COPYRIGHT LAW IN KENYA Ben Sihanya* I.

PROLEGOMENON This article looks at the role of copyright in technological, economic and cultural innovation, creativity and development in Kenya.1 The article focuses on the following interrelated themes: development of substantive copyright law; copyright and the Kenyan economy; copyright and cultural development and cultural politics, with specific reference to the cultural industries in Kenya; and copyright enforcement in Kenya.

II. DEVELOPMENT OF SUBSTANTIVE COPYRIGHT IN KENYA This Part evaluates the historical, cultural, political, economic and technological factors, which have influenced the development of Kenya s copyright principles, doctrine, policy, and practice. A. His !"i#a$ De%e$!&'en !( C!&y"i)h in Kenya !enerally, Kenya"s copyright law and practice have deep roots in the colonial and neo# colonial e$perience. %opyright law is largely a &'th and &1st century phenomenon, beginning with the declaration of Kenya as a (ritish protectorate from )une 1*, 1+,* and a colony in 1,&'.& Kenya s copyright law evolved from the 1+-&, through the 1,11 and 1,*. /K %opyright 0cts. These statutes were applied together with the 1nglish common law by virtue of the reception clause under the 1ast 0frican#2rder#in#%ouncil 1+,3. The reception clause applied to Kenya the substance of the 1nglish common law, the

)56 75tanford8, 99: 7;arwick8, 99( 7<airobi8; 5enior 9ecturer, =P, 1ducation 9aw and %onstitutionalism; 6ean 9aw and former %hair, 6epartment of %ommercial 9aw, 5chool of 9aw, /niversity of <airobi. = am grateful for research assistance from, 9orraine 2gombe, 99(; %atherine :utava, 99(; 0ron 0mbia, 99( ; 0ngela ;aweru, 99(; and )oyce %hepng etich, 99(, all of =nnovative 9awyering. 1 This article is informed by my ongoing research: (. 5ihanya Constructing Copyright and Creativity in Kenya: Cultural Politics and the Political Economy of Transnational Intellectual Property, 6octoral 6issertation, 5tanford 9aw 5chool, &''> ?@ereinafter, Constructing Copyright and Creativity in KenyaA; Intellectual Property and Innovation in Kenya and Africa: Transferring Technology for Sustainable evelopment 7=nnovative 9awyering B Copyright 0fDica, <airobi, &'',8. & )une 1*, 1+,* is the date Kenya was declared a (ritish Protectorate pursuant to, inter alia, the (erlin %onference of 1++- on the Partition of 0frica 7otherwise called the 5cramble for 0frica8. !hai and :c0uslan, ).(. 2Ewang, and 2koth#2gendo have discussed the political, economic, and Euridical process of anne$ing, declaring, and e$ercising Eurisdiction over the protectorate and colony of Kenya. 5ee F.P. !hai B ).P.;. :c0uslan, Public !a" and Political Change in Kenya, 7<airobi: 2$ford /niversity Press, 1,3'8; ).(. 2Ewang, Constitutional evelopment in Kenya: Institutional Adaptation and Social Change, 7<airobi: 0%T5 Press, 1,,'8, pp. &,#>-; @.;.2. 2koth#2gendo, Tenants of the Cro"n 70%T5 Press: <airobi, 1,,'8.

doctrines of eGuity and statutes of general application in force in 1ngland as at that date,> and was later re#enacted under the Kenya )udicature 0ct, 1,.3. B. S!*"#es !( Kenyan C!&y"i)h La+ =n Kenya, /ganda, TanHania, !hana, <igeria, 5outh 0frica, and 0frica generally, the applicable copyright laws are found in statutes, the 1nglish common law and international treaties.- (eginning in the late 1,.'s 0frican states enacted or reformed copyright laws with increasing rapidity. This consolidation has received greater impetus from the late 1,,'s with many states being pressured or seeking to comply with the ;orld Trade 2rganisation s 0greement on the Trade Ielated aspects of =ntellectual Property 7TI=Ps8. There are five main sources of copyright law in Kenya, that is: i. The %onstitution* does not make any specific provision on copyright. 5ome of its provisions may, however, be read as legislation by metaphor, largely providing a broad framework within which copyright is to be constructed. These include the . protection of property 7s. 3*8, and freedom of e$pression and access to information 7s. 3,8. The few conte$ts in which constitutional doctrines have been invoked in Kenya include Iichard Kuloba s reading of the copyright law under the shadow of the %onstitution s eGual protection clause 7s. +&8. @e argues that although the %onstitution does not specifically deal with copyright, its spirit can be taken to prohibit discrimination against illiterate innovators who may not be protected under the doctrine of materiality under the %opyright 0ct.3 ii. The second source of law in s. > of the )udicature 0ct. This is statute law. 0s already indicated, since 1,.., Kenya has had an 0ct on copyright. This is the only statute, which specifically applies to copyright.+

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5ection > of the )udicature 0ct 7%hapter +, 9aws of Kenya8 would simply re#enact the clause in the 2rder# in#%ouncil. 5ee !hai B :c0uslan supra note & at 1,#&*; 2Ewang supra note & at >&#>>. 9ocal 0frican case law is still limited in Guantitative terms. :oreover, #ualitatively, the cases have not developed any clear principles or doctrines to capture the e$perience and nuances in the cultural, educational and publishing industries. This can also be attributed to the lack of copyright e$pertise among the members of the (ar and the (ench. Jor an attempt to study these copyright laws in the conte$t of 0frica s political economy and cultural politics, see (. 5ihanya, Constructing Copyright and Creativity in Kenya, supra note 1. * 5ee 0ct <o. * of 1,.,. . This e$tensively protects private property. =t provides for relief including compensation in case of compulsory acGuisition or licensing. 3 See I. Kuloba, Principles of In$unctions, 7<airobi: 2$ford /niversity Press, 1,+38, pp. 1&-#1>-. /nder the doctrine of materiality, only original works which are e$pressed in tangible, fi$ed or material form are protectable and promotable. + 5ome statutes have an incidental mandate on copyright. 1$amples include Kenya s %ommunications 0ct, 1,,+#&''+; the Jilms and 5tage Plays 0ct, %ap &&&; the Kenya (roadcasting %orporation 0ct, %ap &&1; the (ooks and <ewspapers 0ct, %ap 111; the Public 0rchives and 6ocumentation 5ervice 0ct, %ap 1,; :edia 0ct, &''3; 0nti#counterfeit 0ct, &''+; and Kenya <ational 9ibrary 5ervices (oard, %ap &&*.

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0 number of doctrines developed under /K copyright statutes continue to apply, especially those under the 1,*. /K %opyright 0ct. =n addition, the procedural and evidentiary rules regarding copyright administration and litigation 7especially in collecting societies and courts8, are drawn directly or indirectly from /K legislation or practice, pursuant to the 5chedule referred to in s. >7187b8 of the )udicature 0ct., Kenyan laws which further the application of 1nglish law and procedure include the %ivil Procedure 0ct,1' the 1vidence 0ct,11 the 0ppellate )urisdiction 0ct,1& rules of court, as well as Eudicial precedents. The applicability of the common law, which is identified as a source of law in s. >718 7c8 of the )udicature 0ct, to copyright, is seriously contested.1> Kenya and most 0frican states liberally apply the common law of copyright, despite the provisions found in some copyright statutes that purport to abrogate the common law of copyright.1- 5uch statutes seek to limit what laws apply to copyright. 5. *1 of the Kenyan %opyright 0ct, &''1 states: K<o copyright, or right in the nature of copyright, shall subsist otherwise than by virtue of this 0ct or of some enactment in that behalf.L This was first enacted in Kenya as s. 13 of the %opyright 0ct, 1,.., the clause having been copied from the 1,11 /K %opyright 0ct.1* The marginal note to the section reads, K0brogation of common law rights.L =n the conte$t of Kenya s property Eurisprudence, it is arguable whether the section only abolished non#statutory 7common law8 right in copyright, or the entire non# statutory 7common8 la" of copyright. The latter would mean that non#statutory rights as well as remedies and procedures are also abrogated and that copyright would be the subEect of strict 7literal8 interpretation. (ut such strictness does not always apply to Kenyan copyright.

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5. > of the )udicature 0ct does not specifically mention international law, including treaties and conventions, as a source of law and, therefore, copyright law. =t is not clear whether this issue has arisen and it is arguable that there was no reason to specifically mention them. Kenya follows the (ritish transformation or dualist doctrine whereby treaties must be ratified and enacted by Parliament to become law.1. 5o treaties like (erne, /%% and the ;T2 0greement are not automatically

See the e$planation in ( 7v8 in this article about the )udicature 0ct. %hapter &1, 9aws of Kenya. 11 %hapter +', 9aws of Kenya. 1& %hapter ,, 9aws of Kenya. 1> <o case has actually addressed this Kcontroversy.L 2nly one of my former students, faced with a case in which Kenya s %opyright 0ct was not clear, called to refresh himself on the arguments = had developed in class. =n the discussion on the place of the common law = analyHe evidence of practice which indicates that the matter is controversial, even if it has not been directly litigated. =ndeed, limited copyright e$pertise in the (ar and the (ench has led to many assumptions. 15ections &' and *1 of the 1, .. and &''1 Kenyan 0cts, and section 1+ of the TanHanian %opyright 0ct, respectively. 1* ). %hege, Copyright !a" and Publishing in Kenya, <airobi: Kenya 9iterature (ureau, 1,3+, at ,+. The 1,11 0ct sought to abrogate common law copyright in the /K. 1. 6.). @arris, Cases and %aterials on International !a", 79ondon: 5weet B :a$well, 1,,+ and &''-8. See also the Mienna %onvention on the 9aw of Treaties, 1,.,. =t came into force, under 0rt +-, in 1,+'. %f. 0rts. &+, &, and &, bis of the (erne %onvention, noting that being procedural and administrative provisions
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part of Kenyan laws but would, through enactment, domestication or transformation, constitute part of the written laws of the Kenya Parliament under s. >718 7&8 of the )udicature 0ct. C. S a * !"y C!&y"i)h La+ in Kenya, The C!&y"i)h A# - ./001233. The development of Kenyan copyright law beginning with the %opyright 0ct, 1,.. essentially illustrates the 7post#8 colonial impact on the construction of Kenya s copyright law. This process is discernible in the amendments of 1,3*, 1,+&, 1,+,, 1,,*, and &''', and the supersession in &''1. The provisions of the 1,.. 0ct and most of the subseGuent amendments are largely reproductions or adaptations of /K, /5 and transnational copyright law. The %opyright 0ct, &''1, which received presidential assent on 6ecember >1, &''1, and came into force on Jebruary 1, &''> was drafted mainly to meet the standards established under the TI=Ps %ode of 1,,- and the ;=P2 =nternet Treaties, 1,,..13 i. The C!&y"i)h A# - ./00- A# N!. 4 !( ./00 This was the declaration of Kenya s copyright independence. =t repealed and replaced the /K %opyright 0ct, 1,*.. 5.13 of the new 0ct of 1,.. sought to abrogate the common law of copyright. This development may be regarded as an attempt to completely de#link Kenyan from 1nglish copyright, even if that provision was 5based on and would be interpreted in terms of the 1,11 1nglish %opyright 0ct. ii. C!&y"i)h A# - ./56- A# N!. 4 !( ./56 The 0ct consolidated national imperatives in an international conte$t: aspects of traditional cultural e$pressions 7T%18 7then called folklore8 could be protected as a literary, artistic, or musical work. The intention was to conserve the national cultural heritage and economic welfare especially in the conte$t of an international movement to protect natural and cultural heritage, as well as promote the then incipient interest in international trade in cultural products. =t was probably a reactive, half#hearted and not# well#thought#through response to perceived ;estern domination of maEor economic sectors including cultural and literary industries like books, music and film. The hand of the /nited <ations 1ducational, %ultural and 5cientific 2rganisation 7/<15%28 could
of (erne, they will not bind members of the ;orld Trade 2rganiHation 7;T28, as such, under 0rt. , of the ;T2 TI=Ps 0greement. 13 K;=P2 =nternet TreatiesL is the code e$pression for ;=P2 %opyright Treaty 7;%T8, 1,,. and ;=P2 Performances and Phonogrammes Treaty 7;PPT8, 1,,.. The Kenya %opyright (ill went through various drafts in 1,,,, &''' and &''1. The author participated in these processes. 1ven after passage, there were still difficulties regarding the institutional framework, especially the establishment, composition and structure of the Kcompetent authorityL that would determine some appeals from the Kenya %opyright (oard. This amorphous body is a legacy of the (erne %onvention which proposed its establishment and left specifics to individual states. =t is also a legacy of the 0ct of 1,.. which was not specific on the matter. /nder the (erne %onvention, a competent authority should fi$ eGuitable remuneration for the e$ploitation of broadcasting rights in case this is not agreed inter parties 70rt 11 bis8. :oreover, that authority has a mandate on translations. 5ee 0rt == 7,8 of the 0ppendi$ to the (erne %onvention 7the 0ppendi$ is entitled 5pecial Provisions Iegarding 6eveloping %ountries8, incorporated to (erne under 0rt. &1. See also 0rt >. of the (erne %onvention. See also % 7v8 below.

be seen in this process, which appeared to depart from (ritish copyright law and practice.1+ iii. The C!&y"i)h 7A'en8'en 9 A# - ./:2- A# N!. 6 !( ./:2 This introduced the term infringing copy and redefined infringement to include engaging in direct or indirect activities controlled by copyright; including importing or causing the importation of infringing copies. =t also introduced the traditional reliefs for copyright infringement, including Eudicial remedies like inEunctions and damages as well as delivery up. %riminal sanctions were also reformed and under the new s. 1>0, the penalty was enhanced to a ma$imum Kshs. 1',''' andNor one year in Eail. i%. The C!&y"i)h 7A'en8'en 9 A# - ./:/- A# N!. .; !( ./:/ The 1,+, amendment made numerous changes including redefining the term author to include the author of a Kcomputer programme.L1, =t also introduced the term audio#visual work to replace cinematographic films and specifically mentioned the Kenya (roadcasting %orporation 7K(%8 as the broadcasting authority. /nder s. 1'( it introduced the rights of performers, which are protected from unauthoriHed broadcasting and relevant forms of performance. 5. 1>0 was amended to enhance the penalty for copyright infringement to a ma$imum Kshs. &'',''' or a Eail term to up to five years or both. %. The C!&y"i)h 7A'en8'en 9 A# - .//2- N!. .. !( .//2 The briefest amendment so far, the amendment of s. 13, only effected one change: it redefined the ad hoc institution called the competent authority. The 0ttorney !eneral could establish it by appointing > to * persons to hear matters pertaining to compulsory copyright licensing where a copyright holder had unreasonably refused to license or had imposed unreasonable terms. %i. The C!&y"i)h 7A'en8'en 9 A# - A# N!. / !( .//6 The 1,+'s and 1,,'s witnessed interest in the need to come to terms with technological change, especially the challenges they posed to copyright doctrine. This amendment redefined broadcasting to include wireless, wired, and satellite transmission and reception of images and sound 7s. &8. =t also redefined KcopyL to mean Ka reproduction of a work in any form and includes any sound or visual recording of a work and any permanent or transient storage of a work in any medium by computer technology or other electronic means.L&' 5oftware and =nternet technologies were knocking on the door, a fact recorded in s. & s inclusion of charts, tables, and Kcomputer programmesL in the list of literary works. The
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K0ppearedL because the provision on folklore has not been used much. 2n copyrighting T%1 or folklore, See 5ihanya, Constructing Copyright and Creativity in Kenya supra note 1 at chapter 1'. 1, %omputer program is a term of art independent of 0merican or 1nglish spelling of program7me8, respectively. &' %f. definition of KcopyL under s. 1'1 of the /5 %opyright 0ct, 1,3.. =t e$cludes sound recordings, which are referred to as Kphonorecords.L

term Kcomputer programmesL 7sic8 had been defined in 1,+, under KauthorL but it had not been listed as a protectable subEect matter. 5. &7e8 incorporated Kmere dataL as part of the definition of a work.&1 %ii. The C!&y"i)h 7A'en8'en 9 Re)*$a i!ns- 2333 LN .26<2333 0fter Kenya acceded to (erne on )une 11, 1,,>,&& the 0ttorney !eneral e$ercised his rulemaking powers under s. 1+ of the 0ct and e$tended the protection of the 0ct to literary and artistic works belonging to nationals of (erne member 5tates. This meant that works of authors from (erne member states protected in those countries would be recogniHed in Kenya as well. This had been done in 1,.. with respect to nationals of /niversal %opyright %onvention 7/%%8 member states. %iii. The C!&y"i)h A# - A# N!. .2 !( 233. Jollowing much discussion and lobbying through the 1,,'s a %opyright (ill was drafted and circulated for discussion in 1,,,. 5ubseGuently, the %opyright (ill, &''' was published in &'''. (ecause it had not been introduced in Parliament before Parliament went on %hristmas recess, the (ill died and a new (ill was published on Jebruary &3, &''1. The maEor changes in the &''1 0ct include: a8 The redefinition of Ka copyL to mean a reproduction of a work in any manner or form and includes any sound or visual recording of a work and any permanent or transient storage of a work in any medium, by computer technology or any other electronic means.&> =t is instructive that this definition is intended to cover the new reproduction and transmission technologies relating to the production and distribution of literary and other copyrightable works. The 0ct underscores non# material and non#tangible forms of reproduction as well. b8 The 0ct emphasiHes the difference between communication to the public and broadcasting.&- The 0ct defines KbroadcastL to mean the transmission by wire or wireless means, of sounds or images or both or the representation thereof, in such manner as to cause such images or sound to be received by the public and include transmission by satellite.&* %ommunication to the public is defined in s. & as a live performance; or transmission to the public, other than a broadcast, of the images or sound or both, of a work, performances or sound recording. Thus the latter covers situations where the subEect matter is transmitted by any other means e$cept through broadcasting. The doctrinal and practical distinction between

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/nder this provision, databases such as white pages directories, which have been interrogated under /5 and /K copyright law, among others, were thus copyrightableO && 5ee Part == 1 of this article below. &> 5. & of the %opyright 0ct &''1 7emphasis mine8. There was clearly a need to capture technological change. &Ibid.
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The focus is on transmission, not whether it is received or not; and it focuses on point or multi#point technologies. 5ee P. !oldstein 7&''18 International Copyright: Principles, !a" and Practice <ew Fork: 2$ford /niversity Press, at >1*#..

broadcasting and communication to the public is, however, being eroded by =nternet and related technologies such as web casting 7or =nternet radio8.&. c8 The duration for copyright protection for photography is now *' years Eust like other related subEect matter of copyright. d8 The 0ct also specifically provides for protection of rights or activities that seem to have been ignored or e$cluded before: translation, adaptation, arrangement or other transformation of a work, and public performance of the work. e8 The 0ct has clarified instances of fair dealing with respect to each subEect matter. Jor instance, copyright does not control reproduction, translation, or adaptation, distribution, or communication to the public Kby way of fair dealing for the purposes of scientific research, private use, criticism or review, or the reporting of current events subEect to acknowledgement of the source.L&3 Jair dealing is further clarified under s. &.718 7a8, 7d8, 7e8, 7f8, 7g8, 7h8, 7E8, and 7l8. 5ome of these issues help construct the scope of literary copyright and were at the core of the <orth#5outh debate leading to the 5tockholm Protocol to (erne, or the 5pecial Provisions Iegarding 6eveloping %ountries. ;e discuss these below. f8 Jor the first time the copyright law contains the content of and specific limitations to a new form of literary copyright, namely, software copyright, mainly courtesy of ;=P2 s and the (usiness 5oftware 0lliance s 7(50 s8 proposals. (50 represents software T<%s. The law allows adaptation and creation of backup copies of computer programs under certain conditions. These conditions include cases where copying of a computer program is necessary to make copies of the program to the e$tent necessary to correct errors; or to make a back#up copy; or for the purpose of testing a program to determine its suitability for the person s use; or for any purpose that is not prohibited under any license or agreement whereby the person is permitted to use the program.&+ g8 0gain, for the first time, the law prohibits and regulates anti#circumvention measures so that digital rights management systems 76I:s8 or technological means employed to protect works are protected under copyright law.&,

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The Kenya %opyright (oard embarked on a comprehensive review of the 0ct in &''+ with a view to making appropriate proposals to the 0ttorney !eneral for amendments. K%ommunication to the publicL is one of the controversial issues. The author was a member of the (oard from :ay 1., &''> until )une &., &'', as an e$pert, when the 0ttorney !eneral appointed him the %hair of the inaugural %ompetent 0uthority 7%opyright Tribunal8. 5ee Kenya !aHette <o .>+* of &'',, )une &.th at 1*+3. 75igned by the 0ttorney !eneral on &'',, )une &>rd.8 &3 5. &.718 of the &''1 %opyright 0ct. (erne refers to the concept as Kfair practice;L the /5 as Kfair use;L and the /K and Kenya as Kfair dealing.L The three are not coterminous. = discuss fair dealing systematically and in detail in %hapter + of my doctoral dissertation: (en 5ihanya, Constructing Copyright and Creativity n Kenya, supra note 1. &+ See s. &.7-8 of the &''1 %opyright 0ct. These e$ceptions would obviously not apply to other literary works, such as novels, plays, lectures, or sermons. &, See ss. & and >*7>8 7c8 of the %opyright 0ct &''1.

%ircumvention of such systems is criminal under s. >.. This provision has been enacted pursuant to 0rt 11 of the ;%T 1,,..>' D. I'&$e'en in) he C!&y"i)h A# - 233. The Kenya !overnment has set some machinery in motion to implement the &''1 0ct. The 0ttorney#!eneral appointed members of the (oard on :ay 1., &''>>1 and reappointed most of them in &''.. @e appointed the %ompetent 0uthority 7or %opyright Tribunal8 on )une, &.th 2009. There have been mi$ed views on copyright implementation, management and administration. 5ome of the views are specifically on the role of the Kenya %opyright (oard established under the &''1 0ct, while others regard strict copyright enforcement as having a positive effect, or the actual or potential effect of reducing employment opportunities or blocking revenue streams, particularly among the infringers and pirates. E. In($*en#e !( C!&y"i)h T"ea ies in Kenya=s C!&y"i)h La+ The /K became a party to the (erne %onvention on 6ecember *, 1++3, + years before Kenya became a (ritish protectorate. 0s was (ritish practice, (ritish adherence to (erne e$tended to Kenya and other protectorates and colonies such as !hana, <igeria, and =ndia.>& 2n attaining independence in 1,.>, Kenya became bound by the (erne %onvention and /%% through state succession. 0nd after 1,31 it could not renounce (erne partly because 0rt PM== of the /%% 7the K(erne safeguard clauseL8 forbade it.>> Kenya acceded to the 1,31 Paris 0ct of (erne on )une 11, 1,,>.>The /K and the /5 became parties to the 1,*& original te$t of /%% on 5eptember &3, 1,*3 and 5eptember 1., 1,**, respectively. They both became parties to the 1,31 Paris te$t of /%% on )uly 1', 1,3-. Kenya Kadopted the principles of /%% as contained in the (ritish %opyright 0ct, 1,*. which was a statute of general application.>* ?=ndependentA Kenya s membership to /%% was later formalised by 0ct <o.> of 1,..Q.L>.
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See ). 9itman, igital Copyright, 70mherst: Prometheus (ooks, &''18, pp. 1&&#1*'; See also :.). Iadin, ).0. Iothchild B !.:. 5ilverman, Internet Commerce: The Emerging !egal &rame"or', 7<ew Fork: Joundation Press, &''&8, pp. 3,,#+3.; P. 5amuelson, RTechnological protection for copyrighted works, -* Emory !a" (ournal 71,,38; P. 5amuelson, R=ntellectual property and the digital economy: why the anti# circumvention regulations need to be revised, 1- )er'eley Technology !a" (ournal 71,,,8, p. *1,; :. 9emley, et al., Soft"are and Internet !a" 7<ew Fork: 0spen 9aw B (usiness, &'''8 , pp. +,1#,'&. This has been implemented under the /5 6igital :illennium %opyright 0ct, 1,,+ 7the 6:%08, and 0rt. . of the 1/ %opyright 6irective, &''1. The 6irective is reproduced in @. <orman, Intellectual Property !a" Statutes *++,-*++. 79ondon: 5weet and :a$well, &''-8 pp. ***#*3'; P. !oldstein 7&''18 International !egal %aterials on Intellectual Property 7<ew Fork, <F: Joundation Press8. >1 Supra note &.. >& The same applied to other colonies such as (elgian %ongo and Jrench 5enegal. >> =t essentially provided that a country which withdrew from (erne would not be protected by /%% in any country of the (erne /nion. >See P. !oldstein, International !egal %aterials on Intellectual Property supra note >' at 1-,; (. 5ihanya, Constructing Copyright and Creativity in Kenya, supra note 1 at chapters 1 and *.-.>; %opyright 70mendment8 Iegulations, &''', Kenya !aHette 5upplement <o. -3 79egislative 5upplement <o. -3 of 1> 2ctober, &'''8. >* See 5ihanya, Constructing Copyright and Creativity in Kenya, supra note 1 at %hapter ..>.1, ..>.& and ..>.- regarding the reception of (ritish law in Kenya. >. See 9egal <otice <o +* of :arch &-, 1,.., published in Kenya !aHette <otice <o. &* of 1,..; %hege supra note 1* at ,>, 1&> n. *.

Ielatedly, some e$amples of the e$tent of ;=P2 s involvement in Kenya can be seen in the fact that ;=P2 has worked with Kenya on drafting the copyright law. ;=P2 supplied e$tensive written comments and recommendations to the !overnment in the process of drafting the %opyright (ill &'''.>3 ;=P2 s focus was on ensuring the implementation of (erne and the 1,,. ;=P2 =nternet Treaties. :oreover, ;=P2 has also e$ercised its mandate on enforcement.>+ ;=P2 conducts many of its activities through regional and national workshops. The former are meant for a much wider audience and have included conferences. (oth have had some impact on copyright in Kenya. 5ome e$perts, commentators and pundits complain that copyright and other =P matters have geographical and cultural 7con8te$ts and subte$ts. They argue that increased use of e$perts on Kenyan or 0frican =P and trade law, including on innovation and technology transfer, especially from 0frica, may enhance capacity building and the development of local materials. =t is remarkable that e$amples of eGuitable, efficient and sustainable partnerships are emerging between <orthern and 5outhern governments, enterprises, e$perts, civil society players, et cetera. These are e$amples of appropriate collaborative strategies. :ore recently, treaty law has been seen in a more te$tured conte$t. 6iscourse on the role of copyright in trade and the nature and adverse conseGuences of infringement, piracy, counterfeiting and trade in counterfeit products, has cast treaty copyright law, and the transnational copyright institutions, into sharper relief. The dynamics are changing somewhat partly because local Kenyan enterprises and individuals are creating copyrightable literary, musical, and other works. Their interest in e$pansive or absolute copyright protection converges with those of the erstwhile colonial power or foreign publishing or recording companies and other T<%s. =n copyright a number of policy and institutional responses are already evident, especially at the international level, through the work of the various international organiHations like ;=P2, /<15%2 and the TI=Ps %ouncil 7as seen above8. This is particularly in the conte$t of their trade, development or aid relations with Kenya. TI=Ps seeks to consolidate gains made by copyright interests in the regimes already discussed. =n Kenya, the impact and significance of TI=Ps, which is now regarded as the dominant copyright regime internationally, is still dubious. There is intense debate opposing it or supporting some of its provisions. Fet there is no scientific study on its impact.>, 0rt. , of TI=Ps reinforces the substantive provisions of (erne.-' 0nd 0rt 1' of TI=Ps protects computer software as a literary work within the (erne regime. The same 0rticle also protects the compilations of data or other materials, which by reason of the
>3 >+

See Part ..>.>.+ of my doctoral dissertation, supra note 1. Personal communications on diverse dates in &''', &''&#'> with :s :arisella 2uma, 5tate %ounsel, %opyright 5ection, 0ttorney#!eneral s office, <airobi; and with ;=P2 officials, !eneva, diverse dates, &''*. 6r 2uma is now the 1$ecutive 6irector of the Kenya %opyright (oard. >, See (. 5ihanya, Constructing Copyright and Creativity in Kenya, supra note 1 7proposing a framework for conducting a cost#benefit analysis of Kenyan and transnational literary copyright with a view to reforming transnational and Kenyan copyright law8. -' =t incorporates 0rts 1#&1 and the 0ppendi$ or 5tockholm Protocol to the (erne %onvention 7Paris 0ct, 1,318. TI=Ps 0rt ,718 e$pressly e$cludes moral rights 70rt .bis of the (erne %onvention8.

selection or arrangement of their contents constitute intellectual creation. The protection does not e$tend to the material itself. -1 This strengthens the basic doctrines of (erne, such as originality, automatic protection, national treatment, and duration. The term of protection for primary works 7also called works of original authorship8 under (erne is the life of the author plus *' years.-& 6erivative works, such as films 7referred to as audio#visual works in Kenya8, are protected for *' years from the date they were made available, first made available to the public, or first published.-> 6uration of copyright is relevant to its economic utility. III. COPYRIGHT IN ECONOMIC DEVELOPMENT IN KENYA This section seeks to address the following Guestions: 1. 0re there sufficient tool#kits available in Kenya to mainstream copyright in the economic development processS &. ;hat relevant strategies been deployed in other economiesS-A. C!n#e& *a$ an8 S "a e)i# C!nsi8e"a i!ns in C!&y"i)h E#!n!'i#s %opyright contributes to socio#economic development in at least two ways. Jirst, copyright and =P are a source of royalty and related payments to creators, publishers and distributors. 5econd copyright and =P is a source of regular national income or revenue stream, especially in the form of ta$es. %opyright contributes to national revenue as the copyrighted products are subEect to ta$ation and other related fees such as registration fees. =n addition, employment is created in the production and distribution of copyrighted products. 5imilarly copyright and trade mark are crucial in the advertising industry, which is a maEor income earner in Kenya. These =P doctrines and the related processes help secure Guality and consumer confidence, which result in increased sales and translate to development.-* Kenya, whose =P regime is still lacking in many aspects, is yet to realiHe the full economic benefits of =P. ;ith regard to copyright, the copyright owners are losing millions of shillings due to infringement, piracy, and counterfeiting. This is attributed to numerous factors:

-1

Thus %a'e it Sing and /ther Poems, selected Poems of :arEorie 2ludhe#:acgoye; or a similar poetry anthology may be protected as a compilation even though # and mainly because # the individual poems are protected in the first place. -& See 0rt. 3 of the (erne %onvention. -> 5 &>7&8 of the %opyright 0ct &''1. The sound recordings and broadcasts are protected for *' years after the end of the year in which the recording was made, or the broadcast took place, respectively. -;=P2 has published an e$cellent guide on methodological issues. See ;=P2, 0uide on Surveying the Economic Contribution of the Copyright1based Industries, ;=P2, !eneva 7&''>8. 5ee also ;=P2 2< %opyright industry in Kenya See also ;=P2, Performance of Copyright Industries in Selected Arab Countries: Egypt, (ordan, !ebanon, %orocco, and Tunisia, ;=P2, !eneva 7&''-8. ;=P2 recently sponsored another study on copyright contribution to the economy. -* (. 5ihanya, 2o" Can 3e Constitutionalise Innovation, Technology and Intellectual Property in Kenya4 0frica Technology Policy 5tudies <etwork 70TP58, <airobi, at p. *, &''& 7available at http:NNwww.atpsnet.orgN 5last accessed :ay +, &''.8.

1'

i.

ii. iii.

iv.

Kenya does not have a way of monitoring copyright transactions. The role of looking out for infringers is largely left to the copyright owners who have neither the capacity nor the mechanism to monitor each part of the country and look out for copyright infringers. :any creators or artists are not aware that they possess valuable =P rights. They therefore go about their lives believing that copyright infringement is either permissible or has no remedy. The penalties provided for copyright infringement are not sufficient to control infringement. The %opyright 0ct provides a ma$imum penalty of Kshs. +'',''' or 1' years imprisonment.-. The Kenyan practice has been that courts impose 7lower8 fines rather than the Eail term. Jor a copyright infringer who e$pects to earn Kshs. - million from a school book, a fine of Kshs. +'',''' is like loose change, petty cash or operational e$penses and would not deter him from infringing the copyright. Kenya loses a great amount of revenue due to activities such as infringement or piracy. This has led to some arguing that it is better to permit some acts of =P infringement and ta$ them in order to get revenue, or better, persuade or compel the infringers to engage in appropriate legitimate business.

IV. COPYRIGHT IN CULTURAL DEVELOPMENT- CULTURAL POLITICS AND CULTURAL INDUSTRIES IN KENYA )ohn %hege, writing with the Kenyan conte$t as his declared territorial and conceptual focus argued that copyright performs two tasks. Jirst, it regulates and controls =P. 5econd, it propagates education, ideology and propaganda. @e sees copyright performing the task of Ka revenue#earning enterprise and Q an important media 7sic8 of mass communication.L-3 @is conclusion is particularly significant here as: K%opyright law has been linked with the changes in the economic infrastructure and it has been shown that the law has always been amended to accommodate the technological and class changes in the political set#up.L-+ That perspective links the two roles copyright plays in %hege s typology. !ranted that there is a convergence of certain values based on common humanity, Kenya s copyright law has disproportionately remained essentially ;estern in substance, form and practice in spite of the divergent economic conditions and 7perceived8 social, political and cultural interests. The reason begs the following closely related Guestions.
-.

5ection >+ of the %opyright 0ct. %f. the 0nti#%ounterfeit 0ct &''+ which provides for a ma$imum penalty of Kshs &,''',''' or imprisonment not e$ceeding > years for offences under ss. &-#>1. 2ffences under s. >& of the 0ct attract ma$imum penalties of 1* years or fine not e$ceeding five times the value of the goods. There are already fears of confusion between the new anti#counterfeit laws and the patent regime under the =ndustrial Property 0ct, &''1. 5ome stakeholders prefer the more severe anti#counterfeiting to the patent infringement regime. Personal communication with 6r :arisella 2uma, 1$ecutive 6irector, Kenya %opyright (oard, <airobi, :arch &'',. -3 ). %hege, Copyright !a" and Publishing in Kenya, supra note 1*, at p. &-. -+ %hege, supra note 1*6 5ignificantly, %hege s analysis focuses on doctrinaire or hardcore 7para8 :ar$ist political economy of copyright and pays scant attention to the discourse on the role of copyright in cultural and educational industries. @enry %hakava s work complements %hege s by dealing with the educational industry. See (. 5ihanya, Constructing Copyright and Creativity in Kenya, supra note 1 at chapters 1, - and ,. %f. @enry %hakava 71,,.8 Publishing in Africa: /ne %an7s Perspective 1ast 0frican 1ducational Publishers, <airobi.

11

i where did Kenya s copyright law come fromS 0nd what is its structure or social and cultural contentS ii what factors have animated recent developments in that lawS ;hat socio#cultural factors sustain the essential characteristic of Kenya"s copyright regimeS iii why can t Kenya drop out of this regime altogether or design a more socially, economically, politically and culturally appropriate one that meets core international obligations while seeking their reform, and at the same time serving the national interestS ;hile seeking answers to these Guestions, we must consider the difficulties, concerns and challenges that have mired Kenya"s copyright law. Jour of these are most critical. Jirst, there have been tensions between national and foreign interests, as illustrated by the Kenyan debate on books, folklore, software, film and artistic work. 5econd, there have been controversies regarding the interests of authors, creators or innovators, on the one hand, and publishers and other cultural entrepreneurs, on the other, with readers, viewers and other consumers getting caught in the crossfire. Third, technological change has complicated the picture or matri$. =t has ushered in new industries such as numerous printers and publishers, video libraries, photocopying shops or centres, software development and distribution corporations, =nternet 5ervice Providers 7=5Ps8 and art dealers. Jourth, the increasing role of information, high technology and cultural products in the conte$t of the liberaliHation of international trade and investment have introduced new challenges. These relate to =nternet based publishing and distribution of literary materials, including the prospect of e#learning at levels lower than the university.-,

0.

Wha a"e C*$ *"a$ In8*s "ies>63 %ultural industries are based on creativity and accumulation of copyrighted and cultural products. They may create wealth and employment.*1 This definition is founded on (ritain s and the /< s definition of cultural and creative industries. (ritain defines creative industries as those originated from personal creativity, skills, and talents that have potential to create wealth and employment opportunities often produced and developed through intellectual property rights.L 0nd /<15%2 defines them as Kindustries combined with innovation, production, and commercial contents and at the
49

=n 0pril &''> the :inistry of Transport and %ommunications announced that it was consulting the :inistries of 1ducation, 5cience and Technology, and of Ioads, Public ;orks and @ousing, with a view to establishing e#learning. The 0frican Mirtual /niversity 70M/8, on the other hand, was established with assistance from the ;orld (ank and located at Kenyatta /niversity in the 1,,'s. 0M/ has since relocated. 1gerton /niversity also has the 0M/ facility. See 0. 2uma, R!overnment to 5ell 3' P% 5take in Telkom, East African Standard, 0pril ,, &''> 7Kenya8. (en 5ihanya 7&''+8 K=ntellectual property, Guality assurance and =52 in Kenyan universities,L !a" Society of Kenya (ournal vol - &''+ <o.1, pp. >*#.*. *' See the /< and 1uropean classification codes relevant to copyright#based industries. ;=P2 has published an e$cellent guide on methodological issues. See ;=P2, 0uide on Surveying the Economic Contribution of the Copyright1based Industries, ;=P2, !eneva 7&''>8. See also ;=P2, Performance of Copyright Industries in Selected Arab Countries: Egypt, (ordan, !ebanon, %orocco, and Tunisia, ;=P2, !eneva 7&''-8. *1 Ibid6

1&

same time the nature of the contents have the Gualities as intangible assets and cultural concepts that are protected under intellectual property rights and presented in forms of products or services.L %ultural industries in the ;=P2 and other typologies include publishing, music, audiovisual technology, electronics, video games and the =nternet. =n Kenya these industries relate to: i. (ook publishing T there are famous fiction and non#fiction writers such as <gugi wa Thiong o, Jrancis =mbuga, :arEorie 2ludhe :acgoye, and :argaret 2gola; as well as Fash !hai, @.;.2. 2koth#2gendo, and 15 0tieno 2dhiambo, respectively. ii. %inema T a Kenyan cinema or film industry is developing. 5ome important films have been shot in Kenya. =n some of them Kenyans are maEor actors or actresses, directors, or producers. These include: /ut of Africa8 9o"here in Africa6 There are also other audio#visual works like Prof 0li 0. :aHrui s The Africans: a Triple 2eritage6 iii. 5ome of the famous actors and actresses, as well as local movies, include T )oseph 2lita 7in The :ise and &all of Idi Amin8; 5idede 2nyulo 7in the !erman 0cademy 72scar8 winning 9o"here in Africa8 angerous Affairs 7)udy Kibinge8, Pro$ect addy 7)udy Kibinge and <Eeri Karago8, %alooned 7(ob <yanEa8, and In %y 0enes 79upita <yong o8 and Sugar 79upita <yong o8, etc iv. :usic # composition, performance, recording and publishing, for instance, Jadhili ;illiams in %alai'a6 v. %ultural handicrafts T 0kamba carvings, !usii soapstone, %iondo 7hand#woven basket8, Kikoi, 9esso, :aasai artefacts, etc.*& Kenya has not sufficiently defined cultural or creative industries in the =P conte$t. 0s a result cultural industries do not realiHe the full economic benefits that would otherwise accrue to them if granted adeGuate =P protection and promotion. Thus the role of =P in the development of cultural industries in Kenya continues to be minimal. =n an optimal conte$t cultural industries add lots of value. 0nd because they are knowledge and labour#intensive, they create employment and wealth, nurture creativity and foster innovation in production and commercialiHation processes. 0t the same time, cultural industries are central in promoting and maintaining cultural diversity and in ensuring democratic access to culture and information. This twofold character T both cultural and economic T builds up a distinctive profile for cultural industries. 6uring the 1,,'s they grew e$ponentially, both in terms of employment creation and contribution to !<P 7or !ross <ational =ncome8. Today, globaliHation offers new challenges and opportunities for their development.*>
*&

(en 5ihanya 7&''38 KKikoi and the commercial e$ploitation of geographical indications and traditional knowledge in Kenya,L published in the 9aw 5ociety of Kenya 795K8 :agaHine, The Advocate, <airobi8 The study was accepted by and peer reviewed for the Kenya 9aw Ieview a Eournal of the <ational %ouncil for 9aw Ieporting 7Kenya8 7forthcoming &'1'8. The author also presented this study at the :aasai :arket 1mpowerment Trust s 7::1T s8 Public Jorums on Iegesha 7return8 KiondoNIegesha Kikoi at the !oethe =nstitut on >1N'3N&''3 Tuesday. %f. =. <degwa, R%haracter :erchandising in Kenya: The %ase of the :aasai, 99( 6issertation, /niversity of <airobi, &''' 7/npublished8. The author supervised the work. *> 2ne of the more eloGuent studies on the theme is /<15%2 /ur Creative iversity Ieport of the ;orld %ommission on %ulture and 6evelopment, 7Paris: /<15%2 Publishing, 1,,.8.

1>

There is need for Kenya to define cultural industries and cultural creativity within the conte$t of =P. Thus, such industries and the innovators would receive the protection and promotion granted to other =P owners. The industries protected in Kenya are those protected under TI=Ps with a meager attempt at protection of folklore by the %opyright 0ct. :aasai artifacts, ciondo baskets and 0kamba handicrafts are not sufficiently protected or promoted. Therefore there is need to review TI=Ps to include these industries as well as traditional cultural e$pressions 7T%18 7or folklore8 more specifically. IMITATIVE INNOVATION IN CULTURAL INDUSTRIES>6; There is debate on the preservation, conservation, protection, sustainable use or e$ploitation of traditional cultural e$pressions 7T%18 or folklore. 0 maEor concern is that foreigners and locals 7and particularly young8 artists and cultural entrepreneurs are inappropriately e$ploiting traditional cultural e$pressions 7T%1s8 or folklore by ripping, mi$ing and burning T%1s. This is especially used in Kenyan hip hop 5a'a 'apu'a, boomba, genge, or 'apungala;6 ;hile some see this as part of freedom of e$pression, artistic freedom, artistic creativity or academic freedom, others regard this as misappropriation of Kenyan cultural heritage or others creativity. Jolklore or T%1 have been added by statute since an amendment in 1,3*, under the %opyright 0ct 7s. 1+ of the repealed %opyright 0ct, %ap. 1>'8. This is now regulated under s. & and s. -,7d8 of the %opyright 0ct, &''1 and Iegulation &' of the %opyright Iegulations, &''-.** The %opyright 0ct and Iegulation &' provide a basis for compensation for folklore, and T%1, especially for commercial purposes. The Kenya %opyright (oard, launched in )uly &''>, proposed and the 0ttorney#!eneral gaHetted the Iegulations partly to provide for payment for the use of folklore or T%1.*. @owever, the (oard is not yet independent as anticipated under the 0ct as it is still dependent on the 0ttorney#!eneral s office for funding, and the implementation of 7maEor8 decisions.*3 The law s and the (oard s efficacy in securing enforcement and compensation in copyright and related cultural industries is thus still limited. VI. ENFORCEMENT OF COPYRIGHT LAW IN KENYA C!&y"i)h In("in)e'en an8 En(!"#e'en 1nforcement is important in all systems of intellectual property, including copyright, because while definitions, procedure of registration and duration of protection are
*-

See (. 5ihanya, R=mitative innovation in Kenya s literary and musical conte$ts: the case of hip hop, Copyright 0frica B =nnovative 9awyering ;orking Paper 7&''.8; an early draft is available at 5ihanya :entoring75:8 in <airobi and 5iaya and at www.innovativelawyering.com. 7last accessed on 0pril 3, &'',8. ** These were enacted and applied to make Kenya TI=Ps compliant. The 0ct and Iegulations also implement certain provisions of the ;%T and ;PPT, such as 6igital Iights :anagement 5ystems 76I:58 or technological measures of protecting copyright 7e.g. s. >* on 6I:s8. *. The (oard has representation from the !overnment, the various copyright industries, and three e$perts. Jrom :ay 1., &''> to )une &., &'', the author was a member of the Kenya %opyright (oard in the category of Ke$pert in copyright and related matters.L See te$t accompanying supra notes &. and >1. *3 6elinking of the (oard has been controversially negotiated since &''>. The offices were physically relocated from the 5tate 9aw 2ffice to the <@=J (uilding in %ommunity in :archN0pril &'',. 2ngoing discussions indicate that the %opyright Tribunal 7%ompetent 0uthority8 may be located there too.

1-

important these can only be said to e$ist in real terms when and if they are built upon a foundation of enforcement.*+1nforcement arises in numerous conte$ts, including infringement. =nfringement refers to the dealing with copyrighted material in a manner inconsistent with the copyright owner"s interests. =t occurs where the defendant does any of the activities protected or restricted by copyright without right holder s licence.*, %opyright infringement is both a civil wrong and a criminal offence and it attracts both civil and criminal remedies and sanctions. A. Ci%i$ Re'e8ies (!" C!&y"i)h In("in)e'en in Kenya The civil remedies available under Kenya s copyright laws include inEunctions, damages, account of profits and delivery up, search and seiHure. a8 Injunctions 0n inEunction is the most popular relief and may be the most effective. This is partly because most of the copyright works, such as pop music, have a very short shelf life. :oreover, new technologies have made copying so fast that waiting for damages, account of profits or related remedies may occasion greater damage to the innovator. b8 Damages 6amages are largely compensatory. They are intended to restore the plaintiff to the position she would have been had infringement not occurred. 0dditional or punitive damages may be awarded where the defendant s conduct is flagrant or scandalous or where the defendant had benefited from the infringement. Four author is not aware of any Kenyan decision on this point..' %opying or publishing someone s diary or intimate photographs may provide cause for additional damages. 0nother is where a 7sole8 licensee abuses the copyright. =n Kenya damages are largely governed by general 1nglish common law principles received in 0frica under the reception clauses..1 c8 Account of profits 5ometimes account of profits is considered an alternative to damages. The former is considered very important in copyright law, as damages may be insufficient. This remedy stops unEust enrichment or situations where it would be more lucrative to infringe copyright and pay 7limited8 damages later..& Iight holders often view damages and financial penalties as insufficient to deter infringers. =n fact they think that in conte$t, damages are Eust another Kincidental cost of doing businessL as far as infringement is concerned. ;here the Guality of the infringing items is widely different from that of the protected items keeping accounts by the infringer is also not sufficient..>
*+ *,

(en 5ihanya, Intellectual Property and Innovation in Kenya and Africa< supra note 16 5. 1* of the Kenyan %opyright 0ct, 1,..#&''' as amended over the years and s. >* of the &''1 0ct. .' 5ee 3illiams v6 Settle ?1,.'A ;9I 1'3&; 6. (ainbridge Intellectual Property, , at 11+#-, 71,,,8. %f. s.1* 7-8 of the 0ct and s. >*7*8 of the %opyright 0ct, &''1. 5ee also 6. (ainbridge 7&''38 Intellectual Property, Pearson 1ducation 9imited, 1ngland 7.th 1d.8 at 1&*,1&, B13,. .1 Jor instance, s. > of the Kenyan )udicature 0ct, discussed in Part == 0 and ( above. .& (en 5ihanya 7&''*; published &''.8 K%opyright law, teaching and research in Kenya,L East African !a" (ournal Mol & &''* at pp. &+#.&; (en 5ihanya 7&''>8 Constructing Copyright and Creativity in Kenya< doctoral dissertation, supra note 1. .> 5ee, for e$ample, Sapra Studio v. Tip Top Clothing ?1,31A 10 -+,, at -,&.

1*

d8 Delivery up and search and seizure The defendant may be ordered to deliver up either the infringing copies or any material used to make them. 0nd an order permitting search and seiHure may be granted where the plaintiff fears the defendant may abscond, or destroy or dispose of the evidence so as to defeat the cause of Eustice. :icrosoft benefited from this relief in &''' in its case against :icroskills, a Kenyan software corporation. @owever, Eudges have generally been reluctant to grant such orders. 0ccording to a source close to :icrosoft, one of the features in this case was that the Eudge could not reportedly follow the basis of the application: what is software copyright infringement where it is copied into %6 I2:sS .B. C"i'ina$ San# i!ns (!" C!&y"i)h In("in)e'en in Kenya 5anctions are important in copyright. Jirst, part of the rationale for providing criminal sanctions for copyright infringement is that the state wishes to protect creators, innovators, copyright entrepreneurs and consumers by bringing these matters under the purview of pubic law. 5econd, this also epitomises the Kenyan !overnment s interest in maintaining the revenue stream from ta$es paid by producers and consumers of legitimate copyright materials. Third, criminal sanctions are also recognition that individuals or corporations may not have sufficient human and financial resources to address copyright infringement and piracy. Jourth, it is an acknowledgement that copyright is as much a public good as it is a private good. =n certain situations private individuals and corporations may not have sufficient incentives to address the social costs of infringement, which may include loss of ta$ revenue and the reduction of incentives for innovation as infringement or piracy decreases the prospects of investment..* =n Kenya the 1,.. 0ct 7now repealed and replaced8 provided for a ma$imum term of imprisonment not e$ceeding five years and a ma$imum fine of Kenya 5hillings &'','''. The Eail term was to be in addition or alternative to the fine, depending on the court s decision. 0uthors, creators and special interest groups like the Kenya Publishers 0ssociation 7KP08, :usic %opyright 5ociety of Kenya the 7:%5K8, the (usiness 5oftware 0lliance 7(508, Kenya Jilms %ommission, and also Kenya Jilm %ensorship (oard argued that these penalties were inadeGuate... =n response thereto, the Kenya %opyright 0ct &''1 provides that a person shall be liable to a fine not e$ceeding Kshs -'','''N# or imprisonment for a term not e$ceeding 1' years or to both. 0 person is guilty of an offence if he deals with or in infringing copies in the
.-

%icrosoft Corporation v. %itsumi 0arage !td = Anor, <(= @%%% +1' of &''1; 5ee also Paul /dalo Abuor v6 Colourprint = Te>t )oo' Centre 9td 7unreported, <airobi, per <orbury 6ugdale, )Ureported and discussed in (en 5ihanya 7&''>8 Constructing Copyright and Creativity in Kenya<supra note 1 at >&-. The court granted the Plaintiff search and seiHure orders on the basis of copyright infringement in the book 3hite 2ighlands 9o %ore: A Political 2istory of Kenya6 See 5ihanya, ibid; see also 0lfred 2mondi, K%ourt stops printing of book,L Kenya Times 7<airobi8, Thursday, <ov. &, 1,+,, at &1. .* 5ee the definition of Kpublic good,L in !raham (ancock et al 71,,&8 ictionary of Economics, <ew Fork; :acmillan Publishers; I.5. Pindyck and 6.9. Iubinfeld 7&'''8 %icroeconomics, <ew )ersey, Princeton /niversity Press, at .--#*. .. 5ee The Kenya Publisher 7<airobi8, a Guarterly newsletter of the Kenya Publishers 0ssociation 7KP08, <airobi, <ovN6ec 1,,,#)an &''', pp.1#&.

1.

following manner: makes for sale or hire; distributes; imports into Kenya otherwise for his private and domestic use or has in his possession any contrivance used or intended to be used for the purpose of making infringing copies..3 0 person who sells or lets for hire or by way of trade e$poses or offers for sale any infringing copies or possesses otherwise than for his private domestic use, any infringing copy, shall be liable to a fine not e$ceeding Kshs 1'','''N# or a term not e$ceeding & years or to both. The #ha$$en)es !( #!&y"i)h en(!"#e'en in Kenya 6espite the introduction of stricter penalties for infringement under the %opyright 0ct, &''1, Kenya still faces various obstacles in the enforcement of copyright in the criminal domain. These challenges include the !overnment s cavalier attitude to copyright, general ignorance about copyright, limited resources, and limited legal literacy on copyright. Jor a long time,the !overnment s attitude has been that copyright is a personal and private affair to be pursued by individual copyright owners. 2ften, the main agency charged with the prosecution of copyright infringement, the police, regard copyright infringement as less serious than other crimes such as murder, theft of tangible property, battery etc as Knobody is bleedingL or has lost anything that they consider tangible or significant. Jurther, there is general ignorance, literal or technical, regarding copyright and the meaning of infringement. To many enforcement officials, it makes no sense for a copyright owner to complain when their book is photocopied and yet their book is still in the shop or book shelves. =nsufficient human, technical and financial resources limit the Kenya %opyright (oard s and other agencies capacity to enforce copyright in Kenya. The Kenya %opyright (oard, which is vested with the powers to administer and regulate copyright in Kenya, lacks functional autonomy and is forced to rely upon the 0ttorneyT!eneral s 2ffice for financial resources and relevant administrative authority. The (oard is also understaffed making management and enforcement of copyright problematic. The widespread ignorance in the legal fraternity in Kenya on copyright matters makes the situation worse. The magistrates and Eudges charged with the responsibility of deciding on copyright disputes e$hibit limited competence including skills, knowledge and values 75K0M8 on copyright. 0s such, there is an urgent need to train the (ar and (ench on copyright. 5imilarly, the police should also be trained to ensure that they are fully conversant with the technicalities and importance of copyright. :ost copyright infringement cases are pursued in Kenya by aggrieved parties as civil rather than criminal cases. The sanctions provided for copyright prosecutions are limited and some offenders may view the sanctions as negligible transaction costs rather than penalties. Therefore, as stated, more needs to be done in training employees of prosecutorial agencies and the general public on the rights that accrue to copyright holders and on copyright management, prosecution and enforcement generally.
.3

5. >+ 7-8 of the &''1 0ct.

13

C. C!$$e# i%e Mana)e'en O")anisa i!ns 7CMOs9 in Kenya The e$clusive right of authors to e$ploit their works is a basic element of copyright. =n the framework of collective management organisations 7%:2s8, copyright owners authorise %:2s to monitor the use of their works, negotiate royalties with 7prospective8 users, grant licences based on appropriate conditions, collect remuneration 7or royalties8 and distribute the royalties among the copyright owners..+ =n the conte$t of increasing copyright infringement in Kenya, %:2s have been established or proposed by copyright owners to try and secure the copyright holders interests. To Gualify as a %:2 under s. -. of the %opyright 0ct, the agency must first be incorporated as a company limited by guarantee. The company should also be registered by the Kenya %opyright (oard so as to have the authority of collecting and distributing royalties. 2nce a company Gualifies for registration and is sufficiently enabled, the organiHation may perform certain %:2 functions such as: i. monitoring copyright transactions and act as a watchdog on copyright use and infringement or piracy; ii. training its members on their copyright and remedies for infringement; iii. collecting and storing copyright products; and iv. collecting and distributing royalties on behalf of copyright owners. :ost %:2s in Kenya are faced with four maEor challenges. Jirst, lack of a firm constitutional foundation in a normative and institutional sense. 5econd, most %:2s are established under !overnment ministries and thus lack autonomy and independence.., Third, most %:2s have limited financial and technical capacity. 0nd fourth, most %:2s have inadeGuate copyright e$pertise among the managers and members of the organiHations. %:2s in Kenya include Kenya Ieprographic Iights 2rganiHation 7K2P=K1<8, which seeks to protect and promote authors and publishers of literary works. K2P=K1< was formed in the early 1,,'s to fight infringement or piracy in books and music, and to ensure authors secure ma$imum benefits from their works. K2P=K1< was mandated to act as a collecting society and is registered as a %:2 by the Kenya %opyright (oard.3' The :usic %opyright 5ociety of Kenya 7:%5K8 seeks to protect authors, composers, publishers of music, and musicians. :%5K was one of the earliest %:2s or collecting societies to be registered by the Kenya %opyright (oard. :%5K had .+' members in &''+; and a repertoire of over &',''' musical works.31 The maEor obEective of :%5K is

.+

6r :ihaly Jiscor 7&''&8 Collective %anagement of Copyright and :elated :ights, ;orld =ntellectual Property 2rganisation, !eneva. ., 5ihanya, 2o" Can 3e Constitutionalise Innovation, Technology and Intellectual Property in Kenya, supra note *-, at p. .. 3' (en 5ihanya 7&''>8 Constructing Copyright and !iterary Creativity in Kenya: supra note ?. 31 5ee generally the official website of :%5K at http:NNwww.mcsk.or.keNabout.htm 7last accessed on ',N11N&''+; 11N1&N',8; :arisella 2uma 7&''+8 Enforcement of Copyright in the %usic Industry: a Critical Analysis of the !egal and Infrastructural &rame"or' of Enforcement in Sub Saharan Africa, 6octoral 6issertation, Vueen :ary /niversity of 9ondon.

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to collect royalties for and on behalf of its members as well as for members with whom the 5ociety has reciprocal agreements. 3& Ielatedly, the 5ociety of Performing 0rtists of Kenya 75P0K8 is interested in securing performers interests as it pursues registration as %:2. The Kenya %opyright (oard has been keen that the registered %:2s and the companies abide by the law and relevant principles governing %:2s as they pursue registration and once they are registered. VII. CONCLUSION Kenyan and 0frican copyright law is largely a product of three maEor legacies or factors: (ritish or Jrench colonialism; 0merican and transnational influence through post# colonial ;estern or transnational institutions and enterprises; and the internalisation or retention of ;estern copyright norms in Kenya and in relevant 0frican states. %opyright law has not sufficiently protected or promoted Kenyan creativity, and innovation, including the development and use of traditional cultural e$pressions 7T%18. :oreover, significant normative institutional constraints pose a great challenge to copyright in the individual and collective management, e$ploitation and enforcement of copyright. The Kenya %opyright (oard and many sectors have shown an interest in addressing most of these challenges to copyright protection and promotion in Kenya.

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5ee :usic %opyright 5ociety of Kenya, K:%5K, http:NNwww.mcsk.or.keNabout.htm, 7last accessed on ',N11N&''+8.

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