1. COPYRIGHT: THE CHALLENGES POSED TO LIBRARIES BY REPRODUCTION RIGHTS ORGANIZATIONS (RROs) WITH SPECIAL REFERENCE TO KENYA By Japhet Otike, PhD School of Information Sciences Moi University Eldoret, Kenya A paper presented at the Standing Conference of East, Central and Southern African Librarians (SCECSAL) held in Nairobi, Kenya, June 4-8, 2012.

2. INTRODUCTION Copyright: definition Copyright is an aspect of intellectual property. Intellectual property relates to peoples creative and inventive efforts. Human beings are by nature very creative. As a result, they are able to come up with products reflecting their creativity. Intellectual property rights(IPRs) are rights given to the owner of creative works. Intellectual property is knowledge, skills, experience that one has accumulated in a particular area. It is often referred to as creation of the mind. Intellectual property cannot be seen. It is in the brain.

3. Copyright is a legal right authors, publishers and other producers of creative works have to protect their work from being reproduced without their authority. It gives the owners monopoly to enjoy the proceeds from their labour for a period of time. It protects the copyright owner from unfair competition. In so doing, it facilitates creativity and innovation.

4. Works Protected by Copyright Literary works comprising printed as well as non- printed materials such as books, journals, magazines, etc. Musical works such as CDs, cassettes, DVDs, etc. Artistic works such as paintings, drawings, etc. Audio-visual works Sound recording Broadcasts It is important to note that copyright protects only the expression of an idea and not the idea itself.

5. EXEMPTIONS FROM COPYRIGHT Copyright in many countries provide exemptions to some copyright restrictions. These exemptions are often known asExceptions and Limitations (E&L). In the US, they are also known as Fair Use and in the UK and Commonwealth states as Fair Dealing. Countries that are signatories to the Berne Copyright Convention are required to provide for these exemptions in their national laws. A number of African countries including Kenya are signatories to these conventions.

6. IMPORTANCE OF EXCEPTIONS AND LIMITATIONS a) Without them, information users including authors, writers, researchers, etc who produce creative works, would require written permission any time they quoted or cited a copyrighted work! b) Authors and publishers would be flooded with too many requests which they would not be able to cope with. c) They enable information to be disseminated to a wider audience through controlled reproduction, inter-library lending, etc. d) Both writers and publishers stand to benefit from exemptions in their official capacity as consumers of information.

7. e) They discourage censorship. Without exemptions, censorship would be the order of the day. Copyright owners would restrict dissemination of certain information. f) Librarians work would be hampered because of restriction on dissemination of information, resource sharing, etc. g) The creation of new works would be hampered h) Exemptions increase use of information resources, supports research needs of users and enhances education. Exemptions are particularly useful in developing countries where the countries are seeking to widen access to tertiary and higher education through-learning.

8. LIBRARY EXCEPTIONS a) In many countries, and in particular the western world, national copyright laws allow: b) Library patrons to use the librarys photocopier or other copy machines to reproduce limited copies of copyrighted works c) Making copyrighted works available on the library computer d) Making copies for library patrons eg. as part of SDI service, office use, etc. e) Making digital copies for preservation and replacement f) Creating course packs for students. In some countries, librarians may be requested to produce course packs comprising journal articles, chapters from books, etc to be distributed to students offering a certain module.

9. g) Reproducing materials in Braille for use by the visually challenged. Countries such as the US allow reproduction of materials for use within the country and not for export. h) Inter-library lending. Some countries particularly, the developed states allow reproduction of limited works by libraries to facilitate inter-library lending. i) Replacement of lost or damaged copies. Some countries allow this particularly where the materials are not be available on the market. j) Copying a material that is either out of stock or out of print from another source to stock a library collection.

10. REPRODUCTION RIGHTS ORGANIZATIONS Reproduction Rights Organizations (RROs) are appointed by copyright owners to issue reproduction licence or receive reproduction fee on behalf of copyright owners. This is done because many copyright owners may not have the time and resources to issue licence to each and every person who requests. RROs are in a better position to do this because they have the expertise for the job. They issue reproduction licence on behalf of copyright owners, collect the fee from applicants and pass it to the owners after deducting the administration costs of fee. They act as a link between the copyright owner and copyright user.

11. The Role of Reproduction Rights Organization in Kenya In Kenya, this work is done by the Reproduction Rights Society of Kenya (KOPIKEN). Other organizations playing this role on behalf of other categories of copyright owners are: a) Music Copyright Society of Kenya (MCSK) b) Kenya Association of Music Producers (KAMP) c) Performing Rights Association of Kenya (PRSK)

12. KOPIKEN is a private organization owned by the following stakeholders in the publishing industry: a) Kenya Publishers Association b) Kenya Oral Literature Association c) Music Copyright Society of Kenya d) Kenya Non-Fiction Authors Association e) Writers Association of Kenya f) Kenya Association of Photographers, Illustrators and Designers KOPIKEN does not have the legal mandate to compel copyright users to pay reproduction fee. They can only persuade them to pay. Only the Kenya Copyright Board has the powers to do so. The best they can do is to report the infringers.

13. The Problem with Reproduction Rights Organizations a) RROs are more interested in maximizing fee collection. They have to please the shareholders to survive. b) RROs are not keen about educating the users about copyright. They rarely mention the exceptions and limitations that libraries and users are entitled to. Nor do they inform them about materials in the public domain that can be freely copied. c) Instead, they frighten them about the consequences of not paying licence fee. d) RROs in the developing world capitalize on the users ignorance of the law to reap huge profits. In Kenya, for instance, there is no legal frame work on charging reproduction fee. RROs take advantage of this loophole to charge unreasonable amount.

14. e) In Kenya, the RRO is more interested in private as opposed to public universities. The reason being that private universities are easier to convince through threats of arrest and prosecution. Public universities on the other hand, are more stubborn in paying. Many of them have legal officers who are able to interpret the law to the management. f) One area of concern is how RROs distribute licence fee among copyright owners. Ideally, RRos should collect fee from works whose owners have authorized them to do so. This rule is however not followed. Instead, they collect money from any work whether authorized by the owner or not; whether in public domain or not. In this regard, how do they distribute the fee for materials whose owner has not authorized them?

15. THE WAY FORWARD a) Librarians and users need to be educated on issues relating to copyright law. b) They should attend copyright awareness programmes organized by legal NGOs and copyright bodies such as Kenya Copyright Board in Kenya; COSOTA in Tanzania, etc. c) Librarians need to work together in a form of a network. Networking enables them to share ideas and challenges pertaining to their work and in particular, issues relating to copyright. The best approach is to form national consortia. A number of countries in Africa have established consortia. The latest to start one is Uganda, the Consortium of Uganda University Libraries (CUUL).

16. THE END THANK YOU