Dicey Balancing Act Between Piracy and Fair Dealing in
Book Trade
By. Paul Kaindo
cont on page 4
Most university libraries make available a
variety of copyright print and electronic
material to students, sta and sometimes
the public. Users of these material should
familiarize themselves with rights as they
appear in the Copyright Act, 2001. is Act
governs among other things, photocopies,
scans or other reproduction of copyright
It is important for every prospective user
may it be a student, sta or other library
user to understand that certain copying
may be an infringement of copyright.
For example a user who copies all or a
substantial part of a copyright-protected
work without the consent of the owner of
the copyright infringes on the rights of the
copyright owner, unless the copying falls
within an exemption and limitations from
copyright infringement.
ese exceptions and limitations are
provisions which in public interest permit
a user of a copyright works to copy or
reproduce the copyright work without
prior authorization or a license from its
owner. Among the exceptions is the fair
dealing exception under Section 26 (1)
a of the Act. e fair dealing doctrine
allows one to copy or reproduce other
peoples copyright protected material for
the purpose of scientic research, private
use, criticism, review or reporting of
current events. Any act falling within these
fair dealing exceptions does not amount
to copyright infringement as long as the
source is acknowledged.
Fair dealing is a user’s right and an exception
to copyright infringement allowing one to
copy a substantial portion of a copyright
work when it is fair and reasonable to do
so, without permission from or payment
to the copyright owner. It is an integral
part of copyright law aimed at maintaining
a proper balance between the rights of
copyright owners and users’ interests.
e Copyright Act does not dene the
term “fair dealing”. Whether the use
of copyright material is “fair” depends
on the facts and circumstances of each
case. e line between “fair dealing” and
infringement is a thin one. In Kenya,
there are no set guidelines that dene the
amount of words or passages that one can
use without permission from the author.
It is only the court that can determine the
fairness of a dealing. It may, however, be
said that the person copying should ensure
that the copied portion does not aect
the substantial economic interest of the
author. Where the economic impact is not
signicant, the use may be fair dealing.
In assessing the fairness of a dealing, the
following six factors explained in the 2004
Canadian case between CCH Limited
versus Law society of upper Canada must
be put into consideration. ese are; the
purpose of the dealing; the character of
the dealing; the amount of the dealing; the
Authors and Publishers pose in ont of pirated books that were conscated by KECOBO ocers .
cont from page 3
alternatives to the dealing; the nature of the
work and the eect of the dealing on the
original work.
It should, however, be noted that any other
factor deemed relevant in determining what
constitutes fair use may be considered,
including broad considerations on whether
the dealing is aimed at advancing public
interest, which is one of the goals of
Copyright Act.
If the purpose of the copying does not
fall within the allowable ve acts of fair
dealing listed under Section 26 (1) a,
then it is not fair dealing. e character
of the dealing considers the number and
extent of distribution of copies. If the
purpose of the copying is to facilitate
distribution of multiple copies widely, it
may be considered unfair. A single copy
on the other hand for a single legitimate
purpose may be fair. Emphasis is placed on
may’ as other factors must be considered.
It may also be important to consider the
customary practices of the industry in order
to determine what is fair. e customary
practice in the education industry, for
example, may justify making copies to
provide as class handouts, or to put a copy
on reserve section in a library for students
to borrow.
When considering the amount of the
dealing, we look at the portion being
copied in relation to the entire work. ere
is no set formula or quantitative measure
to determine how much of a work can
be copied fairly. is calls for individual
judgement. If the amount you want to copy
seems reasonable or insubstantial then it is
likely to be fair. To make it easier for one
to use fair dealing exception one should
remember that you cannot copy an entire
work but may copy a short excerpt of a work.
A short excerpt is generally, but not strictly
up to 10% of the work depending with the
nature of the work and the circumstances of
the case.
e fourth criteria to consider in
determining fair dealing is alternatives
to the dealing- Is it necessary to copy this
particular copyrighted work? Is it necessary
to copy the amount you want to copy?
If the answers to these questions are to
the armative, then it is likely to be fair.
Also ask yourself whether there are non-
copyright alternative to achieve the same
objective you intend to achieve. If there are,
the use may be unfair.
e h criterion to consider is the nature
of the work you would like to copy. For
example, is the work condential and
one that the author never intended for
public release or is it published work?
Copying excerpts from published research
articles published with the intention of
disseminating knowledge and ideas may
be fair dealing. Secondly, if the work is an
original work of copyright such as ctional
work as opposed to one that requires
less creativity such as an encyclopedia
or dictionary copying it may not be fair
e nal fair dealing criterion to consider
is the eect of use of the dealing on the
original work. It may be unfair if the
copy you create is likely to commercially
compete with the original work. In order
to constitute unfairness there must be an
intention to compete and to derive prot
from such competition. Unless the motive
of the infringer were unfair in the sense of
being improper the dealing would be fair.
Generally, fair dealing is exible and open
to individual interpretation. It is advised to
work through the above criteria on a case
by case basis to help one assess whether
what one is copying is fair dealing or not.
If one is not sure of what may amount to
fair dealing, it is advisable to consult the
university librarys fair dealing policy if
available or seek assistance in assessing the
fairness of the dealing to avoid unnecessary