Revenge Porn, Copyright and the Wider Debate on Social Media Regulation in Africa

For the past two years the topic of intellectual property (IP) issues in social media has been dear to this blogger. However it is clear that the emerging legal issues relating to social media are much wider than IP law concerns and impact numerous other branches of law including but not limited to criminal law, constitutional law, law of evidence, defamation law (which is an integral part of media law), consumer protection law, employment and labour laws, competition law, administrative law, education law and ICT law among others.

This holistic approach to the study of the intersections between social media and the law is what this blogger aims to accomplish in collaboration with his host institution @StrathCIPIT. Through the CIPIT blog, this blogger will begin focusing on the various legal issues brought about by social media and other forms of new media. So far, we have already discussed here and here social media in relation to the laws of succession and defamation respectively.

Read the full article here.

Med Dispenser Loses First Round Against Health Presence: Copyright Ruling in Dedan Maina Warui & another v. Safaricom case

“It could be said that Copyright seeks to protect the author’s actual expression and not the ideas, and it does not therefore forbid independent creation. As such, the claim that the two parties in this suit had an idea on tele-healthcare, but which they expressed differently is not untenable in law.” – Gikonyo J. at page 7.

In a recent ruling by the High Court in the case of Dedan Maina Warui & another v Safaricom Limited [2014] eKLR, a medical doctor was denied a temporary injunction and an order of delivery up with respect to a health-related product launched by Safaricom. A copy of the ruling is available here.

Dr. Dedan Maina Warui claims that Safaricom infringed its copyright in a concept styled under the name “Med Dispenser” which the doctor pitched to the leading mobile network operator’s Enterprise Business Unit on or about March 2011. To prove ownership of the copyright in the concept, the doctor presented a certificate of registration No. CR 000712 dated 8th March, 2011 whereby the Med Dispenser was registered as a Literary Work number KCB 0712 by the Kenya Copyright Board. The literary work in question is a concept paper containing the work flow, methodology or the process in which the med dispenser innovation would work once deduced into a software program.

AAR Safaricom Health Presence October 2012

Safaricom admitted that it did give some initial consideration to the Warui’s proposal, but however made a decision to proceed with a separate proposal which involved a partnership with AAR and Cisco Systems Inc. (Cisco’s system is featured in video featured above) to launch the Tele-health product which was developed without any reference to the Warui’s innovation or ideas. Safaricom claims that the electronic medical prescription concept upon which it’s “Health Presence” product is built, has been in use in other jurisdiction, namely India, since May 2010 and was therefore not an original idea of Warui as claimed.

The learned Gikonyo J. appears to have rendered a fair ruling in this case avoiding the error made by his brother Havelock J. in the case of Faulu Kenya Deposit Taking Microfinance Limited v Safaricom Limited [2012]eKLR where the latter stated that a concept paper does not fall within any of the existing categories of copyright works (See our analysis of Havelock and his ruling here).

In October 2011, a media report published here by our good friends over at CIO East Africa announces that Cisco, Deaf Aid and Safaricom formally piloted the first Cisco HealthPresence clinic in Kenya. The article reads in part:

“This first implementation of Cisco’s HealthPresence solution in Kenya demonstrated how technology can transform the delivery of healthcare to underserved, remote, and rural areas. Bandwidth connectivity was provided by Safaricom, the leading provider of converged communication solutions in Kenya.”

Tele-medicine The Standard October 23 2012

In the same month, Warui claims he saw the above article titled: “Tele-medicine: Treating patients from a distance” published by the Standard newspaper on October 23, 2012. The article reads in part:

“Safaricom Health Presence is a product that will use tele-presence to deliver health services to patients, with the doctor giving instructions to the patients or nurse, on what to do, and what medicine to prescribe. (…) Speaking at the launch of the product, Safaricom CEO, Bob Collymore noted that the adoption of tele-medicine would help address the gnawing question of the skewed doctor to patient ratio. He [Collymore] noted: ‘With this technology, all a doctor needs is a computer or a tablet to treat a patient. The product aims at widening reach of quality healthcare in the country’.”

Warui further claims that Safaricom made a business presentation in January 2013 on its “Health Presence Solution” to the Pharmaceutical Society of Kenya. In light of these two claims, Warui alleges that these products by Safaricom were based on his work which formed the core of his proposal registered as a literary work with KECOBO.

While the court rightly agrees with Warui that his concept paper was copyrightable, the ruling is cautious to note that from the evidence adduced by Warui, it is not clear which exclusive rights in the Concept Paper Warui is alleging to have been breached by Safaricom. Therefore the court makes the correct judgment call by stating as follows:-

“…In the absence of oral evidence which can be tested by way of cross examination, it would be difficult to ascertain whether the Defendant [Safaricom] has infringed on any intellectual property rights of the Plaintiff [Warui] in the Med Dispenser innovation by introducing the Safaricom Health Care Presence platform in conjunction with Cisco Limited. From the material before the Court, the Plaintiffs did not quite navigate the mix in this matter arising from the circumstances of the case, and thus, did not establish a prima facie case with a probability of success. The upshot is that the application before the court fails. However, the suit should be set down for hearing on a priority basis so that the substantive issues which are of great significance in the field of intellectual property law are resolved once and for all.”

Image Rights, Privacy and Related Rights in the Workplace: High Court Case of Sikuku v. Uganda Baati

Circled: Sikuku, maybe.

Circled: Sikuku, maybe.

“The persons who created and did the video shooting or who employed the person who carried out the work of shooting the photos and video is/are the authors or author of the works. The exact relationship between an author and a person having neighbouring rights has to be clear and not hazy. A photographer who films activity in a market might not require permission of everybody in the market to publish or use the works.” – Madrama J. at page 15.

This blogger has come across a recent High Court decision of Sikuku v. Uganda Baati HCCS No. 0298 of 2012 before the very able Honourable Justice Mr. Christopher Madrama, whose decisions we have previously discussed here and here. A copy of the present judgment is available here. Sikuku, a long-time employee of Uganda Baati claimed that the latter was unfairly benefiting from the use of his images in Uganda Baati advertisements presented in both photographic and audio-visual forms to the public. Sikuku sought an order for the payment of Uganda shillings 150,000,000/= as “usage fees” from Uganda Baati. Sikuku contended that his employer had infringed his rights under the Uganda Copyright and Neighbouring Rights Act as well as the Constitution of Uganda. The court dismissed Sikuku’s entire case against Uganda Baati. The learned Madrama J. found that Sikuku does not qualify to have neighbouring rights as protected by the Copyright and Neighbouring Rights Act 2006. Further, the court found that Sikuku has not proved unlawful interference with his constitutional right of privacy under article 27 by Uganda Baati.

This blogpost discusses the Uganda High Court’s treatment of the intersecting issues of image/privacy rights, and neighbouring rights as they arose in the Sikuku case. Ultimately, this blogpost finds that this case is instructive for participants both behind and infront of the camera lens.

It is not disputed that Sikuku appears in photos used in Uganda Baati’s in-house SAFAL magazine and the Contractors Year Planner. It is also not disputed that Sikuku appears on audiovisual adverts commissioned by Uganda Baati which were broadcast on several television stations including WBS and NTV. However the court had to determine whether or not these “appearances” amounted to “performances” as defined in copyright law and by extension, whether Sikuku fell within the definition of a “performer”.

A “performer” under section 2 of the Uganda Copyright and Neighbouring Rights Act is defined to include an:

“actor or actress, singer, musician, dancer or other person who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore.”

Madrama J. in his judgment states that Sikuku cannot be a “performer” under the Act. His reasoning is thus:-

“The evidence demonstrates that the Plaintiff [Sikuku] was going about his business when he was filmed and photographed. He was not required to pose for the photograph or for the filming though they had been given new uniforms for the occasion. He was filmed and photographed in the ordinary course of his performance as a worker. (…) From the definition under the Copyright and Neighbouring Rights Act the Plaintiff is not an actor because he was filmed and photographed in the ordinary course of his work as an Employee of the Defendant. (…) the Plaintiff is not a performer whose action was deliberate so as to be a necessary ingredient of the works complained about and which ought to be paid in terms of performance fees (…) It is debatable whether the advertisement prominently portrays the Plaintiff’s photo or actually displays the Defendant’s products together and incidentally with the workers engaged in the work of production of the products using the machinery. The plaintiff is not at all the major or main feature of the advertisement. (…) The Plaintiff is not an artist and he was not bringing special skills so as to properly present the Defendant’s products. He was merely going about his business when he was filmed.”

On this point, this blogger concurs with the judge’s careful consideration of the definition of “performer”. Sikuku’s role in the audio-visual work cannot be likened to that of an extra in a movie or other production. While it is clear that Sikuku may fall within the category of “other person who acts, sings, delivers, declaims, plays in, interprets, or otherwise performs”, the missing part appears to be the subject matter of the “performance”. In the case of an extra, there is a script and an assigned role given to each “performer” such as “workman #1 operating heavy machine”, which would appear in the movie credits at the end of the movie.

On the issue of image/privacy rights, the court provides a useful analysis of the privacy clause in the Constitution of Uganda, which closely mirrors the privacy article in Kenya. In finding that there was no infringement of privacy rights, the court correctly reasoned as follows:-

“The court should consider whether photos of Employees taken in the course of their employment showing them at work cannot be used by the Employer for purposes of advertisement without consent or payment of consideration. The plaintiff should demonstrate that the filming or photo was taken in a private moment such us when eating or resting. Such a conclusion should be based on the terms of the contract. In the absence of the terms of any contract excluding an Employer from publishing photos and audio visual works of products including members of staff in a factory carrying out their work, the Plaintiff has no case presented before the court. As far as the rights to privacy is concerned, someone who works in a factory as contained in exhibit P1 and P2 cannot claim a right to privacy. The factory is owned by the Defendant and the Defendant can bring in people at any time to inspect the factory thereby excluding the rights to privacy.”

End of An Era & New Dawn at KAMP

Until September 2014, the leadership of collective management organisations (CMOs) was almost entirely female (with the exception of MCSK). However one interesting feature about the Chief Executive Officers/General Managers of all four CMOs in Kenya was that they were all trained lawyers.

This month, things have changed.

The Kenya Association of Music Producers (KAMP) has announced the appointment of a new General Manager (GM) to replace out-going GM, Ms. June Gachui (featured above).

The new GM is Mr. Clifford Wefwafwa Mabele who holds an MBA in Strategic Management from the University of Nairobi and a BSc. in International Business from USIU-Africa. His work experience includes positions at Roberts Communications, British American Tobacco (BAT) and Nzoia Sugar Company. His expertise is in Sales and Marketing.

Mabele’s stay at Nzoia Sugar appears to have been tumultous with media reports (see here) indicating that he was suspended by the company along with four senior managers. The media report reads in part:

“Five top managers of Nzoia Sugar Company have been suspended. Patrick Murambi (human resource), Munoko Maurice (harvesting), Godfrey Wanyonyi (finance), Wanyonyi’s deputy Charles Mokaya and marketing manager Clifford Mabele were suspended. (…) Speaking to the Star yesterday, the company’s public relations manager, Joseph Kawa (….) Mabele was suspended for giving out tonnes of sugar to companies and individuals close to him that did not pay up. His case is pending in court.”

Nonetheless it appears that KAMP has decided that Mabele, a non-lawyer with no apparent experience in the music and entertainment industry, is the right man to steer the CMO in charge of representing the powerful record labels and owners of sound recordings.

As for former GM June Gachui, she has already established a name for herself in legal, media and entertainment circles. June runs a successful IP consultancy firm, JGIP Consultants (check out JGIP’s swanky website here). Aside from her IP firm, June is already a household name as a singer, actress and emcee in Kenya (check out June’s personal website here).

Here’s to new beginnings!

High Court Slams Kenya Copyright Board for Abuse of Criminal Process

high flyer series cover std 6 math

“It is obvious to me that where the issue of copyright is contested, the Police, the DPP and the Copyright Board cannot convert themselves into the High Court, settle that issue and declare that the 1st Petitioner has violated any part of the Copyright Act. Their actions are premature, malicious and unlawful and that is what is called abuse of Court process to settle personal scores and this Court cannot sit idly and watch them do so.” – Lenaola J., at para 48.

The above passage is taken from a recent High Court judgment delivered in the case of Peter Gichuki Mwangi & 2 others v Copyright Board of Kenya & 3 others [2014] eKLR. A copy of this judgment is available here. In this case, the copyright (and trade mark) subject matter in dispute was several popular school books published under the title “High Flyer Series”. As the story goes, Peter Gichuki Mwangi (1st Petitioner) and Anthony Kiai (4th Respondent) were once business partners and together they run the publishing house responsible for the books, High Flyer Publishers Ltd. Upon disagreements arising between the two partners, Kiai moved to court for determination of the issue of copyright ownership in the on-going case of HCCC No. 45 of 2011 and unsuccessfully sought injunctive orders from the court pending the hearing and determination of that case. In addition, the court declined to grant Kiai’s prayer for Anton Piller orders. In the instant case, Lenaola J. notes that it was only after failing to obtain the above orders and others, including specifically the Anton Piller orders to search the premises and seize evidence without warning, that Kiai enlisted the support of the Kenya Copyright Board (KECOBO) in storming certain premises where Mwangi was publishing some of the books whose copyright remains contested. Another noteworthy point is that prior to these enforcement actions by KECOBO, the case HCCC 107 of 2013 had already been filed relating to the same disputed copyright works and it was pending determination.

Read the rest of this article here.

Odek on TRIPS and Developing Countries: Towards a New IP World Order?

namanga border

This blogger has come across a new publication in international intellectual property (IP) law and practice titled “TRIPS and Developing Countries: Towards a New IP World Order?” edited by Professors Gustavo Ghidini, Rudolph J.R. Peritz and Marco Ricolfi. The publishers of the book Edward Elgar Publishing have posted the following description of the book:-

“TRIPS reflects the dominant view that enforcing strong intellectual property rights is necessary to solve problems of trade and development. The global ensemble of authors in this collection ask, how can TRIPS mature further into an institution that supports a view of economic development which incorporates the human rights ethic already at work in the multilateralist geopolitics driving international relations? In particular, how can these human rights, seen as encompassing a whole ‘new’ set of collective interests such as public health, environment, and nutrition, provide a pragmatic ethic for shaping development policy? Some chapters address these questions by describing recent successes, while others propose projects in which these human rights can provide ethical ground for influencing the forces at play in development policies.

This stimulating book will strongly appeal to policy makers, academics, and students seeking to understand how the ‘new’ human rights can inform efforts to reconfigure intellectual property rights as an engine for fair and just economic development.”

Honourable Justice Prof. James Odek of the Court of Appeal has contributed a chapter to this book titled: “The Illusion of TRIPS Agreement to Promote Creativity and Innovation in Developing Countries: Case Study on Kenya”. Recently, the Journal of Intellectual Property Law and Practice (JIPLP) has published an excellent review of this book penned by fellow blogger Aurelia Schultz. In this review, Aurelia makes the following comments about Odek’s chapter in the book:

“The best chapter by far is by Justice James Otieno Odek of the Court of Appeal in Kenya. [it] is the longest chapter in the book but also the best written. Justice Odek’s language is passionate but not inflamed and accessible without being dull. The chapter has two distinct parts. The first looks in detail at the various standards for IP protection within TRIPS, discussing the deadlines and rules, the special deadlines and rules for developing countries and the extra special deadlines and rules for least developed countries. It also gives a succinct history of IP in Africa—hint: highly influenced by outsiders—and background on how Africa interacts with the world in the global IP debate—hint: highly influenced by outsiders. Justice Odek goes on to show how the requirements in TRIPS are misaligned with the sources of innovation.

The second part of the chapter analyses the growth of creativity and innovation by looking at Kenya’s private and public innovation sectors. This is a well-executed analysis that covers an array of sources for innovation. Justice Odek identifies thirteen innovation actors and gives concrete examples of organizations in these roles. The private sector portion is quite encouraging; the public sector portion rather disappointing, a situation Justice Odek proposes be addressed by increased collaboration between the two.

After his thorough analysis, Justice Odek categorizes strengths, weaknesses and challenges of the current system and provides some recommendations. The list of recommendations for improving innovation capacity found at the end of the chapter could easily be adapted to many other countries. Justice Odek’s chapter is a great culmination of the preceding articles and makes a fitting final chapter to the book. Perhaps this is part of the reason why the following and actual last chapter on public sector data feels so out of place.”

This blogger hopes that Odek’s work inspires further reviews, analyses and publications from Kenyans on this very important topic.