marisella ouma executive director kenya copyright board copyright and related rights in kenya:...
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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