Workshop on Copyright Limitations and Exceptions for Education and Research Environments in Nairobi

On Friday 22 May 2009, I attended a workshop on Copyright Limitations and Exceptions for education and research environments at the silver springs hotel Nairobi. The workshop organized by the African Copyright and Access to Knowledge (ACA2K) project and the Consumers International (CI), through it’s Access to Knowledge (A2K) project and in collaboration with its Kenyan member Consumers Information Network (CIN); brought together stakeholders in education and research fields who are affected by copyright either as creators/developers of copyright material or users (at different levels) of the same. They included universities and university libraries, public libraries, ICT practitioners, and conservers/ preservers of knowledge/ information (National Museums and Archives). CI and CIN being representatives of consumer voice endeavored to promote the participation of consumers/ users of knowledge/ information including consumer organizations, students, teachers and individual consumers who are more often than not, not represented in such discussions even though issues of Intellectual Property and Copyright act as a barrier to access to information and therefore a hindrance to their right to education.

The workshop came at a critical time when Kenya is in the process of reviewing the Copyright Act with the intention of incorporating Limitations and Exceptions that would ensure that users of copyright material have adequate access to learning/ educational material.

The participants were introduced to the copyright Act 2001 and the concept of limitations and Exceptions.
  • The copyright Act 2001 confers exclusive rights including economic, moral and related rights.
  • The Act also attempts to clarify some contentious issues in copyright such as the ownership of works done for instance under employment. In such cases such works would be copyright of the employer, unless specified under a contract
  • Limitations and exceptions are very limited and sometimes contentious and difficult to enforce. For instance copying is allowed for ‘…not more than two passages of a work for educational purposes…’ while “fair dealing” is allowed for scientific research. However the interpretation of ‘…two passages…’ is not clear and neither is the interpretation of ‘fair dealing’
  • Offences under the Act include making infringing copies for commercial purposes, selling hiring and distribution of copyright material, and possession other than for private use. However the Act is not cognizant of the fact that majority of those who depend on commercial photocopying bureaus are poor consumers; mostly students in the context of education who cannot afford expensive text books and journals needed for their courses. Penalties slapped on owners of these commercial bureaus through licenses are quickly passed on to these users; constituting a barrier to their access of these important material.
  • Collective management organizations/ Societies are ideally supposed to collect royalties on behalf of right holders. However the feeling at the meeting was that the enforcement approach is wanting. Some of the right holders such as authors felt that they do monies collected mostly benefit the publishers rather than themselves. On the other hand consumers feel aggrieved by this system whose sole purpose is to collect money without due regard for welfare of users. Participants felt that the even if the Act were to provide limitations and exceptions intended to benefit users; such provisions and their enforcement will in the end work to deny the same users the intended benefit.
They also heard from the experience of South Africa, which has had the experience of incorporating limitations and exceptions in their national copyright law. Some of the general tips shared by SA:
  • Include the adoption of a maximalist approach in the use of limitations and exceptions. Limitations and exceptions are provided for in international instruments for the benefit of developing countries given their special circumstances and it is upon the governments of these countries to adopt and enforce them to the maximum level possible. Other countries especially in Asia have been able to use such flexibilities and are now recognized as some of the most consumer protective countries when it comes to issues of A2K.
  • Ensure adequate exceptions for the sensory disabled. Disabled users and others special groups need to be protected to ensure that they are able to access learning material that they would not be ale to under normal copyright conditions
  • Do not include database protection and anti- circumvention clauses. In the digital world, access to information is becoming more and more unreachable for users as creators/ developers use digital technology to protect their work e.g. through Digital Rights management (DRM). In Kenya circumventing such barriers is considered an offence. This kind of protection goes beyond what is allowed by many international and national instruments and should not be supported.
  • Adopt best provisions from WIPO studies on L&E and the eIFL model copyright law
  • Lobby government officials at WIPO to call for users rights to be enshrined in a balanced international framework as well as working with users and user/ consumer organizations to promote their rights in the law.

During the panel discussion that followed the presentation of papers; it was clear that there are many stakeholders who are clearly concerned about their welfare in the development and implementation of copyright law in the country. Most of these stakeholders feel left out in the development and enforcement of the existing law and welcome this opportunity to review it and ensure better enforcement of the same to protect all concerned. Participants were concerned with issues ranging from impact of DRM in the access to digital information, composition of the current copyright board, interpretation of some of the provisions of the law (for example what is fair use/ fair dealing/ fair practice in the context of both the creator and the user?), role of consumer organizations, licensing agreements and awareness of alternatives to copyright material. However many of the participants were concerned about the enforcement of the copyright act in relation to the collective management societies (specifically KOPIKEN) whose approach many felt was not the best with no protection of the concerns of those involved i.e. authors, libraries and consumers. They are also happy with the inclusion of limitations and exceptions in the law to ensure a better balance of interests of all; by taking into account the socio- economic situation of the country and the users.

As the copyright law is being reviewed, stakeholders have an opportunity to input into the act to ensure their issues are taken on board. Consumers have a unique opportunity to also participate in the process; which is something that has not happened before.

Conclusion/ way forward

The meeting was very fruitful, particularly with regards to bringing most of the stakeholders together to discuss this issue of common concern. CIN must now take the opportunity to input into the process by analyzing the Act and proposing effective revisions and specific limitations and exceptions that will enhance A2K for users in Kenya.

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