Challenges to the legislative Framework and Norm setting in the Digital Environment

Marisella OumaKenya 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 TreatyNotable 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