In Pursuit of Economic Development: The Role of Copyright in Kenya

As many may know Kenya is among Africa’s top 10 economies after rebasing of its gross domestic product (GDP). Kenya is officially classified as a middle-income country after a statistical reassessment of its economy increased the size by 25.3 per cent. Kenya’s economic output was calculated to be 4.76 trillion shillings ($53.4 billion) in 2013 after the rebasing, up from 3.8 trillion shillings ($42.6 billion). This takes Kenya up to ninth in Africa’s GDP rankings from 12th, above Ghana, Tunisia and Ethiopia but below oil-producing Sudan based on a World Bank table for 2013. Kenya became the latest African country to benefit from rebasing its economy after Nigeria overtook South Africa to became the continent’s biggest economy earlier this year.
This blogpost takes a moment to consider how copyright law amendments could play a crucial role in increasing the economic contribution of copyright-based industries to Kenya’s GDP. In particular, this blogpost considers three main areas namely, provisions on online and digital infringement of copyright as well as collective administration of copyright.

A study undertaken in 2010 by the World Intellectual Property Organisation (WIPO) and Kenya Copyright Board (KECOBO) on the economic contribution of copyright-based industries found that the total value addition to Kenya’s Gross Domestic Product (GDP) amounted to Kshs. 85.21 Billion employing 63,131 people, which is 3.26% of the total national workforce. However many agree that the figures revealed in this study pale in comparison to the billions of shillings in revenues lost from piracy and copyright infringement generally, where no taxes are remitted to the State and no royalties are paid out to rights holders.
The advent of the Internet and the digitisation of works has made it relatively easy to infringe intellectual property (IP) through the use of electronic technologies. Therefore, there is is an urgent need to formulate a system of laws that define and protect IP as a response to technological change, particularly emerging circumvention technologies that are constantly defying copyright on electronic systems. In this regard, it is fair to state that Kenya’s IP law is not fully equipped to deal with the growing implications of the Internet, covergence, multimedia, digital technology, m-commerce and e-commerce.
Copyrights are referred to as the rights to ensure protection of information from duplication and distribution. Computers have changed the way that copyrighted goods can be illegally copied and distributed. All of this occurs cheaply and easily. This creates new challenges for copyright owners and law enforcement agencies in that the distinction originally drawn between copying and distribution is blurred. If digitised works are stored or made available for access, of if they are transmitted without authorisation, it is difficult to establish the identity of the person who transmitted an infringing copy of a work – was it the host; the access provider, or a remote user? Furthermore, the removal of rights management information makes it difficult to prove copyright ownership. In this regard, the exclusive rights of reproduction, publication and communication to the public must be reviewed and amended to cater for digitised works that are made available to the public online.
Furthermore, many agree that the internet has introduced special forms of infringement which must be catered for under copyright law, including linking, hyperlinking, framing and caching. In addition, the question of what amounts to fair dealing on the internet ought to be addressed. However the most urgent issue is liability for online copyright infringement. Traditional copyright law provides two types of infringement, namely direct/primary infringement and indirect/secondary or contributory infringement. The latter form of infringement is of particular interest in the context of internet service providers (ISPs). In this regard, Kenya must decide on which approach to take on these issues of copyright infringement, either the American approach as contained in the Digital Millenium Copyright Act (DMCA), the European model as contained in the EU Directive or a home-grown, hybrid approach or approaches as has been generally suggested here.
Aside from addressing digital and online copyright infringement, Kenya must seriously review the existing legislative and regulatory framework for collective administration of copyright and related rights. A glaring case in point is the collective management of rights in the music industry where the three CMOs, Music Copyright Society of Kenya (MCSK), Kenya Association of Music Producers (KAMP) and the Performers Rights Society of Kenya (PRiSK) currently generate a paltry KES 321,322,327 in combined incomes on behalf of authors, producers and performers respectively. Therefore this blogger submits that among the robust legislative measures required to regulate CMOs should be a provision for the amalgamation of CMOs operating in the same industry, such as is the case of music.

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