Understanding Copyright Law And Its Application In Digital Environments

In the rapidly evolving digital landscape, copyright laws play a pivotal role in protecting the intellectual property rights of creators and innovators. This article aims to shed light on the fundamental principles of copyright law and how they are applied in digital environment in Kenya.

 

Core Principles of Copyright Law

At its core, copyright law grants creators the exclusive right to control the reproduction, distribution, and modification of their original works. These works encompass a wide range of creative expressions, including literature, music, art, films, software, and websites. The primary objectives of copyright law are to incentivize creativity and innovation by providing creators with the ability to monetize their work and to ensure that creators receive recognition for their contributions.

 

Exclusive Rights and Limitations

Under section 26 of the Copyright Act, creators hold exclusive rights to their works, typically including the right to reproduce, distribute, publicly perform, display, and modify the work. However, these rights are balanced against the public interest in accessing and using copyrighted materials as depicted under the second schedule of the Copyright Act which provides for exceptions and limitations to copyright. Such exceptions include fair use, parody, criticism, and educational uses, which allow for the lawful use of copyrighted works under certain conditions.

 

Copyright Law in the Digital Age

The advent of the internet and digital technologies has presented new challenges and opportunities for copyright law. With the ease of copying and distributing digital content, the risk of copyright infringement has increased significantly. However, digital technologies also offer new tools for copyright management and enforcement which include:

 

• Digital Rights Management (DRM)

Digital Rights Management (DRM) systems are technological measures designed to protect copyrighted works from unauthorized access and use. These systems can restrict the ways in which digital content can be accessed, copied, distributed, and modified, thereby helping copyright owners enforce their rights in the digital space.

 

• Online Service Providers and Liability

Online service providers, such as internet service providers (ISPs), hosting services, and online marketplaces, play a crucial role in the digital ecosystem. They face increasing pressure to manage copyright infringement occurring through their platforms. The legal framework often distinguishes between passive conduits (who merely transmit information) and active participants (who contribute to the infringement). The former generally enjoy safe harbour protections, while the latter may be held liable for facilitating copyright infringement.

 

Provisions of the Copyright (Amendment Act 2019)

This amendment introduced significant changes to Kenya’s copyright law to address the evolving landscape of digital content creation and distribution. 

One of its key provisions was the detailed revision of definitions critical to the copyright framework. For instance, the Act refined the definition of “author” by including “dramatic” works and excluding “film” and “working” from the previous definitions. Additionally, the Act introduced new definitions such as “accessible format copy,” “art market professional,” and “authorized entity,” among others. 

The amendment also made significant changes to the rights and obligations associated with broadcasting and reproduction. It specified that the reproduction of works by broadcasting stations is permitted exclusively for broadcasting purposes and must be destroyed within six months unless otherwise agreed upon with the copyright owner. 

Furthermore, the amendment addressed the rights of libraries and archives, allowing them to reproduce works without the copyright holder’s permission under certain conditions. Specifically, public libraries and archives can reproduce works if it is in the public interest and no revenue is generated from such reproduction. 

Another notable change was the establishment of a Register of Copyright Works maintained by the Copyright Board. This register serves as prima facie evidence of the particulars entered, making it easier for authors, owners, and assignees to prove ownership of their works. 

The Act also strengthened the framework for collective management of rights and royalty collection. It mandated that the Kenya Revenue Authority or another designated entity collect royalties on behalf of collective management organizations representing performers and owners of sound recordings. 

 

Online Copyright Infringement Under the Amendment Act

The Copyright amendment introduced provisions specifically addressing online copyright infringement. These include:

• Service Provider Liability: The Act imposes obligations on service providers, such as internet service providers (ISPs), web hosts, and online marketplaces, to take reasonable steps to prevent infringement occurring through their services. This includes disabling access to infringing material upon receiving a notice of claimed infringement.
• Right of Communication to the Public: The Act extends the concept of public performance and broadcasting to cover communication to the public via the internet. This provision is crucial in the context of online streaming and distribution platforms.
• Remedies and Enforcement: The Act provides for both civil and criminal remedies against copyright infringement. Civil remedies include injunctions, damages, and the recovery of profits made from the infringement. Criminal penalties apply for wilful infringements, including imprisonment and fines.

 

Provisions of the Copyright (Amendment) Act, 2022

The Copyright (Amendment) Act, 2022, revised the original Copyright Act of 2001 to address contemporary issues in copyright management, particularly in the digital age. 

One of the significant changes introduced by the amendment is the inclusion of new definitions pertinent to modern digital and telecommunication contexts. The Act now specifically defines terms such as “artiste,” “premium rate service provider,” “ring back tune,” and “Registry” to cover emerging areas in the digital content landscape. For instance, “artiste” encompasses a broader range of creators whose work constitutes ring back tunes, reflecting the growing importance of digital music services.

A crucial provision of the amendment is the establishment of a revenue-sharing model for ring back tunes. According to Section 30C, the revenue from ring back tunes, after tax deductions, is to be shared as follows: 8.5% to the premium rate service provider, 39.5% to the telecommunication operator, and a minimum of 52% to the artiste or owner of the copyright.

The amendment also introduced the creation of a National Rights Registry under Section 22B, an office within the Kenya Copyright Board. This Registry is responsible for the digital registration of rights holders and copyright works, authentication and authorization of consumers, media monitoring, and tracking the access of registered works.

Additionally, the Act mandates the development and maintenance of an online portal for the registration of copyright works. This portal is intended to facilitate the registration process and provide a centralized platform for accessing copyright information. Right holders can voluntarily register their works on this portal, and the public can access registered works under specific conditions and upon payment of prescribed fees.

Furthermore, the amendment to Section 49(2) introduces subparagraphs specifying the fees for accessing the National Rights Registry, the format for registrations, the types of registrable works, and other necessary conditions for the Registry’s functions. This is to streamline the registration process and ensure clarity and accessibility for all stakeholders involved.

 

Conclusion

As Kenya navigates the complexities of the digital era, the issue of online copyright infringement remains a critical area of focus. While the country’s legal framework provides a solid foundation for addressing copyright violations, ongoing challenges necessitate continuous adaptation and innovation in enforcement strategies. 

Please note that this is a general commentary on copyright law in Kenya, and it is intended to provide general information and should not be taken as legal advice. For specific legal concerns or situations, clients should consult with a lawyer from B M Musau & Company, Advocates LLP directly.