The Covid-19 pandemic has had unprecedented impacts on the world including loss of life and countrywide lockdowns to prevent the spreading the virus. Staying home has severely limited the nature and level of human contact making it necessary for people to be creative in staying connected. Social media platforms have become the most ideal hub to serve this purpose. This trend is seen in the dissemination of humorous, entertaining and informative content online.

The content on social media undeniably has intellectual property (IP). The question of the actual ownership of the works is not an easy one to answer and can only be dealt with on a case by case basis. This still does not mean that they do not have IP on their own. The questions that this piece seeks to address concern the classification and the impact of sharing the materials i.e. how can the content be classified under the various classes of copyrightable works? Does sharing the content amount to infringement? Below we offer a precursor to the possible answers citing the provisions of the Copyright Act (2001) (the Act). 

Classification of the shareable material

The materials in question are often in the forms of music, writings, images and videos.

1. Images

These are individual images which may or may not be combined with some text. They exist solely in visual format. They are usually in form of photographs, still pictures, drawings or other visual illustrations. Images may be classified as audio-visual and artistic works. The term ‘audio-visual’ refers to media that consists of a series of still and/or any moving images with or without sounds.[1]

The Act defines an audio-visual work as “a fixation in any physical medium of images, either synchronised with or without sound, from which a moving picture may by any means be reproduced and includes videotapes and videogames but does not include a broadcast.” Artistic works are defined as,“photographs not comprised in audio-visual works.[2]

• Videos

These are materials that exist in video format and include synchronized images, video recordings or motion picture content. The most probable category for such materials is that of audio-visual works. A video is a recording of moving visual images that may include audible components.[3] Videos are one form of audio-visual works.

Social media videos, despite their digital form, are embodied in physical devices (mediums) such as cameras, computers or smartphones. They are therefore eligible for protection as audio-visual works. As such, the owners of these videos are entitled as per Section 26 (1) of the Act to exclusive rights over their control.

• Music

This is the most common form of copyrightable works. In recent times, there has been an emergence of renditions of famous songs created and/or shared in the name of spreading hope and solidarity in support of the fight against the pandemic. Examples of these include a song about unity and the coronavirus by the State House choir as well as Salome Wairimu’s ‘Janga la Korona’ song that is based on a previous freedom song.[4] The existing and new songs are forms of musical works, their use is subject to copyright rules.

Musical works irrespective of their musical quality and works composed for musical accompanimentare copyrightable.[5]

• Written Materials

These are materials that exist in text format and include any forms of written expressions such as books, plays, poems, maps etc. With the onset of the coronavirus pandemic, there has been restricted access to traditional (physical) sources of information such as books and newspapers. This has notably affected students who have been unable to access educational resources otherwise available at their learning institutions.

This has seen an increase in the online dissemination of e-books, articles, journals and other texts. This was highlighted by the recent case of a man who was arrested for selling pirated digital copies of local newspapers. Although this case involved a sale, it highlighted the rising trend of illicit copies of news publications being circulated freely on social media platforms particularly on Whatsapp.^[6] These materials fall under the category of literary works which are subject to protection under the Act.[7]

Is Online Sharing Infringement?

The seemingly simple act of sharing pictures, songs or short clips on social media may contain serious copyright implications. This is because sharing these materials on such platforms may be construed as amounting to distribution and broadcast of protected works.

Distribution here would be the act of making protected works available to others. This may take any form including digital. Digital distribution is unique as the shared materials can be viewed or accessed by an indeterminate number of users at the same time. While it may be argued that the sharer can determine his/her target audience through the privacy settings available on such platforms, they still lack control over how the recipients deal with such materials.[8] In this manner, online sharing permits reproduction.

Reproduction is the act of “making one or more copies of a work in any material form and includes any permanent or temporary storage of such work in electronic or any other form.”[9] Reproduction, is facilitated or allowed by the initial distribution. For instance, when a user shares photographs on their social media page, they allow those within their network to make copies of such works i.e. by downloading or printing, which is a reproduction of the initial works. While the act of sharing may have not been aimed at reproducing the works, it allows for reproduction by those who have access to the works.

An argument may also be made that online sharing may be seen as broadcasting copyrightable works. The Act defines the term broadcast as “the transmission, by wire or wireless means, of sounds or images or both or the representations thereof, in such a manner as to cause such images or sounds to be received by the public…”[10]

When these materials are shared ‘innocently’ in the current crisis, where such sharing is without the owner’s authorization, users may be knowingly or unknowingly committing infringement. In this regard, the bloggers warn that the simple sharing of copyrightable materials on social media platforms such as WhatsApp and even through e-mails without the owner’s permission amounts to infringement regardless of the amount of works shared.

Fair Dealing

One saving grace may be to consider whether the sharing of these materials falls under the doctrine of fair dealing. Fair use/dealing is a defence to copyright infringement that allows for certain privileged uses deemed to be in the public interest such as criticism, commentary, educational purposes etc. In this regard, the Act provides an exception for acts done “…for the purposes of scientific research, private use, criticism or review, or the reporting of current events subject to acknowledgement of the source.”^[11]

A prime case where fair use would apply would be in the case of academic texts being circulated amongst students in order to facilitate online learning during the pandemic. This would amount to an educational purpose thereby receiving exemption. However, where materials are shared primarily for entertainment purposes e.g. humorous pictures, the fair use exceptions may not apply.

Likelihood of Enforcement

It is worth noting that infringement and enforcement are different matters. Infringement occurs where an individual commits an act that is within the exclusive control of the rights holder without their authorization. It is a question of fact. Enforcement is the action taken through legal mechanism through which rights holders can protect their interests after infringement has occurred. Enforcement follows infringement and the former is the responsibility of the rights holder.

There are practical difficulties in controlling online use and tracing those in contact with the works. Enforcement, being a legal process has related costs and is largely dependent on the right holders. The costs of enforcement may be disproportional to the benefits of preventing unauthorized use. Therefore, owners will not always enforce their rights against each and every user.

Conclusion

It is clear that the otherwise innocent act of sharing a picture, short clip or an article with friends on digital platforms is not as simple as it seems. These materials as products of innovative effort are subject to copyright. Such sharing may amount to online distribution or broadcast. In addition, the inability to control subsequent use of the works after sharing may then allow reproduction and probable broadcast all without the authority of the owner.

Although these infringing acts may not always be enforced, it is still important to exercise caution when disseminating content online.  This includes taking measures such as acknowledging the source or the owner of the material being shared. Another option would be to share works labeled free for use or those that are in the public domain. Platforms such as Creative Commons, Google Search and Google Images provide useful tools that allow for custom searches based on usage rights granted by the owners.

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[1] Audiovisual Works, Legal Dictionary, Justia at https://www.justia.com/dictionary/audiovisual-works/

[2] Section 2, Copyright Act (2001)

[3] Video, US Dictionary, Lexico at https://www.lexico.com/en/definition/video

[4] F. Kibor, ‘Pupil, 10, excites public with song on coronavirus’ at https://new.standardmedia.co.ke/article/2001369222/pupil-10-excites-public-with-song-on-coronavirus  

[5] Section 2, Copyright Act (2001)

[6] N. Mbugua, ‘Beware danger of sharing newspapers on WhatsApp’ at https://nairobinews.nation.co.ke/news/you-risk-10-years-in-jail-for-sharing-pdf-copies-of-newspapers-on-social-media  https://www.businessdailyafrica.com/analysis/columnists/Beware-danger-of-sharing-newspapers/4259356-5537986-tmxnin/index.html

[7] Section 22, (1) (a), Copyright Act (2001)

[8] Essentially, the user cannot prevent the recipients i.e. friends or followers, from distributing such materials to other users.

[9] Section 2, Copyright Act (2001)

[10] Section 2, Copyright Act (2001)

[11] Section 26 (1) (a), Copyright Act (2001)

 

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