Repeal of Sections In Copyright Bill 2021 Is Legalizing Piracy

On 3^rd February 2022, the Copyright (Amendment) Bill 2021 [National Assembly Bill No.44 of 2021] went through its Second Reading in Parliament. There have been reports in the Media stating that this Copyright (Amendment) Bill 2021 will Deter cases of Content Piracy.

Partners Against Piracy (PAP), a multi-sectoral Coalition of Stakeholders for the Creative Industry of Kenya have opposed the reports terming them incorrect.

The partners say the Repeal of sections 35B, 35C, and 35D is the same as legalizing piracy, as it removes the 1^st line of defense against piracy – being the ISPs.

Assented into Law by President Uhuru Kenyatta, in October 2019, these sections are Game-changing provisions for Kenya and the First of its kind in Africa. They protect the creative industry in Kenya by providing incentives and a legal basis for better Cooperation with Internet Service Providers (ISPs).

Economically, the net result is a KES 14.31 billion per year loss to the creatives of Kenya and a KES 16.25 billion per year loss in taxes to the Government.

The total loss is KES 92 billion per year, due to most of the digital content consumed being international, plus the costs of platforms, distributors, retailers among others.

According to PwC’s Entertainment & Media Outlook 2019-2023, the forecast for Caller Ring Back Tunes (CRBT) in 2022 is $15 million (KES 1.71 billion).

Based on local music consumption habits, about 56% of this Content may be from Kenyans, equaling KES 855 million.  Therefore, the proposed increase in share, from 16% to 52% (i.e. another 36%) is ~ KES 308 million.

In comparison, the losses to piracy, currently suffered by Creatives in Kenya, is KES 14.31 billion per year.  So, the annual Loss to Piracy of KES 14.31 billion is 46 Times more detrimental to Creatives than the KES 308 million Gain from an Increase in CRBT share.

For the Copyright (Amendment) Bill 2021 to be truly beneficial to the artists and creatives of Kenya, any proposals for the repeal of the sections must be deleted before the Third Reading in Parliament.

“While we appreciate Hon. Wanga and other MPs for legislating an increase in CRBT revenue”, says Moriasi Omambia – General Counsel for Sauti Sol Entertainment and Sol Generation Records, “the Repeal of the Internet Service Providers’ responsibilities to prevent piracy, would be a total disaster! ”

Chair of Kenya Film & Television Professionals’ Association (KFTPA) – Martin Munyua, echoes this sentiment. “Repealing the Sections 35B, 35C & 35D, will Cost our Members and the creative industry dearly.  Instead, why can’t our MPs ensure that ISPs actually Comply with this excellent Law, already assented by President Uhuru Kenyatta in October 2019, which can unlock KES 92 billion per Year for our Industry?”

“The proposed Repeal of Sections 35B, 35C & 35D, by the Copyright (Amendment) Bill 2021 contravenes Provisions of the Constitution of Kenya”, says Liz Lenjo – Intellectual Property Lawyer of MyIP Studio, “which affirms that Intellectual Property Rights are akin to any other Proprietary Rights, whereby the State has a fundamental responsibility and promises to safeguard Intellectual Property Rights of the people of Kenya.”

The Repeal of these important Provisions will continue to abet the illegal operations involved in offering Pirated content Online, including crimes like Tax Evasion, Identity Theft, Data Ransom, Money Laundering, and Fraud.  These same Crime Groups are also involved in the Trafficking of Humans, Organs, Drugs, Weapons, and more, as well as Terrorism, Contract Killing, Counterfeiting, etc (see 3, in the Fact Sheet enclosed).

Instead of Repealing these important Provisions, our Parliament should rather consider Changes to make the Law clearer and more effective, in full Cooperation with the ISPs, thus ensuring the Sustainability of the Kenya Creative Industry and the Safety of our Country from such Crimes.

Furthermore, the Provisions ensuring the swift Takedown of illegal Content, also benefit the ISPs, who are now becoming Owners of Content and Platforms themselves.  Such a Repeal will result in those ISPs not being able to Recoup their Investments, as Online Piracy steals up to 99% of potential Revenue.

Let us remember that Piracy killed our Music Industry in the early 1980s – until then, Nairobi was the Headquarters for international Labels in Africa and Benga was the Root of many Genres across the Continent that have seen immense success.  Kenya’s Creative Industry was Destroyed, and it’s taken over 40 Years to Rebuild.

Partners Against Piracy appeals to Honourable Wanga and the Twelfth Parliament, to please Delete the Repeal of Sections 35B, 35C & 35D from the Copyright (Amendment) Bill 2021, to Avoid further Losses to the Creative Industry and the Government – after all, the Creative Industry has Suffered for Decades from the Unfair Competition from Piracy, so now Deserves better Protection, especially to Recover from COVID-19.