CAP. 130 Copyright
Copyright CAP. 130
Rev. 2009]
45
2
[Rev. 2009
[Rev. 2009
44
Copyright CAP. 130
3
Rev. 2009]
CAP. 130 Copyright
[Subsidiary]
[Subsidiary]
LAWS OF KENYA
The Copyright Act
Chapter 130
Revised Edition 2009 (2001)
Published by the National Council for Law Reporting
with the Authority of the Attorney General
6 of 2006,
7 of 2007.
Short title and commencement.
L.N. 15/2003.
Interpretation.
Cap. 221.
Cap . 469.
Cap. 211.
Establishment and incorporation of the Board.
Headquarters.
Functions of the Board.
Composition of the Board.
L.N. 54/2003.
7 of 2007.
Functions and powers of the Board.
Conduct of business and affairs of the Board.
Remuneration of Board members.
Delegation by the Board.
Executive Director.
Staff of the Board.
The common seal of the Board.
Protection from Personal liability.
Liability of the Board for Damages.
Funds of the Board.
Financial year.
Annual estimates.
Accounts and audit.
Cap. 412.
Investment of funds.
Appeals.
Works eligible for copyright.
Copyright by virtue of nationality or residence, and duration of copyright.
6 of 2006.
Copyright by reference to country of origin.
Copyright in works of Government and international bodies.
Nature of copyright in literary, musical or artistic works and audio-visual works.
Cap. 211.
Broadcasting of works incorporated in audio-visual works.
Nature of copyright in sound recordings.
Nature of copyright in broadcasts.
Rights of performers.
First ownership of copyright.
Moral rights of an author.
Assignment and licences.
Rights of action and remedies of exclusive licensee and sub-licensee.
Infringement.
Authentication of copyright.
Anton Piller Orders.
Offences and penalties for infringement.
Inspectors.
Entry into premises.
Mode of inspection.
Powers of arrest.
Conduct of prosecution.
Cap. 75.
Inspectors not personally liable for acts done under this Act.
Works in the public domain.
Collective adminstration of copyright.
Cap. 486.
Annual reports and accounts.
Cap. 486. Appointment of competent authority and duties of authority.
Regulations and extension of application of the Act.
Application to works made before commencement of Act.
Abrogation of common law rights.
Repeal of Cap. 130 and savings.
Tenure of office.
Vacation of office.
Meetings.
Disclosure of interest.
The common seal.
Contracts and instruments.
L.N. 9/2005.
Citation and commencement.
Interpretation.
Forms.
Fees.
Training, competitions and awards.
Office hours of the Board (Copyright Office).
Appointment of advisors.
The Copyright Register.
Change of ownership.
Verification of assignment of copyright works from outside Kenya by the Board
Authentication of copyright.
Affixation of authentication device.
Fines payable to the Board.
Appointment of inspectors.
Application for registration of a collecting society.
Annual reports and audited accounts.
Application for compensation or payment of royalties.
Application or appeal to the Authority.
Extension of the application of the Act.
Application to use folklore.
Copies of documents.
Copy of lost or destroyed certificate.
Extension of time.
Signing of forms on behalf of certain bodies.
Statutory Declarations and Affidavits.
Documents to be in English or translated.
Repeal of former Regulations.
CHAPTER 130
THE COPYRIGHT ACT, 2001
ARRANGEMENT OF SECTIONS
Section
Part I- Preliminary
1- Short title and commencement.
2- Interpretation.
Part II- Administration
3- Establishment and incorporation of the Board.
4- Headquarters.
5- Functions of the Board.
6- Composition of the Board.
7- Functions and powers of the Board.
8- Conduct of business and affairs of the Board.
9- Remuneration of Board members.
10- Delegation by the Board.
11- Executive Director.
12- Staff of the Board.
13- The common seal of the Board.
14- Protection from personal liability.
15- Liability of the Board for damages.
16- Funds of the Board.
17- Financial year.
18- Annual estimates.
19- Accounts and audit.
20- Investment of funds.
21- Appeals.
Part III- Copyright And Other Related Rights
22- Works eligible for copyright.
23- Copyright by virtue of nationality or residence and
duration of copyright.
24- Copyright by reference to country of origin
25- Copyright in works of Government and international
bodies.
26- Nature of copyright in literary, musical or artistic works
and audio-visual works.
27- Broadcasting of works incorporated in audio-visual
works.
28- Nature of copyright in sound recording.
29- Nature of copyright in broadcasts.
30- Rights of performers.
31- First ownership of copyright.
32- Moral rights of an author.
33- Assignment and licences.
34- Rights of action and remedies of exclusive licensee and
sub-licensee.
Part IV- Infringement
35- Infringement.
36- Authentication of copyright works.
37- Anton piller orders.
38- Offences and penalties for infringement.
Part V- Inspection
39- Inspectors.
40- Entry into premises.
41- Mode of inspection.
42- Powers of arrest.
43- Conduct of prosecution.
44- Inspectors not personally liable for acts done under this
Act.
Part VI- Public Domain
45- Works in the public domain.
Part VII- Collective Administration Of Copyright
46- Collective administration of copyright.
47- Annual reports and accounts.
48- Appointment of competent authority and duties of
authority
Part VIII- Miscellaneous
49- Regulations and extension of application of the Act.
50- Application to works made before commencement of Act.
51- Abrogation of common law rights.
52- Repeal of Cap. 130 and savings.
SCHEDULE
CHAPTER 130
THE COPYRIGHT ACT, 2001
Date of Assent: 31st December, 2001
Date of Commencement: 1st February, 2003
AN ACT of Parliament to make provision for copyright in literary, musical and artistic works, audio-visual works, sound recordings, broadcasts and for connected purposes
ENACTED by the Parliament of Kenya as follows:-
Part I – Preliminary
1. This Act may be cited as the Copyright Act, 2001 and shall come into operation on 1st February, 2003.
2. (1) In this Act, unless the context otherwise requires-
“artistic work” means, irrespective of artistic quality, any of the following, or works similar thereto-
(a) paintings, drawings, etchings, lithographs, woodcuts, engravings and prints;
(b) maps, plans and diagrams;
(c) works of sculpture;
(d) photographs not comprised in audio-visual works;
(e) works of architecture in the form of buildings or models; and
(f) works of artistic craftsmanship, pictorial woven tissues and articles of applied handicraft and industrial art;
“audio-visual work” means a fixation in any physical medium of images, either synchronized with or without sound, from which a moving picture may by any means be reproduced and includes videotapes and videogrames but does not include a broadcast;
“authentication device” means any legal device that is used as proof that works or copies thereof are legitimate;
“author”, in relation to-
(a) a literary, musical or artistic work, means the person who first makes or creates the work;
(b) a photograph, means the person who is responsible for the composition of the photograph;
(c) a sound recording, means a person by whom the arrangements for the making of the sound recording were made;
(d) audio-visual works, means the person by whom the arrangements for the making of the film were made;
(e) a broadcast, means the first broadcaster;
(f) a published edition, means the publisher of the edition;
(g) a literary, dramatic, musical or artistic work or computer program which is computer generated, means the person by whom the arrangements necessary for the creation of the work were undertaken; and
(h) a computer programer, means the person who exercised control over the working of the program;
“Board” means the Kenya Copyright Board established under section 3;
“broadcast authority” means the Kenya Broadcasting Corporation established by the Kenya Broadcasting Corporation Act, or any other broadcaster authorized by or under any written law;
“broadcast” means the transmission, by wire or wireless means, of sounds or images or both or the representations thereof, in such a manner as to cause such images or sounds to be received by the public and includes transmission by satellite;
“building” includes any structure;
“competent authority” has the meaning assigned to it in section 48;
“computer” means an electronic or similar device having information-processing capabilities;
“computer program” means a set of instructions expressed in words, codes, schemes or in any other form, which is capable, when incorporated in a medium that the computer can read, of causing a computer to perform or achieve a particular task or result;
“communication to the public” means -
(a) a live performance; or
(b) a transmission to the public, other than a broadcast, of the images or sounds or both, of a work, performance or sound recording;
“copy” means a reproduction of work in any manner or form and includes any sound or visual recording of a work and any permanent or transient storage of a work in any medium, by computer technology or any other electronic means;
“copyright” means copyright under this Act;
“electronic rights management information” means any information by right-holders which identifies the work or recording;
“fixation” means the embodiment of sounds or images, or of the representation thereof from which they can be perceived, reproduced or communicated through a device;
“folklore” means a literary, musical or artistic work presumed to have been created within Kenya by an unidentified author which has been passed from one generation to another and constitutes a basic element of the traditional cultural heritage of Kenya and includes -
(a) folktales, folk poetry and folk riddles;
(b) folk songs and instrumental folk music;
(c) folk dances and folk plays; and
(d) the production of folk art, in particular drawings, paintings, sculptures, pottery, woodwork, metalware, jewellery, handicrafts, costumes and indigenous textiles;
“infringement” means any act which violates a right protected by this Act;
“infringing copy” means -
(a) a copy, the manufacture of which constitutes an infringement of any rights protected by this Act; or
(b) where imported, a copy the manufacture of which would have constituted an infringement of such rights if manufactured in Kenya by the importer;
“inspector” means an inspector appointed under section 39;
“Kenya Revenue Authority” means the Kenya Revenue Authority established under the Kenya Revenue Authority Act;
“licence” means a lawfully granted licence permitting the doing of an act controlled by copyright;
“literary work” means, irrespective of literary quality, any of the following, or works similar thereto-
(a) novels, stories and poetic works;
(b) plays, stage directions, film sceneries and broadcasting scripts;
(c) textbooks, treatises, histories, biographies, essays and articles;
(d) encyclopaedias and dictionaries;
(e) letters, reports and memoranda;
(f) lectures, addresses and sermons;
(g) charts and tables;
(h) computer programs; and
(i) tables and compilations of data including tables and compilations of data stored and embodied in a computer or a medium used in conjunction with a computer,
but does not include a written law or a judicial decision;
“moral rights” means the rights referred to in section 32 of this Act;
“Minister” means the Minister for the time being responsible for matters relating to copyright and related rights;
“musical work” means any musical work, irrespective of musical quality, and includes works composed for musical accompaniment;
“prescribed” means prescribed by regulations made under section 49;
“rental” means the transfer of, the possession of the original or a copy of a work or sound recording for a limited period of time in return for a monetary consideration;
“rebroadcasting” means simultaneous or subsequent broadcasting by one or more broadcasting authorities of the broadcast of another broadcasting authority;
“reproduction” means the making of one or more copies of a work in any material form and includes any permanent or temporary storage of such work in electronic or any other form;
“school” has the meaning assigned to it by the Education Act;
“sound recording” means any exclusively aural fixation of the sounds of a performance or of other sounds, or of a representation of sounds, regardless of the method by which the sounds are fixed or the medium in which the sounds are embodied but does not include a fixation of sounds and images, such as the sound track of an audio-visual work;
“technical measure” means any device, product or component incorporated into a work that effectively prevents or inhibits the infringement of any copyright or related right;
“work” includes translations, adaptations, new versions, or arrangements of pre-existing works, and anthologies or collections of works which, by reason of the selection and arrangement of their content, present an original character;
“work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of each author is not separable from the contribution of the other author or authors.
(2) For the purposes of this Act, the following provisions shall apply with respect to publications:-
(a) a work shall be taken to have been published if, but only if, copies have been issued in sufficient quantities to satisfy the reasonable requirements of the public;
(b) where in the first instance a part only of a work is published, that part shall be treated for the purposes of this Act as a separate work; and
(c) a publication in a country shall not be treated as being other than the first publication by reason only of an earlier publication elsewhere, if the two publications took place within a period of not more than thirty days.
Part II- Administration
3. (1) There is established a Board to be known as “the Kenya Copyright Board” which shall be a body corporate with perpetual succession and a common seal and which shall be capable, in its corporate name of -
(a) suing and being sued;
(b) purchasing or otherwise acquiring, holding, charging
or disposing of movable and immovable property;
(c) borrowing and lending money; and
(d) doing or performing all such other things or acts as may be necessary for the proper performance of its functions under this Act which may lawfully be done by a body corporate.
4. The Headquarters of the Board shall be in Nairobi.
5. The functions of the Board shall be to -
(a) direct, co-ordinate and oversee the implementation of laws and international treaties and conventions to which Kenya is a party and which relate to copyright and other rights recognised by this Act and ensure the observance thereof;
(b) license and supervise the activities of collective management societies as provided for under this Act;
(c) devise promotion, introduction and training programs on copyright and related rights, to which end it may co-ordinate its work with national or international organisations concerned with the same subject matter;
(d) organise the legislation on copyright and related rights
and propose other arrangements that will ensure its
constant improvement and continuing effectiveness; and
(e) enlighten and inform the public on matters relating to copyright and related rights;
(f) maintain an effective data bank on authors and their works; and
(g) administer all matters of copyright and related rights in Kenya as provided for under this Act and to deal with ancillary matters connected with its functions under this Act.
6. (1) The Board shall consist of-
(a) (Deleted by 7 of 2007, Sch.)
(b) one member nominated by registered software associations;
(c) one member nominated by registered musicians’ associations;
(d) one member nominated by registered filming associations;
(e) two members nominated by publishers, authors and writers associations;
(f) one member nominated by performing artistes associations;
(g) one member nominated by public universities;
(h) one member nominated by registered associations of producers of sound recordings;
(i) one member nominated by registered associations of broadcasting stations;
(j) one member nominated by producers and distributors of audio-visual works;
(k) the Permanent Secretary in the Ministry for the time being responsible for matters relating to broadcasting or his representative;
(l) the Attorney-General or his representative;
(m) the Commissioner of Police or his representative;
(n) the Permanent Secretary in the Ministry for the
time being responsible for matters relating to home
affairs, heritage and sports or his representative;
(o) the Permanent Secretary to the Treasury or his representative;
(p) the Executive Director appointed under section 11; and
(q) not more than four other members appointed by the Minister by virtue of their knowledge and expertise in matters relating to copyright and other related rights.
(2) The Minister shall appoint a chairman from among the members appointed under subsection (1).
7. The Board shall have all powers necessary for the proper performance of its functions under this Act and in particular, but without prejudice to the generality of the foregoing, the Board shall have power to -
(a) control, supervise and administer the assets of the Board in such manner as best promotes the purposes for which the Board is established;
(b) determine the provisions to be made for capital and recurrent expenditure and for reserves of the Board;
(c) receive any grants, gifts, donations or endowments and make legitimate disbursements therefrom;
(d) enter into association with such other bodies or organizations within or outside Kenya as it may consider desirable or appropriate and in furtherance of the purposes for which the Board is established;
(k) open a banking account or banking accounts for the funds of the Board; and
(f) invest any of its funds not immediately required for its purposes in the manner provided in section 20.
8. (1) The conduct and regulation of the business and affairs of the Board shall be as provided in the Schedule.
(2) Except as provided in the Schedule, the Board may regulate its own procedure.
9. The Board shall pay its members such remuneration, fees, or allowances for expenses as it may determine after consultation with the Minister for the time being responsible for finance.
10. The Board may, by resolution either generally or in any particular case, delegate to any committee of the Board or to any member, officer, employee or agent of the Board, the exercise of any of the powers or the performance of any of the functions or duties of the Board under this Act or under any other written law.
11. (l) There shall be an Executive Director of the Board who shall be appointed by the Minister on the recommendation of the Board and whose terms and conditions of service shall be determined by the Minister in the instrument of appointment or otherwise in writing from time to time.
(2) No person shall be appointed under this section unless such person -
(a) is a person qualified as an advocate of the High Court of Kenya of not less than five years’ standing or has held judicial office in Kenya; or
(b) has at least five years experience in matters relating to copyright and other related rights; or
(c) has served in a senior position in a copyright office for at least three years.
(3) The Executive Director shall -
(a) be an ex-officio member of the Board but shall have no right to vote at any meetings of the Board;
(b) be the secretary to the Board; and
(c) subject to the directions of the Board, be responsible for the day to day management of the affairs of the Board.
12. The Board may appoint such Deputy Executive Directors, Assistant Executive Directors, and such officers or other staff of the Board as are necessary for the proper discharge of its functions under this Act or any other written law upon such terms and conditions of service as the Board may determine.
13. (1) The common seal of the Board shall be kept in such custody as the Board may direct and shall not be used except on the order of the Board.
(2) The common seal of the Board when affixed to a document and duly authenticated shall be judicially and officially noticed and unless and until the contrary is proved, any necessary order or authorisation by the Board under this section shall be presumed to have been duly given.
14. No matter or thing done by a member of the Board or any officer, employee or agent of the Board shall, if the matter or thing is done bona fide for executing the functions, powers or duties of the Board, render the member, officer, employee or agent or any person acting on his directions personally liable to any action, claim or demand whatsoever.
15. The provisions of section 14 shall not relieve the Board of the liability to pay compensation or damages to any person for an injury to him, his property or any of his interests caused by the exercise of the powers conferred on the Board by this Act or by any other written law or by the failure, whether wholly or partially, of any works.
16. (1) The funds of the Board shall comprise -
(a) such sums as may be granted to the Board by the Minister pursuant to subsection (2);
(b) such monies or assets as may accrue to or vest in the Board in the course of the exercise of its powers or the performance of its functions under this Act or under any other written law; and
(c) all monies from any other source provided for or donated or lent to the Board.
(2) There shall be made to the Board, out of monies provided by Parliament for that purpose, grants towards the expenditure incurred by the Board in the exercise of its powers or the performance of its functions under this Act.
17. The financial year of the Board shall be the period of twelve months ending on the thirtieth June in each year.
18. (1) At least three months before the commencement of each financial year, the Board shall cause to be prepared estimates of revenue and expenditure of the Board for that year.
(2) The annual estimates shall make provision for all estimated expenditure of the Board for the financial year and in particular, the estimates shall provide for -
(a) the payment of the salaries, allowances and other charges in respect of the staff of the Board;
(b) the payment of pensions, gratuities and other charges in respect of the staff of the Board;
(c) the proper maintenance of the buildings and grounds of the Board;
(d) the remuneration of Board members pursuant to section 9;
(e) the maintenance, repair and replacement of equipment and other property of the Board; and
(f) the creation of such reserve funds to meet future or contingent liabilities in respect of retirement benefits, insurance or replacement of buildings or equipment, or in respect of such other matter as the Board may deem appropriate.
(3) The annual estimates shall be approved by the Board before the commencement of the financial year to which they relate and shall be submitted to the Minister for approval and after the Minister’s approval, the Board shall not increase the annual estimates without the consent of the Minister.
19. (1) The Board shall cause to be kept all proper books and records of accounts of its income, expenditure and assets.
(2) Within a period of four months from the end of each financial year, the Board shall submit to the Auditor General (Corporations) or to an auditor appointed under this section, the accounts of the Board together with-
(a) a statement of the income and expenditure of the Board during that year; and
(b) a statement of the assets and liabilities of the Board on the last day of that year.
(3) The accounts of the Board shall be audited and reported upon in accordance with sections 29 and 30A of the Exchequer and Audit Act, by the Auditor-General (Corporations), or by an auditor appointed by the Board with the approval of the Auditor-General (Corporations) given in accordance with section 29 (2) (b) of the Exchequer and Audit Act.
20. (1) The Board may invest any of its funds in securities in which for the time being trustees may by law invest trust funds, or in any other securities which the Treasury may, from time to time, approve for that purpose.
(2) The Board may place on deposit with such bank or banks as it may determine, any monies not immediately required for the purposes of the Board.
21. (1) Any person aggrieved by the decision of the Board under this Act may, within sixty days from the date of the decision, appeal to the competent authority.
(2) On request from the competent authority, the Board shall provide written comments on any matter over which an appeal has been submitted to the competent authority under this section.
(3) The competent authority shall issue a decision on the appeal within thirty days from the date of such an appeal, and such decision shall be final.
Part III - Copyright And Other Related Rights
22. (1) Subject to this section, the following works shall be eligible for copyright-
(a) literary works;
(b) musical works;
(c) artistic works;
(d) audio-visual works;
(e) sound recordings; and
(f) broadcasts.
(2) A broadcast shall not be eligible for copyright until it has been broadcast.
(3) A literary, musical or artistic work shall not be eligible for copyright unless-
(a) sufficient effort has been expended on making the work to give it an original character; and
(b) the work has been written down, recorded or otherwise reduced to material form.
(4) A work shall not be ineligible for copyright by reason only that the making of the work, or the doing of any act in relation to the work, involved an infringement of copyright in some other work.
23. (1) Copyright shall be conferred by this section on every work eligible for copyright of which the author, or, in the case of a work of joint authorship, any of the authors is, at the time when the work is made, a citizen of, or is domiciled or ordinarily resident in, Kenya or is a body corporate which is incorporated under or in accordance with the laws of Kenya.
(2) The term of a copyright conferred by this section shall be calculated according to the following table-
Type of Work Date of Expiration of Copyright
1. Literary, musical or artistic Fifty years after the end of the
work other than photographs year in which the author dies.
2. Audio-visual works Fifty years from the end of and photographs the year in which the work was either made, first made available to the public, or first published, whichever date is the latest.
3. Sound recordings Fifty years after the end of the year in which the recording was made.
4. Broadcasts Fifty years after the end of the year in which the broadcast took place.
(3) In the case of anonymous or pseudonymous literary, musical or artistic works, the copyright therein shall subsist until the expiration of fifty years from the end of the year in which it was first published:
Provided that in the event of the identity of the author becoming known the term of protection of a copyright shall be calculated in accordance with subsection (2).
(4) In the case of a work of joint authorship, reference in the preceding table to the death of the author shall be taken to refer to the author who dies last, whether or not he is a qualified person.
(5) Notwithstanding anything else contained in this Act copyright in works eligible for copyright and vested in the National Museums Board of Directors or the National Museums is conferred in perpetuity on the National Museums.
24. (1) Copyright shall be conferred by this section on every work, other than a broadcast which is eligible for copyright and which-
(a) being a literary, musical or artistic work or any audio-visual work, is first published in Kenya; or
(b) being a sound recording, is made or first published in Kenya; or
(c) being a broadcast, is transmitted from transmitters situated in Kenya.
(2) Copyright conferred on a work by this section shall have the same duration as is provided for in section 23 in relation to a similar work.
25. (1) Copyright is conferred under this section on any work eligible for copyright which has been created pursuant to a commission from the Government or such international body or non-governmental body as may be prescribed, and on which no copyright has been conferred under section 23 (1) or 24 (1).
(2) Copyright conferred by this section on a literary, musical or artistic work, shall subsist until the end of the expiration of fifty years from the end of the year in which it was first published.
(3) Copyright conferred by this section on any audio-visual work, photograph, sound recording or broadcast shall have the same duration as is provided for by section 23 in relation to a similar work.
(4) Sections 23 and 24 shall not confer copyright on works to which this section applies.
26. (1) Copyright in a literary, musical or artistic work or audio-visual work shall be the exclusive right to control the doing in Kenya of any of the following acts, namely the reproduction in any material form of the original work or its translation or adaptation, the distribution to the public of the work by way of sale, rental, lease, hire, loan, importation or similar arrangement, and the communication to the public and the broadcasting of the whole work or a substantial part thereof, either in its original form or in any form recognisably derived from the original; but copyright in any such work shall not include the right to control -
(a) the doing of any of those acts by way of fair dealing for the purposes of scientific research, private use, criticism or review, or the reporting of current events subject to acknowledgement of the source;
(b) the reproduction and distribution of copies, or the inclusion in a film or broadcast, of an artistic work situated in a place where it can be viewed by the public;
(c) the incidental inclusion of an artistic work in a film or broadcast;
(d) the inclusion in a collection of literary or musical works of not more than two short passages from the work in question if the collection is designed for use in a school registered under the Education Act or any university established by or under any written law and includes an acknowledgement of the title and authorship of the work;
(e) the broadcasting of a work if the broadcast is intended to be used for purposes of systematic instructional activities;
(f) the reproduction of a broadcast referred to in the preceding paragraph and the use of that reproduction in a school registered under the Education Act or any university established by or under any written law for the systematic instructional activities of any such school or university;
(g) the reading or recitation in public or in a broadcast by one person of any reasonable extract from a published literary work if accompanied by a sufficient acknowledgement of the author;
(h) the reproduction of a work by or under the direction or control of the Government, or by such public libraries, non-commercial documentation centers and scientific institutions as may be prescribed, where the reproduction is in the public interest and no revenue is derived therefrom;
(i) the reproduction of a work by or under the direction or control of a broadcasting authority where the reproduction or copies thereof are intended exclusively for broadcast by that broadcasting authority authorized by the copyright owner of the work and are destroyed before the end of the period of six calendar months immediately following the making of the reproduction or such longer period as may be agreed between the broadcasting authority and the owner of the relevant part of the copyright in the work; and any reproduction of a work made under this paragraph may, if it is of an exceptional documentary nature, be preserved in the archives of the broadcasting authority, but, subject to the provisions of this Act, shall not be used for broadcasting or for any other purpose without the consent of the owner of the relevant part of the copyright in the work;
(j) the broadcasting of a literary, musical or artistic work or audio-visual works already lawfully made accessible to the public with which no licensing body referred to under section 46 is concerned:
Provided that subject to the provisions of this section the owner of the broadcasting right in the work receives fair compensation determined, in the absence of agreement, by the competent authority appointed under section 48; and
(l) any use made of a work for the purpose of a judicial proceeding or of any report of any such proceeding.
(2) Copyright in a work of architecture shall also include the exclusive right to control the erection of any building which reproduces the whole or a substantial part of the work either in its original form or in any form recognizably derived from the original; but the copyright in any such work shall not include the right to control the reconstruction of a building to which that copyright relates in the same style as the original.
(3) Copyright of a computer program shall not constitute fair dealing for the purposes of paragraph (a) of subsection (1).
(4) Notwithstanding the provisions of subsection (3), a person who is in lawful possession of a computer program may do any of the following acts without the authorization of the right holder whereby copies are necessary for the use of the computer program in accordance with its intended purpose -
(a) to make copies of the program to the extent necessary to correct errors; or
(b) to make a back-up copy; or
(c) for the purpose of testing a program to determine its suitability for the person’s use; or
(d) for any purpose that is not prohibited under any license or agreement whereby the person is permitted to use the program.
(5) The authorization of the right holder of the program shall not be required to decompile the program, convert the program into a version expressed in different programming language, code, notation for the purpose of obtaining information needed to enable the program to operate with other programs.
(6) Any copies made pursuant to this section shall be used only for the purpose for which it was made and shall be destroyed when the person’s possession of the computer program ceases to be lawful.
27. (1) Where the owner of the copyright in any literary, musical or artistic work authorizes a person to incorporate the work in audio-visual works and a broadcasting authority broadcasts such works, it shall, in the absence of any express agreement to the contrary, be deemed that the owner of the copyright authorized the broadcast.
(2) Notwithstanding subsection (1),where a broadcasting authority broadcasts audio-visual works in which a musical work is incorporated, the owner of the right to broadcast the musical work shall, subject to the provisions of this Act, be entitled to receive fair compensation from the broadcasting authority, and in the absence of an agreement the amount of compensation shall be determined by the competent authority appointed under section 48.
28. (1) Subject to subsections (2) and (3), copyright in sound recordings shall be the exclusive right to control the doing in Kenya of any of the following acts in respect of the sound recording, namely-
(a) the direct or indirect reproduction in any manner or form; or
(b) the distribution to the public of copies by way of sale, rental, lease, hire, loan or any similar arrangements; or
(c) the importation into Kenya; or
(d) the communication to the public or the broadcasting of the sound recording in whole or in part either in its original form or in any form recognizably derived from the original.
(2) The provisions of paragraphs (a), (f), (j) and (h) of section 26 (1) shall apply mutatis mutandis to the copyright in a sound recording.
(3) Subject to subsections (4) and (5), the rights of an owner of a copyright in a sound recording are not infringed by the making of a single copy of the recording for the personal and private use of the person making the copy; and in respect of such use the owner of copyright in the sound recording shall have the right to receive fair compensation consisting of a royalty levied on audio recording equipment or audio blank tape suitable for recording and other media intended for recording, payable at the point of first sale in Kenya by the manufacturer or importer for commercial purposes of such equipment or media.
(4) The level of the royalty payable under subsection (3) shall be agreed between organizations representative of producers of sound recordings and of manufacturers and importers of audio recording equipment, audio blank tape and media intended for recording or failing such agreement by the competent authority appointed under section 48.
(5) All claims for compensation under this section shall be made through an organization representative of producers of sound recordings.
(6) Any person who, for commercial purposes, makes available any audio recording equipment for the purposes of enabling any other person to make single copies of any sound recording for his personal or private use, without payment of the royalty levied under subsection (3) shall be guilty of an offence and shall be liable to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding four years or to both.
29. Copyright in a broadcast shall be the exclusive right to control the doing in Kenya of any of the following acts, namely, the fixation and the rebroadcasting of the whole or a substantial part of the broadcast and the communication to the public of the whole or a substantial part of a television broadcast either in its original form or in any form recognizably derived from the original, but-
(a) paragraphs (a), (f), (e) and (l) of section 26 (1) shall apply mutatis mutandis to the copyright in a broadcast; and
(b) the copyright in a television broadcast shall include the right to control the taking of still photographs therefrom.
30. (1) No person shall do any of the following acts without the authorization of the performer-
(a) broadcast his performance except where the broadcast is made from a fixation of the performance authorized by the performer;
(b) communicate to the public his performance except where the communication-
(i) is made from a fixation of the performance; or
(ii) is made from broadcast of the performance,
authorized by the performer;
(c) make a fixation of a previously unfixed performance; and
(d) reproduce a fixation of the performance in either of the following cases-
(i) where the performance was initially fixed without the authorization of the performer; or
(ii) where the reproduction is made for purposes different from those for which the performer gave his authorization.
(e) rent for commercial purposes to the public, the original and copies of their fixed performances.
(2) In the absence of any contractual agreement to the contrary in circumstances of employment from which the contrary would normally be inferred-
(a) the authorization to broadcast does not imply an authorization to license other organizations to broadcast the performance;
(b) the authorization to broadcast does not imply an authorization to make a fixation of the performance; and
(c) the authorization to broadcast and fix the performance does not imply an authorization to reproduce the fixation.
(3) A binding authorization given under this section may be given by the performer or by a duly appointed representative to whom he has granted in writing the right to give such authorization; and any authorisation given by the performer claiming that he has retained the relevant rights or by a person claiming to be a duly appointed representative of a performer shall be considered valid unless the recipient knew or had good reason to believe that the claim or appointment, as the case may be, was not valid.
(4) Protection of the rights of the performer under this section shall subsist for fifty years after the end of the year in which the performance took place.
(5) The performer shall, during his lifetime, as regards live performances or performances fixed in phonograms, have the right, independently of his economic rights, to -
(a) be identified as the performer of his performances and to object to any distortion, mutilation, or other modification of his performances that would be prejudicial to his reputation; and
(b) seek relief in connection with any distortion, mutilation or other modification of, and any other derogatory action in relation to his work, where such work would be or is prejudicial to his honour or reputation.
(6) In this section -
“performance” means the representation of a work by such action as dancing, playing, reciting, singing, declaiming or projecting to listeners by any means whatsoever;
“performer” means an actor, singer, declaimer, musician or other person who performs a literary or musical work and includes the conductor of the performance of any such work;
“publication” means a work or a sound recording, tangible copies of which have been made available to the public in a reasonable quantity for sale, rental, public lending or for other transfer of the ownership or the possession of the copies, provided that, in the case of a work, the making available to the public took place with the consent of the author or other owner of copyright, and in the case of a sound recording, with the consent of the producer of the sound recording or his successor in title.
31. (1) Copyright conferred by sections 23 and 24 shall vest initially in the author:
Provided that where a work -
(a) is commissioned by a person who is not the author’s employer under a contract of service; or
(b) not having been so commissioned, is made in the course of the author’s employment under a contract of service,
the copyright shall be deemed to be transferred to the person who commissioned the work or the author’s employer, subject to any agreement between the parties excluding or limiting the transfer.
(2) Copyright conferred by section 25 shall vest initially in the Government or such international bodies or other governmental organizations as may be prescribed, and not in the author.
(3) In this section “owner of copyright”-
(a) where the economic rights are vested in the author, means the author;
(b) where the economic rights are originally vested in a physical person other than the author or in a legal entity, means that person or entity; and
(c) where the ownership of the economic rights has been transferred to a physical person or legal entity, means that person or entity.
32. (1) Independently of the author’s economic rights and even after the transfer of the said rights, the author shall have the right to-
(a) claim the authorship of the work; and
(b) object to any distortion, mutilation or other modification of or other derogatory action in relation to, the said work which would be prejudicial to his honour or reputation.
(2) None of the rights mentioned in subsection (1) shall be transmissible during the life of the author but the right to exercise any of the said rights shall be transmissible by testamentary disposition or by operation of the law following the demise of the author.
(3) The author has the right to seek relief in connection with any distortion, mutilation or other modification of, and any other derogatory action in relation to his work, where such work would be or is prejudicial to his honour or reputation.
33. (1) Subject to this section, copyright shall be transmissible by assignment, by licence, testamentary disposition, or by operation of law as movable property.
(2) An assignment or testamentary disposition of copyright may be limited so as to apply only to some of the acts which the owner of the copyright has the exclusive right to control, or to a part only of the period of the copyright, or to a specified country or other geographical area.
(3) No assignment of copyright and no exclusive licence to do an act the doing of which is controlled by copyright shall have effect unless it is in writing signed by or on behalf of the assignor, or by or on behalf of the licensor, as the case may be and the written assignment of copyright shall be accompanied by a letter of verification from the Board in the event of an assignment of copyright works from outside Kenya.
(4) A non-exclusive licence to do an act the doing of which is controlled by copyright may be written or oral, or may be inferred from conduct, and may be revoked at any time, but a licence granted by contract shall not be revoked, either by the person who granted the licence or his successor in title, except as the contract may provide, or by a further contract.
(5) An assignment, licence or testamentary disposition may be effectively granted or made in respect of a future work, or an existing work in which copyright does not yet subsist, and the prospective copyright in any such work shall be transmissible by operation of law as movable property.
(6) A testamentary disposition of the material on which a work is first written or otherwise recorded shall, in the absence of contrary indication, be taken to include the disposition of any copyright or prospective copyright in the work which is vested in the deceased.
(7) Where an agreement for assignment of copyright does not specify the period of assignment, the assignment shall terminate after three years.
(8) In the case of agreements regarding future works which are not specified in detail, either party may, on giving not less than one month’s notice, terminate the agreement not earlier than three years after it was signed or such shorter period as may be agreed.
(9) A licence granted in respect of any copyright by the person who, in relation to the matters to which the licence relates, is the owner of the copyright, shall be binding upon every successor in title to his interest in the copyright, except a purchaser in good faith and without notice, actual or constructive, of the licence, or a person deriving title from such purchaser and any reference in this Act to the doing of anything in relation to any copyright, with or without the licence of the owner of the copyright, shall be construed accordingly.
(10) Where the doing of anything is authorised by the grantee of a licence or a person deriving title from the grantee, and it is within the terms, including any implied terms of the licence for him to authorise it, it shall for the purpose of this Act be deemed to be done with the licence of the grantor and of every person, if any, upon whom the licence is binding.
34. (1) An exclusive licensee and exclusive sub-licensee shall have the same rights of action and be and entitled to the same remedies, as if the licence were an assignment and those rights and remedies shall be and concurrent with the rights and remedies of the owner of the copyright under which the licence and sub-licence were granted.
(2) Before an exclusive licensee or sub-licensee institutes proceedings under subsection (1), he shall give notice in writing to the owner of the copyright concerned, of his intention to do so, and the owner may intervene in such proceedings and recover any damages he may have suffered as a result of the infringement concerned or a reasonable royalty to which he may be entitled.
Part IV – Infringement
35. (1) Copyright shall be infringed by a person who, without the licence of the owner of the copyright-
(a) does, or causes to be done, an act the doing of which is controlled by the copyright; or
(b) imports, or causes to be imported, otherwise than for his private and domestic use, an article which he knows to be an infringing copy.
(2) The rights of a performer shall be infringed by a person who without the consent of the performer-
(a) does, or causes to be done, any act specified in section 30 (1); or
(b) imports or causes to be imported, otherwise than for his own private or domestic use, an article which he knows would have been made contrary to section 30 had it been made in Kenya by the importer.
(3) Copyright and related rights shall be infringed by a person who -
(a) circumvents any effective technical measure designed to protect works; or
(b) manufactures or distributes devices which are primarily designed or produced for the purpose of circumventing technical measures designed to protect works protected under this Act; or
(c) removes or alters any electronic rights management information; or
(d) distributes, imports, broadcasts or makes available to the public, protected works, records or copies from which electronic rights management information has been removed or has been altered without the authority of the right holder.
(4) Infringement of any right protected under this Act shall be actionable at the suit of the owner of the right and in any action for infringement the following reliefs shall be available to the plaintiff-
(a) the relief by way of damages, injunction, accounts or otherwise that is available in any corresponding proceedings in respect of infringement of other proprietary rights;
(b) delivery up to the plaintiff of any article in the possession of the defendant which appears to the court to be an infringing copy, or any article used or intended to be used for making infringing copies;
(c) in lieu of damages, the plaintiff at his option, be awarded an amount calculated on the basis of reasonable royalty which would have been payable by a licensee in respect of the work or type of work concerned;
(d) for the purpose of determining the amount of damages or a reasonable royalty to be awarded under this section or section 33 (2), the court may direct an enquiry to be held and may prescribe such procedures for conducting such enquiries as the court considers necessary; and
(e) before the owner of the right institutes proceedings under this section, he shall give notice in writing to the exclusive licensee or sub-licensee of the copyright concerned of the intention to do so, and the exclusive licensee or sub-licensee may intervene in such proceedings and recover any damages he may have suffered as a result of the infringement concerned or a reasonable royalty to which he may be entitled.
(5) Where in an action for infringement of copyright it is proved or admitted-
(a) that an infringement was committed; but
(b) that at the time of the infringement the defendant was not aware, and had no reasonable grounds for suspecting, that copyright subsisted in the work to which the action relates, the plaintiff shall not be entitled under this section to any damages against the defendant in respect of the infringement whether or not other relief is granted under this section.
(6) Where in an action under this section an infringement of copyright protected under this Act is proved or admitted, and the court, having regard (in addition to all other material considerations) to-
(a) the flagrancy of the infringement; and
(b) any benefit shown to have accrued to the defendant by reason of the infringement,
is satisfied that effective relief would not otherwise be available to the plaintiff, the court, in assessing damages for the infringement, may award such additional damages by virtue of this subsection as the court may consider appropriate in the circumstances.
(7) No injunction shall be issued in proceedings for infringement of any right protected under this Act which requires a completed or partly built building to be demolished or prevents the completion of a partly built building.
(8) In an action under this section-
(a) copyright shall be presumed to subsist in the work or other subject matter to which the action relates, if the defendant does not put in issue the subsistence of copyright therein; and
(b) where the subsistence of copyright is proved, admitted or presumed under paragraph (a), the plaintiff shall be presumed to be the owner of the copyright if he makes a claim thereto and the defendant does not dispute that claim.
(9) Where in an action under this section, a name purporting to be the name of the author or joint author appears on copies of a literary or musical work as published or an artistic work when it was made, any person whose name so appears, if it is his true name or the name by which he is commonly known, shall be presumed, unless the contrary is proved, to be the author of the work.
(10) In the case of an anonymous or pseudonymous work, the publisher whose name appears on the work shall, in the absence of any proof to the contrary, be presumed to represent the author and, in this capacity, shall be entitled to exercise and enforce the moral and economic rights of the author:
Provided that the presumption under this subsection shall cease to apply when the author reveals his identity or where the pseudonym leaves no doubts as to the identity of the author.
(11) Where, in any action under this section, the author of the literary, musical or artistic work to which the action relates is dead, it shall be presumed, unless the contrary is proved-
(a) that the work is eligible for copyright; and
(b) that any allegation by the plaintiff that the work is a first publication and was published in a specified country on a specified date, is true.
(12) Where, in an action under this section, the sound recording to which the action relates is reproduced on a record bearing a label or other mark which has been issued to the public, any statement on that label or mark to the effect that a person named thereon was the maker of the sound recording or by whom the recording was first published in a specified year shall, unless the contrary is proved, be presumed to be true.
(13) In this section -
“record” means any disc, tape, perforated roll or other device in which sounds or the representations of sounds are embodied which are capable of reproduction therefrom with or without the aid of another instrument.
“action” includes a counterclaim and references to the plaintiff and to the defendant in an action shall be construed accordingly;
“court” means a court of competent jurisdiction;
“owner of the copyright” means the first owner, an assignee or an exclusive licensee, as the case may be, of the relevant portion of the copyright.
36. (1) A manufacturer or producer of sound and audio-visual works or recordings shall apply to the Board for the authentication of copyright works.
(2) The Board shall authenticate copyright works according to all required documents furnished to it by the applicant for that purpose and shall issue an approval certificate in the prescribed form to the applicant for authority to purchase an authentication device from the Kenya Revenue Authority.
(3) A manufacturer or producer of sound recordings or audio-visual works shall purchase such authentication device from the Kenya Revenue Authority as may be required to cover the number of copyright works he intends to sell or distribute.
(4) The authentication device shall be affixed to each copy of the copyright work made or published by the applicant.
(5) No person shall sell or exhibit for sale any copyright works that require an authentication device in any form without an authentication device affixed thereto pursuant to subsection (4).
(6) Any person who sells or offers for sale any copyright work that require an authentication device without an authentication device affixed thereto is guilty of an offence and is liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding four years, or to both.
37. (1) If a person has prima facie evidence that his right has been infringed by another party and he satisfies the court or competent authority that prima facie-
(a) he has a cause of action against another person which he intends to pursue;
(b) the other person has, in his possession documents infringing copies or other things of whatsoever nature which constitute evidence of great importance in substantiation of that cause of action; and
(c) there is the real and well-founded apprehension that the documents, infringing copies or other things may be hidden, destroyed or rendered inaccessible before discovery can be made in the usual way,
the court or competent authority as the case may be, may make such order as it considers necessary or appropriate to secure the preservation of the documents, copies or things as evidence.
(2) An order made under subsection (1) may be granted ex parte.
38. (1) Any person who, at a time when copyright or the right of a performer subsists in a work-
(a) makes for sale or hire any infringing copy; or
(b) sells or lets for hire or by way of trade exposes or offers for sale any infringing copy; or
(c) distributes infringing copies; or
(d) possesses otherwise than for his private and domestic use, any infringing copy; or
(e) imports into Kenya otherwise than for his private and domestic use any infringing copy; or
(f) makes or has in his possession any contrivance used or intended to be used for the purpose of making infringing copies,
shall, unless he is able to prove that he had acted in good faith and had no reasonable grounds for supposing that copyright or the right of a performer would or might thereby be infringed, be guilty of an offence.
(2) Any person who causes a literary or musical work, an audio-visual work or a sound recording to be performed in public at a time when copyright subsists in such work or sound recording and where such performance is an infringement of that copyright shall be guilty of an offence unless he is able to prove that he had acted in good faith and had no reasonable grounds for supposing that copyright would or might be infringed.
(3) For the purposes of paragraphs (a) to (f) of subsection (1), any person who has in his possession, custody or control two or more infringing copies of a work in the same form, shall, unless the contrary is proved, be presumed to be in possession of or to have imported such copies otherwise than for private and domestic use.
(4) Any person guilty of an offence under paragraph (a), (c), (e) or (f) of subsection (1) shall be liable to a fine not exceeding four hundred thousand shillings or to imprisonment for a term not exceeding ten years or to both.
(5) Any person guilty of an offence under paragraph (b) or (d) of subsection (1) shall be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding two years or to both.
(6) A person convicted of an offence under this section shall be liable -
(a) in the case of a first conviction, to a fine not exceeding four hundred thousand shillings, or to imprisonment for a term not exceeding six years, or to both; and
(b) in any other case, to a fine not exceeding eight hundred thousand shillings, or to imprisonment for a term not exceeding ten years, or to both.
(7) Any person guilty of an offence under subsection (2) shall be liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding four years, or to both.
(8) The court before which a person is charged with an offence under this section, shall whether such person is convicted of the offence or not, order that any article in his possession which appears to the court to be an infringing copy, or to be an article used or intended to be used for making infringing copies, be destroyed or delivered up to the owner of the copyright in question or otherwise dealt with as the court may think fit.
(9) No prosecution for an offence under this section shall be instituted-
(a) after the expiration of the period of three years immediately following the date of the alleged offence; and
(b) except, before the High Court or a Resident Magistrate’s Court.
(10) One half of all fines imposed and recovered by a competent court in respect of the contravention of any of the provisions of this Act or of any regulations made thereunder shall be paid into the revenues of the Board and the other half shall be paid into the general revenues of Kenya.
Part V- Inspection
39. (1) The Board shall, for the purposes of enforcing the provisions of this Act, appoint such number of inspectors as the Board considers appropriate and shall issue to them, in writing or in such form as may be prescribed, certificates of authority to act as such inspectors.
(2) In addition to inspectors appointed under subsection (1), any member of the Board or a police officer may perform the functions of an inspector under this Act.
(3) A person appointed as an inspector shall hold office subject to such conditions as the Board may determine with approval of the Minister.
40. Subject to the provisions of this section, an inspector may, at any reasonable time and on production of his certificate of authority, enter any premises, ship, aircraft or vehicle for the purpose of ascertaining whether there is or has been, on or in connexion with such premises, ship, aircraft or vehicle any contravention of this Act.
41. (1) For the purpose of ascertaining whether there is or has been a contravention of this Act, an inspector may inspect -
(a) any substance or article appearing to him to be a work;
(b) any container or package used or intended to be used to contain any work; or
(c) any plant or equipment appearing to him to be used or intended to be used in connexion with the production, reproduction or otherwise manufacture of a work.
(2) An inspector may seize and detain any substance or article which he has reasonable cause to believe to be an infringing copy of any work or in relation to which or by means of which he has reasonable cause to believe that an offence under this Act has been or is being committed, and any document which he has reasonable cause to believe to be a document which may be required in proceedings under this Act.
(3) Where an inspector seizes any work he shall in writing, notify the person from whom it is seized the fact of that seizure and shall in that notification specify any item seized.
(4) Any person who -
(a) willfully obstructs an inspector in the discharge of the inspector’s duties; or
(b) willfully fails to comply with any requirement properly made to him by an inspector; or
(c) without reasonable cause fails to give to the inspector any assistance or information which the inspector may reasonably require of that person for the purpose of the performance of his duties under this Act; or
(d) in giving any such information as is mentioned in subparagraph (c), makes any statement which he knows to be false or does not believe to be true,
shall be guilty of an offence and shall be liable to a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding six months or to both.
42. Any police officer may arrest, without a warrant, any person whom he suspects upon reasonable grounds of having committed any offence under this Act and any officer of the Board who at the time is wearing a visible badge of office and authorized thereto in writing by the Board, may arrest, without warrant, any person who, in his presence, commits any such offence and may detain such person until he can be delivered into the custody of a police officer to be dealt with according to law:
Provided that no person shall be arrested or detained without warrant unless reasonable grounds exist for believing that, except by the arrest of such person, he may not be found or made answerable to justice without unreasonable delay, trouble or expense.
43. (1) The Attorney-General may, pursuant to the provisions of the Criminal Procedure Code, appoint public prosecutors for the purposes of cases arising under this Act.
(2) The Board shall, for the purposes of section 171 (4) of the Criminal Procedure Code, be deemed to be a public authority.
44. An inspector shall not be personally liable in respect of any act done in good faith by him in the course of his employment and in the execution or purported execution of any duty under this Act.
Part VI - Public Domain
45. (1) The following works shall belong to the public domain-
(a) works whose terms of protection have expired;
(b) works in respect of which authors have renounced their rights; and
(c) foreign works which do not enjoy protection in Kenya.
(2) For the purposes of paragraph (b), renunciation by an author or his successor in title of his rights shall be in writing and made public but any such renunciation shall not be contrary to any previous contractual obligation relating to the work.
(3) Subject to the payment of such fees as may be determined by the Minister in relation thereto, a work which has fallen into the public domain may be used without any restriction.
Part VI - Collective Administration Of Copyright
46. (1) No person or association of persons shall commence or carry on the business of a copyright collecting society except under or in accordance with a certificate of registration granted under this section.
(2) Applications for registration as collecting societies shall be made to the Board accompanied with the prescribed fees and the Board, by a Gazette notice is empowered to declare a body which has applied for registration a collecting society, for all relevant copyright owners or for such classes of relevant copyright owners as are specified in the notice.
(3) Every certificate issued to a collecting society shall be in the prescribed form and shall unless cancelled be valid for a period of twelve months from the date of issue.
(4) The Board may approve a collecting society if it is satisfied that -
(a) the body is a company limited by guarantee and incorporated under the Companies Act;
(b) it is a non-profit making entity;
(c) its rules and regulations contain such other provisions as are prescribed, being provisions necessary to ensure that the interests of members of the collecting society are adequately protected;
(d) its principal objectives are the collection and distribution of royalties; and
(e) its accounts are regularly audited by independent external auditors elected by the society.
(5) The Board shall not approve another collecting society in respect of the same class of rights and category of works if there exists another collecting society that has been licenced and functions to the satisfaction of its members.
(6) The Board may, where it finds it expedient, assist in establishing a collecting society for any class of copyright owners.
(7) There shall be a transitional registration period not exceeding six months from the date of commencement of this Act:
Provided that the Minister may extend the period upon application by a collecting society.
(8) All collecting societies that are presently registered under any other written law in Kenya, shall within the period specified in subsection (7), apply for and obtain a certificate under this Act.
(9) The Board may by notice in the Gazette deregister a collecting society if it’s satisfied that the collecting society -
(a) is not functioning adequately as a collecting society;
(b) is not acting in accordance with its Memorandum and Articles of Association or in the best interests of its members;
(c) has altered its rules so that it no longer complies with subsection 4 of this section and;
(d) it has refused or failed to comply with any of the provisions of this Act.
47. (1) A collecting society shall, as soon as reasonably practicable after the end of each financial year, submit to the Board-
(a) a report of its operations during that year;
(b) a copy of its audited accounts in respect of that year.
(2) This section shall apply without prejudice to the obligations of a collecting society under the provisions of the Companies Act.
48. (1) There shall be a competent authority appointed by the Minister for the purpose of exercising jurisdiction under this Act where any matter requires to be determined by such authority.
(2) Subject to subsection (3), in any case where it appears to the competent authority that -
(a) the Board is unreasonably refusing to grant a certificate of registration in respect of a collecting society; or
(b) the board is imposing unreasonable terms or conditions on the granting of such a certificate; or
(c) a collecting society is unreasonably refusing to grant a licence in respect of a copyright work; or
(d) a collecting society is imposing unreasonable terms or conditions on the granting of such a licence;
(e) the competent authority may direct that as respects the doing of any act relating to work with which the collecting society is concerned or with respect to the granting of a certificate to operate as a collecting society, a licence or a certificate shall be deemed to have been granted by the collecting society or the Board at the time the act is done or the application is made, provided the appropriate fees are paid or tendered before the expiration of such period or periods as the competent authority may determine.
(3) Where a dispute has been referred to the competent authority under this section, the competent authority shall, in accordance with such procedure as may be prescribed, give both parties an opportunity to present their respective cases, either in person or through representatives, both orally and in writing.
(4) In this section -
“collecting society” means an organization which has as its main object, or one of its main objects, the negotiating for the collection and distribution of royalties and the granting of licenses in respect of copyright works or performer’s rights; and
“competent authority” means an authority of not less than three and not more than five persons, one of whom shall be a person qualified as an advocate of the High Court of Kenya of not less than seven years’ standing or a person who holds or has held judicial office in Kenya who shall be the chairman, appointed by the Minister for the purpose of exercising jurisdiction under this Act where any matter requires to be determined by such authority.
(5) No person shall be appointed under this section, nor shall any person so appointed act as a member competent authority, if he, his partner, his employer, ly body (whether statutory or not) of which he is a member has a pecuniary interest in any matter which requires to be determined by the authority.
Part VII – Miscellaneous
49. The Minister may make regulations generally for the better carrying out of the provisions of extension of the Act and, without prejudice to the generality of the application of the doing, the Minister may in such regulations-
(a) prescribe anything required by this Act to be prescribed;
(b) extend the application of this Act in respect of any or all of the works referred to in section 22 (1) -
(i) to individuals or bodies corporate who are
citizens of, domiciled or resident in or
incorporated under the laws of; or
(ii) to works, other than sound recordings, first published in; or
(iii) to sound recordings made or published in Kenya or 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 in works to which the application of this Act extends;
(c) restrict the right of an author to control the translation or the reproduction of his work up to the extent permitted by any Copyright Convention for the time being in force in Kenya;
(d) authorise and prescribe the terms and conditions governing any specified use of folklore, except by a national public entity for non-commercial purposes, or the importation of any work made abroad which embodies folklore.
50. (1) This Act shall apply to -
(a) works, performances, sound recordings and broadcasts made prior to the commencement of this Act, where the term of protection had not expired under the former Act or under the legislation of the country of origin of such works;
(b) performances, sound recordings or broadcasts that are to be protected under an international treaty to which Kenya is a party.
(2) This Act shall not affect contracts on works, performances, sound recordings and broadcasts concluded before the commencement of this Act.
51. No copyright or right in the nature of copyright shall subsist otherwise than by virtue of this Act or of some other enactment in that behalf.
52. (1) The Copyright Act is repealed:
Provided that any regulation or other instrument made or issued thereunder and having effect before the commencement of this Act shall continue to have effect as if such regulation or other instrument were made or issued under this Act.
(2) In this Part -
“former Act” means the Copyright Act repealed by this section.
SCHEDULE (s. 8)
PROVISIONS AS TO THE CONDUCT OF BUSINESS AND AFFAIRS OF THE BOARD
1. The chairman or a member of the Board other than an ex- officio member shall, subject to the provisions of this Schedule, hold office for a period of three years, on such terms and conditions as may be specified in the instrument of appointment, but shall be eligible for re-appointment.
2. The chairman or a member other than an ex-officio member may -
(a) at any time resign from office by notice in writing to the Minister;
(b) be removed from office by the Minister on the recommendation of the Board if the member-
(i) has been absent from three consecutive meetings of the Board without the permission of the Board;
(ii) is convicted of a criminal offence and sentenced to imprisonment for a term exceeding six months or to a fine exceeding ten thousand shillings;
(iii) is incapacitated by prolonged physical or mental illness; or
(iv) is otherwise unable or unfit to discharge his functions.
3. (1) The Board shall meet not less than four times in every financial year and not more than four months shall elapse between the date of one meeting and the date of the next meeting.
(2) Notwithstanding subparagraph (1), the chairman may, and upon requisition in writing by at least five members shall, convene a special meeting of the Board at any time for the transaction of the business of the Board.
(3) Unless three quarters of the total members of the Board otherwise agree, at least fourteen days’ written notice of every meeting of the Board shall be given to every member of the Board.
(4) The quorum for the conduct of the business of the Board shall be seven members including the chairman or the person presiding.
(5) The chairman shall preside at every meeting of the Board at which he is present but in his absence, the members present shall elect one of their number to preside, who shall, with respect to that meeting and the business transacted thereat, have all the powers of the chairman.
(6) Unless a unanimous decision is reached, a decision on any matter before the Board shall be by a majority of the votes of the members present and voting and in the case of an equality of votes, the chairman or the person presiding shall have a second or casting vote.
(7) Subject to paragraph (4), no proceedings of the Board shall be invalid by reason only of a vacancy among the members thereof.
(8) Subject to the provisions of this Schedule, the Board may determine its own procedure and the procedure for any committee of the Board and for the attendance of other persons at its meetings and may make standing orders in respect thereof.
4. (1) If a member is directly or indirectly interested in any contract, proposed contract or other matter before the Board and is present at a meeting of the Board at which the contract, proposed contract or other matter is the subject of consideration, he shall, at the meeting and as soon as reasonably practicable after the commencement thereof, disclose the fact and shall not take part in the consideration or discussion of, or vote on, any questions with respect to the contract or other matter, or be counted in the quorum of the meeting during consideration of the matter.
(2) A disclosure of interest made under this paragraph shall be recorded in the minutes of the meeting at which it is made.
5. The affixing of the common seal of the Board shall be authenticated by the signature of the chairman and the Executive Director and any document not required by law to be made under seal and all decisions of the Board may be authenticated by the signatures of the chairman and the Executive Director:
Provided that the Board shall, in the absence of either the chairman or the Executive Director in any particular matter, nominate one member to authenticate the seal on behalf of either the chairman or the Executive Director,
6. Any contract or instrument which, if entered into or executed by a person not being a body corporate, would not require to be under seal, may be entered into or executed on behalf of the Board by any person generally or specially authorised by the Board for that purpose.
SUBSIDIARY LEGISLATION
THE COPYRIGHT REGULATIONS, 2004
ARRANGEMENT OF REGULATIONS
Part I - Preliminary
Regulations
1. Citation and commencement.
2. Interpretation.
3. Forms.
4. Fees.
Part II - Administration
5. Training, competitions and awards.
6. Office hours of the Board (Copyright Office).
7. Appointment of advisors.
8. The Copyright Register.
9. Change of ownership.
Part III - Verification Of Assignment Of Copyright Works
From Outside Kenya Under Section 33 (3) Of The Act
10. Verification of assignment of copyright works from outside
Kenya by the Board.
Part IV - Authentication Of Copyright Works Under Section 36 Of The Act
11. Authentication of copyright.
12. Affixation of authentication device.
Part V - Fines Payable To The Board
13. Fines payable to the Board.
Part VI - Inspection
14. Appointment of inspectors.
Part VII - Registration Of Collecting Societies Under Section
46 Of The Act
15. An application for registration of a collecting society.
Part VIII - Filing Of Annual Reports And Audited Accounts By Collecting Societies Under Section 47 Of The Act
16. Annual reports and audited accounts.
Part IX - Proceedings Before The Competent Authority
17. Application for compensation or payment of royalties.
18. Application or appeal to the Authority.
Part X - Extension Of Application Of The Act
19. Extension of application of the Act.
Part XI - Use Of Folklore
20. Application to use folklore.
Part XII - General And Miscellaneous Provisions
21. Copies of documents.
22. Copy of lost or destroyed certificate.
23. Extension of time.
24. Signing of forms on behalf of certain bodies.
25. Statutory declarations and Affidavits.
26. Documents to be in English or translated.
27. Repeal of former Regulations.
THE COPYRIGHT ACT, 2001
(No. 12 of 2001)
Part I - Preliminary
1. These Regulations may be cited as the Copyright Regulations, 2004.
2. In these Regulations, unless the context otherwise requires –
“Authority” means the Competent Authority established under section 48 of the Act.
“exclusive licence” means a licence in writing signed by or on behalf of an owner or prospective owner of copyright or related rights, authorizing the licensee to the exclusion of all other persons, including the person granting the licence, to exercise a right which by virtue of the Act would (apart from the licence) be exercisable exclusively by the owner of copyright or related rights and “exclusive licensee” shall be construed accordingly.
“public display” means the showing of original or a copy of a work –
(a) directly;
(b) by means of a film, slide, television image or otherwise on screen;
(c) by means of any other device or process; or
(d) in the case of an audio-visual work, 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.
“related rights” mean rights neighbouring on copyright, including those subsisting under sections 27 (2), 28, 29, 30 of the Act;
3. The forms referred to in these Regulations are the forms set out in the First Schedule.
4. (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. 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. 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 p.m. and from 2.00 p.m. to 4.00 p.m.
7. (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. (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 affect 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 1 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 cause or 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. (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. (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. (1) The authentication device shall be affixed –
(a) in the case of sound recordings an 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
(b) 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 embodied except computer programs.
(3) An application for authentication of copyright works 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. 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. (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. (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. (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 –
(a) a comprehensive report of all the 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. An application for compensation or for payment of royalties under section 26 (1) (j), 27 (2) or 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. (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.
(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 subparagraph (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. 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;
(iii) 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
(iv) individuals or bodies corporate who are citizens of, domiciled in those audio-visual works and photographs, first made available to the public or first published in a country which is a party to a treaty to which Kenya is also a party and which provides for protection of copyright and related rights.
Part XI - Use Of Folklore
20. (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) Any person who –
(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,
commits an offence.
(5) Any person who commits an offence under this 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. 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. (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. (1) The Board or the Authority may extend the time for doing an act or taking proceedings, other than a time expressly provided for in the Act, on such conditions as it may specify.
(2) A request for extension of time shall be made on Form No. CR 24.
24. (1) A form that is required to be signed on behalf of a corporation shall, unless an agent signs it, be signed by a director or the secretary of the corporation.
(2) The following provisions shall apply if a form is required to be signed on behalf of a partnership -
(a) unless the form is signed by an agent, the form shall be signed by a partner or by a person who satisfies the Board or the Authority that the person is authorized by the partnership to sign on its behalf; and
(b) the form shall set out the names and addresses of the partners in full.
25. 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. (1) Documents provided to the Board under sections 21 (1) and 33 (3) 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. The regulations made under the Copyright Act (Cap. 130 now repealed), are repealed.
FIRST SCHEDULE
(r. 3)
FORM NO. CR 1 (r. 8 (7))
THE COPYRIGHT ACT, 2001
THE KENYA COPYRIGHT BOARD.
APPLICATION FOR REGISTRATION OF A COPYRIGHT WORK
|
Name and address of the applicant(s) | |
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Physical address of the applicant(s) | |
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Name and address of an agent (if any) | |
|
Category of copyright work | |
|
Date of fixation/reduction into material form | |
|
Title of the copyright work |
I/We, the applicant(s) identified above apply for registration of the above copyright work as
I/We attach hereto two copies of the copyright work (where applicable).
We hereby declare that the copyright work, the subject of this application, is an original work.
BEFORE ME
COMMISSIONER FOR OATHS
Dated at ……………… this …………… day of …………., 20 …..
Signature(s) …………………………
Applicant(s)
THE COPYRIGHT ACT, 2001
FORM NO. CR 2 (r. 8 (9))
CERTIFICATE OF REGISTRATION OF A COPYRIGHT WORK
It is hereby certified that a copyright work in the ……………........................... category
entitled ……........................................................... and numbered ………………………
………………………………………………………………………................................
has been registered in the name of ………………………………………………………
……………………………………………………............................................................
of ……………………………………………………………………................................
in respect of an application for registration of a copyright work No. …………………...
Dated at Nairobi this …………................... day of ………….........…….., 20 …………
………………………………………
Seal of the Board The Kenya Copyright Board
FORM NO. CR 3 (r. 9 (1))
THE COPYRIGHT ACT, 2001
THE KENYA COPYRIGHT BOARD
APPLICATION TO AMEND NAME OR ADDRESS OF THE COPYRIGHT HOLDER
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Name and address of the copyright holder(s)/ applicant(s) | |
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Physical address of the copyright holder(s)/ applicant(s) | |
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Name and address of agent (if any) | |
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Application number | |
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Category of copyright work | |
|
Copyright registration number (if any) |
I/We, the applicant(s) identified above apply to amend the following in the Copyright Register-
The details of the requested amendment(s) are attached:
Dated at …….............……… this ……..................…… day of ……………., 20 …......
Signature(s) ………………………
Applicant(s)
FORM NO. CR4 (r. 9 (2))
THE COPYRIGHT ACT, 2001
THE KENYA COPYRIGHT BOARD
APPLICATION FOR RECORDAL OF A LICENCE IN THE COPYRIGHT REGISTER
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Name and address of the applicant(s) | |
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Physical address of the applicant(s) | |
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Name and address of agent (if any) | |
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Name and address of the parties to the licence contract | |
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Category of copyright work | |
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Title of copyright work | |
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Title of the licence | |
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Date of the licence | |
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Copyright registration number |
The list of documents required by regulation 9 (2) is attached hereto in a separate sheet of paper.
Dated at ………………...............… this …….........… day of ……………., 20 ….........
Signature(s) ……………………….
Applicant(s)
FORM NO. CR 5 (r. 9 (3))
THE COPYRIGHT ACT, 2001
THE KENYA COPYRIGHT BOARD
APPLICATION TO HAVE A CHANGE OF OWNERSHIP OF A COPYRIGHT WORK RECORDED IN THE COPYRIGHT REGISTER
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Name and address of the applicant(s) | |
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Physical address of the applicant(s) | |
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Name and address of an agent (if any) | |
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Application number | |
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Category of copyright work | |
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Name and address of registered owner(s) | |
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Name and address of new owner(s) | |
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Copyright registration number |
I/We, the applicant(s) identified above, hereby apply to have a change of ownership of the copyright work indicated above recorded in the Copyright Register for the above copyright work.
The change of ownership was effected by:
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A deed of assignsment. |
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Any other instrument (specify) |
I/We attach the documents required under Regulation 9 (3):
Dated at …………… this …………… day of ……………., 20 …..
Signature(s) ………………………. Applicant(s)
FORM NO. CR 6 (r.10 (2))
THE COPYRIGHT ACT, 2001
THE KENYA COPYRIGHT BOARD
APPLICATION FOR VERIFICATION OF THE ASSIGNMENT OF A COPYRIGHT WORK UNDER SECTION 33 (3) OF THE ACT
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Name and address of the applicant(s) | |
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Physical address of the applicant(s) | |
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Name and address of agent (if any) | |
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Category of copyright work | |
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Copyright registration number, applicable | |
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Application number | |
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Name and address of former owner(s) | |
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Name and address of new owner(s) |
I/We, the applicant(s) identified above, hereby apply for verification of the above copyright work under section 33 (3) of the Act.
The change of ownership of the copyright work was effected by:
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A deed assigning the copyright work. |
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Any other instrument (specified in the attached sheet of paper). |
I/We attach copies of the documents required under Regulation 9 (3).
Dated at ……………..................… this ………........… day of ……………., 20 …........
Signature(s) ………………….
Applicant(s)
FORM NO. CR 7 (r. 10 (3))
THE COPYRIGHT ACT, 2001
LETTER OF VERIFICATION OF ASSIGNMENT OF A COPYRIGHT WORK UNDER SECTION 33 (3) OF THE ACT
It is hereby certified that upon an application filed on the .....….............................day of
……………………............ 20 ………..........……
by ………………………of ………………….………………………………………….
………………………………............................................................................................
for verification of the assignment of a copyright work in the .............................category
entitled ………………………….…………………………………… ............................
between…………………………………………………………………………...............
of ………………………………................ and …………………………………………
of ………………………………………………………………………………................
and given registration number …………………………………………………...............
has been verified by the Board.
Dated at Nairobi this ………...............… day of ………....………….., 20 ……………..
|
Signature ………………………. Executive Director, The Kenya Copyright Board. |
Seal of the Board
FORM NO. CR 8 (r. 12 (3))
THE COPYRIGHT ACT, 2001
THE KENYA COPYRIGHT BOARD
APPLICATION FOR AUTHENTICATION OF A COPYRIGHT WORK UNDER SECTION 36 (1) OF THE ACT
|
Name and address of the manufacturer/producer or sound recording or audio-visual work | |
|
Physical address | |
|
Name and address of agent (if any) | |
|
Category of copyright work for which authentication is being sought | |
|
Copyright application/ registration number (if any) | |
|
Number of copies to which this application relates |
I/We, the applicant(s) identified above, hereby apply for authentication of the above copyright work under section 36 (1) of the Act and I/we attach a certified copy of the contract allowing me/us to sell or distribute the said works.
I/We declare that the information given above is true to the best of my/our information, knowledge or belief.
BEFORE ME
COMMISSIONER FOR OATHS
NOTE: Authentication devices are not transferable.
Dated at …………........………… this ……….........… day of ……………..., 20 …......
Signature(s) ………………………
Applicant(s)
FORM NO CR 9 (r.12 (5))
THE COPYRIGHT ACT, 2001
CERTIFICATE OF APPROVAL TO PURCHASE AN AUTHENTICATION DEVICE UNDER REGULATION 12 (5)
It is hereby certified that upon an application filed
on the ………..................................……day of …..................……………., 20 ………..
by …………………………………………………….....................................................
of …………………………………………………………………………………............
under Regulation 12 (5), the Board has granted its approval to ……………....................
of …………………………....................................………………………………………
to purchase the requisite authentication device(s) numbering
…………………………………………………………………………………................
in respect of the sound recording or audio-visual work(s) entitled
…………………………………………………………………………………................
from Kenya Revenue Authority.
Dated at Nairobi this …………..........… day of ………………….., 20 ……………..
Seal of the Board
Signature…………………………… Executive Director,
The Kenya Copyright Board.
FORM NO. CR 10 (r.13))
THE COPYRIGHT ACT, 2001
THE KENYA COPYRIGHT BOARD
REMITTANCE OF FINES PAYABLE TO THE BOARD UNDER SECTION 38 (10) OF THE ACT BY THE COURT
|
Particulars of the Court making the remittance | |
|
Criminal Case Number | |
|
Name and address of the convict | |
|
Amount of the fine imposed by the Court | |
|
Amount remitted to the Kenya Copyright Board | |
|
Registration number, where applicable, of the copyright work infringed | |
|
Name and address of the owner of the copyright work infringed |
I, ………………………………..............…. do hereby remit the sum of Kenya shillings
………………………….. (KSh. ……………….) being half of the fine imposed by the
above court on the convict in the above criminal case.
Dated at ……… ……… this …… ……day of ………………….., 20 ………
|
Signature(s) ……………………………… Designation |
Stamp of the Court
FORM NO. CR 11 (r.14 (3))
THE COPYRIGHT ACT, 2001
CERTIFICATE OF AUTHORITY TO ACT AS A COPYRIGHT INSPECTOR UNDER SECTION 39 (1)
It is hereby confirmed that ……………………………….................................................
was appointed by the Board as a Copyright Inspector on the ……………................ day
………………........... 20 …………….......
and is authorized to discharge duties of a Copyright Inspector in Kenya assigned to him
by the Board under the provisions of the Act and these Regulations.
Dated at Nairobi this ………… day of ………………., 20 …..
…………………………………..
Executive Director,
The Kenya Copyright Board.
………………………………………….........................
Signature and Personal Number of Copyright Inspector
Seal of the Board
FORM NO. CR 12 (r. 15 (1))
THE COPYRIGHT ACT, 2001
THE KENYA COPYRIGHT BOARD
APPLICATION FOR REGISTRATION AS A COLLECTING SOCIETY UNDER SECTION 46 (2) OF THE ACT
|
Name and address of the society | |
|
Physical address of society | |
|
Name and address of agent (if any) | |
|
Date and number of registration of the society under the Companies Act | |
|
Number of members of the society | |
|
Class of copyright owners represented |
Our reasons for making the request for registration as a collecting society are as follows:
We attach herewith all the documents referred to in regulation 15 (1) in support of our application.
Dated at …………….................…… this ……….… day of ……………., 20 …...........
|
Signature(s) ………………………………
|
Seal of the Society
FORM NO. CR 13 (r. 15 (2))
THE COPYRIGHT ACT, 2001
CERTIFICATE OF REGISTRATION OF A COLLECTING SOCIETY UNDER SECTION 46 (2) OF THE ACT
It is hereby certified that …………………………………………………………............
………………………………………………………………………................................
has been registered as a collecting society under section 46 (2) of the Act under
registration number ………………………….........….. for the ……...........….. category
of owners of copyright and related rights.
Dated at Nairobi this ……….............................…. day of …….....……….., 20 ………..
|
Signature ……………………………… Executive Director, The Kenya Copyright Board. |
Seal of the Board
FORM NO. CR 14 (r. 15 (3))
THE COPYRIGHT ACT, 2001
THE KENYA COPYRIGHT BOARD
APPLICATION FOR RENEWAL OF REGISTRATION OF A COLLECTING SOCIETY
|
Name and address of collecting society | |
|
Physical address | |
|
Name and address of agent (if any) | |
|
Date of registration | |
|
Class of copyright owners | |
|
Application number | |
|
Registration number | |
|
Any change which occurred during the past year (use a separate sheet, if necessary) |
We hereby apply for renewal of the registration of the society as a collecting society for
the period …………………………………..........
We attach hereto a certified copy of our audited accounts for the year 20 ……………...
Dated at ………….....………… this …………… day of ………………., 20 ….......
|
Signature(s) ………………………………
|
Seal of the Society
FORM NO. CR 15 (r. 15 (3))
THE COPYRIGHT ACT, 2001
The Executive Director,
The Kenya Copyright Board
CERTIFICATE OF RENEWAL OF REGISTRATION OF A COLLECTING SOCIETY
This is to certify that the registration of …………………………………………............
……………………………………………………………………………………............
for the ………………........................…. class of owners of copyright and related rights
owners of ……………………………………......................… with registration number
………................................…. has been renewed.
The renewed registration will expire on the …………...….. day of …………… 20 .…..
Dated at Nairobi this …......................................…. day of ………………… 20 ………
|
Signature……………..……........…………. Executive Director, The Kenya Copyright Board.
|
Seal of the Board
FORM NO. CR 16 (r. 16 (2))
THE COPYRIGHT ACT, 2001
THE KENYA COPYRIGHT BOARD
ANNUAL REPORT AND AUDITED ACCOUNTS FILED UNDER SECTION 47 OF THE ACT
|
Name and address of the collecting society | |
|
Physical address of the collecting society | |
|
Name and address of agent (if any) | |
|
Class of copyright and related rights owners | |
|
Date of registration | |
|
Registration number |
We attach herewith all the documents referred to in Regulation 19 (3).
Dated at …………............………… this …….......…… day of ……………., 20 ….......
|
Signature (s)……………..……........………
|
Seal of the Society
FORM NO. CR 17 (r. 17)
THE COPYRIGHT ACT, 2001
The Secretary,
Competent Authority.
AN APPLICATION FOR COMPENSATION OR FOR PAYMENT OF ROYALTIES TO THE AUTHORITY UNDER SECTION 26 (1) (j), 27 (2), 28 (2) OR (4) OF THE ACT
This is an application to the Authority
|
Name and address of applicant(s) |
|
Physical address of applicant(s) |
|
Grounds upon which the application is based |
|
Order, other relief sought or amount of compensation sought |
|
Names and address of the other party or parties to the application |
Dated at ……………................……….. this ……............…….. day of ……………….
Signature(s) of applicant(s) or agent …………………………….
FORM NO. CR 18 (r. 18 (2))
THE COPYRIGHT ACT, 2001
The Secretary,
Competent Authority.
APPLICATION OR APPEAL TO THE COMPETENT AUTHORITY UNDER SECTION 48 (2) OR 21 (1) OF THE ACT
This is an application under section 48 (2) or an appeal under section 21 (1) of the Act to the Authority. (Delete whichever is not applicable)
|
Name and address of applicant(s)/appellant(s) |
|
Application or decision appealed against to the Authority |
|
If only part of the decision is appealed against, description of that part of the decision (use of paper if necessary) |
|
Grounds on which the application or the appeal is based: |
|
Order or other relief sought: |
|
Names and address of the other parties to the application or the appeal. |
Dated at ………..................……….. this ...........……….. day of ……………… 20……
Signature(s) of applicant(s), appellant(s) or agent(s) …………………………................
FORM NO. CR 19 (r. 18 (6))
THE COPYRIGHT ACT, 2001
The Secretary,
Competent Authority.
REPLY TO APPLICATION OR APPEAL TO THE AUTHORITY UNDER SECTION 48 (2) OR 21 (1) OF THE ACT
|
In the matter of |
This is a reply to the application or appeal described above.
|
Name and address for service of the person filing the reply (Board or collecting society): |
|
Physical address: |
|
Grounds of opposition: |
A statement of the facts relied upon and supporting evidence by way of a statutory declaration or an affidavit, is attached.
Dated at ……………….........…. this ……................…… day of ………… 20 ……….
|
Signature ………………………......................... Executive Director/The Kenya Copyright Board Collecting Society.
|
Collecting Society/Collecting Society
FORM NO. CR 20 (r. 20 (2))
THE COPYRIGHT ACT, 2001
The Executive Director,
The Kenya Copyright Board.
APPLICATION TO USE FOLKLORE UNDER SECTION 49 (d) OF THE ACT
|
Name and address of the applicant(s) | |
|
Physical address of the applicant(s) | |
|
Name and address of the agent (if any) | |
|
Details/description of folklore to which this application relates |
I/We, the applicant(s) identified above, hereby apply to use the folklore specified above.
My/Our purpose for which folklore is to be used is:
The actual intended use of folklore is:
I/We declare that the folklore the use of which I/we have applied for shall not be used for any other purpose.
BEFORE ME
COMMISSIONER FOR OATHS
Dated at ……………….....….. this ……............….. day of ………..….. 20 ….....……..
Signature(s) ………………………………
Applicant(s)
FORM NO. CR 21 (r. 21)
THE COPYRIGHT ACT, 2001
THE KENYA COPYRIGHT BOARD
REQUEST FOR A CERTIFIED COPY
|
Name and address of person making request | |
|
Physical address of the person making the request | |
|
Name and address of the agent (if any) | |
|
Description of the document requested | |
|
Reasons for the request |
Dated at …………………............… this …...........…….. day of ………….. 20 ………
Signature(s) ………………………………….
Applicant(s)
NOTES:
1. Please use a separate form for each document requested.
2. This form may be used to obtain certified copies of documents or extracts.
3. Please describe any special requirements. If the space provided is not sufficient,
please use a separate sheet of paper.
FORM NO. CR 22 (r. 21)
THE COPYRIGHT ACT, 2001
THE KENYA COPYRIGHT BOARD
REQUEST FOR UNCERTIFIED COPY
|
Name and address of person making request | |
|
Physical address of applicant | |
|
Name and address of the agent (if any) | |
|
Description of the document a copy of which is requested | |
|
Reasons for the request |
Dated at …………............……… this ………........... day of …….......…….., 20 ………
Signature(s) …..……………..................………
Applicant(s)
NOTES:
1. Please use a separate form for each document requested.
2. This form may be used to obtain certified copies of documents or extracts.
3. Please describe any special requirements. If the space provided is not sufficient,
please use a separate sheet of paper.
FORM NO CR 23 (r. 22 (2))
THE COPYRIGHT ACT, 2001
The Kenya Copyright Board
REQUEST FOR A COPY OF A LOST OR DESTROYED CERTIFICATE
|
Applicant’s/agent’s reference | |
|
Name and address of applicant | |
|
Physical address of applicant | |
|
Name and address of the agent (if any) | |
|
The registration number of the certificate | |
|
Title of the certificate a copy of which is required | |
|
Description of the certificate |
I/We, the above identified applicant(s), hereby apply for a copy of the above quoted certificate that has been lost or destroyed.
The statutory declaration or affidavit required under Regulation 22 (3) is attached.
Dated at ……….......................………. this ………...… day of ……………, 20 ………
Signature(s) ………................……………
Applicant(s)
FORM NO. CR 24 (r. 23 (2))
THE COPYRIGHT ACT, 2001
|
The Kenya Copyright Board
|
|
The Secretary, Competent Authority.
|
REQUEST FOR EXTENSION OF TIME
|
Name and address of applicant(s) | |
|
Physical address of the applicant | |
|
Name and address of the agent (if any) | |
|
Copyright registration number (if any) |
IN THE MATTER OF …………………………………………………………………..
………………………………………………………………………………...................
I/We, the applicant(s) identified above, apply for an extension of time.
The extension of time requested is …………………days.
The grounds or reasons for the request are as follows –
Dated at …………...........……… this ………..............… day of ………...… 20 ………
Signature(s) …………………….
Applicant(s)
SECOND SCHEDULE
(r. 4 (2))
FEES
|
Description of fee |
Amount of fee KSh. |
Corresponding CR Form | |
|
1. |
Fee for application for registration of a copyright work under regulation 8 (7) |
600 |
1 |
|
2 |
Fee for change of name or address under regulation 9 (1) |
100 |
3 |
|
3. |
Fee for recordal of a licence in the Copyright Register under regulation 9 (2) |
5,000 |
4 |
|
4. |
Fee for recordal of change of ownership of a work under regulation (3) |
5,000 |
5 |
|
5. |
Fee for verification of an assignment of a copyright work under section 33 (3) of the Act. |
1,000 |
6 |
|
6. |
Fee for authentication of copyright work under section 36 (1) of the Act |
500 |
8 |
|
7. |
Fee for authentication device for each copyright work |
10 |
8 |
|
8. |
Fee for an application for registration of a collecting society under section 46 (2) of the Act |
10,000 |
12 |
|
9. |
Fee for an application for renewal of registration of a collecting society under regulation 15 (3) |
10,000 |
14 |
|
10 |
Fee for filing annual report and audited accounts under regulation 16 (2) |
500 |
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 |
17 |
|
12. |
Fee for application or appeal to the Authority under section 48 (3) or 21 (1) of the Act |
10,000 |
18 |
|
13. |
Fee for reply under regulation 18 (6) |
2,000 |
19 |
Second Schedule -(Contd.)
|
14. |
Fee for application to use folklore under regulation 20 (2)- |
10,000 |
20 |
|
(a) Films; (b) Broadcasting; (c) Theatre; (d) Publishing for educational property; (e) Research per piece; (f) Other Public interests per event per piece; and (g) Feature film on a cultural event per piece. |
10,000 10,000 10,000 100 1,000 100 1,000 | ||
|
15. |
Fee for a certified copy of a document or extract under regulation 21 |
500 |
21 |
|
16. |
Fee for uncertified copy of a document or extract under regulation 21 |
200 |
22 |
|
17. |
Fee for a copy of a lost or destroyed certificate under regulation 22 (2) |
500 |
23 |
|
18. |
Fee for an application for extension of time under regulation 23 (2) |
500 |
24 |
Dated the 29th November, 2004.