Fakes and Pirates Online: Is it an Unregulated Space in Kenya?
Kenya continues to witness a steady exponential growth of internet access. The Communications Authority of Kenya (CA), in its Third Quarter Sector Statistics Report for the Financial Year 2017/2018 notes that, “(Kenya’s) total data/Internet subscriptions grew (from the last review) by 8.2 percent, to record 36.1 million subscriptions (up) from 33.3 million recorded during the second quarter of the same financial year.”The report further highlights the total internet subscriptions as standing at 36.1 million subscriptions as at March 2018, growing from the previous 25.7 million in March 2017. The CA attributes the growth in internet subscription to the proliferation of smart phones used to access video on demand, games, music, news and social media sites; which content is protected by copyright.
The growth in internet access and digital communication technologies, has expanded the vulnerability to increased infringement of intellectual property rights (IPRs) through pirated-copyright works and counterfeited products. The nature of internet and digital communication technologies therefore not only increases by the volumes, the number of potential infringers, but it also heightens the exposure to possible infringement over the internet. The ease of modification and replication, coupled by access, reach; evinces the vulnerability and brings into focus the legal environment available for asserting and protecting IPRs in this space. Consequently, from an enforcement perspective, the IPR owners are more vulnerable in a social-media internet era. This post discusses three (3) recent instances in Kenya under which social media platforms have been exploited to violate IP Assets.
Photographs and Photographic Works
First, photographs and photographic works are protected as copyrighted works, under the Copyright Act, 2001, any unauthorized use is prohibited. Two infamous cases of unauthorized user of copyrighted photographs, are instructive; one by the former Nairobi Governor Dr. Evans Kidero where he used an image of the Nairobi skyline in his election campaign poster: it emerged that he had not sought nor obtained an assignment or license to use the photograph. This poster was widely circulated online, and as captured in the article afore-cited, the matter was settled-out of Court. The other instance involved the Law Society of Kenya Nairobi Branch’s unauthorized use of the copyrighted photo “Fire in the Sky Nairobi” in a flyer for one of its notices. This matter was equally settled out of court. Both instances of unauthorized use of copyrighted photos, evince social media’s vulnerability in enabling ease of access, modification, replication and subsequent publication absent authorization or consent of the copyright owner.
Books and Literary Works
Secondly, and similarly infamous is the infringement of copyright works involving ‘sharing’ and/or distribution of copyrighted literary works on various social media platforms particularly on whatsApp. The following publications are noteworthy: Dr Miguna Miguna’s ‘Peeling Back the Mask’ and ‘Kidneys for the King’, Michelle Obama’s ‘Becoming’, Michael Wolf’s ‘Fire and fury: Inside the Trumps Whitehouse’ among others. Pirated copies of these publications were widely circulated online, to great detriment of their IPRs. Unfortunately, the IPR owners have not been able to enforce their IPRs against the infringers, who are often ‘faceless’.
Counterfeits and online market space
Thirdly, quite a number of small and medium sized business take advantage of the sizeable online community: there’s an upsurge in boutique e-commerce platforms targeted at SMEs. The online market space enhances ease of access but with little opportunity for verification of the authenticity of the products being traded in the online market place. The buyers would favor the convenience especially for the sale of goods, but most aren’t allowed an opportunity to ascertain the ‘authenticity’ or otherwise of the products being traded in the platforms. The bigger enterprises have equally sought to align their marketing strategies and distribution to leverage on the online sphere e.g. the mabati rolling mills free online quotations.
It is however not all gloom and doom: the Anti-Counterfeit Act, 2005 (which recently underwent substantive amendments albeit under a miscellaneous statute law), primarily provides for enforcement against Counterfeiting. Copyright Piracy on the other hand is proscribed by the Copyright Act, 2001. These laws however are not adequately framed to address piracy and counterfeiting in the online market place, and much like established e-commerce platforms the options remain limited to self-help strategies adopted including authentication services, and, accreditation and registration of merchants. The amendments to the Anti-Counterfeit Act include expansion of the scope of definition of counterfeits, and greater collaboration between the agencies involved, the ACA, KRA and KEBS. The Copyright Amendment Bill, 2017 equally seeks to help address piracy in the online sphere, through availing protection for Internet Service Providers (ISPs) but also enjoining them to take down infringing works upon notification. KECOBO properly clothed with jurisdiction would be a useful enforcer (in collaboration with ISPs) against online piracy.
The Kenya Information and Communications Act, 1998 (KICA) regulates the online space by providing that the Communication Authority of Kenya is obliged to facilitate development of e-commerce. The Act however fails to address trade on counterfeits online: a realignment of these regimes without unduly encumbering the online space may suffice. The Competition Authority is equally tasked with protection of consumer welfare, under Part VI of the Competition Act, 2010, which mandate properly understood, extends to protection from counterfeits and pirated goods.
The challenge for Kenya, therefore, lies not in an inadequacy in laws, its more an absence of a purposive, conscientious and harmonized application of the same – infringement online, certainly equates infringement offline being minded of the peculiarities of the digital sphere. The goods being traded online will usually ultimately be physically delivered, (with the exception of those consumed online especially for pirated works) bringing them within the jurisdiction of the general laws on counterfeiting; and as such then this would be curbed by the existing legal regime.
The growth of internet with the contemporaneous growth of social media, with its inherent traits exposes the increased vulnerabilities to IPRs and IPR owners. There is need to ensure that even within these increased vulnerabilities the law equally adopts, and adapts to curb what is proscribed offline from being perpetuated online. KICA equally fails to respond to infringement of IPRs in the online environment. The Computer Misuse and Cyber Crimes Act, 2018 (suspended) addresses itself to proscribing misuse of computer systems and cybercrime; despite regulating the digital sphere, it does not address illicit trade or piracy online. The enforcement of IPRs at the online market place calls for a balance between consumer protection and asserting IPRs.
The growth of the online market place is certainly integral in facilitating local and international trade; however, it is necessary to adopt regulatory measures that do not bar trade, and opt for the ones that least interfere with the independence and freedom of this space; al beit minded not to compromise the legitimate interests of consumers’ safety vis-a-vis the rights of IPR holders. One solution would be requiring the e-commerce platforms to adopt certain minimum guarantees for their offerings embedded in their terms and conditions. Adoption of various self-help “non-legal” measures targeted at enhancing verification is apt; includes use of barcodes, use of light wavelengths inter alia.
 Communications Authority of Kenya, Third Quarter Sector Statistics Report For The Financial Year 2017/2018, pg 15
 L. Bently & B. Sherman, Intellectual Property Law [4th Ed], Oxford 2014 pg 303
 Rampant Plagiarism of Kenyan Photographs Online
 Election Campaigns and IP Infringement accessed at https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjosrWy9LHgAhWcAGMBHcMgDfoQFjAAegQIABAB&url=https%3A%2F%2Fipkenya.wordpress.com%2F2012%2F01%2F05%2Felection-campaigns-and-copyright-infringement%2F&usg=AOvVaw02hPg7z-09utrjmjQ_86I1
 Kenya Information and Communication Act, 1998 Sections 83C, 1(a), (c), (d) & (f)