On the 9th of December 2016, African Regional Intellectual Property Organization (ARIPO) celebrated 40 years in existence. As many may know, ARIPO is an Intergovernmental Organization established under the Lusaka Agreement on 9 December 1976 to pool resources of its African Member States in Intellectual Property (IP) and establishes common services and co-ordination of laws and activities in IP matters. One of the highlights of the celebrations was the launch of inaugural issue of the African Journal of Intellectual Property (AJIP), a collaborative project with the Africa University’s Institute of Peace, Leadership and Governance (IPLG).
In Part 1 here, I argued for what I have termed a ‘Governance Theory of Copyright.’ The core features of this emergent perspective are the elevation of cultural works as the central subject matter of copyright; the placement of development as the lodestar of copyright law and policy; the incorporation of a regulatory framework that goes beyond copyright law; and a liberalisation of the regime for protecting entitlements.
In this post, I briefly apply this perspective to the case of sound recordings as regulated by Kenyan and Nigerian (K&N) Copyright laws; the next post will examine the case of GIFs (Graphic Interchange Format).
The emerging concept of creative economy with its underlying ideas has arguably embraced its apogee in the publication of a new study commissioned by CISAC titled “Cultural Times—The First Global Map of Cultural and Creative Industries.” The conclusions of the study are not new (See UNESCO and UNCTAD creative economy reports). What is new, according to CISAC, is that the study is the first to quantify the global economic and social contribution of cultural and creative industries.
As is usually the case with studies on creative economy, the emphases are on the economic and non-economic potentials/contributions of the cultural and creative industries; and the challenges posed by piracy to these industries and the economy (I agree with all these). My worry, however, is that concerns about piracy in these studies are usually followed by recommendations to increase protection and strengthen enforcement of copyright law.
The Digital Evolution Index (DEI) was developed by The Fletcher School at Tufts University in collaboration with MasterCard and DataCash. The aim of the Index was to identify how selected countries around the world stack up against each other in terms of readiness for a digital economy. The index is derived from four broad drivers: supply-side factors (including access, fulfillment, and transactions infrastructure); demand-side factors (including consumer behaviors and trends, financial and Internet and social media savviness); innovations (including the entrepreneurial, technological and funding ecosystems, presence and extent of disruptive forces and the presence of a start-up culture and mindset); and institutions (including government effectiveness and its role in business, laws and regulations and promoting the digital ecosystem). The resulting index includes a ranking of 50 countries, which were chosen because they are either home to most of the current 3 billion internet users or they are where the next billion users are likely to come from.
Based on the performance of countries on the index during the years 2008 to 2013, one of four trajectory zones were assigned to them: Stand Out, Stall Out, Break Out, and Watch Out.
Stand Out countries have shown high levels of digital development in the past and continue to remain on an upward trajectory. Stall Out countries have achieved a high level of evolution in the past but are losing momentum and risk falling behind. Break Out countries have the potential to develop strong digital economies. Though their overall score is still low, they are moving upward and are poised to become Stand Out countries in the future. Watch Out countries face significant opportunities and challenges, with low scores on both current level and upward motion of their DEI. Some may be able to overcome limitations with clever innovations and stopgap measures, while others seem to be stuck.
Out of the 50 countries in the index, there were four African countries namely South Africa, Egypt, Kenya and Nigeria. The highest ranked African country, South Africa (33rd place) is categorised as a Break Out country along with fellow BRICS countries India, China and Brazil as well as other countries like Vietnam, and the Philippines which are said to be improving their digital readiness quite rapidly. According to experts, staying on this “Break Out” trajectory means confronting challenges like improving supply infrastructure and nurturing sophisticated domestic consumers.
Egypt (48th place), Kenya (49th place) and Nigeria (50th place) are categorised as Watch Out countries along with Indonesia, Russia, which are all said to have important things in common like institutional uncertainty and a low commitment to reform. These countries are said to possess one or two outstanding qualities — predominantly demographics — that make them attractive to businesses and investors, but they expend a lot of energy innovating around institutional and infrastructural constraints. According to experts, unclogging these bottlenecks would let these countries direct their innovation resources to more productive uses.
In the African context, many experts concur that e-commerce is now one of the key and arguably the leading enabler for growth within the consumer sector in Africa adding that e-commerce is set to dominate African retail markets over the next five years. Consequently, a myriad of opportunities are being provided for consumers and businesses to buy and sell both new and used items online. Among companies that provide such e-commerce platforms are OLX, Jumia, Rupu, Kaymu.
From a legal perspective, this blogger notes that Kenya’s digital economy will only be able to flourish under the proper legislative and regulatory conditions. In this regard, there are four critical laws which need to be enacted namely: a Data Protection Act, an Access to Information Act, an e-Transaction Act and a Cybercrime Act.
On April 14, 2014, the Nigerian militant Islamist group Boko Haram kidnapped 276 school girls in the town of Chibok. “Boko Haram” translates to the unacceptance of Western education, and the group allegedly performed this act to showcase their beliefs of the place women should hold in society; working in the home and not attending school. As this occurred, the Twitter and Facebook spheres exploded with influencers and average joes holding up signs in a photograph with the hashtag “#BringBackOurGirls” on it. According to the Mail & Guardian (M&G), the hashtag #BringBackOurGirls became a global social media rallying cry to generate attention for the girls.
In a recent article, M&G highlighted Africa’s top 15 trending Twitter #hashtags in 2014 noting that twittersphere in Africa is growing and developing: with the Middle East and Africans accounting for 7.2% of Twitter users worldwide. In this regard, M&G states that: “Hashtags play a vital role in the spread of information, as a form of activism and in some cases, as a hilarious way of making a point. It turns out that Johannesburg is the city with the most geo-located tweets, followed by Cairo and then Nairobi – a trend which can be picked up when looking at the continent’s most viral tweets.”
Other top hastags in Africa throughout 2014 included #FreeAzyz, #JollofGate, #AfricaStopEbola, #Orwell, #MousserContreEbola, #IDreamofANigeria, #ThingsLongerThanPistoriusSentencing, #PayBackTheMoney, #RememberingMandela, #EvilNanny, #ThingsIloveaboutSouthSudan and #JusticeforHanna.
In Kenya, two of the top hashtags of 2014 reported by M&G were #MyDressMyChoice and #DeadBeatKenya.
On November 11, 2014, a woman standing at the Embassava bus terminus on Tom Mboya Street in Nairobi was surrounded by a dozen of men who tore off the woman’s clothes and forced her to the ground. Her crime? She was dressed so scantily that some men felt the need to teach her a lesson in propriety. The whole thing was videotaped and put up on YouTube and also widely circulated on Whatsapp. Thereafter there were at least two other videotapped incidents of women being attacked and stripped throughout Nairobi. “Kilimani Mums”, a little known Facebook group, rallied the entire country in condemning the stripping and inspired the hashtag #MyDressMyChoice. Women, mostly from the Kilimani Mums group, went beyond hashtag activism, and rallied people to join a demonstration on November 17, 2014 against the harassment of women.
These cases of “slut-shaming” (stripping) reminded this blogger of the #PoliceUniform hashtag earlier in the year involving a female police officer Linda Okello who was sanctioned and unfairly transferred by the National Police Service for wearing a tight uniform that accentuated her curvaceous posterior. As a result of a wide-spread social media uproar over the sanctions by NPS against Akello, the transfer was quickly reversed. In this regard, it is clear to see that the hashtags are an affirmation of the fundamental freedoms and basic rights enshrined in the Constitution. Article 28 of Constitution, which is the cornerstone of the Bill of Rights, states that every person has inherent dignity and the right to have that dignity respected and protected. With specific regard to the rights of women invoked through both hashtags, Article 27 on equality and freedom from discrimination clearly states that:
“The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth…A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause 4”
In a previous blogpost here, we examined the #DeadBeatKenya trending topic which sprung from a facebook group called “Dead Beat Kenya” that names and shames absentee parents who fail to support their children. Jackson Njeru, the founder and the administrator of the page, claimed the goal of #DeadBeatKenya was to hold accountable negligent fathers and mothers by featuring detailed stories and photographs of the abandoned partners and children. #DeadBeatKenya‘s shocking and shaming approach attracted worldwide attention because some of the individuals featured on the social media page included politicians, celebrities, entrepreneurs, athletes and other public figures.
In sum, this blogger concurs that the twittersphere in Africa is indeed growing and developing. From #sidibouzid to #jan25 and beyond, hashtags in Africa continue to be an important means of expression, speech, protest and assembly by groups of people around a common cause. This blogger will continue to keenly monitor the impact of social media tools in activist movements.
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.
This week also marked the launch of Creative Commons Kenya. A project that we at CIPIT believe will greatly impact how copyright works are shared and exploited particularly in the digital environment. We are once more grateful to be named as the Public Lead for Creative Commons Kenya alongside the National Council for Law Reporting (NCLR) which will be Legal Lead.
Moving right along, here are some of the major IP-related news items that caught our attention this past week:
This week marked the launch of CIPIT’s official website: www.cipit.org. This is a groundbreaking achievement both in Kenya and throughout Africa. With the exception of South Africa, Strathmore University is now the only other African university with a fully fledged Centre for Intellectual Property research and practice. In this regard, we would like to invite everyone to check out the CIPIT website and show your support as we continue to grow.
Without further ado, here are some of the major IP-related news items that caught our attention this past week:
CIPIT’s nod from IPKat wraps up this week’s list. If any of our readers know of any other significant IP stories from Africa and beyond that were not mention, the comments box is all yours.
Finally, this blogger would like to remind all IP enthusiasts in Kenya that the monthly IP CheckIn meet-up is coming up on the 10th of November at the Nairobi Innovation Hub (*iHub_). Some of the topics to be discussed include: the impact of the recent IP law amendments enacted in the Statute Law Miscellaneous Act 2012, branding in the media, entertainment and ICT industries, among other topics. Please diarise this date and bring along a friend or three.