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News and Analysis
November 21, 2024
The government through the Kenya Copyright Board (KECOBO) and the Communications Authority of Kenya (CA) have partnered to launch a crackdown targeting Kenyans sharing copyrighted content through social media platforms such as Facebook, X, WhatsApp and Telegram.
In a statement, KECOBO, whose mandate is the overall administration and enforcement of copyright and related rights, stated that it had received complaints from several entities regarding the infringement of their works through social media platforms.
KECOBO indicated that despite signs of similar activities in other social media platforms including Telegram, the vice is most rampant on Facebook and WhatsApp platforms.
The board divulged that information available indicates that several Facebook and WhatsApp groups have been formed “for the sole purpose of sharing popular TV content, movies and pirate subscription codes.”
“There are also persons offering pirate PDF (Portable Document Format) or soft copies of books. There also exist websites offering illegal pirate streams affecting football content as well,” the statement read in part.
“This is to inform the public that these acts constitute an infringement under the Copyright Act more particularly the exclusive making available right and offering for sale and rental infringing Copyright works.”
Following this, Kenyans were warned that under the Copyright Act, any person found committing the above offences shall be liable to a fine not exceeding Ksh500,000 or to imprisonment to a term not exceeding four years or both.
KECOBO, in conjunction with CA and working closely with the social media platforms, further announced that it has commenced investigations on the incidents intending to close down and pursue legal actions against owners of those social media accounts. Infringement of Copyright (piracy) attracts both criminal and civil liability for the owners of the pirated social media accounts.
“This is, therefore, to alert the public of the ongoing pirate activities and warn them against participation as those activities undermine respect for Intellectual Property and rights of artists to make a decent living from their creative works. It exposes one to theft of personal information and supports illegal causes.
“Meanwhile, KECOBO welcomes any information that may lead to the arrest of the perpetrators on the addresses indicated on this advisory. You can get us on our hotline number 0703885033 or info@copyright.go.ke,” the statement added.
To get a gist of what awaits perpetrators who will be caught sharing copyrighted content on social media, we would have to look at the Copyright Act in Kenya.
The Copyright Act in Kenya protects various types of creative works, including literary, musical, artistic works, audiovisual works, and computer programs. It grants exclusive rights to the creators of such works and regulates the use of copyrighted material by others.
According to the Copyright Act, "the authorization of the right holder of a program shall not be required to decompile the program, convert the program into a version expressed in different programming language, code, notation for the purpose of obtaining information needed to enable the program to operate with other programs."
The Act led to the establishment of the Kenya Copyright Board and also captured the protection of copyright and related rights, infringement and enforcement, exceptions and works in the public domain, collective management of copyright and administrative issues.
Works eligible for copyright protection include artistic, musical, literary, artistic, dramatic, audio-visual, sound recording, broadcast, and computer programs (Apps).
For literary works, these include novels, stories and poetic works; plays, stage directions, film sceneries and broadcasting scripts; textbooks, written works, histories, biographies, essays and articles; encyclopedias and dictionaries.
Others include letters, reports and memoranda; lectures, addresses and sermons; charts and tables; computer programs; and, tables and compilations of data including tables and collections of data stored and included in a computer or a medium used along with a computer (like a flash drive or memory card).
Musical works consist of music which also include the visual symbols used to represent music as well as musical works that also include works composed for musical accompaniment.
Artistic works can take the form of paintings, drawings, etchings, lithographs, woodcuts, engravings and prints; maps, plans and diagrams; works of sculpture; photographs not made up of audio-visual works; works of architecture in the form of buildings or models; and works of artistic craftsmanship, pictorial woven tissues and articles of applied handicraft and industrial art.
Whereas dramatic works are any works intended to be performed dramatically, audio-visual works can take the physical form of images, whether accompanied by or without sound, from which a moving picture may by any means be reproduced. These include videotapes and video games but do not include a broadcast.
Sound recordings involve the attachment of the sounds of a performance or other sounds, or of a representation of sounds in whatever form but do not include the attachment of sounds and images, like the soundtrack of an audio-visual work to listen to or hear.
Broadcasts involve the transmission or sending out of sounds and/or images, by wire or wireless means, in such a manner as to cause such images or sounds to be received by the public. Whereas this includes transmission by satellite, a broadcast cannot qualify for copyright until it has been a broadcast.
Copyright protection also extends to translations, adaptations, new versions, or arrangements of pre-existing works; albums, compilations, and collections of works, which present an original character.
Websites however form a combination of different types of copyrightable works, which can be protected separately or as one original website.
The works include computer software, HyperText Markup Language (HTML) code, Databases, Videos, Graphics, Text, Music, Artwork, Photographs, and articles on a website.
For one to qualify for copyright protection, he or she has to first demonstrate eligibility, as works must fall under any of the classification of works aforementioned to be protected.
Works must also show originality meaning that the author should have used enough effort and skill to create them. Copyright does not protect an idea itself but the expression of the idea in a physical form, for example in a book, song or a computer program.
Furthermore, the work must be presented in any physical form provided the work can be identified, reproduced, or communicated through a device, which can include paper, cardboard, computer, disk, or flash disk among others.
Copyright does not require registration or other formalities, meaning that a copyright owner can still exercise their rights and claim damages in the event of a violation without registration.
A registration certificate, however, provides evidence as proof of ownership. It is therefore often advisable for owners to register their works, as it speeds up the process of enforcement.
KECOBO carries out the registration of copyright, a process done online via the Kenya National Rights Registry Portal.
During the process, you may be required to pay a fee depending on the nature of the work being protected. Regarding the fee rates, which may change from time to time, the details are provided in the Second Schedule of the Copyright Regulations.
Having a copyright gives the owner two rights; economic and moral.
Economic rights allow the holder to make money from their work. This includes the right to reproduce works in different forms such as print, digital and sound recordings as well as distribute copies of the work.
The holder also has the right to publicly perform the work, which can include singing, dancing, acting etc in front of people, which is usually the case during concerts and plays.
The holder can also broadcast or, through other means, communicate work to the public, translate work into other languages, adapt work, such as turning a novel into a movie and ultimately, control the doing of any of the above.
These rights can be moved from the author/creator to another person. Such transfers are done through licensing and selling (assignment).
The economic rights have notably contributed to the increased production of movies and series in the Kenyan film and TV industry, some of which have aired on national televisions such as Zora and Sultana as well as popular films such as Nairobi Half Life.
As such, online piracy not only does it infringe copyrights but also costs the country's creative economy approximately Ksh92 billion annually, or Ksh252 million daily, in gross losses, according to an estimate by the Partners Against Piracy (PAP) Association of Kenya. Additionally, piracy deprives the music industry of Ksh15 billion and TV stations of Ksh8 billion annually.
A human being who creates or is the author of a work holds moral rights. It allows them to identify themselves as authors of the work or refuse any changes to their work that would harm their reputation, a matter that includes distortion, mutilation, modification, or derogatory action.
Unlike economic rights, moral rights remain with the author over the course of their entire lifetime and cannot be transferred during the life of the author.
The rights can only be transferred upon the death of the author, either through wills (testamentary disposition) or by operation of the law. After death, the moral right is transmitted to the estate of the author.
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