15
ISSUE
35
By Paul K. Kaindo
A
meme is an idea, behaviour or style
that spreads from one person within
a culture. It can be anything ranging
from a symbol, a word, a phrase or a gesture.
The word meme was devised in 1976 by a
British evolutionary biologist named Richard
Dawkings in his book titled, “The Selfish
Gene”. He devised it as a concept for discuss-
ing evolutionary principles and explaining
the spread of ideas and culture phenomena.
The word was therefore coined well before
the internet was invented in 1983. Before then,
memes were painted on walls, scratched in
lockers and doors and doodled on notebooks.
During this time, it was not as easy as it is now
to reproduce and share memes.
As technology progressed and the internet
became extensively available, there was an ex-
plosion of new varieties of memes. Today we
identify memes with funny pictures, or perhaps
inane internet videos or gifs with or without
words that is widely shared.
As a result of technological advancement
particularly in the digital space, it has become
progressively easy to create and spread images,
videos and text. Any internet user is now able
to download pictures, photos, videos, gifs or
animated stickers from the internet add text
on them and share them with others with ease.
What most of these users may not realize is
that the downloaded content may be subject to
copyright and other intellectual property rights.
An owner of copyright in any picture, photo,
video or other copyrightable work has the ex-
clusive right to, among other things, reproduce
the work, adapt it, distribute it, communicate
the work to the public or make the work availa-
ble to the public. It therefore, follows that a per-
son who does any of these acts without the con-
sent of the copyright owner would be commit-
ting a copyright infringement. For instance, a
person who downloads a photo or picture from
the internet, creates a meme with it and shares it
over social medial without the prior consent of
the copyright owner would, generally speaking,
be infringing on the owners exclusive right to
reproduce and distribute the photo.
However, in Kenya like in most Berne Con-
vention member states, one may be able to rely
on the general exceptions and limitations pro-
vided by legislation. Under Section 26(3) read
together with the second schedule of the Kenya
Copyright Act, 2001 as amended by The Copy-
right (Amendment) Act, 2019, the reproduc-
tion, adaptation, distribution, communication
and making available of a work by way of paro-
dy, pastiche or caricature falls under the general
exceptions and limitations and does not require
authorisation from the author as long as he/
she is acknowledged. This exception was not
expressly provided for before the amendment.
In artistic circles a parody is also referred
to as a spoof, send-up, take-off, lampoon, play
on, caricature or joke. It is a work created to
imitate, make fun of or comment on an original
work by means of satiric or ironic imitation.
Unlike parody, pastiche celebrates, rather than
mocks, the work it imitates.
As such, where one reproduces a video, pic-
ture, photo, gif, animated sticker or other simi-
lar works and creates a meme and distributes or
otherwise shares it, he/she would be covered by
the statutory exemptions and limitations as long
as the reproduction and distribution or making
available to the public is done by way of paro-
dy, pastiche or caricature and the author of the
work is sufciently acknowledged.
As opposed to a scenario where a person
takes another person’s content and creates a
meme; in which case he can rely on the statu-
tory exemption and limitation; where a person
creates an original meme which meets the cop-
yright eligibility criteria they have copyright
on that work. Another person sharing it without
the consent of the author would be infringing
the authors copyright. However, where a new
meme intended to be a parody or pastiche is
created out of the original meme, the statutory
exemptions and limitations will be available as
long as the author is acknowledged.
Mr. Paul K. Kaindo is an advocate of the
High Court of Kenya and a senior Legal
Counsel at the Kenya Copyright Board.
kiariekaindo@gmail.com
Avoiding Copyright Infringement
While Creating and Sharing Memes
Source: Creative Commons
Source: Creative Commons