By Cynthia Nzuki

“When you have wit of your own, it’s a pleasure to credit other people for theirs.”

― Criss Jami, Killosophy

Introduction

Fair use and fair dealing are exceptions applicable to the use of copyrighted works. These exceptions allow third party use of copyrighted work without the owner’s permission without raising copyright infringement claims. In our continuing series of reviewing the Copyright Amendment Act, 2019 (the Amendment Act) and its provisions, this week we focus on the limitations and exceptions of copyright. The Second Schedule which provides for the limitations and exceptions to rights issued by copyright protection. In the Copyright Act, No. 12 of 2001, these were housed under section 26.

In this piece we will focus on fair dealing or fair use as exceptions to copyright protection.

Is Fair Use different from Fair Dealing?

These two concepts are similar but differ slightly.  Fair dealing on one hand is an exception to copyright infringement laid out in the copyright statutes of common law jurisdictions such as Kenya.   Here the statutes spell out the concept and where  a work is copied for a purpose other than one or more of the statutorily provided ( fair dealing purposes), the copying cannot be a fair dealing regardless of the copier’s possibly beneficial or meritorious goal.[1]

Fair use on the other hand is a limitation on rights in works of authorship granted by copyright law; this doctrine is mainly practiced under U.S. copyright law. The fair use provisions in the U.S. copyright law prescribe four factors that must be included in a fairness determination which are: 

a) purpose and character of the use,

b) nature of the copyrighted work,

c) amount and substantiality of the portion of the work used and

d) effect of the use on the potential market or value of the work.

What amounts to fair dealing in Kenya?

Second Schedule of the Amendment Act, groups the exceptions into four categories which are:

1. General Exceptions and Limitations
2. Educational Institutions
3. Libraries and Archives
4. Broadcasting
5. General Exceptions and Limitations

A third party has the leeway to;

1. Execute the rights issued by copyright protection[2] for purposes of scientific research, private use or use by a single person, criticism or review, or the reporting of current events;
2. Execute the rights issued by copyright protection by way of parody, pastiche or caricature. A parody is the imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect. For example, the Kenyan political comedy show, ‘The XYZ Show’, in most of their production use and imitate songs by various artists for purposes of comedy (an episode). Pastiche is a work of visual art, literature, theatre, or music that imitates the style or character of the work of one or more other artists. Unlike parody, pastiche celebrates, rather than mocks, the work it imitates. A good example of pastiche is fan fiction.[3] Caricature is a picture, description, or imitation of a person in which certain striking characteristics are exaggerated in order to create a comic or grotesque effect. A good example of this are the animations found in our dailies (here);
3. Right to quote. One is thus allowed to repeat or copy out words from a text or speech written or spoken by another person, without having to infringe on the author’s copyright;
4. Control the use of a work for the reason of a judicial proceeding or reporting of any judicial proceeding;
5. Reproduce or distribute copies of a work in a place where it can be viewed by the public. This also applies to works that have included other works in their audio visual work or broadcast, i.e., the respective works ought to be reproduced and distributed in public spaces.
6. Control the incidental inclusion of a copyrighted work in an artistic work, sound recording, audio visual works or broadcast. Incidental inclusion is the unintentional inclusion of one’s copyrighted work to that of another. For example, accidentally capturing a billboard in a film.  Proving this however can be challenging and courts handle it on a case to case basis.
7. Control the reading or recitation in public or in a broadcast by one person of any reasonable extract from a published literary work. This is only allowed if there is sufficient acknowledgement off the author.

It is worth noting that these exceptions and limitations are subject to acknowledgement of the author(s) of whatever work is used. This means that it is mandatory for one to recognize and attribute the use of another’s work.

• Educational Institutions.

This part covers exceptions that affect schools and universities, established by or under any written law. For them, the following actions would not amount to copyright infringement;

1. The inclusion of not more than one page of a literary or musical work in a collection designed to be used in the school or university. They are expected to however, acknowledge the title and authorship of the work they use.
2. The reprographic reproduction of published articles, other short works, or short extracts of work, for teaching purposes. Reprographic reproduction, is the practice of copying and reproducing documents; so basically activities such as printing and scanning of published articles and other works. With this exception, the reproduction of works should not amount to direct or indirect commercial gain. In addition, the act of reproduction should be an isolated occurrence, meaning that it should only be done once; and if there is need to repeat it, it should be on separate and unrelated occasions. Moreover, there should be no collective license available that the respective educational institution should be aware of, under which the reproduction can be done.[4] Here, the source of work reproduced is to be sufficiently acknowledged.
3. Broadcasting of a work only if the broadcast is intended for systematic instructional activities. Systematic instructional activities can be understood as the curriculum or outline educational institutions follow.
4. Reproduction of a broadcast, referred to in iii above, for systematic instructional activities.

In spite of these exceptions, where there is a licensed CMO for reprographic rights, an institution is expected to obtain a reprographic license under tariffs agreed with users.

• Libraries and Archives

For libraries and archives, they are allowed to;

1. Reproduce work by or under the direction of the Government, or public libraries or archives. The reproduction should be for non-commercial documentation and for scientific institutions. Moreover, the reproduction should be in the interest of the public with no revenue being derived from it.
2. Make only one copy of a book not available in Kenya (including a pamphlet, sheet music, map chart or plan) by or under the direction of the one in charge of a public library for use in the library, or, the archives for the reason of archiving and preservation.
3. Broadcasting

Here the exceptions include;

1. The right to reproduce a work, by or under the direction of a broadcasting station, specifically for purposes of broadcasting by that broadcasting station and under the authority and consent of the copyright owner of the work. Thereafter, the content is to be destroyed before the end of six months or whatever period was agreed upon by the broadcasting authority and the copyright owner. For reproduction of works of an exceptional documentary nature may be preserved and only used with the consent of the copyright owner.
2. The right to broadcast a literary, musical, artistic or audio-visual works already lawfully made accessible to the public, where there is no licensing body (CMO) concerned. The owner of the broadcasting right in the respective work ought to receive fair compensation.

Conclusion

The limitation of the rights that arise from copyright protection allows for just, equitable and flexible use of various author’s works.  It is however important to recognise that even with these exceptions, acknowledging and attributing the authorship of one’s work to the rightful owner is part of fair use of the work.  Thus the fair use of copyrighted works should always be done in good faith, and where there is monetary gain as a result of such use, fair compensation should be made to the author of the respective work.

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[1] https://www.uleth.ca/lib/copyright/content/fair_dealing_week/fair_dealing_vs_fair_use.asp

[2] These include the rights of reproduction, translation/adaptation, distribution, communication to the public, making available of a work and broadcasting a work.

[3] Fan fiction is a piece of writing that is based off a work of literature or characters or settings therein, and is written by a fan of that work rather than the author him- or herself.

[4] This license should be offered by a CMO.