Some Gleanings: Intellectual Property Rights Infringement in the Digital Environment

Recently, IPKenya was privy to a Q&A session between a member of the group “IP-Checkin” (@IPCheckin on twitter) and Dr. Marisella Ouma, Executive Director of KECOBO. One particular item stood out:

IP Check-in: Has KECOBO considered how to have Section 36 come into full effect with regard to the Digital Works? Is there a definition of digital works as well forthcoming? Or can the definition of works in the current Act be extended and if so how?

Dr. Ouma: Section 36 currently applies to physical copies only. In the digital environment, the rights holders have to use technological protection measures. However, discussions on the amendment of the section to encompass the digital environment works are on going. There is no specific definition of digital works as the works are the same whether in physical or digital format. (Copyright will still cover literary, artistic, and musical works as well as sound recordings, broadcasts and performances) but this will be addressed in the amendment. Copyright protects the original expression of an idea in tangible form regardless of the format (digital or physical).

Intellectual property rights are legal means to protect and balance the interests of an individual against those of the public. This is done in terms of disclosure, dissemination, alteration, use and abuse of ideas, with an exclusive right to control and profit from invention and/or authorship of such intangible goods, services and ideas. In this regard, it has become relatively easier to infringe IP through the use of electronic technologies. Therefore, there is an urgent need to formulate a system of laws that define and protect intellectual property as a response to technological change, particularly emerging circumvention technologies that are constantly defying copyright on electronic systems. In this context it is clear that Kenyan IP law is not fully equipped to deal with the implications of the internet, convergence, multimedia and digital technology.

Copyright implications of the internet
Taking the specific case of copyright law, these rights ensure protection of information from duplication and distribution. However computers are changing the way that copyrighted goods can be illegally copied and distributed. All this occurs cheaply and easily. This creates new challenges from copyright owners and law enforcement agencies like KECOBO in that the distinction originally drawn between copying and distribution is blurred. It follows that if digitised works are stored or made available for access, or if they are transmitted without authorisation, it is difficult to establish copyright infringement because: 1) 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?; 2) the removal of rights-management information makes it difficult to prove copyright ownership.

Kenya and the WIPO Internet Treaties
Over a decade ago, WIPO has formulated a number of IP treaties, including the WIPO Copyright Treaty (WCT) 1996 and WIPO Performers and Phonograms (WPPT) 1996, jointly referred to as the WIPO Internet Treaties. Although Kenya participated in the WIPO Diplomatic Conference of 1996, which adopted the WCT and the WPPT, the country has not yet ratified these treaties. The WCT covers the following issues: the rights applicable to storage and transmission of works in digital systems, the limitations on and exceptions to rights in a digital environment, technological measures of protection and rights management, information and right of distribution and its scope.The WCT is of particular importance as far as the the “reproduction right” is concerned. Reproduction is applied to the storage of works in digital systems of permanent, temporary, transient and incidental nature.

Therefore the following would all amount to copyright infringement (reproduction) of a work: saving a work on the hard disk of a computer or on a CD, dowloading a work which has been placed on a website (either by saving it on disk or by printing it), displaying a work on a computer screen or uploading a work on a website.

The WCT also addresses another important issue: Does transmitting a work in digital form over the internet constitute infringement of copyright? To deal with this unique problem of works transmitted on the internet, the WCT creates a new right of communication to the public which grants copyright owners the right to control the transmission of their copyright works on the internet. In this regard, Article 8 on Right of Communication to the Public reads as follows:

“Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.”

The question which then arises is whether the provision of physical facilities for enabling or making a communication (eg. by an ISP) amount to communication within the meaning of this Treaty?

Fair Dealing on the Internet
Section 26 of the Copyright Act provides for a number of defences to copyright infringement known as instances of fair dealing. These include instances of scientific research, private use, criticism or review, or the reporting of current events subject to the acknowledgement of the source. In terms of Article 10 of the WCT, signatories may carry forward and appropriately extend limitation and exceptions to the digital environment. It has been argued that the fair dealing provisions in the context of digitised use should be approached just as they are in the ‘traditional’ ‘physical’ environment.

Liability for Online Infringement
The technical role played by Internet Service Providers (ISPs) in the digital environment establishes potential liability of ISPs.
The central question here is this: “Should ISPs be treated as electronic publishers, and thus made directly liable for all the infringing terabytes flowing from their servers? Or are they mere postmen of the internet, common carriers exempt from all liability?”

It has been argued that Kenya should follow the American model as enshrined in the Digital Millenium Copyright Act, whose basic principles on ISP liability are as follows: access providers are who act as ‘mere conduits’ are exempt from liability; in the absence of knowledge or awareness, hosting ISPs are not liable for damages; once hosting ISPs acquire the necessary knowledge that or ‘awareness’, they are not liable for damages if they immediately disable access to the infringing content.

Parting shot

Although IPKenya has noted that section 35 of the Copyright Act may have been inspired by the WCT, why has Kenya still not ratified the WCT and WPPT?

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