As many may know Kenya is among Africa’s top 10 economies after rebasing of its gross domestic product (GDP). Kenya is officially classified as a middle-income country after a statistical reassessment of its economy increased the size by 25.3 per cent. Kenya’s economic output was calculated to be 4.76 trillion shillings ($53.4 billion) in 2013 after the rebasing, up from 3.8 trillion shillings ($42.6 billion). This takes Kenya up to ninth in Africa’s GDP rankings from 12th, above Ghana, Tunisia and Ethiopia but below oil-producing Sudan based on a World Bank table for 2013. Kenya became the latest African country to benefit from rebasing its economy after Nigeria overtook South Africa to became the continent’s biggest economy earlier this year.
This blogpost takes a moment to consider how copyright law amendments could play a crucial role in increasing the economic contribution of copyright-based industries to Kenya’s GDP. In particular, this blogpost considers three main areas namely, provisions on online and digital infringement of copyright as well as collective administration of copyright.
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.
For social media law enthusiasts in Kenya, this month witnessed the 2014 Social Media Awards (SOMA) sponsored by OLX. This second edition of SOMA saw participation of 100 nominees in 21 categories and serves to demonstrate the immense impact of social media for personal and business growth. Leading mobile operator, Safaricom Limited was a triple winner at SOMA. In the Customer Care category, Safaricom scooped the award beating Chase Bank, Orange and Airtel in addition to receiving the overall Corporate-of-the-Year Award. Safaricom Chief Executive Officer Bob Collymore was also voted this year’s most influential corporate personality in Kenya at SOMA. For the full list of nominees and winners, see here. Another big social media related event this month was the launch of the “A-Z of Kenyan Twitter” Report by Nendo Ventures. Read more about #AtoZofKOT here.
Meanwhile, in Nigeria, the main social media law story was the case of Linda Ikeji, whose blog was taken down for copyright infringement but later restored. This blogger has discussed the Linda Ikeji blog story here. Ikeji’s story brought out many interesting issues, one of which was abuse of the take-down provision under the US Digital Millenium Copyright Act (DMCA). It appears that blogs which run on platforms like blogger, tumblr, medium, typepad or even facebook notes are much easier to take down as opposed to stand-alone blog sites with registered domains. However, these blogging sites and other social media site are increasingly unable to comply with a large proportion of the take down notices they receive as these notices are either incomplete or abusive. For instance, between the months of January and June 2014, Twitter did not comply with nearly 1 in 4 takedown notices it received; Wikimedia complied with less than half; and WordPress complied with less than two-thirds. On the issue of DMCA abuse, Automattic, the company behind WordPress (Ahem, the best blogging platform in the world.) has included a Hall of Shame section in is transparency reports which highlights DMCA abuses by all sorts of businesses, organizations, and individuals attempting to silence criticism and other noninfringing speech. See the Hall of Shame here.
In South Africa, the recent judgment in the High Court case of D v V (12537/12)  ZAGPPHC 787 may be of particular importance to social media law enthusiasts. A copy of the judgment is available here. In this case, a Pretoria mother of two, only identified as R, claimed ZAR 750,000 (KES 7.5M) in damages from her husband’s mistress, only identified as C. Her claims were based on adultery, loss of comfort and alienation of affection. R testified that c intended to break her marriage. The crux of R’s case against C was that the latter intended to break her marriage and in support of her case, R relied on seveal communications and photos on Whatsapp and Facebook. With respect to Whatsapp, C sent a picture of her vagina to R’s ex-husband and their son brought it to the attention of R. This picture alerted the plaintiff to the adulterous relationship between C and R’s ex-husband. Thereafter, C sent R numerous vulgar and boastful messages about her adulterous relationship with R’s ex-husband, despite being fully aware that C was happily married to her ex-husband.
With respect to facebook, C posted pictures of her kissing R’s ex-husband, including as a her profile picture. R told the court that these acts on facebook were intended to humiliate her, break her heart as well as her marriage. R further argued that C’s conduct led to R’s ex-husband eventually moving out of their communal home after being violent and antagonistic towards R and their son. In light of the above, the court found in favour of R and ordered C to pay R a total of ZAR 85,000.00 as damages for adultery, loss of comfort, society and services of her ex-husband as well as for alienation of affection. In addition, C was ordered to pay R’s costs of suit. This outcome compares favourably with the recent Kenyan case of ES v IMK  eKLR which also addressed adultery established through facebook pictures.
The Linda Ikeji Blog (LIB) commands a great deal of readership and influence in Nigeria with an average of 100 comments per blogpost and over 425,000 followers on twitter. Earlier this month, it was reported that LIB was taken down from the Google-owned “Blogger” platform and later restored by Google. Linda Ikeji disclosed that LIB was taken down following allegations of plagiarism and copyright infringement, presumably under the US Digital Millenium Copyright Act (DMCA). However Google has declined to categorically state why the blog was taken down but generally explained that: “We [Google] take violations of policies very seriously as such activities diminish the experience for our users. When we are notified of the existence of content that may violate our Terms of Service, we act quickly to review it and determine whether it actually violates our policies. If we determine that it does, we remove it immediately.”
This blogpost considers LIB’s recent experience from an intellectual property (IP) perspective and concludes that this case should be an eye-opener to bloggers, especially in Kenya.
As we know plagiarism and copyright infringement are not the same thing. The key distinguishing factor is the use intended. A copyright infringer uses your work in order to derive some commercial benefit. On the other hand, a plagiarizer uses your work in order to assume your identity as the author for purposes of recognition and attribution. Therefore every case of copyright infringement can also be plagiarism but not all cases of plagiarism amount to copyright infringement.
In the case of LIB, Ikeji addresses here the allegations of plagiarism and copyright infringement made against her blog:
“My understanding of plagiarism is when you take someone’s work and republish it verbatim as your own work. I don’t do that. But if I have ever done that in the past then I apologize. It was an oversight. I do get a lot of original content, way more than any other blogger in this country. Some of the biggest news stories in this country in recent times was broken by LIB. From Goldie’s death (God rest her soul) Aluu4, ABSU rape, P-Square saga, Solomon Akiyesi and plenty more. And when I take news from other sources, I always credit them. When I don’t give credit is when the news is everywhere so I write it in my own words and make it mine. I don’t believe that is a crime. I admit that I have used photos without giving credit. I apologize. That will never happen again. You learn every day. And I have learnt from this.”
Here in Kenya, the case of media personality Caroline Mutoko’s blatantly plagiarised article has been aptly by one of her own colleagues here. Despite Mutoko’s vehement denials, it was evident to most observers at the time that the matter was ripe for both criminal and civil action at the instance of the copyright owner who reportedly confirmed that Mutoko never sought authorisation to use the work. Although the fair dealing provision of the Kenya Copyright Act may serve as a defence in cases of infringement, there remains a compulsory requirement of attribution which reads “subject to acknowledgement of the source”.
Still on the issue of copyright, an interesting issue that arose in the LIB story relates to abuse of the DMCA take-down procedures. Ikeji claims that Google restored LIB “in record time” after verifying that the allegations of copyright infringement were “bogus and deliberate sabotage.” Generally speaking, bogus copyright and trademark complaints threatens all kinds of creative expression on the Internet. In this connection, many will recall the recent case where Wikimedia Foundation refused to take down that notorious monkey selfie. The monkey selfie claim by Caters News Agency against Wikimedia is considered by some as “dubious” and a DMCA abuse. See our discussion of the monkey selfie dispute here.
In addition to copyright issues, there is also an important trade marks lesson in the LIB story. It was reported that once LIB was taken down by Google, Ikeji was forced to direct her readers to a temporary site: lindaikeji.mobi since “cybersquatters had acquired all her potential domain names” including the domain name: lindaikeji.net which had been registered by one Mukhtar Dan’Iyan through an alias.
Ordinarily one would expect that any blog which is able to get thousands of comments and sell advertising space to companies, such as LIB, would have long taken the necessary steps to protect the LIB name as a trade mark and register several domain names closely related to LIB as a defensive measure against infringers and squatters respectively. However, this appears not to have been the case in the LIB story.
In the final analysis, any serious online content creator must be aware of the boundaries of IP and operate within those boundaries. The role of IP becomes more critical where the online content creator’s blog or website is commercial in nature.
For the past two years the topic of intellectual property (IP) issues in social media has been dear to this blogger. However it is clear that the emerging legal issues relating to social media are much wider than IP law concerns and impact numerous other branches of law including but not limited to criminal law, constitutional law, law of evidence, defamation law (which is an integral part of media law), consumer protection law, employment and labour laws, competition law, administrative law, education law and ICT law among others.
This holistic approach to the study of the intersections between social media and the law is what this blogger aims to accomplish in collaboration with his host institution @StrathCIPIT. Through the CIPIT blog, this blogger will begin focusing on the various legal issues brought about by social media and other forms of new media. So far, we have already discussed here and here social media in relation to the laws of succession and defamation respectively.
In this connection, this blogger is eager to read a recent book authored by two female South African attorneys, Emma Sadleir and Tamsyn de Beer which deals with the myriad of legal issues that arise in the context of social media (featured in the video at the header of this blogpost). Here is an excerpt from this new book titled: “Don’t Film Yourself Having Sex and Other Legal Advice For the Age of Social Media”:-
“Picture the scene: you finish reading this book and, feeling inspired to exercise a bit of online reputation management, you google your name. Up pops a link to your Facebook page, your Twitter account, and your LinkedIn profile.
You feel chuffed, because you’ve never uploaded anything remotely objectionable and look super professional and sober in your profile picture. You self-five yourself for being responsible and awesome.
Your parents would be so proud.
But then you see that the next four pages of the Google search results are filled with links to a video of you and your ex-boyfriend having sex, all over porn-sharing sites, with your full name and the name of your employer tagged.
You never consented to being filmed, and you are (obviously) mortified. Desperate to not have the matter revealed to the world in public court documents, your only option to escape this nightmare is to change your name.
We wish that this were some horror story that we made up to scare you, but sadly, it’s not. This happened. In South Africa.”
The “revenge porn” case highlighted in the above excerpt appears to be at the core of this book which is dedicated, “To Miss K. The law failed you.” However a recent article in the Washington Post (available here) argues that copyright law in the US has become one of the best defences against revenge porn.
Going the copyright route means that the victim of revenge porn would file a takedown notice requiring the website concerned to immediately take down all infringing image(s) and/or video(s) pursuant to the Digital Millennium Copyright Act (DMCA). However, even with the copyright route, there’s a catch as the article explains:-
“The copyright approach is not foolproof, unfortunately: While large corporations like Reddit respond to them quickly, irreverent upstarts like Hunter Moore’s infamous Is Anyone Up may ignore takedown notices or, worse, publicize the victim’s image further in an attempt to shut her up. (Victims then have to contract lawyers for expensive, indeterminable lawsuits.) Copyright only applies when the victim took the photo herself.”
In this regard, it may be argued that the minimum legal parameters for social media use are largely under-developed in Africa. Law-makers, courts and administrative bodies appear to be applying the same analogue rules and principles in the digital realm, without due regard to the specificities and intricacies of new media, and social media in particular. Therefore there is a need for careful study and review of our existing laws to ensure that they adequately regulate conduct on social media.