14
Copyright News
Limitations and Exemptions Under the
Copyright (Amendment) Act 2019
By Alex Omanga
T
he field of law is a very interesting
one. One thought provoking concept
that lawyers are introduced to at an
early stage is that “every legal principle has
an exception” or exceptions for that matter.
Copyright Law, just like the other branches of
law, justifies this truism as there are confines
within which a copyright holder enjoys his or
her conferred rights.
Copyright law gives right holders broad
economic and moral rights to control
exploitation of their works. It has been argued
that adopting a narrow approach in construing
legislations relating to individual’s rights is
retroactive.
The term “Limitation” in copyright is
used to connote compulsory or statutory
licenses creating liability. Consequently, even
though some acts are permissible hence won’t
constitute copyright infringement, there is an
obligation to pay for their use. “Exceptions
on the other hand refer to express exemptions
from copyright liability. There is contestation
as to whether L&Es ought to be regarded as
creating defences to copyright infringement
claims or they simply give legal
rights to do some acts.
Various validations have
been advanced for L&Es. For
instance, the leading one in
relation to literary works (e.g
books) is promoting continuity of
authorship. It is widely assumed
that authors derive their work
from existing ones and none is
new in a strict sense. A good
example is academic research
papers which as a tradition have
a chapter on review of existing
literature coming before analysis
of a researchers own findings.
Indeed, ongoing authorship
is protected under the Bern
Convention for the Protection of
Literary and Artistic Works.
Other justifications for L&E
include reassuring access to
information by the public which
in modern democracies is a
guaranteed right. It is important
that persons freely express
their views regarding matters
of public interest by quoting
others works without fear of
copyright concerns. Also, L&E
serve to fulfill social and cultural
long term objectives. This is the
case with permitting the use of
copyrighted works for educational or non-
profitmaking purposes. Thus, public libraries
and archives are permitted to reproduce
copyrighted works for non-economic access
and preservation purposes.
Law before amendment
The Copyright Act, 2001 gave some
limitations for copyrighted works. Under
Section 26(1), fair use of literary, musical
or artistic work or audio-visual work
was permitted so long as the source is
acknowledged. Fair dealing for purposes
of this section include using the work for
scientific research, private use, criticism
or reporting of current happenings. The
section generally permits use of copyrighted
work for non-economic purposes subject to
acknowledging the author or producer.
In relation to computer programs, a person
who is in lawful possession of the same
is permitted to make copies for purposes
of correcting errors and making a back-up
copy. However, this should be done within
the limits of any license under which the
program was obtained. Broadcasts are also
exempted from copyright infringement when
broadcasting works that have musical or
artistic works incorporated in an audio-visual
work. This is envisaged under section 27 of
the Copyright Act, 2001.
Post-amendment regime
The Copyright (Amendment) Act, 2019 that
commenced on October 2019 saw a raft
of changes relating to L&Es. Section 26
of the old law was amended by expanding
permissible use of copyrighted works
under the second schedule. Of particular
interest is the provision that fair dealing will
incorporate parody and pastiche or caricature.
This is of concern because some creatives
seek popularity through mimicking works of
well-established artists. Infringement may
not arise in this case so long as the imitating
artist acknowledges the copyright owner. In
my view however, if the caricature is meant
to be used for economic gain, a license or
express permission ought to be sought from
the copyright owner.
Educational institutions are as well great
beneficiaries under this new law as they
are allowed wide activities which would
otherwise amount to copyright infringement
like reproducing literary works.
Nonetheless, this law protects
authors by providing that where
there exists a licensed Collective
Management Organisation
for reprography, agreed tariffs
shall take effect. Unfortunately,
in Kenya, no such organisation
was licensed in 2019. Hopefully,
Kenya Copyright Board will
license one for 2020.
For Libraries and Archives, the
new law is categorical that only
one copy of copyrighted works
can be reproduced for preservation
purposes by a person in charge of a
public library. This precision was
lacking in the previous law hence
created discomfort among authors
as library may elect to buy only
one copy and reproduce several
others and hide under L&Ss.
Broadcasts are not largely affected
by the new law except that they are
obligated to pay fair compensation
to owners of audio-visual works
incorporated in their broadcasts.
Alex Omanga is a
Lawyer & CEO of Filmmakers
Rights Achievers of Kenya