WHAT CAN I GET AWAY WITH? EXCEPTIONS TO COMPUTER PROGRAMME COPYRIGHT INFRINGEMENT

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By Cynthia Nzuki

Introduction

Software and computer programmes have become a huge part of our daily lives. They drive significant elements of our lives. For example, we now use software and computer programmes such as word processing, accounts software, asset management software and so on. This is replicated in schools, homes, social places and so on. The programmes help us carry out various tasks as they make our work easier. Those who develop the software and the programmes expend their time and resources and as such, protection is important.

The Copyright Act defines a computer programme as a set of instructions expressed in words, codes, schemes or in any other form, which is capable, when incorporated in a medium that the computer can read, of causing a computer to perform or achieve a particular task or result.[1] Think of it this way: when a person is instructing another on what to do and how to execute it, the instructions should be in a language that the recipient understands; otherwise, there would be a communication breakdown due to language barrier. Similarly, a software or a computer programme is the language computers understand are able to execute tasks.

In Kenya, protection of computer programmes is within the copyright regime.[2] They are categorized as literary work. Of the various challenges that face the software industry, the major one is infringement or simply put theft and piracy. Principally, any unauthorized copying of software and computer programmes is infringement. Infringers obtain copies of a given computer software through unauthorized means, modify and augment the duplicated software code in undesirable ways, including insertion of malicious logic, backdoors, and exploitable vulnerabilities. This exposes consumers to harm and affects the businesses of software developers and software developing industries.

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CIPIT’s report on the nature of information controls during election processes

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By Jentrix Wanyama

Elections are an area of great interest and concern in equal measure across many parts of the world. The proliferation of the internet and other modern communication technologies has added intrigue to an already-contentious process. While elections are meant to facilitate democracy, their utility is heavily reliant on how they are conducted and whether democratic principles are observed in the process. Adverse use of communication technologies can have a negative impact on this important democratic practice.

The Centre for Intellectual Property and Information Technology Law (CIPIT) set out to analyse information controls in Kenya and Zimbabwe following their respective general elections in 2017 and 2018. The aim of this research was to contribute evidence to the conversation on the relationship between the Internet, human rights and the wider democratic processes.

The study developed a working definition for information controls as follows:

A wilful disconnection of access to the Internet or reduction in quality of connectivity or other form of control by an actor targeting a specific population within a geographical area that affects their ability to access, share information or otherwise participate in the electoral process online during an electioneering period.

The working definition was intentionally broad. This allowed for a study of a range of information controls, which can be generally classified as ‘traditional’ and ‘modern’ methods. The traditional methods of information controls include internet shutdowns and censorship, while modern methods feature fake news and social media taxes.

The research was of an inter-disciplinary nature, looking into the legal/policy environment concerning information controls, and their technical nature as well. Technical measurements of internet shutdowns were achieved in partnership with the Open Observatory of Network Interference (OONI). With this, several tests were employed to determine various variables in the chosen jurisdictions over the electioneering period such as: whether certain websites and instant messaging apps were blocked, whether there were any censorship technologies in the network, and, whether the speed and performance of the networks were interfered with.

The study also sought to delineate the legal and regulatory framework concerning information controls in Kenya and Zimbabwe. This was important for purposes of identifying the legal measures that affected citizens can turn to. A crucial aspect that was investigated in both jurisdictions was the efficiency of available agencies and whether citizens were able to have their grievances resolved in a satisfactory manner.

The findings revealed an evolving information landscape with governments increasingly shying away from disrupting the internet for fear of anticipated political and economic losses. Instead, election manipulation targeted controlling the online narrative as opposed to reducing access. Further, there is a rise in private entities playing a part in information controls, such as Internet Service Providers (ISPs) blocking websites as per international standards, and so   little reported incidences of government-sanctioned information controls during elections. 

The findings of the research have been shared in various media outlets, conferences and workshops worldwide, and can now be found on our website. CIPIT looks forward to advance this research as democracies worldwide continually grapple with the information age.

CAN I GET AWAY WITH THIS? FAIR USE AND FAIR DEALING OF COPYRIGHTED WORK

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By Cynthia Nzuki

“When you have wit of your own, it’s a pleasure to credit other people for theirs.”

― Criss Jami, Killosophy

Introduction

Fair use and fair dealing are exceptions applicable to the use of copyrighted works. These exceptions allow third party use of copyrighted work without the owner’s permission without raising copyright infringement claims. In our continuing series of reviewing the Copyright Amendment Act, 2019 (the Amendment Act) and its provisions, this week we focus on the limitations and exceptions of copyright. The Second Schedule which provides for the limitations and exceptions to rights issued by copyright protection. In the Copyright Act, No. 12 of 2001, these were housed under section 26.

In this piece we will focus on fair dealing or fair use as exceptions to copyright protection.

Is Fair Use different from Fair Dealing?

These two concepts are similar but differ slightly.  Fair dealing on one hand is an exception to copyright infringement laid out in the copyright statutes of common law jurisdictions such as Kenya.   Here the statutes spell out the concept and where  a work is copied for a purpose other than one or more of the statutorily provided ( fair dealing purposes), the copying cannot be a fair dealing regardless of the copier’s possibly beneficial or meritorious goal.[1]

Fair use on the other hand is a limitation on rights in works of authorship granted by copyright law; this doctrine is mainly practiced under U.S. copyright law. The fair use provisions in the U.S. copyright law prescribe four factors that must be included in a fairness determination which are: 

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CIPIT launches checklist on privacy and security in Kenyan legislations

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By Jentrix Wanyama

Over the last couple of years, Kenya has experienced a significant surge in insecurity. Notably, the country has seen a rise in terror attacks and cyber crime in its various forms. On the legislative front, security attacks have been met by a discernible trend: the enactment of a reactionary law, which is then flagged by human rights advocates for infringing on fundamental rights and freedoms. Next, a tedious court process in which the court has to weigh limitations in the law and adjudicate on whether the limitations are constitutional or not.

Pieces of legislation that have followed this cycle include the infamous Security Laws (Amendment) Act (SLAA) and the Computer Misuse and Cybercrimes Act in 2014 and 2018 respectively. More recently, the Statute Law (Miscellaneous Amendment) Act introduced the National Integrated Information System (NIIMS), a system was, and is still being contested in court.

Though separated by time and scope, the issues that arose in court in respect to these laws are cunningly similar. CORD & 2 others v Republic & 10 others successfully challenged the constitutionality of several sections of SLAA for violating a number of constitutional rights.[1] In The Bloggers Association of Kenya (BAKE) v Attorney General & 3 Others,[2] 23 sections of the Computer Misuse and Cybercrimes Act were suspended from coming into force. Lastly, in Nubian Rights Forum & 2 others v Attorney-General & 6 othersis currently challenging the constitutionality of the Statute Law (Miscellaneous Amendment) Act of 2018 for, amongst others, the violation of the right to privacy.

The similarity in the above cases, and more, is telling of a legislative system that perhaps does not take adequate consideration of fundamental rights and freedoms, especially where security needs are involved. This results in a court process which is both time and financially consuming. It is for this reason that the Centre for Intellectual Property and Information Technology Law (CIPIT) sought to bridge the gap by providing a resource of standards to consider when legislating on security provisions. Particularly, we looked at the right to privacy given its prominence both locally and internationally in recent events.

 The project took a multi-stakeholder approach, with respondents from the Judiciary, Parliament, Law Society of Kenya, Kenya Law Reform Commission and civil society represented by Katiba Institute. The result is a ten-point checklist that is based on the proportionality principle as provided under Kenyan law. Through the checklist, CIPIT hopes to provide a practical guideline on how to best ensure proportionality and the rule of law while seeing to the security needs of the country. The checklist can be found here.


[1] eKLR (2015).

[2] eKLR (2018).

‘THE SOCIAL MEDIA BILL’: PROPOSED AMENDMENTS TO KICA TO REGULATE USE OF SOCIAL MEDIA PLATFORMS

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By Jackline Akello

The Kenya Information and Communication (Amendment) Bill, 2019[1] seeks to amend the Act[2] to regulate the use of social media platforms. The Bill introduces stringent rules for bloggers, social media platforms, social media users and social media group administrators that raise questions on the intention of the Bill. Questions as to what the Bill intends to cure are also inevitable.

An analysis of the Bill shows that its provisions are not in line with the provisions of the Constitution as they violate the right to freedom of expression[3], and the proportionality principle[4] which aims to determine whether the limitation/interference of a particular right is justifiable. The Bill provides for; registration of bloggers, licensing of social media platforms, and responsibility of social media users and group administrators.

It starts by defining “blogging” and “social media platforms”. Section 2 of the Bill defines “blogging” as collecting, writing, editing and presenting of news or news articles in social media platforms or in the internet.

This then begs the questions; Are blogs unrelated to news not regarded as blogs within the meaning of the Bill? Are blogs not related to news not regarded as blogs at all? This author’s opinion is that the drafters of the Bill narrowed the scope of this definition with the likely intention of targeting “fake news”[5] and limiting people’s voices and critique of government practices.

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COPYRIGHT AMENDMENT ACT: WHAT’S NEW ON COLLECTIVE MANAGEMENT ORGANIZATIONS?

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By Cynthia Nzuki and Caroline Wanjiru

Introduction

In one of our previous blog posts (here), we tackled the legal framework of collective management organizations (CMOs). At that time, the existing law that informed our discussion was the Copyright Act, No.12 of 2001(the Act). On 18th September, 2019 the President of Kenya signed into law the Copyright (Amendment) Bill, 2019(the Amendment Act) (see here); which introduced a number of changes to the Act. In this piece our focus will be on the changes that affect CMOs.

If one could recall, not so long ago CMOs, and in particular MCSK, were in the hot seat pertaining allegations of issuing out “peanuts” as royalty payment (news piece here). It is notable that the debate on CMOs more often than not, revolve around collection and distribution of revenue. Has the Amendment Act addressed this?

What’s new?

  1. CMO defined

The Amendment Act specifically defines a collective management organization (CMO). Section 2 therein defines a CMO to mean an organization approved and authorized by the Board (KECOBO) which has as its main objectives, or one of its main objects, the negotiating for the collection and distribution of royalties and the granting of licenses in respect of the use of copyright works or related rights. This is the same definition of as that of a ‘collecting society’ provided for under section 48 (4) of the Copyright Act.[1]

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The Forum on Internet Freedom in Africa 2019

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By Jackline Akello

The Forum on Internet Freedom in Africa (FIFAfrica) is a landmark event that convenes various stakeholders from the internet freedom, governance and online rights arenas in Africa and beyond to deliberate on gaps, issues and opportunities for advancing privacy, access to information, freedom of expression, non-discrimination and the free flow of information online on the continent.

The Forum responds to rising challenges to the enjoyment of internet freedom in various countries, including arrests and intimidation of online users, internet disruptions, and a proliferation of laws and regulations that undermine the potential of digital technology to drive socio-economic and political development on the continent.

FIFA strives to put internet freedom on the agenda of key actors including policy makers, regulators, human rights defenders, law enforcement representatives, and the media, paving way for broader work on advancing online rights in Africa and promoting the multi-stakeholder model for internet governance.

The engagement at the Forum aims to reflect the current trends and concerns in access and usage of the internet and related technologies on the continent at any given point in time. As such, each year has its theme based on the state of Internet Freedom in Africa at that point.

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ARTISTS DO NOT LIVE ON THIN AIR: THE COPYRIGHT AMENDMENT ACT ON ARTISTS’ RESALE RIGHT

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By Cynthia Nzuki

Introduction

Artists do not live on thin air. And because they enrich the world with their art, they should be protected. So it is fair that those who trade in their works pay them a share of what they earn. That is the purpose of the resale right: to share all forms of enrichment.” – Ousmane Sow, Senegal.

The Copyright (Amendment) Act, 20191 has brought with it many changes to the old Copyright Act, no.12 of 2001. In our CIPIT Blog we continue to provide insights on the amendments and opening the discussions on the same. The Amendment has introduced the Artist Resale Right, under section 26D. Briefly, this section gives artists the right to receive monetary compensation upon resale of their artwork, in the form of royalties. In this piece, the aim is to highlight what the law provides for; the importance of this section; how the section is to be implemented and challenges likely to be faced in the implementation of this law.

Artist Resale Right (ARR)

AAR is an extension of the IPRs extended to artists. Section 2 of the Amendment Act defines resale royalty right as the right of an artist or a group of artists or successors to receive resale royalty on commercial resale of an artwork. The ARR entitles visual artists and their heirs to retain an interest in all successive commercial re-sales of their artwork and receive a portion of the selling price.2

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THE KENYA INFORMATION AND COMMUNICATIONS (AMENDMENT) BILL, 2019

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The use of information technology in the country has increased over the years, and this can be attributed to the use of social media that has made it easier for people to communicate and share information. With this increase of use, there have been concerns on the sharing of false information of these platforms and cropping up of blog pages that post false content.

The Social Media Bill, officially called the Kenya Information and Communications (Amendment) Bill 2019, aims to provide for regulation of social media platforms. It seeks to introduce a new part to the Kenya Information Communications Act with sections regulating on licensing of social media platforms, sharing of information by a licensed person, creates obligations to social media users, registers bloggers and seeks to give responsibility to the Communication Authority to develop a bloggers code of conduct in consultation with bloggers. The Bill also seeks to restrict the usage of social media by minors.

The Parliamentary statement also provides that the Amendment Act will not limit any right. However, all these new provision directly affect digital rights, i.e. the freedom of expression, the right to access information and the freedom of association. This Bill will see social media users requiring licenses to form groups, group administrators being held liable for the content posted in these groups and minors being restricted from being on the same platforms adults are in. The Act had been amended previously in 2013 so as to include regulation on the registration of mobile SIM card users.

We invite the public to comment and vote on the Bill on our digital public forum, Jadili. Click here to access the forum. If this link is not active in your browser, please copy and paste the entire link into your browser’s address bar:

http://jadili.ictpolicy.org/docs/the-kenya-information-and-communications-(amendment)-bill,-2019

A COMMENTARY ON KENYA’S DRAFT NATIONAL CCTV POLICY

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By Jentrix Wanyama & Jaaziyah Sataar

Introduction

A closed-circuit television (CCTV) is a type of television system that enables surveillance by transmitting its signals only to the screens that are directly connected to it. Use of CCTVs boosts security efforts by making it possible for owners to monitor their premises. However, caution ought to be taken to avoid using CCTVs for illegal surveillance.

The government has embarked on a process of regulating the use of CCTVs in Kenya. A step taken is the drafting of a national CCTV policy (available here). In its preamble, the policy states that Kenya has faced grave security threats over the past thirty years and as a result, there has been an increase in CCTV installations. Further, the policy notes that the installations have been ‘ad hoc’ and ‘disjointed.’ The policy is presumably meant to provide some uniformity. The objective of the proposed policy is to ‘guide installation, operation and management of all CCTV systems in public and private premises while promoting their use as a mechanism to deter, detect and prevent crime for a safe and secure nation.’

The Ministry of Interior and Coordination recently called for comments on the policy, a process CIPIT participated in. Below, we highlight concerns that we raised in our submission.

Certain provisions disproportionately limit the right to privacy.

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