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Copyright News
By. Paul Kaindo
C
opyright and related rights
subject is an exciting yet
emotive topic in Kenya and
beyond yet it is not appreciated
enough. It is widely accepted that
whoever invests his money, time and
effort in the creation of a copyright
work is entitled to the exclusive rights
in it and should enjoy maximum
protection to reap maximum benefit
from it. The author of a work for
instance deserves a just reward for
his/her intellectual labour and has a
natural right in his/her creation. It
is the state’s responsibility to protect
this inalienable right. However, due
to the recent high rate of globalisation
and technological advancements,
countries like Kenya are faced with
the big challenge of effectively offering
this much needed protection.
Inadequate laws and regulations,
poor enforcement, insufficient or lack
of awareness on copyright laws, fast
growing technological advancements
and inability of copyright and
related rights laws to keep up with
the revolutionary technological
advancements are just some of the
challenges afflicting the Copyright
and related rights industry in Kenya.
Most of these challenges have
stemmed from the recent emergence
of novel technologies and the inability
to accommodate them into the existing
notions upon which copyright laws
are based. Copyright owners find
themselves in an awkward position
where they are beneficiaries of new
advantages that come with these
technological advancements while at
the same time they are victims of new
disadvantages. Their response, quite
naturally, is to attempt to regain old
benefits while retaining the new ones
without effective legal backing.
The Kenya copyright and related
rights system has its deep legacy
rooted in her colonial and neo-colonial
experience. e current copyright laws
are largely a 20th and 21st century
phenomenon, beginning with the
declaration of Kenya as a British
protectorate in 1895 and later a colony
in 1920. Until 2001, the Copyright Act
was a reflection of the colonial 1966 Act
which had subsequently been amended
in 1975, 1982, 1989, 1995, and 2000. is
1966 Act was certainly not designed for
the modern-day information age. e
2001 Copyright Act attempted to deal
with technological challenges but is
still lacking in many aspects. Copyright
owners are still losing millions of
shillings due to infringement and
piracy particularly in the digital
environment.
Copyright laws predictably became
obsolete when technology rendered
the ideologies on which they were
based obsolete. Inevitably, new
developments have changed the rules.
Application of old legal ideologies to
new contexts yields unanticipated and
often undesirable results.
Weak or non-existent policies in the
field of copyright coupled with limited
awareness of relevant laws is equally
a challenge in the sector. Inadequate
sector funding and lack of professional
human resource to manage the sector
are major challenges as well.
While the laws may exist, balancing
the rights of right holders and the
rights of the society as a whole with
limited resources is an enormous task.
While providing copyright owners
with enough control over their work
so that they are motivated to create
and disseminate their works, the
society as a whole has to be seen to
benefit from access to the work as
they have the constitutional right to
access information. Copyright laws
have had an instrumental role in the
promotion and creation of a vast array
of informational works, resulting
The future of Copyright in Kenya:
Opportunities and Challenges
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Copyright News
in vibrant markets for intellectual
property. On the other hand, copyright
laws, in the nature of fair dealing, define
limits on protection in order to facilitate
the public interest and benefit from
shared information. To overcome all
this, compromises have to be made in
order to balance the interests of creators
of copyright work and consumers,
hence fulfilling a number of important
public policy objectives. It is for this
reason that copyright gives long lasting
but ultimately extinguishable rights to
allow the society to eventually benefit
from the creations without limitations.
Any effort to deal with the challenges
in the industry should be proactive and
capable of avoiding destabilisation
by future technological advances.
Periodical amendments of copyright
laws to regulate new technology
products as they come ought to be
frequent. The legislation should be
capable of dealing with new potential
challenges brought about by such
advancements as cryptocurrency and
artificial intelligence that may affect
the industry.
The Copyright (Amendment) Bill,
2017 comes at an opportune moment
and offers a new dawn for the copyright
industry. It seeks to amend several
provisions of the Copyright Act 2001
which do not address majority of the
modern-day challenges. Its general
objective is to expand the scope of
copyright protection, add extensive
protection in respect of broadcasts and
signal, facilitate access to published
works for persons who are blind,
visually impaired, or otherwise print
disabled, promote sound corporate
governance in management of
rights, improve efficiency in royalty
collection as well as address the
myriad of challenges brought about by
technological advancements.
There is a healthy debate going
on in attempts to realise the promise
of the digital age as far as copyright
and related rights are concerned. e
debate contributes towards further
development of national copyright
laws and policy, demystifying the
underlying technology trends,
exploring the range of technological
and business tools that may be useful,
and recommending a variety of actions
that can be taken to help ensure that the
benefits of information infrastructure
are realised for copyright holders and
society as a whole.
There is optimism that copyright
will surely survive technological and
other challenges. Major adaptations
will however have to take place to
ensure sufficient protection for content
creators and rights holders, thereby
helping to ensure diverse supply
of copyright to the public while at
the same time protecting the right
holders. is will ensure that the public
purposes embodied in copyright law,
such as public access, are fulfilled.
Kenya should have a more vibrant and
honest debate on the challenges posed
to copyright and related rights in the
digital age. e debate should examine
the obvious inability of the Kenya’s
copyright legal regime to surmount
those challenges. Great opportunities
and benefits will without a doubt be
realised by surmounting the challenges.
Globalisation and the pervasiveness
of the Internet have given rise to
new types of needs, rights and
vulnerabilities. For secure electronic
transactions to occur under these
vulnerabilities, an environment of
trust must be established and sustained
through regulatory means taking into
account constitutional rights as well
as existing laws. The aim should not
only be the establishment of adequate
legal frameworks and capacity to deal
with copyright infringement, but also
owners of copyright to adopt various
self-help techniques.
Copyright and copyright protection
are primarily conceived as legal
constructs, but problems arising in
the interaction of copyright and the
information infrastructure need to
be considered in the broader context
of other forces as well as markets,
social norms, and technology. Not
every problem requires a legislative
solution. Technology, business models
and education can provide the owners
of copyright in Kenya with effective
mechanisms and means for dealing
with problems.
Technical Protection Services in
recent years have seen the exploration
of many technical mechanisms
intended to protect copyright in digital
form. The evolution of technology is
challenging the status quo of copyright
protection and management in
many ways. Protection is typically
conceived in legal and technical terms,
determined by what the law permits
and what technology can enforce.