“IP Check-In” (Follow @IPCheckin on twitter) is a vibrant group of Intellectual Property (IP) enthusiasts in Kenya who meet every month to discuss topical IP issues in Kenya as well as developments and emerging trends in IP from around the world. This month, IPKenya joined the IP Check-In group at iHub Nairobi and the topic under discussion was: “Copyright infringement in the Digital Environment”.
Here are some of the issues that arose during the discussions:
Policing of rights online:
Some participants felt that there was need for both KECOBO, other government stakeholders and CMOs to raise awareness among their respective constituents on the importance of online surveillance of their works. A simple google search could reveal the various instances in which the work of a copyright owner has been used. In this regard, copyright owners must be aware of important mechanisms such as the DMCA notices and take-downs which allow them to report copyright infringement to the sites hosting the alleged infringing content especially on sites like YouTube.
Engagement with IP agencies and key stakeholders:
Participants at IP Check-In were unanimous that we, as IP enthusiasts in Kenya, have a role to play in ensuring that both private and public sectors support, promote and respect the intellectual property rights of the people of Kenya. Therefore, as opposed to merely criticising the government, participants at IP Check in felt that there was a need to engage with the government positively and tirelessly to ensure that objectives are met and issues are addressed satisfactorily.
The case in point was the Miguna Miguna affair which IPKenya discussed recently. With the benefit of hindsight, it was agreed that we ought to have written as interested parties to the Kenya Copyright Board and demanded that they take appropriate measures to discourage the rampant online sharing of illegal copies of Miguna’s book especially via social media.
On a broader level, IPKenya also believes that IP Check-In could start following up closely with the activities and programmes of the IP agencies, demanding timely and full disclosure of all important information in their custody. Furthermore, IP Check in could also keep track on the progress and status of pending Bills (eg. GI and TK) and make recommendations and proposals to the various IP agencies.
Online Protection of Copyright Work: What Should Miguna Have Done?
Some participants at IP Check-in agreed that the .pdf version of Miguna’s book, supplied for purposes of serialisation, ought to have been watermarked in a manner that deters unauthorised circulation in addition to specific technological protection measures to ensure that the file cannot be copied, downloaded or used on other computer devices or uploaded online.
Fair Dealing/Fair Use in the Digital Environment
It was agreed that no party to the Miguna case can successfully rely on the fair dealing (fair use) provisions of the Copyright Act. At the height of the Miguna-mania, there were many who claimed that they were not infringing copyright in the book because they were not engaged in commercial use of the book. However, this misconception was clarified and it was stated clearly that the fair dealing exceptions and limitations in the section 26 of the Copyright Act apply only to legally acquired copyright works. Therefore forwarding emails containing the work amounts to infringement of the copyright owners’ right of reproduction and distribution. Thus, in such cases, fair dealing cannot be relied upon as a defence. IPKenya is thankful to the brilliant minds at IP Check-in for finally laying this issue to rest.
The Ever-Contentious Section 36 of the Copyright Act:
Some participants expressed reservations with the newly amended section 36 which deals with authentication of copyright works. In this regard, it was contended that there would not be an adequate “control system” if KECOBO is the same body registering works for purposes of authentication and also creating and issuing the authentication devices. Another issue raised in this connection was that this provision is inconsistent with the objects and principles of devolved government because KECOBO operates solely from the capital city Nairobi whereas those affected by section 36 reside in every corner of Kenya and are forced to travel all the way to Nairobi.
Monthly IP Round-up:
At the end of the discussions, IP Check-in participants shared their views on the important IP highlights from the July-August period, some of the topics mentioned in this IP round-up included:
– Who owns the sculpture – the 1 billion copyright infringement suit against the Bank of Uganda ( previously discussed by IPKenya here)
– the viral Jack Daniel’s ‘cease and desist’ letter – would this work in Kenya? (discussed by @ThatAkinyi here)
– Monsanto Awarded $1 Billion Against DuPont for patent infringement of its GMO seed variety.
– the on-going Olympics, image rights of athletes, character merchandising and the role of Brand Kenya.
– plagiarism in the news: Fareed Zakaria, Lamido Sanusi.
– Are the contents of patent claims subject to copyright?
– In the absence of a GI law, why not register certification marks for our agricultural products eg. tea, coffee etc?
All in all, the IP Check-In Meet-up was well worth attending and IPKenya would recommend all IP enthusiasts in Kenya to join and be a part of this important initiative.
The next IP Check-in will be on the 8th of September. See you there!