Promoting Access through Legal Reform: Kenya case study Workshop on Copyright Exceptions and Limitations for Education and Research Environments in Ghana By Dr ben sihanya, phd (stanford)

Introduction In Kenya the main Laws that impact on access to information are the Constitution, the Official Secrets Act, Cap 187; and the Copyright Act, 2001. Freedom of information is a fundamental human right protected under Section 79 of the Constitution of Kenya. Cap 187, provides for the preservation of State secrets and State security.

The FOI Bill, 2007 is an Act of Parliament to enable the public to access to information in the possession of the Government and public authorities, to establish systems and processes to promote proactive publication and dissemination of information; and for connected purposes. The Bill provides for openness, transparency and accountability in Kenya’s public offices. The Copyright Act is the most relevant for research and educational institutions.

Copyright refers to an exclusive bundle of rights granted by law that empower the copyright owner to exclude others from certain uses of his/her work. Copyright grants the owner exclusive rights which cannot be enjoyed by anyone else without the owner’s permission.

Copyright in Kenya is governed by: National Legislation Kenya Copyright Act, 2001 International Instruments Berne Convention WIPO Copyright Treaty WIPO Performances and Phonograms Treaty TRIPS agreement

Copyright Act, 2001 The Copyright Act was passed in 2001 It repealed the 1966 Copyright Act It makes provision for Exclusive Rights Infringement is both civil and criminal Provides for digital rights management

Types of exclusive rights There are two broad categories or rights provided in the Act. Economic (or material) rights - Ss. 26 – 29 of the Kenya Copyright Act, 2001 Moral rights - S. 32 of the Kenya Copyright Act These rights are subject to certain exceptions and limitations

What are Exceptions and Limitations to Copyright The exclusive rights of the copyright owner are subject to important limitations. The limitations excuse uses that would not have been allowed. Limitations and exceptions to copyright are important as it allows new generations of authors to build on the works of authors who proceeded them.

Why are exceptions and limitations important for users of information? Without exceptions and limitations copyright holders would have exclusive rights over all their work. Libraries collect, organize, preserve, and make available the world’s culture and scientific heritage Without exceptions and limitations every reproduction and every communication would require payment The core functioning of libraries would thus be threatened as creators would themselves always need a permission to use the work of others when creating new works. The creation of new works would also be impeded.

Exceptions and Limitations S. 26 -29 of the Kenya Copyright Act contains the following fair dealing provisions. Fair dealing for purposes of criticism, review, scientific research and private use for as long as the author is acknowledged as such. The inclusion of not more than two short passages of copyright protected works in a work that is for use by an educational institution. Reproduction and broadcasting of a work for educational purposes

Exceptions and Limitations Reproduction under the control of the Government, or by public libraries, non commercial documentation centres research institutions. This should be in the public interest and where no income is derived from the reproduction. Copies in the case of computer programmed where copies are required for interoperability.

In the case of computer programs, the legitimate owner of a computer program shall be able to do the following acts without the authorisation of the author: to make copies for the purposes of correcting errors, to make a backup copy, to use the copy for the purposes of testing the usability of the program and for any other purpose not prohibited by the licensing agreement. Any of the copies made under this section 26 should be destroyed once the purpose has been achieved or the owner ceases to be the lawful owner of the program.

Shortcomings in the current Exceptions and Limitations They are deemed to be narrowly construed by the users. No exceptions in relation to the visually impaired. For purposes of education copies are limited two short passages The users require licenses to make copies of the work.

Proposed Changes The Kenya Copyright Board is currently reviewing the Copyright Act. The Board has several proposed changes relating to Copyright Exceptions. These proposed amendments will be tabled at a National Stakeholders Conference later this year. Some of these amendments are:

Reproduction of a published work in Braille for the exclusive use by the visually impaired and sound recordings made by institutions or other establishments approved by the Government for the promotion of the welfare of the visually impaired. The exception should allow: An institution or organisation to reproduce work in a format that may be understood by the visually impaired. Reproduction of the work in digital format for access by visually impaired. Exception to the technological protection measures that may be used by the rights holders especially in the digital environment

Proposed Changes Making of not more than three copies of a book (including a pamphlet, sheet music, map chart or plan) by or under the direction of the person in charge of a public library for the use of the Library if such a book is not available in Kenya. This proposal will only allow the users to make up to three copies of any work. It is subject to certain conditions such as the availability of the books in Kenya The Act should have a provision for making copies for educational purposes to allow for access to learning material.

Compulsory Licensing Section 26 only provides for the government or public institutions to reproduce or order the reproduction of the work if it is in the public interest and no revenue is derived from the reproduction. This is the closest to Compulsory Licensing. The provision may include a provision for equitable compensation to the rights owner.

Technological Protection Measures Current Act makes it illegal for anyone to circumvent technological protection measures The proposed amendment is to provide exceptions so as to ensure that it does not curtail the access that has been granted or will be granted under the exceptions and limitations.

TPMs have serious consequences on access. TPMs are already limiting access to e-books articles, databases, newspapers and other educational materials. The ongoing discussions to amend the Act are unlikely to repeal TPMs but reforms may limit the scope of TPMs and reduce their adverse impact on access to educational materials.

Right Of Making Available The right of making available is not expressly provided for by the Act but this is to be included in the amendments to the law. This is an extension of the right of communication to the public in the digital environment that is provided for under the WIPO Copyright Treaty. It grants the rights holder more control of his works over the digital network.

Other Limitations to Copyright Temporal Limitation - Copyright Protection is time bound - S. 23 of the Copyright Act provides that © generally lasts for life + 50 . This does not apply to secondary works such as audio-visual works and photos; sound recordings; broadcasts – the duration is …… - International (Berne & TRIPs) standard: Life of the author + 50 years

Geographic Limitation - The owner of a copyrighted work is protected by the law of a country against acts restricted by copyright law which are done in that county - For protection against acts done in another country , he must refer to the law of that country - Membership of both countries in international copyright conventions helps settle practical problems arising from geographic limitation

Exceptions and Limitations should be taken advantage of to increase access to information particularly for education and research purposes. Provisions on E & L expand accessibility of library collections, support research needs of library users, and enhance education. The Law is the greatest tool for promoting access to information by striking a balance between owners rights and users rights.

Thank you Dr Ben Sihanya, PhD (Stanford) ACA2K Kenya team member; Dean, University of Nairobi Law School & CEO, Innovative Lawyering. Tel: (254-20) 3741769 (O); +726020082; Email: sihanya@innovativelawyering.com Website: www.innovativelawyering.com