Marisella OumaExecutive Director

Kenya Copyright Board

COPYRIGHT AND RELATED RIGHTS IN

KENYA: CURRENT TRENDS, ISSUES AND CHALLENGES

Marisella OumaExecutive Director

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 Kenya1. Article 2 (5) The General Principles of International law

shall form part of the law in Kenya2. 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 20012.Copyright Regulations 20063.Anti Counterfeit Act4.International Treaties and

Agreements such as the Berne Convention and the TRIPs Agreement

ROLE OF KECOBOAdminister and Enforce Copyright and Related rightsTrain and create awareness on copyrightLicence and supervise collective management organisationsMaintain a database of copyright worksEnforce copyright and related rights

Copyright ProtectionCopyright 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 LimitationsExceptions 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 rightsSection 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 limitationsThere 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 interestIn 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 re-broadcasting.

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

FlexibilitiesOther flexibilities and found in what is known as the Appendix to the Berne ConventionProvisions where for the benefit of developing countries to allow for access to teaching and learning materialCumbersome 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 PersonsThe Law should allow a system where the VIPs can access the teaching and learning material at the same time with the non VIPsThe VIPs should have access to the works both in physical and digital formatLibraries including those in educational institutions should have the facilities to exchange the works in accessible format

Libraries and ArchivesPublic Libraries and archives play an important role in the dissemination of information and offer access to teaching and learning materialsRequire 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 infringementCopyright infringement occurs where the exclusive rights are exploited by a third party without the consent of the authorActs of infringement are clearly set out in the lawThe rights holder has legal redress against the infringerSection 35, and Section 38

Remedies

Civil Sanctions

- Injunctions

- Damages

- Delivery up

- Anton Piller Orders

Criminal Sanctions

Fines

• - maximum fines• - based on unit value• - based on unit points

Custodial Sentences

Maximum sentences

Copyright infringement and Plagiarismtransitive 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-webster.com/dictionary/plagiarize)

Copyright infringement and PlagiarismCopyright 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 SharingFile Sharing has had both positive and negative effects in the copyright industry in the digital environmentUsed to share legitimate works over legitimate networksExample 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 computersInteract with each other without serversComputers are linked across a network acting as equal peer nodes

Grokster and Kazaa

This allows the computers to share information with each other directlyUse 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 directlyUse 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 communications protocolIt 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

KenyaCopyrightBoard@KenyaCopyrightKenya

http://www.kenyacopyrightboard

PROTECTING COPYRIGHT, ENCOURAGING CREATIVITY NAIROBI, KENYA