COPYRIGHT AND RELATED RIGHTS IN
KENYA: CURRENT TRENDS, ISSUES AND
Marisella Ouma
CHALLENGES
Executive Director
Marisella Ouma
Kenya Copyright
BoardDirector
Executive
Kenya Copyright Board
OVERVIEW
• Introduction
•Legal Protection of Copyright
• Fundamental Principles
•Exceptions and Limitations
•Copyright and Public Interest
•Infringement and Enforcement
•Copyright in the Digital Environment
•Emerging Issues
• Summary and Conclusion
Whoever invests in time and effort
in the production of goods and
services is entitled to the exclusive
rights in them.
The author deserves a just reward
for his/her intellectual labour and
has a natural right in his/her
creations.
The Constitution of Kenya
1. Article 2 (5) The General Principles of International law
shall form part of the law in Kenya
2. Article 11(2) promote all forms of national and cultural
expression through literature and arts traditional
celebration etc and promote intellectual property
rights of the people of Kenya
3. Article 40(5) The State Shall promote and protect
intellectual property rights of the people of Kenya
4. Article 40 (6) The rights under Article 40 shall not
extend to any property that has been found to have
been unlawfully acquired
5. Article 260 defines property to include intellectual
property
1.The Copyright Act 2001
2.Copyright Regulations 2006
3.Anti Counterfeit Act
4.International Treaties and
Agreements such as the Berne
Convention and the TRIPs
Agreement
ROLE OF KECOBO
Administer and Enforce Copyright and
Related rights
Train and create awareness on
copyright
Licence and supervise collective
management organisations
Maintain a database of copyright
works
Enforce copyright and related rights
Copyright Protection
Copyright grants the exclusive right to
the:
(a) Reproduce the work in any manner
or form
(b) To distribute the works in any
media
(c) To sell or distribute the work
(d) Broadcast the work
(e) Communicate the work to the
public
(e) Make adaptations of the work
(f) Translate the works
(g) Make the works available over
the digital networks
Exceptions and Limitations
Exceptions and Limitations are meant
to ensure that the rights are not
absolute and create a balance
between the rights of the owners of
the copyright and the same time
provide access to the copyright
protected rights
Section 26 of the Act provides for the
exceptions and limitations
Exceptions and Limitations
(a) Use of works for purposes of
quotation
(b) Use of works for educational
purposes
(c) Use of the works for scientific
research
(d) Use of computer programs to
ascertain inter operability of the
same
A recent study carried out by the ACA2K
www.ACA2K.org in 8 countries in Africa
shows that several countries including Kenya
have very narrow exceptions and limitations
There is a need to expand these to ensure
that public interest issues are taken into
account.
Rights holders would rather have the status
quo maintained
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.
Public interest
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
Public Interest
(a) Should the need have access to
teaching and learning material
over- ride the exclusive rights of
the copyright owner?
(b) What can be done to ensure the
balance between the rights of the
owners and the interests of the
users?
Public Interest
-The law already provides for the
limitation to copyright protection; the
life of the author plus 50 years
-The provision for public domain where
copyright has lapsed or the works cease
to enjoy copyright protection
- The production of material by the
government or other recognised agency
if it is deemed to be in public interest
Public Interest
Use of Copyright Works
• Issues of national
concern
• Health
• Education/
increasing literacy
levels
• Use of creative
works for promotion
of culture and
heritage
Public Interest
World Cup 2010
• Broadcasting Stations
acquired exclusive rights to
broadcast the event
• A local station without the
rights re broadcasts the
event without a license as
they failed to acquire rights
• Legal Action taken against
them and they get an
injunction against the rebroadcasting.
Educational Institutions
Educational Institutions
• Access to teaching and
learning material
• Use of copyright works for
teaching and learning
purposes
• Photocopying and
preparation of course
material
• Reproduction of works
that are not available
Flexibilities allowed by the law include
licensing which include
-through the collective management
organisations
-Users such as Educational Institutions
and Libraries can get into licensing
agreement with the publishers
-lending of works which mainly applies
to Libraries and Archives
Flexibilities
Other flexibilities and found in what is
known as the Appendix to the Berne
Convention
Provisions where for the benefit of
developing countries to allow for access
to teaching and learning material
Cumbersome to implement and only
apply to translations into local
languages
The Licences may be at a nominal
consideration or free (negotiable and
subject to specific terms and conditions)
Should consider the new licensing
regimes over the internet.
The licences provide for access but do
not over ride the underlying exclusive
rights granted by the law.
Proposed Amendments
The Copyright Board, in consultation with
the rights holders has proposed the
following amendments;
(a) Exceptions and for the visually
impaired
(b) Exceptions and limitations for Libraries
and archives
(c) Exceptions and limitations for
educational institutions
Visually Impaired/persons with reading
disabilities (VIPs)
-Current law does not have express
provisions for the VIPS
-Most the works are made available
through braille or audi books
-New technologies have enabled access of
the works in digital environment such as
the Daisy format www.daisy.org
Visually impaired Persons
The Law should allow a system where the
VIPs can access the teaching and learning
material at the same time with the non
VIPs
The VIPs should have access to the works
both in physical and digital format
Libraries including those in educational
institutions should have the facilities to
exchange the works in accessible format
Libraries and Archives
Public Libraries and archives play an
important role in the dissemination of
information and offer access to teaching
and learning materials
Require more flexibilities in the law to
allow for inter library/cross border
exchange of works especially digital works
Universities and Other Educational
Institutions
-Issue is the access to teaching and
learning material
-ACA2K study shows that there are other
factors other than copyright that limit the
access to teaching and learning material
-Universities are a source of the teaching
and learning material but also need
access to other works
Universities and Other Educational
Institutions
-Use of course packs and other reading
material
-Proposal to have the law amended to
allow for more than just one passage
-Come up with adequate compensation
schemes for the rights holders where
course packs are used
- Should strictly be for purposes of
facilitating access
Collective Management of Copyright and
Related Rights
-These are organisations that are set up to
collect and distribute royalties on behalf
of the rights holders
- works covered include music, published
works, audio visual works and visual arts
-In Kenya we currently have four collective
management organisations, 3 in the music
industry and one for the authors and
book publishers
Collective Management of Copyright and
Related Rights
-The Kenya Reporgraphic Rights
Organisation (KOPIKEN)
-The Kenya Association of Music
Producers (KAMP)
-The Music Copyright Society of Kenya
(MCSK)
-The performers’ Rights Organisation of
Kenya (PRiSK)
Collective Management of Copyright and
Related Rights
-KOPIKEN collects and distributes royalties
on behalf of the authors and publishers
-It grants licenses to users such as
libraries, copy shops, Universities and
other institutions that reproduce
copyright protected works
- The money collected is distributed to the
rights holders through the representative
organisations
Copyright infringement
Copyright infringement occurs where
the exclusive rights are exploited by a
third party without the consent of the
author
Acts of infringement are clearly set out
in the law
The rights holder has legal redress
against the infringer
Section 35, and Section 38
Remedies
Civil Sanctions
Criminal Sanctions
- Injunctions
Fines
- Damages
• - maximum fines
• - based on unit value
• - based on unit points
- Delivery up
Custodial Sentences
- Anton Piller Orders
Maximum sentences
Copyright infringement and Plagiarism
transitive verb: to steal and pass off
(the ideas or words of another) as
one's own : use (another's production)
without crediting the source
intransitive verb: to commit literary
theft : present as new and original an
idea or product derived from an
existing source
(http://www.merriam-
Copyright infringement and Plagiarism
Copyright Infringement occurs when
one excersises any ot the exclusive
rights granted by copyright without the
authority of the owner and they do not
fall within the exceptions and
limitations
Copyright in the Digital Environment
-General Principles of copyright and
related rights apply in the digital
environment
-New challenges in the enforcement
and management of copyright online
-Reproduction and dissemination of
works is easier and in real time
examples are peer to peer file sharing,
Social media
Copyright in the Digital Environment
-Infringement of woks is rampant
-Also provides the opportunity to
access the works including online
journals
-Room for more creative works;
publications
- Enhances research publication at
affordable costs
Copyright in the Digital
Environment
-Use of electronic learning material
-Establishment of E-learning centres
-Digitisation of material especially
in Libraries
- distance learning centres and
access to electronic databases
Copyright in the Digital Environment
-the right of making available
-Introduction of technological
protection measures
-Effect of TPMs on access to works that
would otherwise fall within the
exceptions and limitations
-Rights management information
systems
Peer to Peer File Sharing
File Sharing has had both positive and
negative effects in the copyright industry
in the digital environment
Used to share legitimate works over
legitimate networks
Example is the Arctic Monkeys who used
MP3 file sharing for promotional
purposes
Grokester and
Kazaa
Peer to peer technology
is part of decentralised
systems of computers
Interact with each other
without servers
Computers are linked
across a network acting as
equal peer nodes
Grokster and Kazaa
This allows the computers to share
information with each other directly
Use a de-centralised process known as
‘Fast Track’
Assigns indexing functions to the
‘supernode’ which could be any
computer in the network
Grokster and Kazaa
This allows the computers to share
information with each other directly
Use a de-centralised process known as
‘Fast Track’
Assigns indexing functions to the
‘supernode’ which could be any
computer in the network
Bit Torrent
Technology
This is a P2P
communicatio
ns protocol
It uses
metafiles and
trackers to co
ordinate file
distribution
computer.howstuffworks.com
Internet Service Providers and
Other intermediaries
Liability of Internet Service
Providers
-The enforcement and management
of copyright in the digital
environment has created several
challenges
-Liability is imposed on internet
service providers subject to certain
conditions
Liability of Internet Service
Providers
- The Service provider has been
informed of the infringing works
-Has failed to take down the
infringing works
-Is aware that the works are
infringing but goes ahead to upload
them or retain them
Emerging Legal Issues
•Does Copyright Change in the Digital
Environment?
•Jurisdiction issues
•Enforcement
•Dissemination of works