Suppose an employee develops a work eligible for copyright- could be literary works, musical works, artistic works, audio-visual works, sound recordings or broadcasts, who owns it? The employer or the employee? Kenyan law provides as follows:
Section 31, Copyright Act:
Copyright conferred by sections 23 and 24 shall vest initially in the author:
Provided that where a work
a.) Is commissioned by a person who is not the author’s employer under a contract of service; or
b.) Not having been so commissioned, is made in the course of the author’s employment under a contract of service,
the copyright shall be deemed to be transferred to the person who commissioned the work or the author’s employer, subject to any agreement between the parties excluding or limiting the transfer.
This section, on the face of it, suggests that labour pains, quite literally- employees will toil in creating works which may eventually belong to their employers in the absence of an agreement to the contrary. The plight of employees in these circumstances is not new. See Samson Ngengi v Kenya Revenue Authority in which Kenyans raised an uproar after KRA received a number of accolades for an invention of one of its employees.
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.