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Copyright News
Challenges protecting copyright
infringement in the digital age
By: Alex Omanga
C
opyright is defined as the exclusive
and assignable legal right, given to an
author for a fixed number of years to
print, publish, perform, film or record liter-
ary, artistic or musical material. This right is
only assignable in the economic sense. The
original author retains moral rights to the
work which prevent others from using the
works in a manner that would be injurious to
his/her reputation. A work eligible for copy-
right protection must be of original author-
ship and fixed in a tangible form from which
they can be perceived, reproduced or com-
municated either directly or through other
devices. This could also be in digital form.
To use a copyrighted work, one must seek
the permission of the author lest that use
amounts to an infringement which is a criminal
offence.
Museums and Archives are institutions
which contain collections of works such
as manuscripts, photographs, art and films
amongst other artistic works. The only differ-
ence between the two is that Archives are usual-
ly maintained solely for academic study where-
as even where museums may contain academic
materials it must also have displays and be open
to the public. Works in museums and archives
can be attributed to specic authors and where
it is traditional knowledge or cultural expres-
sions, specic communities.
These institutions house a vast knowledge
and culture and hold a nation’s heritage. These
institutions in the fullment of their mandate to
disseminate information to the public and pro-
motion of education may be required to repro-
duce such works in their collection to communi-
cate to the public. This poses a copyright issue.
The advent of information technologies
with digitisation and dissemination of works
over the internet has revolutionised the way hu-
man knowledge is distributed. Institutions such
as museums and archives have been forced
to adapt in an effort to achieve their mandate.
Kenya is in the process of creating a virtual
museum through digitisation of works in their
collection. This has been argued on a point of
preservation of the same. Digitisation would
certainly make dissemination of the works and
access to the public easier. Works in these insti-
tutions as mentioned have been created by indi-
viduals or groups who are the actual copyright
holders. Their use, therefore, must be accompa-
nied by the owners consent.
Limitations and Exceptions
Under the Berne convention and The
Copyright Act of Kenya, copyright protection
lasts for the lifetime of an author plus an
additional 50 years after their death. Not
all works enjoy copyright protection in
museums or archives. When the period of
copyright protection lapses, the work falls
into the public domain and can be used by
anyone. The primary mandate of museums
is gathering, organisation and preservation
of elements of cultural heritage. Acquisition
of such works may be through donations
or loans which may be tied with conditions
imposed by the owner.
After acquisition, the works must put in
an inventory and categorised. The recording
must verify rights and restrictions conveyed
with the artwork because of the legal
implications. The work may be digitised for
permitted purposes and archived.
Cultural heritage which manifests as tradi-
tional knowledge (TK) or cultural expressions
(TCEs) may be xed in a tangible form or dig-
itised for preservation purposes. This poses 1P
related issues as there is derivative works which
is basically “new works” based upon existing
works. For instance, a recording of a traditional
dance and original works like the traditional
dance itself. TK and TCEs are protected un-
der both international and national laws. The
holders of the rights of TK and TCEs are the
indigenous communities to whom they can
be attributed to. Permission to use such works
must be obtained from the community or its
representatives.
Where the works have been copyrighted, the
author must consent to their digitisation repro-
duction, exhibition and communication. This
could be through an assignment or licenses
from the author or their representative i.e. rela-
tives or a collective management organisation.
Some works however may be unclaimed. These
are referred to as orphan works. In such instanc-
es, there are limitations and exceptions to their
use. There are specic exceptions which allow
usage of non-attributed works only for example
with the intent to preserve such works or maybe
exhibition in the museums catalogue and gener-
al exceptions which entail usage for education
or reprographic purposes.
The three-step-test under TRIPs agreement
connes limitations and exceptions to exclu-
sive rights to certain special cases which don’t
conict with normal exploitation of the work
and don’t unreasonably prejudice the legitimate
interests of the right-holder.
Where there is no exception whether gen-
eral or specic under national or international
laws regarding use of works in a museum or
archives, permission must be sought from the
creator of the works to prevent claims on copy-
right infringement.