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Tag Archives: Copyright

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

27 Wednesday Nov 2019

Posted by CIPIT in Copyright

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Copyright, Fair Dealing, Fair Use

Image from Google Images

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

13 Wednesday Nov 2019

Posted by CIPIT in Copyright

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Copyright, Copyright Act

Image from Google Images

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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Internet Service Providers (ISPs) and Copyright in Kenya: Commentary on the Copyright Amendment Act 2019

23 Wednesday Oct 2019

Posted by CIPIT in Copyright, Intellectual Property

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Copyright, Internet service providers

Image provided by Google Images

By Caroline Wanjiru

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

Section 35B covers take down notices, their form, content, addressees etc. A take down notice is a request to an ISP by a copyright holder (complainant) to remove infringing content.

  1. The take down notice shall:
  1. Be in writing and addressed to the ISP or their agent.
  2. Contain the name and address of the complainant.
  3. Signed by or for the complainant.
  4. Contain specific details of the copyrighted works subject of infringement or which is to be removed.
  5. Identify the rights being infringed, for instance the broadcast, production rights etc.
  6. Set out the details of the content to be taken down and the location of this content.
  7. 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
  8. 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.

  1. A take down notice will be deemed delivered
    1. Next business day following physical delivery at an ISP’s registered office.
    2. 2 days after the day post if by registered post.
    3. 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.

  1. An 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 is practicable.

Comment: 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.

The 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.

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Internet Service Providers (ISPs) and Copyright in Kenya: Commentary on the Copyright Amendment Act 2019

18 Friday Oct 2019

Posted by CIPIT in Copyright, Intellectual Property

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Copyright, Internet service providers

Image provided by Google Images

By Caroline Wanjiru

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.

From the onset, it is a matter of common notoriety now that copyright enforcement is an arduous task. 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;

‘As 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 of data.’

Simply put an ISP is a company or entity that provides internet access to its subscribers. How 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

Based 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

From 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:

  1. If 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:
  1. It does not initiate transmission
  2. it does not select the addressee/person receiving the content
  3. these functions are automated and technical such as not to select the material;
  4. does not promote the content or the material being transmitted.
  5. For 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 the ISP:
    1. does not modify the material;
    2. complies with conditions on access to the material;
    3. complies with rules regarding the updating the cache in conformity with generally accepted standards within the service sector;
    4. does not interfere with the lawful use of technology to obtain information on the use of the material;
    5. removes 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.

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Mobile Innovation as the Cornerstone of Socio-economic Development in Kenya

17 Monday Apr 2017

Posted by Jacquelene Mwangi in openAIR

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Copyright, Eneza Education, Incubators, innovation, Kenya, Kenya ICT Masterplan, Mobile Innovation, MPESA, Open AIR, simple technology, Socio-economic development, Startups, technology hub of Africa, Totohealth, USSD

Over the past few years, Kenya’s innovation scene has come to the limelight, resulting in some naming the country as the technology hub of Africa. Some of the factors that have led to this acclaim are the growing number of shared working spaces, young technology enthusiasts, incubators where developers are mentored and trained, and a craze for mobile application development. The Open AIR team in Kenya- comprised of Dr. Isaac Rutenberg, Victor Nzomo, Louisa Matu-Mureithi and myself, is conducting research on mobile innovation in Kenya. As a researcher on the team, I am helping to conduct research in the case study entitled “Open Collaborative Models of Mobile Tech Innovation in Kenya.”

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Draft National Music Bill: Touted Solution to Artists’ Royalty Woes in Kenya

02 Friday Dec 2016

Posted by Louisa Matu-Mureithi in Collective Management Organisations, Copyright

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Content Service Providers, Copyright, CSPs, Draft Music Bill 2016, KAMP, KECOBO, Kenyan music industry, MCSK, Music Bill, Music Talent Academy, National Music Council, National Music Fund, National Music Tribunal, permanent presidential music commission, PRiSK, Royalties, Safaricom, skiza

music-in-africa-forum-bill-cover_1

Photo credit: Julian Manjahi

As alluded to in a previous blogpost here, the Draft National Music Bill 2016 has been touted as a proposed solution to the payment of artists’ royalties in Kenya, in light of the recent issues raised about the constitutionality of section 30A of the Copyright Act. The back and forth regarding the payment of royalties from platforms such as Skiza and subsequent music platforms that may be created, might be found in the Draft National Music Bill. The Bill has been put forward by the Permanent Presidential Music Commission (PPMC) and was published for public comment in June 2016.

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Enacting a Performers Protection Act in Kenya: Possible Solution in Post-Beijing Treaty Era

25 Friday Nov 2016

Posted by Louisa Matu-Mureithi in CIPIT Insights, Collective Management Organisations, Copyright

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audiovisual performances, Beijing Treaty, CMO, Collecting Society, Content Service Providers, Copyright, Copyright Act, intellectual property protection, intellectual property rights, Malindi High Court judgement, Performers Protection Act, Royalties, s30A of Copyright Act, Safaricom, skiza, WIPO

improve-your-live-performance-1200x901

Image credit: Sessionville

Following a previous blogpost here on the constitutionality of s30A of the Copyright Act and the role of CMOs, this blogger will now consider whether it would be worthwhile for Kenya to enact a Performance Protection Act encompassing the intellectual property rights proposed for audiovisual performers in the Beijing Treaty (when it comes into force; that is, once 30 eligible states have ratified the Treaty). It would be worthwhile to mention that Kenya signed the Treaty on the 26th of June 2012, although she is yet to ratify or accede to the Treaty.

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Listening to the Skiza Tunes Millions: Section 30A of the Copyright Act Unconstitutional and Role of Collecting Societies

22 Tuesday Nov 2016

Posted by Louisa Matu-Mureithi in CIPIT Insights, Collective Management Organisations, Copyright

≈ 3 Comments

Tags

CMO, constitutionality, Copyright, CSP, KAMP, Malindi High Court judgement, MCSK, Performance Protection Act, performer, PRiSK, PRSP, Royalties, skiza, Skiza tunes, WIPO

skiza-tune-safaricom

Image credit: YouTube

Skiza or “sikiza” is the Kiswahili word for listen or pay attention. Skiza Tunes is a caller ring back tone service run by local mobile network operator Safaricom. Since the platform provides Safaricom subscribers with access to caller ring back tunes this service falls within the scope of copyright licensing. The licensing of and collection of royalties from Skiza has been the subject of several court battles since the introduction of s30A of the Copyright Act through the Statute Law Miscellaneous Amendments Act of 2012. This section provides for the right to a single equitable remuneration for the use of sound recordings and audio-visual works to be licensed directly by two collective management organisations (CMOs) namely PRiSK (Performers Rights Society of Kenya) and KAMP (Kenya Association of Music Producers).

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Oh, the Irony: Using Copyright to Take Down CopyrightX Lecture on Copyright

16 Tuesday Feb 2016

Posted by Victor Nzomo in CIPIT Insights, Copyright

≈ 1 Comment

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Abuse, Copyright, CopyrightX, DMCA, Doctrine, Fair Use, Fisher, Inception, Infringement, Irony, Jimi Hendrix, Kenya, Law, Public Interest, SME, Sony Music, Take Down, Theory, Welfare, YouTube

William Terry Fisher CopyrightX Lecture 3 Part 3 Subject Matter of Copyright Music Harvard Law Sony Music Entertainment

To My CopyrightX Class,

You will recall that only a few hours ago today, we covered the CopyrightX Week 3 Lectures on The Subject Matter of Copyright, including the Lecture on Copyright in Music captioned in the screenshot above. I reckon the full extent of the irony in the current impasse between Sony Music Entertainment (SME), YouTube and our beloved Terry Fisher will become much clearer to you once we cover “Fair Use” in Lecture 9 of the CopyrightX course. To add to the irony, for those of you that had NOT gone through this Week 3 Lecture video, the option of watching it on YouTube is no longer available – thanks to (Sony’s abuse of) copyright.

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The Ghost of M-Pesa: Faulu Kenya Cries Intellectual Property Theft over Safaricom’s M-Shwari

21 Friday Dec 2012

Posted by Victor Nzomo in CIPIT Insights

≈ 1 Comment

Tags

Act, Agreement, Business Method, Commercial Bank of Africa, Copyright, Court, Faulu Kenya, Industrial Property, Intellectual Property, M-Pesa, M-Shwari, Non-disclosure, Patents, Rights, Safaricom

[youtube=http://www.youtube.com/watch?feature=player_embedded&v=-1pXY6O4tNs]

In a recent news article titled “Safaricom loses first round of M-Shwari row with Faulu”, it is reported that Mr Justice Jonathan Havelock, sitting in the High Court, made the following two determinations in respect to Faulu Kenya’s suit against Safaricom’s M-Shwari:

1. The court denied Faulu Kenya’s request that Safaricom be barred from any dealings in the M-Shwari service until the former’s case is heard and determined.
2. The court rejected Safaricom’s bid to have Faulu Kenya’s bid moved to the Industrial Property Tribunal and stated that it had jurisdiction to hear and determine the case.

To recap, Faulu Kenya filed a lawsuit last week in the Kenyan High Court seeking to halt Safaricom from operating M-shwari, arguing that it is similar to its Kopa Chapaa service, which has been in operation since last year in partnership with Indian mobile operator Airtel Kenya. Faulu Kenya claimed that it had pitched to Safaricom the idea of a mobile money service that allows users to save, borrow loans and earn interest using their mobile phones.

During this pitch, Faulu Kenya alleges that it presented to Safaricom a prepared concept paper detailing how the platform was going to operate. Faulu Kenya also claims that it entered into a non-disclosure agreement with Safaricom, which it claims that Safaricom disregarded when it developed and launched the M-Shwari product. However Safaricom now claims that it had knowledge of a similar product to Faulu Kenya’s, having signed a pact with Commercial Bank of Africa (CBA) eight days before the Faulu agreement.

Safaricom has made a lengthy statement on this matter via their official site, which reads in part:

“While this matter is already in court and is therefore subject to sub judice rules, Safaricom Ltd seeks to clarify that M-Shwari is a proprietary product of Safaricom Limited which is the successful result of a 2-year product development process.

As you are aware, Safaricom Ltd has had a strong focus on Financial Inclusivity since 2007, when it launched M-Pesa. The commitment has been sustained through relevant enhancements informed by proactive research into user habits, dynamic customer needs and emerging trends, relating to the use of M-Pesa and other mobile finance solutions.

In developing M-Shwari, Safaricom Ltd and the Commercial Bank of Africa followed the due legal process as required by the Laws of Kenya.

As Kenya’s leading integrated communications company, Safaricom has consistently worked hard to conceptually develop innovative solutions for all Kenyans. As a result Safaricom has built an enviable intellectual property portfolio.

While the allegations are lamentable and unfortunate, Safaricom will seek to have the matter resolved through the right legal processes. We believe that this law suit is tainted with malice because it is founded on untrue allegations(…)”

Comment:

Certainly, this latest row between Faulu Kenya and Safaricom is reminiscent of previous intellectual property (IP) disputes surrounding Safaricom’s flagship M-Pesa product. As one commentator rightly notes, everytime Safaricom launches a new M-product, an “intellectual property” lawsuit is not too far behind therefore such suits are “all part of the cycle of an m-product”.

Fortunately, the learned judge, Mr. Jonathan Havelock did not fall into the trap of his learned sister Lady Justice Joyce Khaminwa, who was persuaded by Safaricom to make a ruling in the M-Pesa litigation that the High Court had no jurisdiction to handle the matter directing that the litigant Mr Christopher Ondieki ought to file his suit at the Industrial Property Tribunal.

This blogger submits that if this litigation proceeds to its full conclusion, Hon. Justice Mr. Jonathan Havelock will have the rare opportunity to, once and for all, provide Kenya with useful jurisprudence on the nature and scope of intellectual property protection, with a clear emphasis on the copyrightability of mobile-based ICT innovations, the oft-misunderstood idea/expression dichotomy and perhaps the patentability of M-products generally.

This may also be a worthwhile opportunity for the learned judge to examine both M-Shwari and Kopa Chapaa and determine whether both products can co-exist in the market bearing in mind Kenya’s new laws on competition and the alleged existence of a non-disclosure agreement signed by both Safaricom and Faulu Kenya.

All in all, this is a case that we will all be following keenly as it now proceeds to the hearing stage.

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