The Strathmore Law Clinic kick-started an initiative known as the Ubunifu Initiative. This initiative is a project of the Intellectual Property Division of the Strathmore Law Clinic (website here) that is aimed at promoting the effective use and exploitation of creativity and innovation through the development and sensitization of intellectual property law. The initiative was organized as a series of four weekly sessions scheduled on Fridays in the month of August and September. During the sessions, the attendees shall engage in discussions about what Intellectual Property Rights (IPRs) This included what IPRs are; which IPRs would be of interest to them; which IPRs they might already hold; how to secure, protect and register IPRs in Kenya. The conversation will extend to sessions on how to maximize IPR benefits; dealing with government regulators and their specific requirements and any other area of that may be of interest to those in attendance that they wish to address (further details)
From our previous post, we have described the various Collective Management Organizations’ (CMO’s) in Kenya. Briefly, CMOs are not-for-profit membership entities authorized by Kenya Copyright Board (KECOBO) to carry out the business of copyright collection on behalf of their members. Their operations of the CMO’s are regulated by the Members, KECOBO and Law.
As part of CIPIT’s daily interactions with creatives, the Centre is embarking on an Intellectual Property explainer series. Tailor-made for creators.No legalese, no jargon. Just practical information. The main focus of these blogs is the various Collective Management Organisations (CMO’s) that operate in Kenya. In this blog, Cynthia Nzuki,introduces what CMO’s are, what they do and whether they are effectively and efficiently managing copyright on behalf of their members.
By Cynthia Nzuki*
Collective Management Organizations (CMOs) are private not-for-profit entities licensed to collect and distribute royalties for and among its members. In Kenya, there are presently five main CMO’s licensed by the Kenya Copyright Board (KECOBO), as mandated by the Copyright Act of Kenya. They are:
The Reproduction Rights Society of Kenya (KOPIKEN),
Kenya continues to witness a steady exponential growth of internet access. The Communications Authority of Kenya (CA), in its Third Quarter Sector Statistics Report for the Financial Year 2017/2018 notes that, “(Kenya’s) total data/Internet subscriptions grew (from the last review) by 8.2 percent, to record 36.1 million subscriptions (up) from 33.3 million recorded during the second quarter of the same financial year.”The report further highlights the total internet subscriptions as standing at 36.1 million subscriptions as at March 2018, growing from the previous 25.7 million in March 2017. The CA attributes the growth in internet subscription to the proliferation of smart phones used to access video on demand, games, music, news and social media sites; which content is protected by copyright.
This brief considers three instances in which social media has proved an important arena for the creation and dissemination of the value embedded in intellectual property. The first two are decided cases whereas the last is a reported market event. The brief concludes with an overview of the relevance of these cases to the discussion on intellectual property and social media.
The Internet has fundamentally altered the manner in which copyrighted works are created, distributed and accessed. The on-demand access to and transmission of works online has introduced novel methods of exploitation of copyright works not hitherto envisaged by the law. Copyright laws world wide are evolving to address the legal issues arising from this rapid technological development. For example, the European Union’s Information Society Directive (InfoSoc) 2001 was enacted within this context, to offer a high level of copyright protection to authors in the EU.
Hyperlinks, which are online network components that redirect users to another website when they click, tap or hover on it, came under scrutiny in the European Union in the case; Public Relations Consultants Association Limited (PRCA) v Newspaper Licensing Agency (NLA) C 360/13 (2013).
The PRCA, an association of public relations professionals, used a media monitoring service provided by Meltwater Limited to monitor online press reports concerning or relating to their clients. The NLA, representing the interests of newspapers i.e. the copyright holders of the published reports, took the view that the PRCA was required to obtain authorisation from the copyright holders for receiving the online media monitoring service offered by Meltwater. After both the High Court and Court of Appeal of England & Wales ruled in favour of the NLA, the PRCA instituted an appeal in the United Kingdom’s Supreme Court, which referred the case to the Court of Justice of the European Union (CJEU).
The main issue for consideration before the CJEU was whether the copies of the copyrighted material on the user’s computer screen and the copies in the internet ‘cache’ fell under the conditions of Article 5(1) of the InfoSoc Directive. This Article provides that an act of reproduction is exempted from the reproduction right provided for in Article 2 of the InfoSoc Directive, on condition that:
– it is temporary;
– it is transient or incidental;
– it is an integral and essential part of a technological process.
Central to the determination of this issue was not merely if onscreen displays and Internet cache copies are transient or temporary, but if the end user (e.g. PRCA) infringes on copyright by making of temporary copies that allows them to view the copyrighted material.
With respect to the first criterion of Article 5(1) of the InfoSoc Directive, the Court held that onscreen and cached copies of copyrighted works were temporary as the former were automatically deleted when the user exited from the website that they were viewing and the latter were often automatically replaced by other content depending on the cache’s capacity and the extent of the users internet use. It also found that the second criterion applied as onscreen and cached copies of copyrighted works were transient as the former is automatically deleted by the computer when the user exits the website and thus terminates the technological process used to view that site, and the latter were incidental as internet users could not create cached copies independently of their visit to a particular website or beyond the technological process used to view the site.
The third criterion of Article 5(1) however has direct implications on the functionality of the Internet and the court’s decision in this regard is particularly important. The Court held that on-screen and cached copies are created and deleted solely as a result of the technological process used to access websites. The reproduction as such is as such crucial in enabling users to access websites and subsequently use the Internet as a whole. Furthermore, the Court recognized the fact that the Internet would be unable to function without the creation of cached copies due to the huge volume of data transmitted online. As such, the reproduction is an integral part of the technological process as stipulated by Article 5(1) and it would be as such unjust to require the copyright holder’s authorization when browsing and viewing articles online.
The Court in PRCA v NLA (2013) also noted that the mere viewing or reading of an article in its physical form had hitherto never been an infringement in either English or EU Law. It would therefore not make sense to prohibit the mere viewing of articles online as online content is more often than not copyrighted and Internet users would become infringers if they required licenses to view content which they would inadvertently come across online. Copyright law should therefore not be used as a tool to impede Internet users’ right to browse content online freely.
Ultimately, on screen displays are transient and incidental and are an integral part of the process of browsing the Internet. Had NLA’s argument for the requirement of a license so that they could charge browsers to read content online prevailed, there would have been far reaching negative consequences as to the accessibility to the Internet by EU citizens.
While the legality of linking ‘free’ copyrighted material online, has not yet been explored in Kenyan courts, it is likely that the courts shall recognise that transient and incidental ‘copying’ that occurs in the operation of the Internet does not infringe on copyright holders’ exclusive reproduction right under section 35 of the Copyright Act (cap 130).
Copyright law should allow development and operation of new technologies while striking fair balance between copyright holders’ and the technologies’ users’ rights. Kenyan courts’ also have a duty to strike this balance. PRCA v NLA (2013) would in such cases be instrumental not only in its central finding but also in its compelling illustration of the fact that the operation of copyright online is inextricably tied to the accessibility of the Internet. This case also underscores the need for a review of the Copyright Act (Cap 130), in response to the unique challenges wrought by the operation of copyright in the digital age.
The Copyright (Amendment) Bill 2017 is currently pending before Parliament (Committee stage). In the Bill, there are 13 areas of changes to the Copyright Act identified as follows: Definitions; Functions of the Board; Composition of the Board; Qualifications of Executive Director; Copyright and Related Rights (Exclusive Licensing); Artist Resale Right; Copyright in Broadcasts; Rights of performers (Royalty Collection); Infringement (Intermediary Liability); Collective administration of copyright; Copyright Tribunal; Exceptions and Limitations (Fair Dealing). A copy of the Bill is available here. This blogpost will briefly highlight some of the areas of concern arising from the proposed amendments.
CODE IP Trust and the GoDown Arts Centre in Nairobi are members of the CopyrightX community, a growing network of affiliated courses offered by various institutions around the world each year. CopyrightX is a twelve-week networked course, offered from January/February to April/May each year under the auspices of Harvard Law School, the HarvardX distance-learning initiative, and the Berkman-Klein Center for Internet and Society. The course explores the current law of copyright mainly in the US and Kenya but also elsewhere in the world; the impact of that law on art, entertainment, and industry; and the ongoing debates concerning how intellectual property (IP) law should be reformed. Through a combination of recorded lectures presented by leading IP scholar Prof. William Fisher, assigned readings, weekly classroom seminars, participants taking the course in Nairobi examine and assess the ways in which the copyright system seeks to stimulate and regulate creative expression.
This semester, we kick off a brand new course for final year undergraduate law students on e-commerce and the law. This course aims at explaining the legal challenges that are posed by electronic commerce. We shall also contextualise and problematise on-going legal/policy developments in Kenya to regulate electronic commerce. In this blogpost, we highlight some of the issues that arise in the context of copyright law.
The Copyright Act of 2001 is an Act of Parliament to make provision for copyright in literary, musical and artistic works, audio-visual works, sound recordings, broadcasts. The Act also establishes Kenya Copyright Board (KECOBO), a state corporation under the Office of the Attorney General and Department of Justice (AG). Principally the Act empowers KECOBO to license and supervise the activities of collecting societies, also known as Collective Management Organisations (CMOs). Anybody who wants to use music (subject to copyright) in public needs a licence to do so. The licence fee, or royalty, depends on the type of use. Royalty rates are set in tariffs, which are determined by CMOs.