Kenya

Wed, 20/01/2010 - 10:27 — Emma Wanyonyi

Legal background

Copyright legislation	Kenya Copyright Act 2001 ("KCA") From http://portal.unesco.org/culture/en/ev.php-URL_ID=15861&URL_DO=DO_TOPIC&URL_SECT...
Other relevant laws
Copyright treaties	Berne Convention	Rome Convention	Berne Appendix	TRIPS	WCT	WPPT
Other relevant treaties

Scope and duration of copyright

Is the period of protection of each type of copyright work limited to the minimum duration mandated by the Berne Convention?	YES
Must a work be fixed in some material form before copyright attaches?	YES Works must be written down, recorded or otherwise reduced to some material form.	KCA sec 22
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power?	LIMITED There is little regulation of royalties. Compulsory licensing is limited to reproduction under control of Government, Public libraries, non- commercial documentation centers and research institutions.
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech?	YES Freedom of speech and other similar rights are ensrined in the constitution which overrides copyright law.
Does the compilation of a database of non-original material fall outside the scope of copyright?	YES
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them?	LIMITED Exceptions an limitations prevail over contracts. However the exceptions and limitations provided for in the law are narrow and therefore inadequate.

Freedoms to access and use

By Home Users	Is there a general exception for the fair use of copyright material for any purpose that satisfies a set of balancing criteria?	NO However there are specific criteria for purposes of criticism, review, scientific research, private use, by an educational institution, and for educational purposes.	KCA sec 26(1) a-k
	Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)?	LIMITED Legitimate owners of program can only do the following: make copies for correcting errors, make back-ups, test for suitability and any other use not prohibited by the license agreement. Decompiling of a computer program is allowed but any such copies must be destroyed once the purpose has been achieved or the owner ceases to be the rightful owner of the program.	KCA sec 26(5)
	Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes?	LIMITED Limited by fair dealing and the license agreement.	KCA sec 26(3), 26(4)
	Can works be communicated to a limited public (for example, family and friends) without infringing copyright?	NO No explicit provision for this.
	Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy?	NO No provision for this.
For Education	Is reproduction permitted for the purposes of research or study?	LIMITED Under fair dealing; where this is limited to “2 short passages for purposes of study/education”.	KCA sec 26(1)(d)
	Does any such research and study provision cover distance and online education?	NO
	May translations of works be made for educational purposes?	LIMITED Under fair dealing.
	May works be reproduced and published by educational institutions in connection with systematic instructional activities?	LIMITED
Online	Is hyperlinking to a Web site allowed without permission of the site's owner?	YES Not covered in the KCA
	Are temporary or transient copies, incidental to a lawful use, excepted from copyright?	LIMITED Not covered, so the law is unclear.
	Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances?	NO Not covered.
	Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material?	YES
	Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs?	NO Not covered in the KCA.
By content creators	Can copyright works be non-commercially remixed or mashed up into new works?	NO
	May computer software be reverse engineered for the purpose of creating interoperable software?	YES	KCA sec 26(5)
	Is the incidental inclusion of a work in other material permitted?	NO
	Is there are copyright exception for parody or satire?	NO
	Do creators who license their work retain the moral right of attribution?	YES	KCA sec 32
By the press	Is there a copyright exception for the news of the day?	NO
	May copyright material be reproduced for the purposes of review and criticism?	YES Subject to acknowledgment of source.	KCA sec 26(1)(a)
	May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose?	LIMITED It may be broadcast subject to agreement of owner of the broadcasting right in the work; in the absence of which the owner must receive fair compensations as determined by a competent authority.	KCA sec 26(1)(i)
	May quotations be used for any purpose?	NO
By Libraries	May libraries copy works that cannot reasonably be obtained commercially?	LIMITED Subject to license agreement with copyright collective societies
	May libraries copy works for users for the purpose of research or study?	LIMITED Subject to license agreement with copyright collective societies.
	Are libraries allowed to make preservation or archive copies of materials in their collections?	LIMITED
	In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)?	NO
By disabled users	Is it permissible to copy or adapt work for the use of those with disabilities?	NO
In public affairs	Are laws excluded from copyright?	YES
	Are other governmental works excluded from copyright?	YES
	Is there a copyright exception for use of material in judicial proceedings?	LIMITED
	Are the results of publicly funded research required to be published under an open access license?	NO

Freedoms to share and transfer

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual?	Ksh 500,000(USD 7000)	KCA sec 34(4) a-c, sec 36(c)
What is the maximum penalty for copyright infringement for a corporation?	Ksh 500,000(USD 7000)	KCA sec 34(4) a-c, sec 36(c)
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge?	NO
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for purposes that would not infringe copyright?	NO Creation and distribution of such devices constitute infringement. There is no provision for their use in any other way.	KCA sec 35(30)(b)
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright?	NO There is no provision for their use in any other way.
Does national copyright or consumer protection law require disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material?	NO
Are the operations of copyright collectives subject to public oversight?	LIMITED Operate under the Copyright Board whose membership is skewed in favour of copyright owners.
Are ISPs independent of copyright owners, to the extent that no law or industry code of conduct requires them to notify their users who are alleged to have committed a copyright infringement online?	NO
Are criminal sanctions limited to cases of large-scale commercial counterfeiting?	NO
Are damages for copyright infringement based on the loss sustained, rather than by a pre-established or statutory damages award?	NO
Is there provision to penalise the wrongful allegation of copyright infringement?	NO Not in the KCA.

Conclusions

The KCA is focused on the protection of the rights of the copyrightⁱ holders with little focus on consumer protection. The law provides for the rewarding of copyright owners through the collecting bodies at the detrimemnt of the consumers.

Exceptions and limitations are narrow and inadequate; e.g. there are no provisions for those with disabilities such as the visually impaired. Also the closest that the law comes to compulsory licencing is in sec 26 of the KCA which provides for the government or public instituition to reproduce or order the reporduction of a work if it is in public interest or where no revenue is dervived from the reproduction.

The law is currently under review and therefore an oportunity to strengthen it for the benefit of consumers.

This work is licensed under a Attribution Share Alike Creative Commons license

May copyright works be freely offered for commercial rental?	YES
Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment?	LIMITED The author/ creator must renounce the work- which must be in written form and made public.
Are orphaned works treated differently in the law to other copyright works, for example by allowing them to be compulsorily licenced, limiting remedies, or by releasing them into the public domain?	NO
Is parallel importation permitted?	NO
Are there incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy?	NO
Are there incentives for the use, production and dissemination of open access material (e.g. textbooks) within copyright law or elsewhere in national law / policy?	NO
Are there specifications or incentives in national law/policy for the use of open document formats?	NO