copyrightpaper9.pdf

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MOI UNIVERSITYDEPARTMENT OF LIBRARY AND INFORMATION STUDIES

INTELLECTUAL PROPERTY RIGHTS IN KENYA WITH PARTICULAR

REFERENCE TO COPYRIGHT

Presented by

Japhet Otike, PhD

Department of Library and Information Studies

School of Information Studies

Moi University

Eldoret, Kenya

A Paper Presented in a Workshop Organised for Librarians in Government

Libraries in Kenya, Held at Moi University, Eldoret, September 19 - 28, 2005.

Key WordsCopyright law Kenya; piracy Kenya; Kenya Copyright Act, 2001; IntellectualProperty Rights, Kenya

INTRODUCTION

Intellectual property: definition:

Intellectual property is the law that protects and promotes creations of the mind. Itprotects creative efforts.Intellectual property is intangible, that is, it cannot be felt, touched, weighed, etc.

It comprises:- copyright- patents- trade marks- industrial designs

COPYRIGHT

It is a right authors have to stop others reproducing their work without their consent.It gives the authors monopoly to enjoy the fruits of their labour.

Coverage- literary works (printed and non-printed works including computer programmes)- dramatic works- musical works


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- sound recordings- films, broadcasts, etc.

DurationCopyright duration is 50 years. In case of literary materials, it is 50 years after the

death of the author.

What is permittedCopying of works for research, private study, criticism or review, educationalpurposes, etc. This is often referred to as fair deal.

The purpose here is to enable the authors or producers to be compensated for the cost,time and effort that went into producing the work.

How serious is Piracy in Kenya?Piracy is unauthorised reproduction of copyrighted works for commercial purposes.

Piracy is serious in Kenya as it is in most black African states.

It has increased as the recording equipment has become more sophisticated.It may involve counterfeit where the pirated product is made to look as close to theoriginal as possible including forging the trade marks or logos.

Sometimes the pirate organisation uses its own logo for counterfeit materials to looklike theirs.

The pirate industry makes huge business from piracy. It sustains quite a number ofpeople in developing countries.

Piracy can be extended to home taping. A number of people have taping equipment intheir homes. Enforcement here is difficult because people are entitled to privacy intheir homes. The Constitution guarantees this.

According to Amos Wako (2007). counterfeiting and piracy are not just issues ofconcern to developed countries. The two have had a negative impact even indeveloping third world countries. In Kenya, it has had a negative effect on foreigndirect investment and discouraged the growth of local entrepreneurship. It is estimatedthat rights holders in Kenya lose about 30 billion shillings (US$ 420m) annually incounterfeit and piracy.

The problems encountered in fighting piracy

a) Lack of public awareness about copyright law in general and piracy inparticular has led to a booming business in copyrighted works

b) Lack of training and awareness on copyright by copyright owners, too, hasworsened the problem. Many rights owners do not know what they are entitledto under the law. Similarly, many of them are not aware of copyright


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exceptions and limitations provided by the law. They believe that copyrightlaw restricts everything.

c) There is weak co-ordination between the various people involved in themanagement of copyright in Kenya. These include the police in their capacityas law enforcement agents, the Kenya Copyright Board, and the rights holders,

that include among others, the publishers, authors and collective managementorganizations.

d) High cost of litigation makes it hard for ordinary rights holders to take thesuspects to court to be sued for infringement of copyright. The cost of hiringgood lawyers are unbearable to an ordinary citizen.

e) The escalating cost of copyrighted materials vis-a-vis the high cost of living inthe country encourages people, particularly students to photocopy.

f) Widespread unemployment among the youth has boosted piracy. A goodexample is the hawking of pirated music in the form of CDs, DVDs, andcompact cassettes in bus stations, restaurants, etc. Since the government

cannot guarantee the youth jobs, and since whatever they do, does not affectpublic security, the government prefers to keep mum until they alerted by therights holders.

The weakness of the Copyright Act (Cap 130), 1966.

The repealed Act had the following weakness:- Copyright infringement was categorised under the civil law.- Penalty was lenient.- It did not have proper mechanism for its administration.- Duration of copyright for most works was 25 years.- It did not cover software or computer programmes.

The new Copyright Act, 2001.

a) Strengths- It establishes the Kenya Copyright Board. The Board is chaired by a lawyer

and represents most stakeholders in the information profession exceptlibrarians. The board is responsible for the administration of the CopyrightAct.

- The Act covers both criminal and civil law. The prosecution of the offenders ishandled by the state.

- The Board is funded by the government.- Both fines and jail term have been reviewed upwards (shs.100,000 for fine and

two years for jail term for first offenders).

- The police has been given powers to inspect the premises, arrest and chargesuspects.


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- The law provides compensation for the affected parties. Compensation is

payable from fines awarded by the courts.

- It has introduced Anton Pillar Orders. This allows the copyright owner, if hehas sufficient evidence that an infringer is pirating his work, to get orders from

the court to enter his premises where the pirate materials are suspected to bekept and confiscate them in order to avoid further infringement and preservethe evidence.

b) WeaknessesThe Act has several weaknesses:

- The Kenya Copyright Board which is supposed to comprise all stakeholders inthe publishing industry, is heavily dominated by copyright owners. There is no

single representative from information professionals namely, librarians andarchivists. This makes the Board biased towards copyright owners. The Boardis supposed to strike a balance between the interests of copyright owners andthose of the users.

- The chair of the Board has since its establishment in 2001, been headed by apublisher.

- The exceptions and limitations in the Act do not adequately cater for the needsof users.

- There is no legal frame work to stipulate the limits in terms of licence fee thatthe Collective Management Organizations can collect from the applicants.CMOs solely determine what to charge.

- The law has no provision for the needs of the visually challenged personsunder exceptions and limitations to copyright restrictions.

- The fact that librarians were not consulted in the drafting process, it can bestated that the Act does not adequately cater for the needs of libraries andinformation users.

Reference

Wako, Amos (2007). Promoting better legislation and enforcement of intellectualproperty rights in Kenya: A paper delivered during the Third Global Conference onCombating Counterfeiting and Piracy at the International Conference Centre inGeneva, Switzerland, January, 2007.


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