Promoting Access through
Legal Reform:
Kenya case study
WORKSHOP ON COPYRIGHT
EXCEPTIONS AND LIMITATIONS
FOR EDUCATION AND RESEARCH
ENVIRONMENTS IN GHANA
BY
DR BEN SIHANYA, PHD
(STANFORD)
Introduction
 In Kenya the main Laws that impact on access to
information are the Constitution, the Official Secrets
Act, Cap 187; and the Copyright Act, 2001.
 Freedom of information is a fundamental human
right protected under Section 79 of the Constitution
of Kenya.
 Cap 187, provides for the preservation of State
secrets and State security.
 The FOI Bill, 2007 is an Act of Parliament to enable
the public to access to information in the possession
of the Government and public authorities, to
establish systems and processes to promote
proactive publication and dissemination of
information; and for connected purposes.
 The Bill provides for openness, transparency and
accountability in Kenya’s public offices.
 The Copyright Act is the most relevant for research
and educational institutions.
 Copyright refers to an exclusive bundle of rights
granted by law that empower the copyright owner to
exclude others from certain uses of his/her work.
 Copyright grants the owner exclusive rights which
cannot be enjoyed by anyone else without the
owner’s permission.
Copyright in Kenya is governed by:
 National Legislation

Kenya Copyright Act, 2001
 International Instruments
 Berne Convention
 WIPO Copyright Treaty
 WIPO Performances and Phonograms Treaty
 TRIPS agreement
Copyright Act, 2001
• The Copyright Act was passed in 2001
• It repealed the 1966 Copyright Act
• It makes provision for Exclusive Rights
• Infringement is both civil and criminal
• Provides for digital rights management
Types of exclusive rights
 There are two broad categories or rights provided in
the Act.


Economic (or material) rights - Ss. 26 – 29 of the Kenya
Copyright Act, 2001
Moral rights - S. 32 of the Kenya Copyright Act
 These rights are subject to certain exceptions and
limitations
What are Exceptions and Limitations to
Copyright
 The exclusive rights of the copyright owner are
subject to important limitations. The limitations
excuse uses that would not have been allowed.
 Limitations and exceptions to copyright are
important as it allows new generations of authors to
build on the works of authors who proceeded them.
Why are exceptions and limitations
important for users of information?
 Without exceptions and limitations copyright holders
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would have exclusive rights over all their work.
Libraries collect, organize, preserve, and make available
the world’s culture and scientific heritage
Without exceptions and limitations every reproduction
and every communication would require payment
The core functioning of libraries would thus be
threatened as creators would themselves always need a
permission to use the work of others when creating new
works.
The creation of new works would also be impeded.
Exceptions and Limitations
• S. 26 -29 of the Kenya Copyright Act contains the
following fair dealing provisions.
• Fair dealing for purposes of criticism, review,
scientific research and private use for as long as the
author is acknowledged as such.
• The inclusion of not more than two short passages of
copyright protected works in a work that is for use by
an educational institution.
• Reproduction and broadcasting of a work for
educational purposes
Exceptions and Limitations
• Reproduction under the control of the Government,
or by public libraries, non commercial
documentation centres research institutions.
• This should be in the public interest and where no
income is derived from the reproduction.
• Copies in the case of computer programmed where
copies are required for interoperability.
 In the case of computer programs, the legitimate
owner of a computer program shall be able to do
the following acts without the authorisation of the
author: to make copies for the purposes of
correcting errors, to make a backup copy, to use
the copy for the purposes of testing the usability of
the program and for any other purpose not
prohibited by the licensing agreement.
 Any of the copies made under this section 26
should be destroyed once the purpose has been
achieved or the owner ceases to be the lawful
owner of the program.
Shortcomings in the current Exceptions and
Limitations
 They are deemed to be narrowly construed by the
users.
 No exceptions in relation to the visually impaired.
 For purposes of education copies are limited two
short passages
 The users require licenses to make copies of the
work.
Proposed Changes
 The Kenya Copyright Board is currently reviewing
the Copyright Act.
 The Board has several proposed changes relating to
Copyright Exceptions.
 These proposed amendments will be tabled at a
National Stakeholders Conference later this year.
 Some of these amendments are:
 Reproduction of a published work in Braille for the
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•
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exclusive use by the visually impaired and sound
recordings made by institutions or other establishments
approved by the Government for the promotion of the
welfare of the visually impaired.
The exception should allow:
An institution or organisation to reproduce work in a
format that may be understood by the visually impaired.
Reproduction of the work in digital format for access by
visually impaired.
Exception to the technological protection measures that
may be used by the rights holders especially in the digital
environment
Proposed Changes
 Making of not more than three copies of a book
(including a pamphlet, sheet music, map chart or plan)
by or under the direction of the person in charge of a
public library for the use of the Library if such a book is
not available in Kenya.
 This proposal will only allow the users to make up to
three copies of any work.
 It is subject to certain conditions such as the availability
of the books in Kenya
 The Act should have a provision for making copies for
educational purposes to allow for access to learning
material.
Compulsory Licensing
 Section 26 only provides for the government or
public institutions to reproduce or order the
reproduction of the work if it is in the public interest
and no revenue is derived from the reproduction.
 This is the closest to Compulsory Licensing.
 The provision may include a provision for equitable
compensation to the rights owner.
Technological Protection Measures
 Current Act makes it illegal for anyone to circumvent
technological protection measures
 The proposed amendment is to provide exceptions
so as to ensure that it does not curtail the access that
has been granted or will be granted under the
exceptions and limitations.
 TPMs have serious consequences on access.
 TPMs are already limiting access to e-books articles,
databases, newspapers and other educational
materials.
 The ongoing discussions to amend the Act are
unlikely to repeal TPMs but reforms may limit the
scope of TPMs and reduce their adverse impact on
access to educational materials.
Right Of Making Available
 The right of making available is not expressly
provided for by the Act but this is to be included in
the amendments to the law.
 This is an extension of the right of communication to
the public in the digital environment that is provided
for under the WIPO Copyright Treaty.
 It grants the rights holder more control of his works
over the digital network.
Other Limitations to Copyright
Temporal Limitation
- Copyright Protection is time bound
- S. 23 of the Copyright Act provides that ©
generally lasts for life + 50 .
This does not apply to secondary works such as
audio-visual works and photos; sound recordings;
broadcasts – the duration is ……
- International (Berne & TRIPs) standard: Life of the
author + 50 years
Geographic Limitation
- The owner of a copyrighted work is protected by
the law of a country against acts restricted by
copyright law which are done in that county
- For protection against acts done in another
country , he must refer to the law of that country
- Membership of both countries in international
copyright conventions helps settle practical
problems arising from geographic limitation
 Exceptions
and Limitations should be taken
advantage of to increase access to information
particularly for education and research purposes.
 Provisions on E & L expand accessibility of library
collections, support research needs of library users,
and enhance education.
 The Law is the greatest tool for promoting access
to information by striking a balance between
owners rights and users rights.
Thank you
Dr Ben Sihanya, PhD (Stanford)
ACA2K Kenya team member;
Dean, University of Nairobi Law School & CEO,
Innovative Lawyering.
Tel: (254-20) 3741769 (O); +726020082;
Email: sihanya@innovativelawyering.com
Website: www.innovativelawyering.com