Challenges to the legislative
Framework and Norm setting in
the Digital Environment
Marisella Ouma
Kenya Copyright Board
Introduction
The role of copyright in what has
become a global society is continuously
being questioned with those who on the
one hand see copyright in the digital
environment as crucial to ensure the
protection of the rights holders as well
as the dissemination of their works.
Introduction
Others argue that copyright creates
barriers especially to access and flow
of information and see the digital
environment as an open free space
where all works regardless of whether
or not they are protected by copyright
should be available at no cost to all.
NORM SETTING AT NATIONAL LEVEL
•What does copyright protect?
•Philosophical Foundations of Law
(a) Incentive theory
(b) Natural law theory
• Systems of Protection
(a) Copyright System
(b) Authors’ rights system
(c) Socialist?
(d) hybrid (copyright and Authors’ rights)
Development of Copyright at National Level
•Under the common law system copyright was seen
as an incentive to creation.
•Granted limited exclusive rights
•Focused on public benefit as illustrated in Article I
s8(8) of the US Constitution…Congress shall have
power ………to promote the progress of …..and useful
arts by securing limited times to authors and inventors
the exclusive right to their respective writings…….
•The utilitarian approach; copyright is necessary to
stimulate creation for the benefit of the society as a
whole.
Authors’ Rights
•For the Authors’ Rights system, it was
influenced by the Natural law theory
•Creative works are seen as an extension of the
author’s persona and the work naturally
belongs to him
•Justification of ownership is on the basis of the
personality right and not the property rights
•These two form the basis of copyright law in
most developing countries
National Laws in Africa
•Copyright in most countries can be traced to
the two systems described; the commonwealth
countries adopted the common law system
while the others adopted the copyright system
•Copyright law has developed under the
influence of these two systems over the years
•The international instruments have also played
a major role in shaping the copyright laws
National Laws
• The National laws are influenced by
international laws namely
(a) The Berne Convention
(b) The TRIPs Agreement
(c ) The WIPO Copyright Treaty
(d) The WIPO Performances and Phonograms
Treaty
Notable that most ARIPO member states are
not party to the WIPO copyright treaties
Challenges
•It was not until the 1990s that most countries
had a critical review of their copyright laws
taking into account the local needs and the
development within their countries
•Technology seemed to and continues to change
at exponential speeds
•The laws were based on the inherited legal
systems
•Lack of policy framework as well as political will
Policy Framework
• Several Countries operate in a policy vacuum;
No IP or copyright policy framework
•The laws are proactive when it comes to the
changes especially in the digital environment
•Its only recently that most ARIPO member
States are developing IP policies
•However, most f these policies have a bias
towards industrial property and barely address
the pertinent policy issues with regard t
copyright and related rights
Policy Framework
• Most Countries are in the process of
Developing National Intellectual Property
Policies with the help of the World
Intellectual Property Organisation
•The policies have a bias towards Industrial
property example is Ghana (Recently
launched the IP Policy)
Lack of IP Policies
•The lack of clear policy on intellectual
Property affects the creation of intellectual
capital
•Example is the issue of local content vis a
vis the foreign content especially in the film
and music industry
•Policies that subordinate creative industries
also have a role to play. Example is an
educational policy that does not recognise
music and artistic works as viable subjects
in schools
Political Will and Societal Attitudes
•Matters of copyright are given secondary
treatment especially as it relates to the legal
framework
• Can be attributed to lack of understanding on
matters of copyright and related rights
•The government and society in general does
not view copyright as a serious sector that can
contribute to the creation of intellectual capital
Technology
• As stated earlier, there has been a quantum
leap in technological developments
•The digital divide is getting narrower with the
digital networks and increased bandwidth.
•Whereas before it took a while for the
developing countries to adopt the new
technologies, mobile telephony and broadband
access has made access and dissemination
much easier and cheaper
Convergence of Technologies
•The convergence of technologies
(broadcasting, telecommunications and
computers) brought about several
challenges to copyright and related rights
•It was important to re examine the impact
on reproduction, distribution and
communication to the public
• Need to look at exceptions and limitations
in the digital environment
Technology
•The proliferation of mobile telephony
accelerated the use of copyright works in
developing countries
•For instance in 2004, issues such as
webcasting and simul-casting were seen to
be far fetched for developing countries
• By 2011 in a Country like Kenya, the use
of mobile subscribers had risen to more
than 22 million (out of a population of 40)
Technology
•It is now possible to access the internet and
broadcasts as well as other digital content from
the comfort of their mobile phones
• Makes it difficult for rights holders to monitor
the usage of their works as well as enforce their
rights
•Creates opportunities as well as challenges to
collective management of copyright and related
rights
Technology
• One issue is the right of making available
• This is presumed to subsist under the right of
communication to the public
• The laws were amended but did not have
express provisions for copyright in the digital
environment akin to the DMCA of the USA and
the Infosoc directive of the EU
•The laws are slow to incorporate the new
technologies
The digital environment
• mass usage of works
• locating the rights holders
• reproduction
• Right of Making available
Exceptions and Limitations
•Role of copyright under the utilitarian school
of thought was to secure the rights for the
benefit of the society as a whole
•Thus copyright provided exclusive rights
subject to certain exceptions and limitations
•The exceptions and limitations were expected
to provided the balance between the rights of
the authors and ensure access by the user
community
Exceptions and Limitations
•The internet presented more opportunities for
reproduction and distribution of works in a
seemingly “free” environment
•Challenges were also presented on facilitating
access to knowledge for developing countries
•Knowledge was seen to be a North-South flow
and copyright was deemed to be an
impediment to the flow of knowledge
especially for universities, research institutions
and other educational institutions
Exceptions and Limitations
•Prohibition on Circumvention of TPMs has
been included in several laws such as Ghana,
Kenya, Malawi but with no corresponding
provisions to ensure access for those covered by
exceptions and limitations in the non digital
environment
•Notably missing in several laws is the exception
for the visually impaired which has become
important due to digital technologies
Public Interest
“Public Interest” is what is done in the
interest of the society as a whole. It may be
subjective but the focus is on the society
and not the individual.
In the case of copyright, the issue of public
Interest is linked to access to the works in
some instances ‘over riding’ copyright law
especially for purposes of dissemination in
The interests of the public as a whole
EPAs
•Economic Partnership Agreements are signed
between the European Union and ACP countries
through the regional economic blocs
•Some of the proposals within the EPAs for
instance with the East African Community were
to introduce TRIPs plus provisions within the
agreements especially in relation to
enforcement
•Do not take into account the needs of the
developing countries
Norm setting Process
•As stated earlier, most of the legislative
framework and norm setting process is done in
a policy vacuum
• Participation of stakeholders other than the
rights holders is limited
•Address the emerging issues and ensure that
the law is technology neutral
Norm setting Process
•Broadcasting
•Collective management: use of works in the
different media especially mobile telephony
•Exceptions and limitations to ensure that they
maintain the balance between protection of
works and access by users
•Look at the practical situation on the ground to
inform the norm setting process
Summary and Conclusion
•Several Countries lack the policy
framework on intellectual property rights
•This has an impact on the administration
and enforcement of copyright and related
rights
•Should be informed by the social and
economic realities while within the
framework of existing international laws and
treaties
•Prioritise the development needs of the
developing countries
Summary and Conclusion
•Should also be viewed as creators of copyright
works
•The laws should be pro active and keep up with
the technological developments.
•The impact of the technologies as well as
amendments to the laws should be taken into
account