By Cynthia Nzuki
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. 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. 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.
However, there are exceptions to copying of software. The Copyright Amendment Act, 2019 (Amendment Act) introduced new provision, section 26A, which provides for computer programmes and mainly what would not amount to infringement. We discuss this in details below.
What does section 26A provide?
First, Section 26A is not an entirely new provision. Section 26 of the Copyright Act, No.12 of 2001 contained similar provisions relating to computer programmes. Section 26A (1) provides that a computer program shall be subject of fair dealing for the purposes of Part A of the Second Schedule. This means that the rights awarded to owners of computer programmes are not exclusive and are limited to the extent provided for under the Part A of the Second Schedule, which provides for general exceptions and limitations (see here).
Subsection 2 states that a person in lawful possession of a software may carry out any of these tasks without the authorization of the right holder:
- make copies of the program to the extent necessary to correct errors
- make a back-up copy
- make copies for the purpose of testing a program to determine its suitability for the person’s use; or
- for any purpose that is not prohibited under any license or agreement whereby the person is permitted to use the program.
These actions are however subject to a caveat: that the copies obtained are for the use of the computer software for its intended purpose. The purpose for which the copies are to be used determines if the exemptions above are applicable.
This provision is applicable to proprietary software and computer programmes. There are two types of software: proprietary software and free/libre/open source software (FLOSS). Proprietary software is software that is owned as private property by a company or by an individual software developer. This kind software is rarely sold. Under the terms of what is known as the ‘End User License Agreement’, this source code (the human readable version of software) cannot be copied, shared, modified, redistributed, or reverse engineered by other software developers or users without the authority of the proprietor. FLOSS on the other hand, is free software, which is open to all for further development and improvement. Here, there is no exclusive proprietor; however, there are principles that govern the free use of this software.
Therefore, different types of software can be lawfully obtained using different means, and the onus is in the one intending to possess a computer programme to ensure that they do so in the right and just way.
Subsection 3 provides that a right holder’s authorization is not required to decompile a computer program, convert a program into a version expressed in different programming language, code, notation for the purpose of obtaining information needed to enable the program to operate with other programs. This means that a computer software can be adapted and translated into various forms for the sole purpose of having it work with other programs. For instance, most hardware systems come ‘pre-loaded’ with various types of proprietary software, as such this provision allows for the alteration of software to enable it work together with the in-built hardware programs.
Under subsection 4, any copies of software made shall be used only for the purpose for which it was obtained for and shall be destroyed when the possession of the computer program stops to be lawful. This provision is quite straightforward; one foreseeable challenge however, would be its implementation.
Innovation and information technology are undeniably part of us and at their heart is computer software/programmes. Section 26A will play a significant role on encouraging more investment in the software development sector and provide fair platform for exploitation of the rights conferred under the Copyright Act to owners of computer programmes and software.
 Section 2, Copyright Act No 12 of 2001 ( The Amendment Act has maintained this definition)
 Other jurisdictions well provide for software patenting, for example the USA. It is still under debate as to what the best regime to protect software is and should be, owing to the unique nature of software.
 “the freedom to: (a)Use the software as they wish, for whatever they wish, on as many computers as they wish, in any technically appropriate situation. (b)Have the software at their disposal to fit it to their needs. Of course, this includes improving it, fixing its bugs, augmenting its functionality, and studying its operation. (c)Redistribute the software to other users, who could themselves use it according to their own needs. This redistribution can be done for free, or at a charge, not fixed beforehand. It is important now to make clear that we are talking about freedom, and not obligation. That is, users of [such a software program]… can modify it, if they feel it is appropriate. In any case, they are not forced to do so. In the same way, they can redistribute it, but in general, they are not forced to do so. To satisfy those previous conditions, there is a fourth one, which is basic, and is necessarily derived from them: Users of a piece of software must have access to its source code.” (Working group on Libre Software).