IP RIGHTS AND DIGITAL CONTENT: KENYA’S NEW HEADACHE

By Njeri Macharia

The headline “Safaricom reaches Sh. 15.5m settlement with musician” didn’t quite capture what the company was paying for on 6^th May, 2014. The crime was Copyright Infringement of JB Maina’s 10 songs in Safaricom’s “Skiza tunes” without the musician’s permission. Another prominent case involved radio personality Caroline Mutoko who lifted, word for word and with no acknowledgement, a blog post from Crunk Feminist Collective for her weekly column in the Star Newspaper.

These are not the funniest cases of copyright infringement and plagiarism in Kenya. (Read other examples from www.kenyanpoet.com/2014/03/11/10-cases-of-plagiarism-in-kenya). That title instead goes to the tabloid Ghafla! which lifted an entire article on ‘How to Copyright your work’ from the Kenya Copyright Board website. This was not the only time the tabloid has been accused of stealing articles from other websites but it was far the most ironical.

Is there a difference between plagiarism and copyright infringement?

The two are obviously not the same thing.  Plagiarism is considered unethical and applies to learning institutions and specific professions such as journalism. Caroline Mutoko’s case was one of blatant plagiarism, for example.    For copyright infringers, the purpose of lifting another person’s work is commercial benefit. For Plagiarists, the purpose is recognition or attribution. What many cannot tell is when plagiarism ceases to be just simple failure to acknowledge a source and crosses over to being copyright infringement.

When you go to court over copyright infringement, there are a few things that need to be proven. First, as the author you need to show that there was effort to make the work have original character. Second, that your work was produced first. Then you need to show the Court the aspects of your work that the infringing copy has lifted from, even if it the entire piece of work.

If it can be published then it can be protected

Content is everything and we are all creators of digital content. Everything we put up online from tweets, facebook updates and statuses, photographs, videos, audios, games, blog posts and eBooks are all considered digital content. All these can be protected under Copyright Law, the branch of Intellectual Property Law that relates to literary, artistic and musical works. Traditionally this included but was not limited to plays, computer programmes, databases, broadcasts, sculptures, and maps. In Kenyan law, the relevant statute is the Copyright Act, Chapter 130.

The first creator of copyright work is called the author. Copyrights protect the expression of an idea from being copied without authority. The catch is that Copyright Law does not protect the idea or the concept, only its expression. There also has to be a genuine effort at making the work original.  The copyright protection is vested in the work once it is in a concrete form which means there is no need to register. The Kenya Copyright Board tries to maintain a database of authors and their works but registration is voluntary. This protection lasts for the entirety of the Author’s life and fifty years after they pass on.

Copyright protection entitles you economic and moral rights. Moral right is where you have a right to object to mutilation or distortion of your work. Economic means you as an author have the right to adapt or translate, broadcast, perform, communicate and most importantly distribute to the public by way of sale, rent, lease, hire, loan or importation. I say most importantly because the goal is protection and monetary gain, and not necessarily together.

So does copyright protection apply to digital content the same way?

The Copyright Act incorporates the provisions of the WIPO Internet Treaties, The WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty which means that digital content is protected under Kenyan law. It is an offence to attempt to circumvent any technical measures designed to protect digital copyright works.

Copyright infringement carries with it both criminal and civil liability. Criminal liability carries a punishment of a fine or a prison sentence of anywhere between six months and ten years depending on how serious your offence is or both Civil liability means that the author has a right to take go Court and first stop you from continuing to use his work. The second solution is what musician JB Maina sort in his case against Safaricom.

The Court may order the infringer to account for any money they may have made using the work and to deliver to him or her the work you have in your possession which appears to be an infringing copy. The complainant may also be awarded an amount which would be a reasonable royalty which would have been payable under a license in addition to damages.

A few disclaimers

You can sue people based on their online personas, but you have to get to know their real identities. There is an ongoing case where Ahmednassir Abdullahi filed a formal complaint against his fellow lawyer Donald Kipkorir over alleged death threats based on Kipkorir’s online persona on the facebook platform. There is also the famous case of Amb. Yvonne Khamati, Deputy Head of Mission at the Kenyan Embassy to Somalia endured a torrent of vile insults and personal attacks from a Douglas Mango on twitter using his twitter handle @DouglasMango. She filed a formal complaint with the CID for the harassment.

These two cases go to show that you cannot hide behind an online persona.

Copyright protection only applies to actual human beings therefore companies do not get that protection. However you may sue companies for copyright infringement.

What can you do?

 The Kenya Copyright Board advises digital content creators to always add the generic tag of “© (author’s name) (year), All Rights Reserved” at the end of every work uploaded online. Also ensure that as the contact details of the content creator are available and easily accessible.