“In Kenya, the publishing industry is estimated to be about 12 billion Kenyan shillings a year (US $150 million) but 95% of that comes from the sales of textbooks. The sales of trade books has not been growing that quickly, I am afraid, but we are trying to change that. And bookstore sales are down as well. But as a small publisher, we have to respond to the market.” – Publishing Perspectives Interview with David Waweru, CEO of WordAlive Publishers on January 11, 2013.
“Our publishers—a good number of who are plain dishonest and shady individuals—are obsessed with publishing for the school market. They fight tooth and nail to have their books accepted as approved school texts. That is not a good thing at all because incidents of bribery have been reported in the process, which ends up putting dubious books in students’ hands. Outside of this there hasn’t really been a vibrant market for fiction. As a result writers have been bending over backwards to produce work that can fit in this mould. This in my thinking, isn’t healthy. Writers, as social commentators and critics, need the space to think creatively without inhibition. Some authors try to break out of this straight-jacket by self-publishing, but usually they don’t go far. Soon they encounter the biggest pest in the business, the book pirate, who is vicious in Kenya and operates with impunity, earning from what he didn’t sow in—we suspect—collusion with the law enforcers.” – Africa39 Blog Interview with Kenyan author, Stanley Gazemba on August 11, 2014.
“I love reading much more than I love writing. I suspect if I did not like reading, I would not be a writer. The well-written books inspire me to be a better writer. The badly written books teach me how not to write. Kenyan publishers are, sadly, not doing much to ensure that other readers and I get more of the former and less of the latter. Their inability to respond to submissions timeously; poor editing; unfavourable contracts; and poor marketing are but some of the problems beleaguering the publishing industry.” – Daily Nation, January 10, 2015: “Problem with Kenyan publishers” by Zukiswa Wanner.
Editor’s Note: The Digital Reading Summit 2015 themed “Immerse Yourself in the Digital Era”, has been organised by the Kenya Publishers Association (KPA) and Worldreader and is scheduled to be held between 21-22 April 2015 at Pride Inn Hotel in Nairobi. The following day, April 23rd, is World Book and Copyright Day!
The business of publishing rests on a contract between creators (authors) and those who invest in bringing their work to market – publishers. In many jurisdictions (including Kenya) it is necessary that the contract adopt a written form and this is also the advisable way to proceed even where verbal agreements are valid. To avoid misunderstandings a written contract should always be issued at the conclusion of discussions and verbal agreement between the parties.
In the contract with the publisher the author licenses the rights of reproduction and distribution over a work, thus providing the publisher with the legal means necessary for publication. In Kenya, section 33(3) of the Copyright Act requires that any exclusive license between an author and a publisher must be in writing. An important Kenyan case in the area of book publishing and copyright law is Njeri Wangari & Another v. Oxford University Press (E.A) Ltd.  eKLR discussed previously here.
Traditionally, publishers asked mainly for the right to publish authors’ book, sometimes in multiple formats and languages. Now many publishers demand broader rights, often including electronic/digital rights.
The agreement between the parties must be clear on what is meant by “electronic/digital rights.” Is it the right to convert the book into a derivative work such as for a CD-ROM, DVD or some form of e-book format? Is it the right to put the book, in whole or in part, on the Internet and if so, on the publisher’s web site or does the publisher have the right to sublicense these rights to other web sites? Is it the right to maintain rights to the book if it is available in only a print on demand format? Some agreements merely refer to a grant of “all rights of whatsoever nature.” Is this intended as a grant of electronic rights? The bundle of electronic/digital rights can also be segmented into what might be called “electronic data storage,” “electronic data retrieval,” “electronic database rights” and the like. Thus, the parties must examine their agreement to see which party has granted or retained such electronic/digital rights and what that party can do with those rights.
Therefore it is essential for publishers to acquire the rights they need from authors to enable them to publish digitally themselves or license others to do so. If necessary, the rights need to be cleared retrospectively for older titles. Literary authors and their agents are now more prepared to recognise that verbatim e-book rights represent another publishing format and the print publisher expects to control them. In this regard, it is not enough to secure electronic rights in author’s original work; the publisher needs to clear permission to use any quoted material (text, photos, illustrations) in electronic version. Rights may have to be recleared retrospectively for older works.
For the author, it is important to bear in mind that the less rights they give up, the more they can do themselves or license others to do; so try to give up only those rights the e-publisher is qualified to exercise. In most cases this means granting only electronic book rights. If the e-publisher wants more, such as rights to create interactive products, the author must be sure the publisher has capability, experience and ideally some success in exploiting such rights. Authors may also negotiate the grant of only non-exclusive rights so if e-publishers is not satisfactory, authors can still exploit these rights elsewhere. This may be hard to achieve for electronic book rights – many e-publishers want those exclusively – but should be negotiable for other rights.
In this regard, it is important to note that the Copyright Act envisages that licensing arrangements between authors and publishers “may be limited so as to apply only to some of the acts which the owner of the copyright has the exclusive right to control, or to a part only of the period of the copyright, or to a specified country or other geographical area.”.
All in all, digital publishing and its new distribution channels provide unprecedented opportunities to see authors’ titles reach new markets. While modern design and printing processes have helped to make books available globally, there are inherent difficulties that preclude publishers and authors – particularly those that work on a small scale – from widely distributing their works. E-Books have the capacity to be available everywhere and, providing that authors’ book is well formatted, properly categorised and accompanied by good metadata, anyone with a search engine can find it at any time. In this regard, it may be in the author’s interests to have a clause in the agreement stating that the publisher will utilise reasonable technological protection measures to safeguard the licensed work(s) against unauthorised copying (online piracy).
For authors and publishers, it is important to note that there are some exceptions and limitations to rights protected under copyright. Section 26 of the Copyright Act provides for a number of defences to copyright infringement known as instances of “fair dealing” which is comparable to “fair use” exceptions under US copyright law. 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 this connection, the publishing industry in Kenya should expect a new copyright exception/limitation to be inserted through amendment of section 26 specifically aimed at allowing access to published works by visually impaired and persons with print disabilities. For more information on this development, read our earlier update here.
In the digital environment, authors and publishers may opt to make certain works available online and allow the public to engage in certain acts the doing of which are exclusively controlled by the copyright owners. This form of “Some Rights Reserved” licensing may be achieved using Creative Commons (CC) licenses. As we may be aware, CC is a non-profit organization that has developed a set of six standardised copyright licenses to provide simple, standardised alternatives to the “all rights reserved” paradigm of traditional copyright.
One example of a CC license is the “Attribution-NonCommercial-NoDerivatives (CC BY-NC-ND 4.0). The CC BY-NC-ND 4.0 license allows users to to copy and redistribute the licensed material in any medium or format subject to attribution (i.e. You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use) for non commercial purposes (i.e. You may not use the material for commercial purposes) and no derivatives (i.e. If you remix, transform, or build upon the material, you may not distribute the modified material).
In addition to the economic rights aspects of copyright, authors have moral rights, very importantly the right not to have their work treated in a derogatory fashion such that their authority or reputation as authors is diminished. The moral right clause or associated clauses in the publishing agreement should reflect the possible extraction and misuse of material in electronic download or e-book formats. Therefore, it is important to point out that digital works may have features that allow for copying and extracting of material, a facility which, when material is saved and passed on, may have the effect of damaging reputation or reducing the author’s earnings. There is a particular need to pay attention to the possibility of both unintentional and intentional ‘re-versioning’ of the author’s works through the extraction of any ‘unlocked’ material that may be incorporated.
Finally, readers of this blog will recall that in 2012 a similar conference was held in Nairobi under the theme: “Enhancing the Culture of Reading and Books in the Digital Age – Copyright as a Means to Foster Creativity and Access in Africa” highlighted here. Through a variety of panel discussions the participants described the ways in which libraries, writers, publishers and RROs (the copyright collecting societies in the print and publishing sector), can foster a culture of reading in the age of digital information and communication technologies. The barriers to encouraging reading, such as the cost of materials, unauthorised copying and the role of copyright exceptions, were also discussed. While participants recognised that the shift to a digital reading environment was occurring rapidly, the conference was an important reminder that there are still a number of challenges to be overcome in areas where print materials are in use by the vast majority of the reading population.