by the person who prepares it or seized the goods.
|
|
| 9. |
Renunciation of copyright
| (1) |
An author or copyright holder who wishes to renounce a copyright work shall notify the Executive Director in writing of his or her intention to renounce the copyright work.
|
| (2) |
The Board shall publish the notice of renunciation under paragraph (1) in the Gazette.
|
|
| 10. |
Extension of Regulations
In accordance with section 49(2)(b) of the Act, these Regulations shall also apply to—
| (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 another country and which provide for the protection of copyright and related rights;
|
| (b) |
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 the protection of copyright and related rights; and
|
| (c) |
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.
|
|
PART III – MISCELLANEOUS PROVISIONS
| 11. |
Application for copies of documents
A person who wishes to obtain a copy of a document kept by the Board shall apply to the Board in Form C.R. 11 as set out in the First Schedule for a certified copy or in Form C.R. 12 as set out in the First Schedule for an uncertified copy and on the payment of the prescribed fee.
|
| 12. |
Copies of lost or destroyed documents
| (1) |
The Board may, on application by any person, issue a copy of a lost or destroyed certificate.
|
| (2) |
An application for a copy of a lost or destroyed certificate shall be in Form C.R.13 as set out in the First Schedule.
|
| (3) |
An application for a copy of a lost or destroyed certificate shall be accompanied by a declaration or affidavit under oath with respect to the loss or destruction of the certificate in Form C.R.14 as set out in the First Schedule.
|
|
| 13. |
Extension of time
The Board may extend the time for doing an act or taking proceedings, other than the time expressly provided for in the Act, on such conditions as it may specify or on request or application of the person who has been time-barred.
|
| 14. |
Signing of forms
| (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 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.
|
|
|
| 15. |
Statutory declarations
The Oaths and Statutory Declarations Act (cap. 15) shall apply with respect to a statutory declaration or an affidavit under the Act or these Regulations in Form C.R. 15 as set out in the First Schedule.
|
| 16. |
Documents to be in English language
| (1) |
A document submitted or provided to the Board under section 21(1) and (3) of the Act and shall be in the English language.
|
| (2) |
If a copy of a document that is required to be submitted or provided under section 21(1) or (3) is not in the English language, the following shall apply —
| (a) |
an English translation of the document shall be provided along with the copy of the original document;
|
| (b) |
the translation shall be certified to be an accurate translation;
|
| (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 determines that the translation is not accurate, the Board may refuse to accept it and may require an accurate translation to be provided or submitted; and
|
| (e) |
the copy of the document shall be deemed not to have been provided or submitted until the required translation and copies thereof are provided or submitted.
|
|
|
| 17. |
Revocation
The Copyright Regulations (L.N. 128/2004) are revoked.
|
| 18. |
Transitional provisions
| (1) |
A permit, license, certificate, authorization or any other document issued or granted under the repealed Regulations shall continue to be valid for the unexpired period thereof.
|
| (2) |
A person who had applied for a new permit, license, certificate, authorization or any other document under the repealed Regulations, shall continue to operate under the terms of the permit, license, certificate, authorization or any other document held by that person as if the application had been made under these Regulations until the application is determined.
|
|
FIRST SCHEDULE
FORMS
|
FORM C.R. 1
|
(r. 4 (3))
|
|
THE COPYRIGHT ACT (Cap. 130)
|
|
THE KENYA COPYRIGHT BOARD
|
|
APPLICATION FOR REGISTRATION OF A COPYRIGHT WORK
|
|
Name and Address of the Applicant(s)
|
|
|
Physical address of the applicant(s)
|
|
|
Name and address of an agent (if any)
|
|
|
Category of copyright work
|
|
|
Date of fixation/ reduction into material form
|
|
|
Title of the copyright work
|
|
|
I/We, the applicant(s) identified above apply for registration of the above copyright work as
|
|
I/We attach hereto two copies of the copyright work (where applicable).
|
|
We hereby declare that the copyright work, the subject of this application, is an original work.
|
|
Dated at ____________ this ________________ day of __________________ 20 __________
|
|
|
|
Signature(s) ...............................
|
|
|
|
|
Applicant(s)
|
_______________________________
|
THE COPYRIGHT ACT (Cap. 130)
|
|
THE KENYA COPYRIGHT BOARD
|
|
CERTIFICATE OF REGISTRATION OF A COPYRIGHT WORK
|
|
It is hereby certified that a copyright work in the .....................category entitled ............. and numbered ............. has been registered in the name of ........................
|
|
Issued by;......................................................................................
|
|
EXECUTIVE DIRECTOR, KECOBO
|
|
THE COPYRIGHT ACT (Cap. 130)
|
|
THE KENYA COPYRIGHT BOARD
|
|
APPLICATION TO AMEND NAME OR ADDRESS OF THE COPYRIGHT HOLDER
|
|
Name and Address of the Copyright Holder(s)
|
|
|
New name
|
|
|
Physical address of the applicant(s)
|
|
|
Previous Address
|
|
|
Name and address of an agent (if any)
|
|
|
Category of copyright work
|
|
|
Copyright registration number (attach copyright certificate)
|
|
|
Dated at _________ this ___________ day of ______ 20 ___
|
|
|
|
Signature(s) .............................Applicant(s)
|
_______________________________
|
THE COPYRIGHT ACT (Cap. 130)
|
|
THE KENYA COPYRIGHT BOARD
|
|
APPLICATION FOR RECORDAL OF A LICENSE IN THE COPYRIGHT REGISTER
|
|
Name and Address of the Applicant(s)
|
|
|
Physical address of the applicant(s)
|
|
|
Name and address of an agent (if any)
|
|
|
Name and address of the parties to the license/assignment/ contract
|
|
|
Title of copyright work
|
|
|
Type of License
|
|
|
Date of License/Assignment
|
|
|
Copyright Registration Number
|
|
The list of documents required by regulation 6 is attached hereto in a separate sheet of paper.
|
Dated at _______________ this ________________ day of __________________ 20 _____________
|
|
|
|
|
|
|
|
Signature(s) .............................
|
|
|
|
|
Applicant(s)
|
_______________________________
|
THE COPYRIGHT ACT (Cap. 130)
|
|
THE KENYA COPYRIGHT BOARD
|
|
CERTIFICATE OF REGISTRATION OF A LICENCE/ASSIGNMENT IN THE COPYRIGHT REGISTER
|
It is hereby certified that a copyright License/ Assignment entitled ................. and numbered ............ has been recorded in the name of ...................................
Of .........................................
In respect of an application for recordal of a license/ assignment in the copyright register.
Dated at _______________ this ______________ day of ________________ 20 _____________
|
Seal of the Board
|
|
.....................................................................
|
|
|
|
|
|
Executive DirectorThe Kenya Copyright Board
|
_______________________________
|
THE COPYRIGHT ACT (Cap. 130)
|
|
THE KENYA COPYRIGHT BOARD
|
|
APPLICATION TO HAVE A CHANGE OF OWNERSHIP OF A COPYRIGHT WORK RECORDED IN THE COPYRIGHT REGISTER
|
|
Name and Address of the Applicant(s)
|
|
|
Physical address of the applicant(s)
|
|
|
Name and address of an agent (if any)
|
|
|
Title of copyright work
|
|
|
Name and address of registered owner(s)
|
|
|
Name and address of new owner(s)
|
|
|
Copyright Registration Number (Attach certified copy of registration certificate)
|
|
The change of ownership was effected by;
|
Any other instrument (specify)
|
|
Dated at _______________ this ________________ day of __________________ 20 _____________
|
|
|
|
Signature(s) .............................
|
|
|
|
|
|
|
|
|
|
Applicant(s)
|
_______________________________
|
THE COPYRIGHT ACT (Cap. 130)
|
|
THE KENYA COPYRIGHT BOARD
|
|
APPLICATION FOR AUTHENTICATION OF A COPYRIGHT WORK UNDER SECTION 36(1) OF THE ACT
|
|
Name And Address of the Manufacturer/ producer or sound recording or audio-visual work
|
|
|
Physical address
|
|
|
Name and address of an agent (if any)
|
|
|
Category of copyright work for which authentication is being sought
|
|
|
Copyright application/registration number (if any)
|
|
|
Number of copies to which this application relates
|
|
|
I/We, the applicant(s) identified above, hereby apply for authentication of the above copyright work under section 36(1) of the Act and I/We attach a certified copy of the contract allowing me/us to sell or distribute the said works.
|
|
I/We declare that the information given above is true to the best of my/our information, knowledge or belief.
|
|
NOTE: Authentication devices are not transferable.
|
|
Dated at _______________ this ________________ day of __________________ 20 _____________
|
|
|
|
Signature(s) .............................
|
|
|
|
|
Applicant(s)
|
_______________________________
|
THE COPYRIGHT ACT (Cap. 130)
|
|
THE KENYA COPYRIGHT BOARD
|
|
CERTIFICATE OF AUTHORITY TO ACT AS A COPYRIGHT INSPECTOR UNDER SECTION 39(1)
|
|
It is hereby confirmed that ..................... was appointed by the Board as a Copyright Inspector on the ......................... day of ...................... 20 ........... and is authorized to discharge duties of a copyright inspector in Kenya assigned to him by the Board under the provisions of the Act and these Regulations.
|
|
Dated at _______________ this ______________ day of ________________ 20 _____________
|
|
Executive Director
|
|
The Kenya Copyright Board
|
|
.............................................Signature and Personal Number of Copyright Inspector
|
Seal of the Board
_______________________________
|
|
|
|
|
|
|
FORM C.R. 9
|
(r. 8 (1))
|
|
THE COPYRIGHT ACT (Cap. 130)
|
|
THE KENYA COPYRIGHT BOARD
|
|
INVENTORY OF SEIZED GOODS
|
|
OB NO:.................. DATE: .................... TIME OF SEIZURE ......................
|
|
ACE OF SEIZURE: ...................................
|
|
S. NO
|
ITEM NAME
|
NUMBER
|
DESCRIPTION
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NAME(S) AND SIGNATURES OF THE ARRESTING OFFICER(S)
|
|
1.
|
__________________________
|
4.
|
__________________________
|
|
2.
|
__________________________
|
5.
|
__________________________
|
|
3.
|
__________________________
|
6.
|
__________________________
|
|
NAMES AND SIGNATURES OF THE PROPRIETOR/MANAGER/SHOP ATTENDANT/PERSON(S) PRESENT IN THE PREMISES
|
|
________________________________________ ________________________________________
|
|
NAME AND SIGNATURES OF THE COMPLAINANTS(S) AND WITNESSES
|
|
________________________________________ ________________________________________
|
|
PREPARED BY: _____________________ VERIFIED BY: _____________________
|
|
Signature ..............................
|
|
Signature ..............................
|
_______________________________
|
FORM C.R. 10
|
(r. 15)
|
|
THE COPYRIGHT ACT (Cap. 130)
|
|
THE KENYA COPYRIGHT BOARD
|
|
APPLICATION TO USE FOLKLORE UNDER SECTION 49 (d) OF THE ACT
|
|
Name and Address of the Applicant(s)
|
|
|
Physical address of the applicant(s)
|
|
|
Name and address of an agent (if any)
|
|
|
Details/description of folklore to which this application relates
|
|
|
The purpose for which folklore is to be used is:
|
|
I/We, the applicant(s) identified above, hereby apply to use the folklore specified above.
BEFORE ME
COMMISSIONER OF OATHS
|
Dated at _______________ this ________________ day of __________________ 20 _____________
|
|
|
|
Signature(s) .............................
|
|
|
|
|
Applicant(s)
|
_______________________________
|
FORM C.R. 11
|
(r. 11)
|
|
THE COPYRIGHT ACT (Cap. 130)
|
|
THE KENYA COPYRIGHT BOARD
|
|
REQUEST FOR A CERTIFIED COPY
|
|
|
|
Name and Address of the person making request
|
|
|
Physical address of the person making request
|
|
|
Name and address of an agent (if any)
|
|
|
Description of the document requested
|
|
|
Reasons for the request
|
|
|
Dated at _______________ this ________________ day of __________________ 20 _____________
|
|
|
|
Signature(s) .............................
|
|
|
|
|
Applicant(s)
|
NOTE:
| 1. |
Please use a separate form for each document requested
|
| 2. |
This form may be used to obtain certified copies of documents or extracts.
|
| 3. |
Please describe any special requirements. If the space provided is not sufficient, please use a separate sheet of paper.
|
_______________________________
|
FORM C.R. 12
|
(r. 11)
|
|
THE COPYRIGHT ACT (Cap. 130)
|
|
THE KENYA COPYRIGHT BOARD
|
|
REQUEST FOR AN UNCERTIFIED COPY
|
|
|
|
Name And Address of the person making request
|
|
|
Physical address of the person making the request
|
|
|
Name and address of an agent (if any)
|
|
|
Description of the document requested
|
|
|
Reasons for the request
|
|
|
Dated at _______________ this ________________ day of __________________ 20 _____________
|
|
|
|
|
|
|
|
Signature(s) .............................
|
|
|
|
|
Applicant(s)
|
NOTE:
| 1. |
Please use a separate form for each document requested
|
| 2. |
This form may be used to obtain certified copies of documents or extracts.
|
| 3. |
Please describe any special requirements. If the space provided is not sufficient, please use a separate sheet of paper.
|
_______________________________
|
|
|
|
FORM C.R. 13
|
(r. 12 (2))
|
|
THE COPYRIGHT ACT (Cap. 130)
|
|
THE KENYA COPYRIGHT BOARD
|
|
REQUEST FOR A COPY OF A LOST OR DESTROYED CERTIFICATE
|
|
|
|
Applicant's reference
|
|
|
Name and address of applicant
|
|
|
Physical address of applicant
|
|
|
Name and address of an agent (if any)
|
|
|
Registration number of the certificate
|
|
|
Title of the work /subject of the certificate
|
|
I/We the above identified applicant(s), hereby apply for a copy of the above quoted certificate that has been lost or destroyed.
The Statutory declaration or affidavit required under Regulation ............... is attached.
Also attached is a police abstract (for lost certificate)
|
Dated at _______________ this ________________ day of __________________ 20 _____________
|
|
|
|
Signature(s) .............................
|
|
|
|
|
Applicant(s)
|
_______________________________
|
FORM C.R. 14
|
(r. 12(3))
|
|
REPUBLIC OF KENYA
|
|
IN THE MATTER OF OATHS AND STATUTORY DECLARATIONS ACT
|
|
CHAPTER 15 LAWS OF KENYA
|
|
AND
|
|
IN THE MATTER OF THE COPYRIGHT ACT (CAP. 130)
|
|
AND
|
|
IN THE MATTER OF AN APPLICATION FOR REQUEST OF A COPY OF A LOST OR DESTROYED CERTIFICATE
|
|
AFFIDAVIT
|
|
|
I _______________ and of P.O. Box No. ________ do hereby make oath and state as follows;
| 1. |
THAT I am an adult of sound mind and ________ (Status/position in the Applicant) of __________ (Name of the Applicant) and hence competent to swear this affidavit.
|
| 2. |
THAT I am a citizen of the Republic of ______ and a holder of a National Identity Card No. _______ / Passport No. ________
|
| 3. |
THAT ______ (Name of the Applicant) is the duly registered owner of a copyrightable work titled ________ (Name of the Work) and holder of a copyright certificate No. __________.
|
| 4. |
THAT on or about __________ the copyright certificate was misplaced or defaced.
|
| 5. |
THAT I have exhausted all possible means of trying to trace the lost certificate and hereby swear this affidavit in support of an application for replacement.
|
| 6. |
THAT what is deponed to herein above is true and within my own knowledge.
|
SWORN at __________ by the said
|
|
)
|
|
|
_______________________________
|
|
)
|
|
|
This ________ day of __________ in the year _______
|
|
)
|
____________________
|
|
BEFORE ME.
|
|
)
|
(Deponent))
|
|
COMMISSIONER FOR OATHS/MAGISTRATE
|
|
)
|
|
DRAWN BY:
______________________________________ (law firm)
______________________________________ (Physical Address)
P.O BOX ___________________________ (Town) _____________________ (Postal Code)
|
SECOND SCHEDULE [r. 3]
FEES
PART A – FEES PAYABLE FOR THE KENYA COPYRIGHT BOARD SERVICES
|
S. No.
|
Services offered
|
Natural persons
|
Corporate entities
(associations, state
corporations, registered
business names and
limited liability
companies)
|
|
1.
|
Copyright Registration per work
|
Sh. 100
|
Sh. 500
|
|
Copyright Registration per Software registration
|
Sh. 500
|
Sh. 1,000
|
|
2.
|
Application to amend name or address of the Copyright Holder
|
Sh. 100
|
Sh. 300
|
|
3.
|
Application for recordal of a license or assignment in the copyright register
|
Sh. 5,000
|
Sh. 10,000
|
|
4.
|
Application to have a change of ownership of a registered copyright work
|
Sh. 100
|
Sh. 100
|
|
5.
|
Request for a certified copy of documents held by the Board
|
Sh. 500
|
Sh. 1000
|
|
6.
|
Request for uncertified copies of documents held by the Board
|
Sh. 300
|
Sh. 500
|
|
7.
|
Request for a copy of lost or destroyed Certificate of registration or a registered Copyright Work
|
Sh. 200
|
Sh. 500
|
|
8.
|
Expedited Copyright Registration within 12 working hours (in addition to relevant registration fees).
|
Sh. 300
|
Sh. 500
|
|
9.
|
Application for registration of a new Collective Management Organization
|
-
|
Sh. 250,000
|
|
10.
|
Application for renewal of registration of a Collective Management Organizations.
|
-
|
Sh.100 per member on theCMO register subject to aminimum fee of Sh.200,000
|
|
11.
|
Application for authentication device subject to a minimum of 100 pieces
|
Sh. 4
|
Sh. 4
|
PART B – BLANK TAPE MEDIA TARIFF
|
S/No.
|
Item description
|
Levy
|
|
1
|
Audiocassette, audiocassette minidisc, audio-CD-R/RW
|
Sh. 5
|
|
2
|
Video cassettes (VHS, Hi8, Mini DV, Video8)
|
Sh. 5
|
|
3
|
DVD-R, DVD+ RW, DVD+ R, DVD + RAM, DVC, mini DVD, Blu-Ray disk, PC diskettes, DDS tapes, Travan disc; CD-R, CD-RW
|
Sh. 10
|
|
4
|
DVD writer external (PC), CD-ROM recorder external (PC); and any other recording device for audio-CD R/RW whether or not integrated with a hard disc
|
3% of cost price net of taxes
|
|
5
|
Television with HD recorder, DVD-HD recorder, Video-HD recorder (cameras), Digital recorders (MP3, I-pods, MP4, etc.)
|
Sh. 100
|
|
6
|
VHS recorders, digital receiver with HD (PVR), hard drive media players, Blu-Ray recorder external, digital camcorders, digital cameras with SD cards, digital recorders for IPTV and VOD services
|
5% of purchase price net of taxes
|
|
7
|
Game consoles, media box, minidisc, compact flash memories, memory stick, smart media memory cards, portable hard disc (external), ZIP drive, data, USB Flash disk
|
Sh. 200
|
|
8
|
Audio recorders and video recorders
|
4% of cost price net of taxes
|
|
9
|
Photocopy/printing paper per ream
|
Sh. 20
|
|
10
|
Personal Laptops/computers, mobile phones, smart watches
|
1.5% of purchase price net Taxes
|
|
11
|
Modulators, decoders/signal receivers, digital jukeboxes
|
3% of purchase price net of taxes
|
|
12
|
Photocopying machine, printing plates, printers/printing machines
|
2% of purchase price net of taxes
|
|
13
|
Computer external hard drives
|
Sh. 300
|
THE COPYRIGHT ACT (COLLECTIVE MANAGEMENT) REGULATIONS
ARRANGEMENT OF REGULATIONS
| 3. |
Application for registration
|
| 4. |
Action where there is no collective management organisatin for a category of rights
|
| 5. |
Requirements for application for renewal of registration
|
| 6. |
Collective management organisations to report
|
| 7. |
Qualification of an inspector
|
| 8. |
Validity of appointment of an inspector
|
| 9. |
Format of reporting financial statements
|
| 10. |
Board's participation in meetings
|
| 11. |
Public participation in the registration of collective management organisations
|
| 12. |
General obligations of collective management organisations
|
| 13. |
Particular obligations of collective management organisations in relation to right holders
|
| 14. |
Membership rules of collective management organisations
|
| 15. |
Members of collective management organisations
|
| 16. |
General meeting of collective management organisations
|
| 20. |
Collection and use of rights revenue
|
| 22. |
Distributions of amounts to rights holders
|
| 23. |
Rights managed under representation agreements
|
| 24. |
Deductions and payments in representation agreements
|
| 26. |
Public participation in the development of copyright tariffs
|
| 28. |
Information provided to other collective management
|
| 29. |
Information provided to right holders, other collective management organisations and users
|
| 30. |
Disclosure of information to the public
|
| 31. |
Form and contents of annual report
|
| 32. |
Procedure of alternative dispute resolution
|
| 33. |
Alternative dispute resolution
|
| 34. |
Notice for supply of information
|
| 35. |
Notice of non-compliance
|
| 36. |
Penalty for non-compliance
|
| 37. |
Demand for financial penalty
|
| 39. |
Recovery of unpaid penalties
|
| 40. |
Penalty not to be paid during pendency of appeal
|
SCHEDULES
THE COPYRIGHT (COLLECTIVE MANAGEMENT) REGULATIONS
| 1. |
Citation
These Regulations may be cited as the Copyright (Collective Management) Regulations.
|
| 2. |
Interpretation
In these Regulations, unless the context otherwise requires—
"Board" means the Kenya Copyright Board established under section 3 of the Act;
"general meeting" means the annual general meeting or the special general meeting through which members of a collective management organisation participate and exercise their membership rights;
"management fees" means the amounts charged, deducted or offset by a collective management organisation from revenue generated from rights or from any income from the investment of revenue generated from rights to cover the costs of the management of copyright or related rights;
"member" means a right holder or an entity representing right holders, including other collective management organisations and associations of right holders, who or which has fulfilled the membership requirements of a collective management organisation and admitted by it;
"non-distributable" in relation to amounts due to right holders,
shall be construed in accordance with regulation 13(9);
"proxy" has the meaning assigned to it under the Companies Act (Cap. 486).
"representation agreement" means an agreement between collective management organisations whereby one collective management organisation authorises another collective management organisation to manage the rights it represents;
"rights revenue" means income collected by a collective management organisation on behalf of right holders, whether deriving from an exclusive right, a right to remuneration or a right to compensation;
"royalty" means payment of an agreed rate to a right holder for the use of a copyright work; and
"user" means a person carrying out acts subject to the authorization of right holders, remuneration of right holders or payment of compensation to right holders.
|
| 3. |
Application for registration
| (1) |
An application under section 46(2) for the registration of a collective management organisation shall be in Form CMO 01 as set out in the Schedule and accompanied by the following documents—
| (a) |
a certified copy of the certificate of registration as a company limited by guarantee and incorporated under the provisions of the Companies Act (Cap. 486);
|
| (b) |
a certified copy of the Memorandum and Articles of Association of the collective management organisation;
|
| (c) |
where applicable, a certified copy of the collective management organisation's annual returns submitted in accordance with the Companies Act (Cap. 486), showing the corporate structure of the organisation during the period ending on the 31st December of the year immediately preceding the date of the application;
|
| (d) |
where applicable, audited accounts of the collective management organisation for the five years preceding the date of the application;
|
| (e) |
the names, addresses and copies of valid documents of identity of the members of the collective management organisation;
|
| (f) |
any other document or information that the Board may require;
|
| (g) |
a detailed report of its operations during the year preceding the date of the application;
|
| (h) |
certified copies of the licenses or deeds authorizing the management of the rights; and
|
| (i) |
a business plan showing the collective management organisation's financial infrastructure, personnel and capacity for collection and distribution of royalties.
|
|
| (2) |
The certificate of registration of a collective management organisation shall be in Form CMO 02 as set out in the Schedule.
|
|
| 4. |
Action where there is no collective management organisatin for a category of rights
| (1) |
Where a collective management organisation has not been established in respect of any category of rights, or the license for a collective management organisation in a category has been revoked, the Board shall, by notice in a newspaper with the largest circulation, invite fresh applications for the registration of a collective management organisation with respect to that category.
|
| (2) |
Where more than one organisation applies for the same class of rights, the Board shall evaluate each application separately and register the organisation that best represents the interests of the right holders with respect to that category of rights.
|
|
| 5. |
Requirements for application for renewal of registration
| (1) |
At least three months before the lapse of its registration, a collective management organisation shall apply to the Board to renew its registration in Form CMO 03 as set out in the Schedule and the application shall be accompanied by—
| (a) |
a certified copy of the organisation's certificate of incorporation;
|
| (b) |
a certified copy of the organisation's Memorandum and Articles of Association;
|
| (c) |
a statement of changes made to the Memorandum and Articles of Association during the year preceding the application;
|
| (d) |
certified copies of the organisation's audited accounts for the year preceding application;
|
| (e) |
the organisational structure of the organisation and names and qualifications of its senior management;
|
| (f) |
a statement of changes in senior management and reasons thereof;
|
| (g) |
a statement of the monies collected and distributed as royalties in the year preceding the application;
|
| (h) |
a list of members of the organisation and copies of their documents of identity;
|
| (i) |
a detailed report of its operations during the year preceding the application; and
|
| (j) |
a representative sample of documents of authorisation by members of the organisation.
|
|
| (2) |
Where there is a single applicant for a collective management organisation license and the application does not fulfil any of the requirements for registration under the Act, the Board may waive the requirement if it determines that the failure to fulfil the requirement shall not adversely impact the effectiveness of the organisation:
Provided that the collective management organisation shall be required to comply with all the requirements for registration during the period of its registration by the Board.
|
| (3) |
The Board, in determining whether or not a collective management organisation has the capacity to collect and distribute royalties, shall consider the following factors—
| (a) |
whether or not there is demonstrated integrity, transparency and accountability in the collection and distribution of royalties by the organisation;
|
| (b) |
whether or not the organisation adheres to the national values and principles of governance prescribed by Article 10 of the Constitution;
|
| (c) |
the particulars of the directors and their antecedents;
|
| (d) |
whether or not the organisation's membership is representative of the holders of the category of rights that it claims to represent;
|
| (e) |
whether or not the administrative costs exceed thirty percent of the royalties collected by the organisation;
|
| (f) |
whether or not royalties are regularly and properly distributed using approved distribution rules;
|
| (g) |
the particulars of the senior management and their academic and professional qualifications;
|
| (h) |
the strategies and systems of the organisation for ensuring that royalties are collected and distributed efficiently;
|
| (i) |
the audited accounts of the organisation;
|
| (j) |
whether or not the organisation has submitted quarterly reports before the tenth day of next quarter; and
|
| (k) |
any further information or clarification that may be useful in determining the application for renewal.
|
|
| (4) |
Where the information required under paragraph (3) is not available, the Board shall appoint an auditor to conduct a systems', forensic or financial audit of the organisation as may be necessary.
|
| (5) |
The certificate of renewal of registration shall be in Form CMO 04 as set out in the Schedule.
|
|
| 6. |
Collective management organisations to report
| (1) |
Each collective management organisation shall submit at least once in every three months a report on any matter regarding its members' interests during the period the organisation is registered including accounts, and minutes of ordinary, special or general meetings of the organisation.
|
| (2) |
The collective management organisation shall submit to the Board the notices of its Board meetings at least seven days before the meeting and the Board may send a representative to attend the meetings of the organisation.
|
| (3) |
A person who attends a meeting of a collective management organisation as a representative of the Board under paragraph (2) shall not be eligible or entitled to be paid an allowance by the organisation for attending the meeting.
|
|
| 7. |
Qualification of an inspector
| (1) |
For the purposes of section 46D(i) of the Act, the Board shall appoint a person experienced and qualified as an accountant to undertake the inspection as may be required under the Act.
|
| (2) |
An inspector appointed under paragraph (1) shall not be an employee of the Board or the collective management organisation being inspected.
|
| (3) |
The costs and fees of an inspection shall be met by the Board on delivery of the inspection report.
|
|
| 8. |
Validity of appointment of an inspector
| (1) |
For the purposes of section 46E (1)(e), an inspector appointed by the Board may conduct the inspection of the collective management organisation for a period not exceeding three months.
|
| (2) |
For the purposes of section 46E(f), the Executive Director shall appoint a statutory manager by letter and such appointment shall be published in the Gazette and two newspapers with the largest circulation.
|
|
| 9. |
Format of reporting financial statements
For the purposes of section 46F(a) and in addition to the annual financial statement of the collective management organisation, the organisation shall submit a detailed summary of total revenue collected from each source of income, royalties paid, any income retained for administrative costs, taxes retained or paid on the income, and incomes not distributed.
|
| 10. |
Board's participation in meetings
| (1) |
Each collective management organisation shall submit to the Board a copy of the notice of each annual general meeting or extraordinary general meeting.
|
| (2) |
A member of a collective management organisation who intends to insert an item in the agenda of a meeting of the organisation shall submit his or her notice of intention to amend the agenda to the Company Secretary and the Board.
|
|
| 11. |
Public participation in the registration of collective management organisations
| (1) |
The Board shall ensure effective public participation in the registration of collective management organisations by according an equal and fair chance to any interested party to apply and be considered for registration or licensing as a collective management organisation under the Act.
|
| (2) |
The following procedure shall be applicable in the registration or licensing of collective management organisations—
| (a) |
the Board shall, at least sixty days before the expiry of a license or validity of registration, by notice in the Gazette, invite any interested person to apply for grant of collective management organisation license under the Act;
|
| (b) |
an application for a collective management organisation license shall be submitted to the Board in the prescribed format not later than fourteen days after the notice under subparagraph (a);
|
| (c) |
the Board shall, within fourteen days after the expiry of the period specified under paragraph (b), publish in the Gazette the list applicants and invite written representations from any interested person on the suitability of applicant to be licensed or registered;
|
| (d) |
the Board shall, within seven days after the expiry of the period specified in subparagraph (c), convene at least one public hearing to receive oral views from the general public on the suitability of each applicant to be licensed or registered; and
|
| (e) |
the Board shall, within seven days after the holding of the public hearing specified in paragraph (d)—
| (i) |
notify in writing each applicant of the Board's decision setting out its reasons thereof; and |
| (ii) |
publish in the Gazette a summary of its decisions regarding the applications for licensing or registration. |
|
|
| (3) |
Any notice required to be published under this regulation shall be published in one newspaper of national circulation.
|
|
| 12. |
General obligations of collective management organisations
Each collective management organisation shall—
| (a) |
act in the best interests of its members;
|
| (b) |
not impose on its members any obligations which are not objectively necessary for the protection of the members' rights and interests or for the effective management of the members' rights; and
|
| (c) |
shall act for the collective benefit of its members as its sole or main purpose and which fulfils one or both of the following criteria—
| (i) |
be owned or controlled by its members; and |
| (ii) |
be organised on a not-for-profit basis. |
|
|
| 13. |
Particular obligations of collective management organisations in relation to right holders
A collective management organisation shall ensure that—
| (a) |
its members have the right to authorise to the collective management of—
| (ii) |
categories of rights; and |
|
| (b) |
it manages the matters specified in paragraph (a):
Provided that the management of the matters specified in paragraph (a) falls within the scope of the organisation's activities or unless the organisation has objectively justified reasons to refuse management;
|
| (c) |
its members have the right to grant licenses for non-commercial uses of any of the matters specified in paragraph (a);
|
| (d) |
its members have the right—
| (i) |
to terminate the authorization to manage the matters specified in paragraph (a); or |
| (ii) |
to withdraw the authorisation from a collective management organisation the matters specified in paragraph (a) upon serving the organisations with a fourteen days' notice; |
|
| (e) |
if there are amounts due to a member for acts of exploitation which occurred under a license granted before the time termination or withdrawal under paragraph (d) took effect, the member shall retain the rights under regulations 12, 13, 19, 20 or 29;
|
| (f) |
it does not restrict the exercise of rights referred to in paragraphs (d) and (e) by requiring, as a condition for the exercise of those rights, that the management of the matters referred to in paragraph (a) which are subject to the termination or the withdrawal are entrusted to another collective management organisation;
|
| (g) |
where a member authorises a collective management organisation to manage that member's rights—
| (i) |
the member gives consent specifically for each of the matters referred to in paragraph (a), which the member authorises the collective management organisation to manage; and |
| (ii) |
that consent shall be in writing or in any other documentary form; |
|
| (h) |
it informs a member of member's rights under paragraphs (a) to (g) and any conditions attached to the right in paragraph (c) before obtaining the member's consent to the collective management organisation managing the matters set out in paragraph (a);
|
| (i) |
the rights under paragraphs (a) to (i) are set out in the memorandum and articles of association of the collective management organisation; and
|
| (j) |
in the organisation's memorandum and articles of association, there is an express provision that the organisation's primary objective is the collection and distribution royalties on behalf of its members.
|
|
| 14. |
Membership rules of collective management organisations
| (1) |
A collective management organisation shall—
| (a) |
accept as members, where they fulfil the membership requirements specified in the articles and memorandum of association—
| (ii) |
entities representing rights holders including other collective management organisations or associations of right holders; and |
|
| (b) |
in a case where the organisation refuses to accept an application for membership, provide in writing to the rights holder the reasons for its refusal.
|
|
| (2) |
A collective management organisation shall ensure that its membership requirements—
| (a) |
are based on objective, transparent and non-discriminatory criteria;
|
| (b) |
are included in its memorandum and articles of association; and
|
| (c) |
are made publicly available.
|
|
| (3) |
A collective management organisation may impose a subscription fee on its members:
Provided that the subscription fee shall be agreed upon at a general meeting of the members and approved by the Board.
|
|
| 15. |
Members of collective management organisations
A collective management organisation shall—
| (a) |
ensure that its memorandum and articles of association provides for appropriate and effective mechanisms for the participation of its members in decision-making;
|
| (b) |
ensure that the representation of the different categories of members in decision-making process is fair and balanced;
|
| (c) |
allow its members, and rights holders who are not members but who have a direct legal relationship with it by law, license or other contractual arrangement, to communicate with it by electronic means for the purposes of exercising members' rights; and
|
| (d) |
keep and maintain records of its members and regularly update those records.
|
|
| 16. |
General meeting of collective management organisations
A collective management organisation shall ensure that—
| (a) |
a general meeting of its members is convened at least once a year;
|
| (b) |
the general meeting shall decide on any amendments to the memorandum and articles of association of the organisation, and the membership terms of the collective management organisation;
|
| (c) |
the general meeting shall decide the appointment and dismissal of the organisation's officials, review the officials' performance and approve their remuneration and other benefits;
|
| (d) |
in accordance with regulations 11, 12 and 13, the general meeting shall decide—
| (i) |
the policy on the distribution of amounts due to members and right holders; |
| (ii) |
the policy on the use of non-distributable amounts; |
| (iii) |
the investment policy on rights revenue and any income arising from the investment of rights revenue; |
| (iv) |
the policy on deductions from rights revenue and any income arising from the investment of rights revenue; |
| (v) |
the risk management policy; |
| (vi) |
the approval of any acquisition of, sale of or charge on immovable property; |
| (vii) |
the approval of mergers and alliances with other organisations; and |
| (viii) |
retained amounts and the purpose of the retention of the amounts; |
|
| (e) |
the general meeting shall control the activities of the collective management organisation by appointing an independent external auditor to regularly audit its accounts;
|
| (f) |
all members participate in, and vote at, the general meeting;
|
| (g) |
every member has a right to a proxy to participate in, and vote at, the general meeting on the member's behalf:
Provided that the appointment shall be in writing and shall not result in a conflict of interest; and
|
| (h) |
subject to subparagraph (g)—
| (i) |
a proxy shall be valid for the general meeting at which it is used; |
| (ii) |
the proxy shall enjoy the same rights in the general meeting as those to which the appointing member would be entitled; and |
| (iii) |
the proxy shall cast his or her vote in accordance with the instructions issued by the appointing member. |
|
|
| 17. |
Supervisory function
| (1) |
A collective management organisation shall monitor the activities of, and performance of duties by, persons managing the business of the organisation.
|
| (2) |
The purpose of supervision shall be to ensure that—
| (a) |
there is a fair and balanced representation of the different categories of members in the body exercising the supervisory function; and
|
| (b) |
the body exercising the supervisory function reports on the exercise of its powers to the general meeting at least once in each year.
|
|
|
| 18. |
Management, etc.
| (1) |
A collective management organisation shall ensure that any person who manages its business does so in a prudent manner, using prudent administrative procedures, accounting procedures and internal control mechanisms.
|
| (2) |
A collective management organisation shall establish procedures—
| (a) |
for avoiding conflicts of interest; and
|
| (b) |
where conflicts of interest cannot be avoided, to identify, manage, monitor and disclose actual or potential conflicts of interest in such a way as to prevent them from adversely affecting the collecting interests of rights holders represented by the organisation.
|
|
| (3) |
The procedures referred to in paragraph (2) shall include an annual statement by the person referred to in paragraph (1) to the general meeting, stating—
| (a) |
any interests in the collective management organisation;
|
| (b) |
any remuneration received in the preceding financial year from the collective management organisation including benefits in kind and other types of benefits;
|
| (c) |
any amount received in the preceding financial year as a rights holder from the collective management organisation; and
|
| (d) |
a declaration concerning any actual or potential conflict between—
| (i) |
any personal interests and those of the collective management organisation; and |
| (ii) |
any obligations owed to the collective management organisation and any duty owed to any other person. |
|
|
| (4) |
A collective management organisation shall ensure that its training procedures for employees, agents and representatives include appropriate training on conduct that complies with its obligations under these Regulations.
|
|
| 19. |
Lifestyle audits
| (1) |
There shall be conducted, at least once in each year, a lifestyle audit of each member of staff of a collective management organisation.
|
| (2) |
The lifestyle audit shall be conducted by an auditor appointed at the general meeting.
|
| (3) |
The board of a collective management organisation shall ensure that members of its staff are not related to any member of the board.
|
|
| 20. |
Collection and use of rights revenue
| (1) |
A collective management organisation shall ensure—
| (a) |
that it is diligent in the collection and management of rights revenue;
|
| (b) |
that it keeps separate in its accounts—
| (i) |
rights revenue and any income arising from the investment of rights revenue; |
| (ii) |
any own assets it may have and income arising from such assets, from management fees, subscription fees or from other activities; and |
| (iii) |
administration and distribution amounts; |
|
| (c) |
that it does not use rights revenue or any income arising from the investment of rights revenue for purposes other than distribution to rights holders, except where it is allowed—
| (i) |
to deduct or offset management fees in accordance with the Act or these regulations; or |
| (ii) |
to use rights revenue or income arising from the investment of rights revenue in accordance with the Act or these regulations; and |
|
| (d) |
that where it invests rights revenue, or income arising from the investment of rights revenue, it does so—
| (i) |
in the best interests of the rights holders whose rights it represents; and |
| (ii) |
in accordance with the general investment and risk management policy of the organisation. |
|
|
| (2) |
The board of a collective management organisation shall seek the approval of distribution rules from the general meeting of its members.
|
| (3) |
Any income sought to be retained by the collective management organisation shall be with the approval of the members in a general meeting and be expended for the purpose members have resolved.
|
|
| 21. |
Deductions
| (1) |
A collective management organisation shall ensure that where a rights holder authorises it to manage the rights holder's rights, the organisation shall provide the right holder with information on—
| (b) |
any other deductions from the rights revenue and any income arising from the investment of the rights revenue before obtaining the right holder's consent to manage the right holder's rights.
|
|
| (2) |
A collective management organisation shall ensure that deductions—
| (a) |
are reasonable in relation to the services provided by the collective management organisation to right holders; and
|
|
| (3) |
A collective management organisation shall ensure that management fees do not exceed justified and documented costs incurred by the organisation.
|
| (4) |
A collective management organisation shall ensure that where it provides social, cultural or educational services out of deductions from rights revenue or income arising from the investment of rights revenue, such services shall be provided fairly.
|
|
| 22. |
Distributions of amounts to rights holders
| (1) |
A collective management organisation shall regularly, diligently and accurately distribute and pay amounts due to rights holders in accordance with the organisation's general policy on distribution.
|
| (2) |
A collective management organisation shall distribute and pay the amounts due to right holders promptly, but in any event not later than the beginning of the period which starts nine months from the end of the financial year in which the rights revenue was collected.
|
| (3) |
Notwithstanding paragraph (2), a collective management organisation may distribute or pay the amounts due to rights holders out of time if there are objective reasons for not distributing or paying the amounts including reasons relating to—
| (b) |
identification of rights or right holders; or
|
| (c) |
matching of information on works and other matters with rights holders.
|
|
| (4) |
A collective management organisation shall ensure that amounts due to right holders are kept separate in the accounts of the organisation where—
| (a) |
those amounts cannot be distributed within the specified time; and
|
| (b) |
paragraph (3) does not apply.
|
|
| (5) |
A collective management organisation shall take all necessary measures to identify and locate rights holders for the purposes of distribution and payments of amounts due to the rights holders including—
| (a) |
making available, not later than three months after the beginning of the period specified in paragraph (2), information on works and other matters for which a right holder has not been identified or located to—
| (i) |
the rights holders represented by the collective management organisation or entities which are its members and which represent rights holders; and |
| (ii) |
the collective management organisations with which it has concluded representation agreements; |
|
| (b) |
verifying the relevant records relating to a rights holder for the purposes of distribution or payment of due amounts; and
|
| (c) |
where rights holders remain unidentified or not located, making the information referred to in subparagraph (b) available to the public not later than one year after the period referred to in subparagraph (a).
|
|
| (6) |
The information referred to in paragraph (5) shall include, where available—
| (a) |
the title of the work or other matter;
|
| (b) |
the name of the rights holder;
|
| (c) |
the name of the publisher or producer of the work or other matter; and
|
| (d) |
any other relevant information which could assist in the identification of the rights holder.
|
|
| (7) |
Amounts due to right holders shall be non-distributable for the purposes of these regulations where—
| (a) |
they cannot be distributed before the end of the period of three years from the end of the financial year in which the collection of the rights revenue occurred; and
|
| (b) |
the collective management organisation has taken all necessary measures to identify and locate the right holders.
|
|
| (8) |
A collective management organisation shall provide its members with statements of the royalties paid within a given period.
|
|
| 23. |
Rights managed under representation agreements
| (1) |
A collective management organisation shall not discriminate against any rights holder whose rights it manages under a representation agreement.
|
| (2) |
Despite the generality of paragraph (1), a collective management organisation shall not discriminate against a rights holder whose rights it manages under a representation agreement with respect to—
| (c) |
| (i) |
the collection of rights revenues; and |
| (ii) |
the distribution of amounts due to right holders. |
|
|
|
| 24. |
Deductions and payments in representation agreements
| (1) |
A collective management organisation shall not make deductions, other deductions of management fees—
| (a) |
from the rights revenue derived from the rights it manages on the basis of a representation agreement; or
|
| (b) |
from income arising from the investment of rights revenue, unless the other collective management organisation that is party to the representation agreement expressly consents to the deductions.
|
|
| (2) |
A collective management organisation shall regularly, diligently and accurately distribute and pay amounts due to other collective management organisations.
|
| (3) |
A collective management organisation shall distribute or pay put amounts due under paragraph (2) promptly but in any event no later than the beginning of the period which starts nine months from the end of the financial year in which the rights revenue was collected.
|
| (4) |
Despite the generality of paragraph (3), a collective management organisation may not distribute or pay out amounts due under paragraph (2) if there are objective reasons for not distributing or paying including reasons relating to—
| (b) |
identification of rights or right holders; or
|
| (c) |
matching of information on works and other subject matter with right holders.
|
|
| (5) |
The other collective management organisation referred to in paragraph (1) or, where it has a member which is an entity representing rights holders, that member shall ensure that it distributes and pays the amounts due to rights holders promptly but in any event not later than the beginning of the period which starts six months from the receipt of amounts, save where paragraph (4) applies with the necessary modifications.
|
|
| 25. |
Licensing
| (1) |
A collective management organisation—
| (a) |
and a user shall negotiate the licensing of rights in good faith; and
|
| (b) |
and a user shall negotiate in good faith the tariffs for exclusive rights and rights to remuneration in relation to—
| (i) |
the economic value of the use of the rights in trade taking into account the nature and scope of the use of the work and any other relevant matter; |
| (ii) |
the economic value of the service provided by the collective management organisation; and |
| (iii) |
the value added by any service providers and individuals; and |
|
| (c) |
shall notify the user in writing of the criteria used for the setting of the tariffs specified in subparagraph (b).
|
|
| (2) |
A collective management organisation shall—
| (a) |
respond promptly to requests from users indicating, among other things, the information needed in order for the collective management organisation to offer a license;
|
| (b) |
upon receipt of all relevant information, promptly either—
| (ii) |
deny the user a license and notify the user in writing of the reason for the refusal; |
|
| (c) |
allow users to communicate with it by electronic means, including the purpose of reporting on the use of the license; and
|
| (d) |
after giving a user a license, treat that user in good faith.
|
|
| (3) |
Where more than one collective management organisation operates in one sector, the collective management organisations shall enter into a recognition agreement for joint negotiations of licensing and the joint collection of royalties.
|
|
| 26. |
Public participation in the development of copyright tariffs
Three months before tariffs approved under section 46A of the Act are due to expire, the Board shall—
| (a) |
notify the relevant collective management organisations to propose new tariffs for the next licensing period;
|
| (b) |
require the collective management organisations to compile a comprehensive list of users of their works by business association;
|
| (c) |
require the collective management organisations, within fourteen days after the expiry of the period specified in paragraph (a), to notify and share the proposals with users;
|
| (d) |
require the collective management organisations, within fourteen days after sharing the proposals with users, to hold a users' forum to discuss and negotiate the proposed tariffs for the purposes of approving the publication of the new tariffs in the Gazette;
|
| (e) |
require the collective management organisations, within seven days from the date of the meeting under paragraph (d), submit the discussed tariffs to the Board together with a copy of the resolution by the users agreeing to the new tariffs;
|
| (f) |
within seven days after receiving the approved tariffs under paragraph (e), invite, by notice in a newspaper with a nationwide circulation, the public, collective management organisations and any other interested party to a public forum to discuss the draft proposal and collect views on the proposal;
|
| (g) |
hold the public forum contemplated in paragraph (f) within fourteen days of the date of the notice specified in paragraph (f);
|
| (h) |
convene a group comprising of a member of the Board and a representative of the collective management organisations shall incorporate the views and comments from the public forum into the draft tariff proposal and submit it to the Board;
|
| (i) |
convene a validation workshop of the public, collective management organisations and any other interested party within seven days of the forum convened under paragraph (g) to approve the revised tariffs; and
|
| (j) |
submit the revised tariffs to the Cabinet Secretary within seven days of being approved under paragraph (i).
|
|
| 27. |
Users' obligations
| (1) |
A user and a collective management organisation shall enter into a written agreement on the information that the user shall provide to the collective management organisation where such information is necessary for—
| (a) |
the collection of rights revenues; and
|
| (b) |
the distribution and payment of amounts due to rights holders.
|
|
| (2) |
The collective management organisation and user shall ensure that they take into account, as far as possible, voluntary industry standards on the format for the information referred to in paragraph (1).
|
|
| 28. |
Information provided to other collective management
| (1) |
A collective management organisation shall make available by electronic means the information specified in paragraph (2) at least once in each year to the other collective management organisations on whose behalf it manages rights under a representation agreement for the period to which the information relates.
|
| (2) |
The information required to be made available under paragraph (1) shall include—
| (a) |
the rights revenue attributed for the rights managed under a representation agreement;
|
| (b) |
the amounts paid by the collective management organisation—
| (i) |
for each category of rights managed under the representation agreement; and |
| (ii) |
for each type of use for the rights managed under the representation agreement; |
|
| (c) |
rights revenue attributed which is outstanding for any period;
|
| (d) |
deductions made in respect of management fees;
|
| (e) |
deductions made for a purpose other than in respect of management fees;
|
| (f) |
any licenses granted or denied with regards to works and other matters covered by the representation agreement; and
|
| (g) |
resolutions adopted by the general meeting insofar as the resolutions are relevant to the management of the rights under the representation agreement.
|
|
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| 29. |
Information provided to right holders, other collective management organisations and users
| (1) |
Subject to regulation 28, a collective management organisation shall make the information specified paragraphs (2) or (4), where applicable, available by electronic means and without undue delay, in response to a duly justified request, to—
| (a) |
a collective management organisation on whose behalf it manages rights under a representation agreement;
|
|
| (2) |
The information under paragraph (1) shall include—
| (a) |
the works or other subject matter the collective management organisation represents;
|
| (b) |
the rights the collective management organisation manages directly or the collective management organisation manages under representation agreements; and
|
|
| (3) |
Paragraph (4) shall apply where, due to the scope of the activity of the collective management organisation, the work or other subject matter which it represents cannot be determined.
|
| (4) |
The information specified in this paragraph is—
| (a) |
the types of works of other subject matter the collective management organisation represents;
|
| (b) |
the rights the collective management organisation manages; and
|
|
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| 30. |
Disclosure of information to the public
| (1) |
A collective management organisation shall—
| (a) |
publish the information specified in paragraph (2); and
|
| (b) |
publish and keep up to date on its public website the information specified in paragraph (2).
|
|
| (2) |
The information specified in this paragraph is—
| (a) |
the collective management organisation's memorandum and articles of association;
|
| (b) |
the list of officials of the collective management organisation;
|
| (c) |
the collective management organisation's policy on the distribution of amounts due to right holders;
|
| (d) |
the collective management organisation's policy on management fees;
|
| (e) |
the collective management organisation's policy on deductions, other than in respect of management fees, from—
| (ii) |
income arising from the investment of rights revenue including deductions for the purposes of social, cultural and educational services; and |
| (iii) |
the complaint handling and dispute resolution procedures available or the collective management organisation; and |
|
| (f) |
the collective management organisation's annual reports and audited accounts.
|
|
|
| 31. |
Form and contents of annual report
| (1) |
This regulation shall apply to the filing of annual reports and audited accounts under section 47 of the Act.
|
| (2) |
Every registered collective management organisation shall, within three months after the end of the financial year, submit to the Board, in Form CMO 05 as set out in the Schedule, an annual report for that year accompanied by a copy of the organisation's audited accounts in respect of that year.
|
| (3) |
The annual report referred to in paragraph (2) shall contain—
| (a) |
a comprehensive report of the organisation's activities during the year;
|
| (b) |
a list of the organisation's members at the end of the financial year;
|
| (c) |
the total amount of royalties collected by the organisation;
|
| (d) |
the amount of royalties paid to each member by the organisation;
|
| (e) |
the amount of money spent by the organisation on administration and operations;
|
| (f) |
the name, postal and physical address of the auditors of the organisation;
|
| (g) |
the amount of money used for the social fund;
|
| (h) |
non-distributed royalties and reasons for the non-distribution;
|
| (i) |
the names, addresses and occupations of current officials of the organisation; and
|
| (j) |
any other relevant information as the Board may require.
|
|
|
| 32. |
Procedure of alternative dispute resolution
| (1) |
A collective management organisation shall make available to—
| (b) |
rights holders who are not its members but who have a legal relationship with it by law, assignment, license or other contractual arrangement;
|
| (c) |
collective management organisations on whose behalf it manages rights under representation agreement; and
|
effective and timely procedures for dealing with complaints.
|
| (2) |
The matters covered by the procedures for dealing with complaints referred to in paragraph (1) shall relate in particular to—
| (a) |
the authorisation to manage rights;
|
| (b) |
the termination or withdrawal of rights;
|
| (d) |
the collection of amounts due to right holders;
|
| (e) |
deductions and distributions;
|
| (f) |
the service provided; and
|
| (g) |
the conduct of members of staff during licensing.
|
|
| (3) |
A collective management organisation shall—
| (a) |
respond in writing to complaints; and
|
| (b) |
give reasons where it rejects a complaint.
|
|
|
| 33. |
Alternative dispute resolution
| (1) |
A collective management organisation shall ensure that the disputes to which paragraph (2) applies can be submitted to an independent and impartial alternative dispute resolution procedure:
Provided that the parties shall consent to the alternative dispute resolution procedure.
|
| (2) |
This paragraph shall apply to disputes between a collective management organisation and one of its members, a right holder, a user or another collective management organisation concerning compliance with these Regulations.
|
|
| 34. |
Notice for supply of information
| (1) |
The Board may give notice to—
| (a) |
a collective management organisation;
|
| (c) |
a right holder or a body representing the interests of right holders;
|
| (d) |
a user or body representing the interests of users,
|
requiring the person to whom the notice is given to supply the information or document required in the notice at a time and a place and in a form and manner specified in the notice.
|
| (2) |
The person to whom the notice is given shall supply to the Board the information or document which is specified or described in the notice.
|
| (3) |
Nothing in this regulation gives the Board any power to require a person to supply any information or document which the person would be entitled to refuse to supply on the grounds of advocate-client privilege, on the grounds of confidentiality of communications, confidential business information or any information the disclosure of which is protected or otherwise restricted by any other law.
|
| (4) |
Nothing in this regulation shall be construed as requiring a person to provide information if to do so might incriminate that person.
|
|
| 35. |
Notice of non-compliance
| (1) |
Where the Board finds that a collective management organisation has failed to comply with its obligations under these Regulations, the Board may give a compliance notice to that person, body or organisation.
|
| (2) |
A compliance notice shall be in writing and shall—
| (a) |
state the collective management organisation has not complied with a provision of these Regulations;
|
| (b) |
specify the provision in question and state the acts or omissions which contravene that provision;
|
| (c) |
request the collective management organisation, where non-compliance with the provision is continuing—
| (i) |
to end the non-compliance within such time as the notice may specify; and |
| (ii) |
provide evidence that the non-compliance has ended; |
|
| (d) |
if the Board thinks fit, request the collective management organisation to provide a written undertaking that non-compliance with the provision shall not be repeated; and
|
| (e) |
caution the collective management organisation that if—
| (i) |
the organisation does not comply with the compliance notice, or |
| (ii) |
the organisation fails to comply with a written undertaking provided in respect of the compliance notice, |
|
further action may be taken in accordance with the Act or these Regulations.
|
| (3) |
The Board may withdraw a compliance notice and in doing so shall give the collective management organisation notice of the withdrawal.
|
| (4) |
Where a compliance notice has been given, no action to impose a penalty under these Regulations may be taken in relation to that failure unless the collective management organisation to whom it has been given has failed—
| (a) |
to comply with the compliance notice; or
|
| (b) |
to comply with a written undertaking provided in respect of a compliance notice.
|
|
|
| 36. |
Penalty for non-compliance
| (1) |
The Board may impose a financial penalty on a collective management organisation if the Board is satisfied upon hearing the collective management organisation that the collective management organisation has failed to comply with its obligations under these Regulations.
|
| (2) |
Where the Board imposes a financial penalty on a collective management organisation under paragraph (1), the Board may also impose a financial penalty on a director, manager or similar officer of that collective management organisation.
|
| (3) |
The amount of the financial penalty shall be such amount as the Board considers appropriate.
|
| (4) |
In deciding what amount is appropriate the Board shall have regard to the nature of the failure of compliance.
|
| (5) |
A financial penalty may comprise of either—
| (a) |
a sum not exceeding one hundred thousand shillings; or
|
| (b) |
a sum not exceeding one hundred thousand shillings together with a sum not exceeding ten thousand shillings for each day that the person referred to in paragraph (2) continues to fail to comply with its obligations under these Regulations:
|
Provided that the aggregate sum payable by the director, manager or similar officer shall not exceed one hundred thousand shillings
|
| (6) |
A financial penalty shall be payable to the Board.
|
|
| 37. |
Demand for financial penalty
| (1) |
As soon as practicable after imposing a financial penalty,
the Board shall give notice of the financial penalty to the collective management organisation on whom it is imposed.
|
| (2) |
| (a) |
that the Board has imposed a financial penalty;
|
| (b) |
the amount of the financial penalty;
|
| (c) |
the acts or omissions which the Board considers contravene these Regulations;
|
| (d) |
the provisions of these Regulation which the Board considers are contravened
|
| (e) |
any other facts which the Board considers justify the imposition of a financial penalty; and
|
| (f) |
the period, which shall be not less than twenty-eight days from the date the notice is received by the person, within which the financial penalty is to be paid.
|
|
| (3) |
The Board may rescind a penalty which has been imposed on a collective management organisation and give the collective management organisation written notice of the rescission.
|
|
| 38. |
Appeals
If a collective management organisation on whom a financial penalty has been imposed is aggrieved by the imposition or the amount of the financial penalty, the organisation may appeal to the Copyright Tribunal.
|
| 39. |
Recovery of unpaid penalties
Where a financial penalty, or any portion of it, has not been paid by the time which it required to be paid, the Board may recover from the collective management organisation on whom the penalty is imposed any of the penalty which has not been paid as a debt due to the Board.
|
| 40. |
Penalty not to be paid during pendency of appeal
Where an appeal or a court action is made against the decision of the Board to impose a financial penalty, the party filing the appeal is not under an obligation to pay the penalty pending the hearing and determination of the appeal and such non-payment shall not be deemed to be a continued violation of the penalty notice or the obligation giving rise to the penalty.
|
SCHEDULE
FORMS
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
THE JOINT COLLECTION OF TARIFFS
IN EXERCISE of the powers conferred by section 46(A) of the Copyright Act, the Cabinet Secretary for Youth Affairs, Sports and the Arts, approves the consolidated music tariffs set out in the Schedule and revokes the joint collection tariffs issued under Legal Notice No. 39 of 2020.
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