Call to build respect for intellectual property in Kenya
By Edward Sigei | May 4th 2020
One of the unintended impacts of the measures enforced by government to manage Covid-19 is the return of the newspaper sharing through PDF format in the social media platforms. This is, therefore, a good opportunity to make the legal position clear on issues of Intellectual Property Rights (IPR), including copyright.
Articles 11 and 40 of the Constitution places obligation on the Government to support, promote and protect the intellectual property rights of the people of Kenya. Intellectual property is an internationally agreed system of incentives to support creators and innovators to release products useful for improved human experience.
The types of intellectual property recognised under the Kenyan legal system include patents, trademarks, copyright and design rights. The Constitution and laws of Kenya extend this protective obligation to both corporates and individuals based or domiciled in Kenya.
Similarly, the intellectual property of foreign entities are also a responsibility of the Kenyan government by virtue of the international treaties and conventions which Kenya is a member through the principal of reciprocity.
Each system of IPR consists of exclusive rights that belong to the authors, inventors or the corporates that employ them. If these rights are infringed, the infringing party becomes liable to criminal and civil action.
IPR system is relied on by sectors that are shaped by cutting-edge knowledge produced by costly research and development that includes ICT, publishing and pharmaceuticals among others.
The exclusivity offered by Intellectual Property Law is a key consideration that businesses look at before making investments in a country. The system therefore determines the economic competitiveness of a country. It affects the country’s ability to grow local economy or attract foreign direct investment.
Copyright law protects products of authorship in the form of music, film, publishing and other art sectors. The products of the copyright sector support our education, offers pleasure and cumulatively constitute culture.
The main right in the copyright law is the right to ‘copy’ that authors and owners holds. The copies so made are then made available for sale and distribution by the owner to extract economic value in the market during the period of exclusive existence of those rights.
This principle of exclusivity and control of the making and selling of copies applies for both analogue and digital works. Where copies, whether digital or physical, are made with the authority of the owner, this is legal
For digital works, copyright law supports the principle of exclusivity by allowing the use of the technical protection measures, usually software that are deployed to control access and copying therefore secure those works made available in online platforms.
As stated above, I have received credible reports that the recent upsurge in distribution of pirated newspapers is being pushed by a few people that have knowingly set up the download and distribution of newspapers online for commercial purposes that brings the matter to the realm of criminality.
Newspapers are protected by copyright being literary works. The corporates that publish and organise them do so at great expense and deserve their just reward just like all authors and owners of copyright.
The recent acts of unauthorised access to the online platforms of the mainstream media therefore are considered acts of infringement of copyright or piracy. The criminal acts include offence of circumvention of technical protection devices by way of hacking into ICT systems; making copies by downloading newspaper files and selling or illegal distribution of the illegally obtained content through all forms of social media as well as emails.
For one to share the newspaper articles through any of the above means, they require the express authority of the rights holder, in this case, the media company that owns the newspaper.
Unfortunately, these acts of piracy are observed in the trade in PDF versions of books through the same platforms.
This article is, therefore, intended to serve two principal purposes. Firstly to raise awareness of Kenyans who may have unknowingly participated in the acts of sharing copyright works that this constitutes acts of piracy. These acts of infringement have a deleterious impact on journalists who author the content and look forward to a paycheck and stable employment in a media house.
I constantly recall the expressions of indignation observed every time a fundraising is required to give a decent funeral for many a renowned author and remind all of us that this is a result of a combination of many such acts by their audience market.
Secondly, for the few that are in it for commercial purposes, there shall eventually be both civil and criminal consequences for the infringement of the author’s rights.
I consider building respect for copyright and other intellectual property rights as a pillar if Kenya is to grow as a knowledge-driven economy that fulfils its potential in creativity, innovation and research which the Covid-19 has shown abound in Kenya.
The consequences of this activity is already being felt and will be for many years to come in the publishing sector. It is time for Kenyans to come together to buy genuine copyright and other products and avoid acts that damage our economy.
Mr Sigei is the Executive Director, Kenya Copyright Board. [email protected]
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