MOI UNIVERSITY

DEPARTMENT OF LIBRARY AND INFORMATION STUDIES

INTELLECTUAL PROPERTY RIGHTS IN KENYA WITH PARTICULAR REFERENCE TO COPYRIGHT

Presented by Japhet Otike, PhD Department of Library and Information Studies School of Information Studies Moi University Eldoret, Kenya

A Paper Presented in a Workshop Organised for Librarians in Government Libraries in Kenya, Held at Moi University, Eldoret, September 19 - 28, 2005. Key Words Copyright law Kenya; piracy Kenya; Kenya Copyright Act, 2001; Intellectual Property Rights, Kenya

INTRODUCTION Intellectual property: definition: Intellectual property is the law that protects and promotes creations of the mind. It protects creative efforts. Intellectual property is intangible, that is, it cannot be felt, touched, weighed, etc. It comprises: - copyright - patents - trade marks - industrial designs COPYRIGHT It is a right authors have to stop others reproducing their work without their consent. It gives the authors monopoly to enjoy the fruits of their labour. Coverage - literary works (printed and non-printed works including computer programmes) - dramatic works - musical works

- sound recordings - films, broadcasts, etc.

Duration Copyright duration is 50 years. In case of literary materials, it is 50 years after the death of the author. What is permitted Copying of works for research, private study, criticism or review, educational purposes, etc. This is often referred to as fair deal. The purpose here is to enable the authors or producers to be compensated for the cost, time and effort that went into producing the work. How serious is Piracy in Kenya? Piracy is unauthorised reproduction of copyrighted works for commercial purposes. Piracy is serious in Kenya as it is in most black African states. It has increased as the recording equipment has become more sophisticated. It may involve counterfeit where the pirated product is made to look as close to the original as possible including forging the trade marks or logos. Sometimes the pirate organisation uses its own logo for counterfeit materials to look like theirs. The pirate industry makes huge business from piracy. It sustains quite a number of people in developing countries. Piracy can be extended to home taping. A number of people have taping equipment in their homes. Enforcement here is difficult because people are entitled to privacy in their homes. The Constitution guarantees this. According to Amos Wako (2007). counterfeiting and piracy are not just issues of concern to developed countries. The two have had a negative impact even in developing third world countries. In Kenya, it has had a negative effect on foreign direct investment and discouraged the growth of local entrepreneurship. It is estimated that rights holders in Kenya lose about 30 billion shillings (US$ 420m) annually in counterfeit and piracy.

The problems encountered in fighting piracy a) Lack of public awareness about copyright law in general and piracy in particular has led to a booming business in copyrighted works b) Lack of training and awareness on copyright by copyright owners, too, has worsened the problem. Many rights owners do not know what they are entitled to under the law. Similarly, many of them are not aware of copyright

exceptions and limitations provided by the law. They believe that copyright law restricts everything. c) There is weak co-ordination between the various people involved in the management of copyright in Kenya. These include the police in their capacity as law enforcement agents, the Kenya Copyright Board, and the rights holders, that include among others, the publishers, authors and collective management organizations. d) High cost of litigation makes it hard for ordinary rights holders to take the suspects to court to be sued for infringement of copyright. The cost of hiring good lawyers are unbearable to an ordinary citizen. e) The escalating cost of copyrighted materials vis-a-vis the high cost of living in the country encourages people, particularly students to photocopy. f) Widespread unemployment among the youth has boosted piracy. A good example is the hawking of pirated music in the form of CDs, DVDs, and compact cassettes in bus stations, restaurants, etc. Since the government cannot guarantee the youth jobs, and since whatever they do, does not affect public security, the government prefers to keep mum until they alerted by the rights holders. The weakness of the Copyright Act (Cap 130), 1966. The repealed Act had the following weakness: - Copyright infringement was categorised under the civil law. - Penalty was lenient. - It did not have proper mechanism for its administration. - Duration of copyright for most works was 25 years. - It did not cover software or computer programmes. The new Copyright Act, 2001. a) Strengths It establishes the Kenya Copyright Board. The Board is chaired by a lawyer and represents most stakeholders in the information profession except librarians. The board is responsible for the administration of the Copyright Act. The Act covers both criminal and civil law. The prosecution of the offenders is handled by the state. The Board is funded by the government. Both fines and jail term have been reviewed upwards (shs.100,000 for fine and two years for jail term for first offenders). The police has been given powers to inspect the premises, arrest and charge suspects.

The law provides compensation for the affected parties. Compensation is payable from fines awarded by the courts. It has introduced Anton Pillar Orders. This allows the copyright owner, if he has sufficient evidence that an infringer is pirating his work, to get orders from the court to enter his premises where the pirate materials are suspected to be kept and confiscate them in order to avoid further infringement and preserve the evidence.

b) Weaknesses The Act has several weaknesses: The Kenya Copyright Board which is supposed to comprise all stakeholders in the publishing industry, is heavily dominated by copyright owners. There is no single representative from information professionals namely, librarians and archivists. This makes the Board biased towards copyright owners. The Board is supposed to strike a balance between the interests of copyright owners and those of the users. The chair of the Board has since its establishment in 2001, been headed by a publisher. The exceptions and limitations in the Act do not adequately cater for the needs of users. There is no legal frame work to stipulate the limits in terms of licence fee that the Collective Management Organizations can collect from the applicants. CMOs solely determine what to charge. The law has no provision for the needs of the visually challenged persons under exceptions and limitations to copyright restrictions. The fact that librarians were not consulted in the drafting process, it can be stated that the Act does not adequately cater for the needs of libraries and information users.

Reference Wako, Amos (2007). Promoting better legislation and enforcement of intellectual property rights in Kenya: A paper delivered during the Third Global Conference on Combating Counterfeiting and Piracy at the International Conference Centre in Geneva, Switzerland, January, 2007.