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Marisella OumaExecutive DirectorKenya Copyright Board

copyright and related rights in KENYA: Current trends, issues and challenges Marisella OumaExecutive DirectorKenya Copyright Board

Overview IntroductionLegal Protection of Copyright Fundamental PrinciplesExceptions and LimitationsCopyright and Public InterestInfringement and EnforcementCopyright in the Digital EnvironmentEmerging 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 KenyaArticle 2 (5) The General Principles of International law shall form part of the law in KenyaArticle 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 Article 40(5) The State Shall promote and protect intellectual property rights of the people of Kenya Article 40 (6) The rights under Article 40 shall not extend to any property that has been found to have been unlawfully acquiredArticle 260 defines property to include intellectual property

The Copyright Act 2001Copyright Regulations 2006Anti Counterfeit ActInternational 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:Reproduce the work in any manner or formTo distribute the works in any mediaTo sell or distribute the workBroadcast the workCommunicate 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 LimitationsUse of works for purposes of quotationUse of works for educational purposesUse of the works for scientific researchUse 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 InterestShould the need have access to teaching and learning material over- ride the exclusive rights of the copyright owner?What can be done to ensure the balance between the rights of the owners and the interests of the users?

Public InterestThe law already provides for the limitation to copyright protection; the life of the author plus 50 yearsThe 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 InterestUse of Copyright Works

Issues of national concernHealthEducation/ increasing literacy levelsUse of creative works for promotion of culture and heritage

Public InterestWorld Cup 2010

Broadcasting Stations acquired exclusive rights to broadcast the eventA local station without the rights re broadcasts the event without a license as they failed to acquire rightsLegal Action taken against them and they get an injunction against the re-broadcasting.Educational InstitutionsEducational Institutions

Access to teaching and learning materialUse of copyright works for teaching and learning purposesPhotocopying and preparation of course materialReproduction of works that are not available

Flexibilities allowed by the law include licensing which includethrough 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;Exceptions and for the visually impairedExceptions and limitations for Libraries and archivesExceptions and limitations for educational institutions

Visually Impaired/persons with reading disabilities (VIPs)Current law does not have express provisions for the VIPSMost the works are made available through braille or audi booksNew 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 InstitutionsIssue is the access to teaching and learning materialACA2K study shows that there are other factors other than copyright that limit the access to teaching and learning materialUniversities are a source of the teaching and learning material but also need access to other works

Universities and Other Educational InstitutionsUse of course packs and other reading materialProposal to have the law amended to allow for more than just one passageCome 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 RightsThese 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 artsIn 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 RightsThe 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 RightsKOPIKEN collects and distributes royalties on behalf of the authors and publishersIt 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

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 EnvironmentGeneral Principles of copyright and related rights apply in the digital environmentNew challenges in the enforcement and management of copyright onlineReproduction 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 rampantAlso provides the opportunity to access the works including online journalsRoom for more creative works; publications Enhances research publication at affordable costs

Copyright in the Digital EnvironmentUse of ele

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