One of the local newspapers recently published an article titled: “Can’t someone stop this photocopying madness?”, which raises the alarm over high levels of illegal photocopying especially in tertiary institutions of learning, namely our universities. The writer explains:
We were taught in classes that photocopying a book without the requisite permission of the copyright holder would be against the law, except for the very strict exemptions made on the copyright page of the book. Yet at student centres and other photocopying areas in institutions of higher learning, the exact opposite of this lesson goes on in the open.
Students photocopy entire books. Some shop owners photocopy books in advance and store them for sale. With such scenarios, what does the student learn? That the lessons on copyright law are a mere hot air?
Recently, a news feature was published by Al Jazeera titled: “Photocopying courts India campus controversy” which was premised on the on-going Indian High Court case of Oxford University Press and Others vs Rameshwari Photocopy Services and Delhi University. In this case, Cambridge University Press (CUP), Oxford University Press (OUP) and Taylor & Francis, the three of the world’s largest publishers have filed a case in court seeking to stop the reproductions of their work into study packs and course packs for students.
Authors and publishers all over the world contend that they fully support free access to information. But they have come to realise that their contended principle of free flow of information must not be confused with the idea of the flow of free information. After all, books, journals, newspapers etc. cost money to produce and the same must apply to the right to reproduce them, particularly through photocopying. The only way authors and publishers have been able to deal with this situation has been through collective administration of rights. It is widely agreed that no single author or publisher can effectively police the use or abuse of its bundle of rights throughout a whole national territory let alone the world at large. Thus, collective administration is a solution devised to overcome the many difficulties which individuals authors and other rights holders face in the enforcement of their rights separately by themselves in the face of fast-growing technologies of the modern world.
In the case of reproduction rights, one of the practical, instrumental and utlity organs in the process of this collective administration is the reprographic rights organisation (RRO). Simply put, the RRO aims to deal with both unauthorised reproduction of copyright works for internal use as well as for the market place. This reproduction is dealt with through licensing. The RRO is therefore an intermediary organisation. It brings the rights holders in contact with the users. It facilitates understanding between the owners and users of copyright rights. Most importantly, it negotiates with, and grants licenses to the users to use the works of authors on the one hand; and on the other, it ensures that authors and publishers are justly remunerated for their works and investments.
This blogger believes that in both the Indian and Kenya scenarios highlighted in the media reports above, the RRO is clearly missing from the picture yet the latter plays an important role in striking the right balance between the rights of the copyright holders on the one hand, and the interests of the users on the other hand. This blogger is indeed surprised that the reprographic society in India (IRRO) has not sought to be enjoined in the Delhi University court case yet it is an interested party given the issues for determination by the judges in that case.
Meanwhile, here in Kenya, we have the Reproduction Rights Society of Kenya (KOPIKEN) which is fully functional but seems not to have attained the critical mass in terms of licensees for reproduction of printed works yet all indications are that the photocopying business is booming in most urban centres countrywide. Regarding the universities in Kenya, this blogger would be correct in stating that over 95% of them are not licensed by KOPIKEN yet these institutions are actively engaged in photocopying both for internal use and also as indirect commercial activity.
Therefore, the time has come for KOPIKEN to assert itself on behalf of all the local and foreign authors, publishers and other rightsholders in the print medium whom they duly represent. Borrowing from the situation in India, this bloggers contends that time has come for KOPIKEN to consider litigation as a means of ensuring compliance with the copyright law, deterring infringers and creating jurisprudence in this silent area of the law. In respect to the last point of jurisprudence, litigation by KOPIKEN against one of the local universities would also allow the courts to revisit the questions surrounding the exceptions and limitations (fair dealing) provisions contained in section 28 of the Copyright Act, particularly as they relate to educational institutions, libraries and archives.