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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.
|
COPYRIGHT ACT REGULATIONS, 2020
ARRANGEMENT OF SECTIONS
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 Regulationss
|
PART III – MISCELLANEOUS PROVISIONS
| 11. |
Application for copies of documents
|
| 12. |
Copies of lost or destroyed documents
|
| 15. |
Statutory declarations Cap. 15
|
| 16. |
Documents to be in English language
|
| 17. |
Repeal of L.N. 128/2004
|
| 18. |
Transitional provisions
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SCHEDULES
COPYRIGHT REGULATIONS, 2020
PART I – PRELIMINARY
| 1. |
Citation
These Regulations may be cited as the Copyright Regulations, 2020.
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| 2. |
Forms
The forms referred to in these Regulations shall be the forms set out in the First Schedule.
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| 3. |
Fees
The fees set out in the Second Schedule shall be the prescribed fees for the purposes of these Regulations.
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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;
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| (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;
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| (c) |
a description of the work;
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| (d) |
the physical, postal and email address of the copyright owner;
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| (e) |
the date of affixation of the copyright work; and
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| (f) |
any other information that the Executive Director may consider relevant.
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| (2) |
The Executive Director may maintain the Copyright Register in electronic or physical form.
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| (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.
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| (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.
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| (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.
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| (6) |
The Executive Director shall keep and maintain an index or indexes of the Copyright Register as may be necessary.
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| (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;
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| (b) |
removing any entry that may have been wrongly made or remaining in the Copyright Register; or
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| (c) |
correcting an error or defect in the Copyright Register.
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| (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.
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| (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
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| (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.
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| 5. |
Application for registration of copyright works from outside Kenya
| (1) |
This regulation shall apply to section 33 (3A) of the Act
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| (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.
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| (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.
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| (4) |
Such approved registration shall be entered in the Copyright Register upon payment of a Registration fee as set out in the Second Schedule.
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| 6. |
Authentication of copyright works
| (1) |
This regulation shall apply to section 36 of the Act.
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| (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.
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| (3) |
The authentication device shall be issued by the Board and be tamper-proof and serially numbered.
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| (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.
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| (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.
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| 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.
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| (2) |
The Board shall publish in the Gazette the name of a copyright inspector appointed under section 39 (1) of the Act.
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| (3) |
The Certificate of Authority referred to in paragraph (1) shall be in Form C.R. 8 as set out in the First Schedule.
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| 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.
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| (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.
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| (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.
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| 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.
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| (2) |
The Board shall publish the notice of renunciation under paragraph (1) in the Gazette.
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| 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;
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| (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
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| (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.
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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.
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| 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.
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| (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.
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| (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.
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| 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.
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| 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.
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| (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
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| (c) |
the form shall set out the names and addresses of the partners.
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| 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.
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| 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.
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| (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;
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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 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
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| (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.
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| 17. |
Repeal of L.N. 128/2004
The Copyright Regulations, 2004 are repealed.
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| 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.
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| (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.
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THE COPYRIGHT ACT (COLLECTIVE MANAGEMENT) REGULATIONS, 2020
ARRANGEMENT OF REGULATIONS
| 3. |
Application for registration
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| 4. |
Action where there is no collective management organisatin for a category of rights
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| 5. |
Requirements for application for renewal of registration
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| 6. |
Collective management organisations to report
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| 7. |
Qualification of an inspector
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| 8. |
Validity of appointment of an inspector
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| 9. |
Format of reporting financial statements
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| 10. |
Board's participation in meetings
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| 11. |
Public participation in the registration of collective management organisations
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| 12. |
General obligations of collective management organisations
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| 13. |
Particular obligations of collective management organisations in relation to right holders
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| 14. |
Membership rules of collective management organisations
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| 15. |
Members of collective management organisations
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| 16. |
General meeting of collective management organisations
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| 20. |
Collection and use of rights revenue
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| 22. |
Distributions of amounts to rights holders
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| 23. |
Rights managed under representation agreements
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| 24. |
Deductions and payments in representation agreements
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| 26. |
Public participation in the development of copyright tariffs
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| 28. |
Information provided to other collective management
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| 29. |
Information provided to right holders, other collective management organisations and users
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| 30. |
Disclosure ofbinformation to the public
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| 31. |
Form and contents of annual report
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| 32. |
Procedure of alternative dispute resolution
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| 33. |
Alternative dispute resolution
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| 34. |
Notice for supply of information
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| 35. |
Notice of non-compliance
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| 36. |
Penalty for non-compliance
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| 37. |
Demand for financial penalty
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| 39. |
Recovery of unpaid penalties
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| 40. |
Penalty not to be paid during pendency of appeal
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SCHEDULES
THE COPYRIGHT (COLLECTIVE MANAGEMENT) REGULATIONS, 2020
| 1. |
Citation
These Regulations may be cited as the Copyright (Collective Management) Regulations, 2020.
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| 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.
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| 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 —
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a certified copy of the certificate of registration as a company limited by guarantee and incorporated under the provisions of the Companies Act, 2015;
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| (b) |
a certified copy of the Memorandum and Articles of Association of the collective management organisation;
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| (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;
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| (d) |
where applicable, audited accounts of the collective management organisation for the five years preceding the date of the application;
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| (e) |
the names, addresses and copies of valid documents of identity of the members of the collective management organisation;
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| (f) |
any other document or information that the Board may require;
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| (g) |
a detailed report of its operations during the year preceding the date of the application;
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| (h) |
certified copies of the licenses or deeds authorizing the management of the rights; and
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| (i) |
a business plan showing the collective management organisation's financial infrastructure, personnel and capacity for collection and distribution of royalties.
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| (2) |
The certificate of registration of a collective management organisation shall be in Form CMO 02 as set out in the Schedule.
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| 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.
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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.
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| 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;
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| (b) |
a certified copy of the organisation's Memorandum and Articles of Association;
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a statement of changes made to the Memorandum and Articles of Association during the year preceding the application;
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| (d) |
certified copies of the organisation's audited accounts for the year preceding application;
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| (e) |
the organisational structure of the organisation and names and qualifications of its senior management;
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| (f) |
a statement of changes in senior management and reasons thereof;
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a statement of the monies collected and distributed as royalties in the year preceding the application;
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| (h) |
a list of members of the organisation and copies of their documents of identity;
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| (i) |
a detailed report of its operations during the year preceding the application; and
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| (j) |
a representative sample of documents of authorisation by members of the organisation.
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| (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.
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| (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;
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whether or not the organisation adheres to the national values and principles of governance prescribed by Article 10 of the Constitution;
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the particulars of the directors and their antecedents;
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| (d) |
whether or not the organisation's membership is representative of the holders of the category of rights that it claims to represent;
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| (e) |
whether or not the administrative costs exceed thirty percent of the royalties collected by the organisation;
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| (f) |
whether or not royalties are regularly and properly distributed using approved distribution rules;
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| (g) |
the particulars of the senior management and their academic and professional qualifications;
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the strategies and systems of the organisation for ensuring that royalties are collected and distributed efficiently;
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| (i) |
the audited accounts of the organisation;
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| (j) |
whether or not the organisation has submitted quarterly reports before the tenth day of next quarter; and
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| (k) |
any further information or clarification that may be useful in determining the application for renewal.
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| (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.
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| (5) |
The certificate of renewal of registration shall be in Form CMO 04 as set out in the Schedule.
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| 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.
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| (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.
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| (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.
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| 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.
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| (3) |
The costs and fees of an inspection shall be met by the Board on delivery of the inspection report.
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| 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.
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| (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.
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| 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.
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| 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.
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| (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.
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| 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.
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| (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;
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| (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);
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| (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;
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