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Weak copyright laws hamper IT growth

By | November 9th 2010

By Sudi Wandabusi

The world is moving fast in the Information Communication and Technology (ICT) sector.

From social sites like Facebook and Twitter, to paperless commercial transactions, computerised business management systems and computerised cars, the world is running on ICT.

While the developed world may be leading the pack in IT innovations, the developing world is also following suit.

Africa has so far made big leaps in the ICT sector. Kenya has not been left behind. Though the Government will fully go digital, the private sector’s efforts to make a mark in ICT on a global scene are evident.

In September this year, a local Information Technology company won the Nokia Growth Economy Venture Challenge. It beat a crowded pack of software developers to walk away with $1 million (Sh80 million) prize, with their software that aims at solving the systemic problems in the small and micro enterprises in developing markets.

This otherwise unknown firm enabled the world to take a sneak peek into tech-savvy Kenyan market. However, the greatest challenge Kenya, and indeed the entire developing world faces as it embraces information technology, is lack of proper legal framework for the promotion and protection of technological


Under the Kenyan law for instance, computer programmes are recognised as literary works under the Copyright Act. Section 26 provides for the protection of copyright in literary works, including computer programmes. But the Act falls short of what computer programme developers would like to hear.

A software developer would like to know exactly what the law says about hackers who have come up with illegal devices for disarmament of the technical protection measures on computer programmes.

Keep off

What about cases of reverse engineering? A programmer wants to see provisions on reverse engineering of programmes and the use of information obtained from such actions, how my copyright over the programme remains intact. What about compensation to software developers when their programmes are converted into text books?

These fears have made some international software manufacturers keep off the Kenyan market. Mr Eric Simiyu, the founder and CEO of Cardiff Systems Limited, one of the successful local software companies admits that less than one per cent of genuine software is used in this country, especially in the private sector.

He also adds that it is common for clients to try cracking the programme protection measures of his software and illegally reproduce them. This can only be efficiently dealt with through stronger copyright laws.

The Australian Copyright Act for instance, expressly prohibits the making, distribution, hiring, importation and even exhibition in public by way of trade, of any computer programme circumvention device. This effectively deals with issues of piracy.

But the greatest lessons that Kenya can learn in the protection of computer programmes are from the Republic of Korea. Historians have us believing that as recent as 1986, Kenya was at the same economic status as Korea.

But presently, Kenya has a lot to learn from this industrious country, especially in computer programmes protection laws.

Apart from protecting computer programmes as a form of copyright in the Copyright Act, there is a specific law for them, the Computer Programme Protection Act. This legislation elaborately provides for the ownership and the incidental exclusive rights of reproduction, adaptation, translation, distribution, publication and transmission of the programme. And most importantly, the Act answers one of the most important concerns that software developers and indeed any entrepreneur would have – the tedious, uncertain and antagonistic court procedures in case of claims of copyright infringement.

The makers of this law appreciated this concern and provided for an alternative dispute resolution mechanism by establishing the Programme Deliberation and Mediation Committee.

This organisation deliberates copyright and related matters, and reconciles or mediates any dispute on the rights protected under the Act.

It is possible under that Act to settle disputes either by reconciliation or by mediation. This ensures as amicable way to resolve Computer Programme copyright disputes as possible, something that is desirable in the promotion of commerce.

Now, anybody who has experienced the Kenyan court system will definitely welcome such development, especially entrepreneurs. It is important that Kenya adopts such a model if we are to realise the full economic potential of information technology.

The writer is law lecturer, Inorero University

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