Poetic Justice: Dealing with Copyright Infringement, Plagiarism in Kenya


Last week IPKenya reported a recent High Court ruling in the case of Njeri Wangari & Another v. Oxford University Press (E.A) Ltd. [2012] eKLR and expressed consternation at the judge’s decision to dismiss the claims of copyright infringement. Although the court acknowledged that Njeri Wangari (KenyanPoet) was the copyright owner of the poem, it failed to award her any compensation for copyright infringement on the basis of a technicality.

In the aftermath of this ruling, it is now emerging that Oxford University Press East Africa’s illegal and corrupt practices not only include copyright theft but extend to large-scale fraud. BBC reports that Oxford University Press East Africa Ltd. (OUPEA) made improper payments to government officials for two contracts to supply text books in relation to two World Bank-financed projects. As a result, the World Bank has announced that OUPEA’s parent company, OUP has admitted misconduct on the part of its wholly-owned subsidiary and has agreed to make a payment of US$500,000 to the World Bank as part of a Negotiated Resolution. In addition, OUPEA will be banned from doing business with the World Bank for a period of three years.

Meanwhile back home, IPKenya believes that creative writers can learn from the experience of KenyanPoet and spread the word on the need to be proactive and vigilant in protecting and enforcing your intellectual property rights particularly copyright.

First and foremost, it is important to distinguish between plagiarism and copyright infringement.
The key distinguishing factor is the use intended. A copyright infringer copy-pastes, performs, broadcasts, reproduces, translates your work in order to derive some commercial benefit. On the other hand, a plagiarizer copy-pastes, performs,  broadcasts, reproduces, translates your work in order to assume your identity as the author for purposes of recognition and attribution. Therefore every case of copyright infringement can also be plagiarism but not all cases of plagiarism amount to copyright infringement. So the law rightly recognizes copyright infringement as a criminal offence but not plagiarism.

Plagiarism is however widely considered as unethical and is a serious offence in all institutions of learning as well as within most professions. Therefore the onus is on the copyright owner to show that the case of plagiarism complained of also amounts to copyright infringement by showing that the work is being used for commercial gain without the copyright owner’s consent.

The internet has become a double-edged sword for creators because uploading your work online increases your visibility but also puts you at risk of plagiarism and copyright infringement. As far as protection goes, creators of online digital works are encouraged to add a generic tag of “(c) (author’s name) + (year of publication) + All Rights Reserved” at the end of every work you upload online. Your contact details should also be easily accessible both on each individual work and on your site/blog in case attempts are made by a third party to contact you regarding consent to use your copyright work.

In the age of the internet, surveillance and monitoring of your copyright work has been made somewhat easier. For instance, using search engines to search for your name and/or the name of your work(s) allows you to track where and how your work has been cited, mentioned or even copied by others. In addition, most private users of digital copyright works could also serve as your eyes and ears and help you as the copyright owner spot unauthorised uses of your work(s) on the internet. It is important to remember that there are several types of uses of copyright work that are allowed under the ‘fair dealing’ provisions of our Copyright Act eg. criticism, review, scientific research, educational uses, private use and reporting of current events for as long as you as the author are acknowledged as such.

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