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.
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.
“When you have wit of your own, it’s a pleasure to
credit other people for theirs.”
― Criss Jami,
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.
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:
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
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?
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.
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.
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.
Resale Right (ARR)
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
This post forms part 2 of our series on the Intellectual Property considerations in the Copyright Amendment Act. The IT considerations, focusing on digital rights will be addressed in a follow up series.
ISPs and Take Down Notices
35B covers take down notices, their form, content, addressees etc. A
is a request to an ISP by a copyright holder (complainant) to remove
take down notice shall:
Be in writing and addressed to the ISP or their agent.
Contain the name and address of the complainant.
Signed by or for the complainant.
Contain specific details of the copyrighted works subject of infringement or which is to be removed.
Identify the rights being infringed, for instance the broadcast, production rights etc.
Set out the details of the content to be taken down and the location of this content.
Be accompanied by a sworn statement attesting to the ownership of the content, validity of the rights under e) above, good faith on the complainant and the efforts (albeit unsuccessful attempts) made to the entities responsible for making the content available remove the content; and
be copied to the Board Communication Authority and the recognized ISP umbrella body.
Comment: Conspicuously missing is a requirement to include the alleged infringer (who is the ISP subscriber hence the addressing of the notice to the ISP) in the notice to take down. Such inclusion would notify and provide an alleged infringer of the notice and the option to ‘challenge’ a take-down notice issued to their ISP. There exists a relationship between the ISP and their subscribers contractual or otherwise. The obligation to notify the subscriber, if any, shifts to the ISP (see below). It is not clear as to why such a requirement would be excluded yet the requirement of a sworn statement by the complainant would be presumptive that they have attempted to reach the alleged infringer to remove the infringing content. Would the subscriber not be entitled to demand to be heard before the notice is effected? If yes, at what point would they be heard yet the notice is to be effected within 48 hours? Article 47 of the Constitution of Kenya provides that every person has a right to fair administrative action, this right includes the right to be heard.
A take down notice will be deemed delivered
Next business day following physical delivery at an ISP’s registered office.
2 days after the day post if by registered post.
Immediately if sent by electronically to a designated ISP address.
Comment: This provision has serious implication for the ISPs as it dictates when the 48 hours of compliance starts running. Where an ISP has provided a designated address, time starts running immediately a complainant sends it. It is not clear what would happen if there is delivery failure, if it is sent on a day that the ISP is closed for business or is even intercepted by a third party. While this blogger appreciates the fact that electronic transmission is instant, she acknowledges that there are circumstances that may interfere with the ISPs ability to receive the electronic notification. Legislating on time of delivery elevates time to a statutory requirement which carries weighty consequences. Time is truly of essence. However, having such a statutory requirement is an open invitation to breach. This is best left to the industry to regulate. The Board in charge of regulating ISPs may issue policy directions on the same therefore introducing implementation flexibilities.
ISP shall upon receipt of a valid
take down notice, notify the person responsible for making the
infringing content available and provide them with a copy as soon as
This provision is vague, yet its content creates a duty for the ISP.
The mandatory requirement, albeit on their cost, for the ISP to find
or establish mechanisms within which to ‘notify’ an alleged
infringer that they have received a takedown notice from the
complainant. It’s unclear if the notification should be in the same
manner as received from the complainant. For instance, if the
takedown notice is received electronically, can the ISP notify the
alleged infringer by mail? The latter would mean that time is
substantially altered. Yet it is a possibility.
notification should be immediate or as
soon as is practicable.
In light of subsection 5 which mandates an ISP to take down content
within 48 hours, what is immediate? What takes precedence? Taking
down the content or serving the notice on an alleged infringer? If
this should be as soon as practicable, whose practicality is it? The
complainant whose interest is to have the content taken down; the ISP
whose primary interest would be first to serve their clients, must
act within 48hours and disable access to the content; or the alleged
infringer whose interest is to have the content online at all time
and who may be benefiting economically from the content, who may
require ‘reasonable’ time to file a counter notice? Lastly, if it
is the ISP’s practicability, can they take down the content i.e.
comply with the law and then serve notice later? The option of having
the notice sent ‘as soon as is practical is ambiguous capable of
more than one interpretation.
This post forms part one of a two part series focused on the Intellectual Property considerations in the Copyright Amendment Act. The IT considerations, focusing on digital rights will be addressed in a follow up series.
ISPs and Copyright
The Copyright Amendment Act (Amended Act) 2019 has brought in new provisions which have created new obligations and extended rights for some parties within the copyright practice in Kenya.
In the next few weeks, the CIPIT IP Team shall undertake a review of these new provisions in a series of blogs all aimed at informing, analyzing and probably providing a critique to the same. This week’s blog begins with looking at the provisions relating to the liability of the Internet Service Providers (ISPs) in Kenya.
the onset, it is a matter of common notoriety now that copyright
enforcement is an
It requires concerted effort from all players and 3rd
parties as well. ISPs are 3rd
parties who provide a vehicle through which the copyright owners can
easily distribute their works and the users to freely enjoy the same.
Section 2 of the Amended Act defines an ISP;
a person providing information system services or access software
that provides or enables computer access by multiple users to a
computer server including connection for, the transmission or routing
put an ISP is a company or entity that provides internet
to its subscribers.
this works is that the owner or holder of copyrighted material
reduces it to a format which can be transmitted or carried through
the ISP network. The aim is to distribute the works to those who have
access to internet. Access of the copyrighted material can be free or
paid service. Payment is typically to the owner or an authorized
agent. Challenge within the copyright arena arises when the material
that should be paid for is accessed for free. Such access would be
unauthorized and infringing on the rights of the copyright holder.
ISPs are enablers of access, authorized or unauthorized hence their
inclusion in copyright enforcement.
ISPs and Internet Freedom
on their position, ISPs have the capacity to take down or disable
access to sites which are considered to be providing access/accessing
infringing materials. As is said, every coin has two, or three sides.
So the associated question is, in taking down the content or
disabling the content, will the ISP be infringing on anyone’s
digital or access rights, limiting the user’s internet freedom?
Where is the balance, if any? We shall address this with a post.
ISPs and the Law
their role in the distribution of copyright works, ISPs can be
enablers of infringement or can be the infringers depending on their
role. Section 35A provides for scenarios where an ISP shall not be
liable for infringement. These include where the ISP:
it only provides either automatic, intermediate or temporary
transmission, routing or storage of content (subject to copyright)
in its ordinary course of business on condition that:
does not initiate transmission
does not select the addressee/person receiving the content
functions are automated and technical such as not to select the
not promote the content or the material being transmitted.
the automatic, intermediate and temporary storage of content for
purposes making onward transmission of the data more efficient to
other recipients of the service upon their request on condition that
not modify the material;
with conditions on access to the material;
with rules regarding the updating the cache in conformity with
generally accepted standards within the service sector;
not interfere with the lawful use of technology to obtain
information on the use of the material;
or disables access once it receives a takedown notice or where the
original material has been deleted or access disabled on orders of
a competent court or otherwise on obtaining knowledge of unlawful
nature of the cached material.
Comment: The above places an obligation on the ISPs to ensure that they do not promote infringing materials under the guise of conducting business. This can be done partly by policing on the content or by requiring the internet content owners to indemnify the ISPs or exonerate them from liability should claims arise.
When the French government purchased the first photography patent, photography was declared ‘a gift to free the word’. These words would turn out to be somewhat prophetic, as photography would go on to have a resounding impact on the world. For instance, photography played a role in sensitizing people on the horrors of war, since for the first time, citizens of different countries were able to actually see the ravages of war that had before then seemed so far away. 180 years later, it is interesting to note how the law concerning photography has developed in Kenya. Does the state of applicable laws show our esteem for this gift or are we stifling it? In this blog, we discuss the law on photography in three broad themes: copyright; image rights and privacy; and security.
Traditional Knowledge (TK) is any knowledge originating from a local or traditional community that is the result of intellectual activity and insight in a traditional context, including know-how, skills, innovations, practices and learning, where the knowledge is embodied in the traditional lifestyle of a community and is passed on from one generation to another. TK often forms part of a community’s cultural and spiritual identity, technical, ecological and medical knowledge as well as biodiversity-related knowledge.Folklore expressions (Folklore) on the other hand, are any forms, whether tangible or intangible, in which traditional culture and knowledge are expressed, appear or are manifested.
Despite clear definitions, there has
been a drumming debate whether TK and Folklore should be protected. If not,
why? and if yes, how? Would it be through the intellectual property (IP) regime
or any other mechanisms? The prevailing and ongoing argument is captured in part
The author posits that there is already a starting point to finding a way to protect TK and Folklore given their special nature. This is by rethinking the Swakopmund Protocol as a model law and a sui generis system for African countries to come up with corresponding national laws. Sui generis basically means that of its own kind or class; peculiar.
As highlighted in our previous post (here), the Strathmore Law Clinic (website here) began an initiative known as the Ubunifu Initiative, whose main focus is promoting the effective use and exploitation of creativity and innovation through the development and sensitization of intellectual property law and rights. The second session happened on the 30th of August, 2019, where we had one of our own, Ms. Caroline Wanjiru, being a panelist and sharing her expertise.
The focus was still on creatives; in particular musicians, authors and performing artists. The discussions focused on copyrights, copyright protection and related rights of the respective groups’ works. The session began with the panelists giving a brief discussion of intellectual property and intellectual property rights; how to obtain intellectual property rights protection in particular copyright and the associated rights. Questions on fair dealing and fair use; publishing rights; joint ownership/authorship of works; transfer of rights through assignment and licensing; jurisdiction for purposes of enforcement were tackled. Through the CIPIT Blog, we shall endeavor to inform on some of these issues in detail in our continuing IP series.
There are two (2) more sessions (further details) if you wish to attend simply send an email to firstname.lastname@example.org to RSVP. Specify whether you wish to attend all the sessions or, if not, which specific sessions you wish to attend.
In our previous post, we addressed the law as is on Collective Management Organisations (CMO’s). Now we’ll analyze the proposed amendments to the Copyright Act and what they mean to the copyright holders and users in Kenya.
Copyright Amendment Bill (‘Bill’)
This analysis will focus on proposed sections 46 A (10) (11) (12) B-G and 49 of the Bill.