#RMAGate Social Media Gaffe and Consumer Protection Law in Kenya

RMA Kenya 1

The tweet posted above was the culmination of an unfortunate social media exchange between RMA Motors and Bharat Thakrar, the CEO of Scangroup, a marketing services firm based in Kenya. Thakrar (@bharatthakrar), the (not so) proud owner of a Range Rover vehicle (reportedly worth KES 30 Million) took to twitter to express his dissatisfaction with the repair service he had been receiving from Land Rover’s exclusive franchisee in Kenya, RMA Motors (@RMAKenya). The twitter exchange went something like this:

Thakrar: “I am getting fed up of my Range letting me down. The most expensive car is the worst serviced in Kenya. @RangeRover @rangerovernews pls help.”

Thakrar: “Need some help from @RangeRover @rangerovernews @alykhansatchu @RangeRoverUSA to get my Range fixed. The car spends two days a month at RMA.”

RMA: “@bharatthakrar please DM us your contacts so that our CEO and head of servicing can be in touch soonest. Many thanks.”

Thakrar: “Assume you mean this and not just managing your social media. Remember I run a digital, PR & Comms [Communications] buss. [business]”

RMA: “@bharatthakrar spoken to the CEO, his message is that our team is enjoying #MashujaaDay today; putting families first, but a technical rep will be in touch to discuss one-to-one your outburst here & what can be done. For today; have a cold tusker & enjoy the day.”

Sections of main-stream media (not to mention most of “Kenyans on Twitter” #KOT) were appalled by RMA’s “reply to a high-profile client asking him to take a cold beer in lieu of service” terming it as “bad customer service” and “a show of their poor understanding of social media.” Hence #RMAGate was born.

RMA Kenya 2

In a quick rejoinder, RMA Motors unashamedly denied any wrongdoing in its twitter exchange with Thakrar. In a media report, RMA Motors CEO Sanjiv Shah is reported as saying:

“We are puzzled as to why Mr Thakrar decided to air his views on social media in the early hours of the morning on a public holiday (….) We have always understood that Mr Thakrar has had a fluent communication chain with RMA, witnessed by the fact that he even knows the names of various RMA team members and has their personal telephone contacts (….) None of our other high profile customers have ever resorted to discussing their issues and slating us in the public arena. Generally owners of these type of vehicles (and we have many delighted such customers) are private, discreet and very friendly.”

From a consumer protection law perspective, the RMAGate incident ought to be an eye-opener to all suppliers of goods and services on social media in Kenya. Our point of departure is Article 46 of the Constitution of Kenya 2010 and its enabling statute, the Consumer Protection Act 2012, which are lauded as landmark achievements by Kenya in the area of consumer protection in the sense that these new laws spell out consumers rights and obligations vis a vis product and service liability, make provisions for the promotion and enforcement of consumer rights as well as empower consumers to seek redress for infringement of their rights as consumers; and also make provisions for compensation.

Part II of the Act gives consumers a wide range of rights including the right to commence legal action on behalf of a class of persons in relation to any contract for the supply of goods or services to the consumer. This right cannot be ousted by any agreement between the parties. Other consumer rights provided for in the Act include the right to full precontractual information for the consumer to make an informed choice, the right to complain with regard to quality, delays in provision of rectification, quantity and price of such goods or services as are offered, the right to a reasonable notification of termination of service – particularly in relation to the provision of basic telecommunications services and/or internet access, among other rights.

The Act prohibits ‘unfair practices’ and proceeds to provide for radical sanctions against a supplier who engages in ‘unfair practices’. Such practices include representing that goods or services have a sponsorship, approval, performance or characteristics that they do not have; or representing that goods or services are of a particular standard, quality, grade, style or model, if they are not, and so on.
Therefore where a consumer enters into an agreement, whether oral or written, after or while a person has engaged in an unfair practice, the Act provides that the consumer has the right to terminate the agreement and seek any remedy available to them in law, including a suit for damages.

By RMA’s own admission, Thakrar is among its high profile customers therefore the above legal provisions relating to consumer protection would be applicable both online and offline. Interestingly, the Act has a special section on repairs to motor vehicles and other goods. Section 51 of the Act states that on the repair of a vehicle, every repairer shall be deemed to warrant all new and reconditioned parts installed and the labour required to install them for a minimum of 90 days or 5,000 kilometres, whichever comes first. Therefore the mere fact that Thakrar has tweeted that his Range Rover spends an average of 2 days a month at RMA Motors appears to place the latter in breach of the consumer protection law.

Allegations made by customers on social media that a supplier has breached consumer protection laws are serious matters. Therefore it was highly ill-advised for RMA to draw so much public attention to this alleged consumer rights breach as this poses legal risk to RMA’s business not to mention the damaging effects on its client base.

Danish Firm Pays 2.3 Million Shillings in Royalties to Endorois Community for Lake Bogoria Enzyme

Lake Bogoria Bio-Enzyme Royalties Kenya Baringo County 2014

The Baringo County has confirmed recent media reports that residents living around Lake Bogoria in Baringo County have received the sum of KES 2.3 Million in royalties from an unnamed Dutch bio-enzyme company. According to Baringo County news, this royalties deal comes after “successful negotiation between the Kenya Wildlife Service (KWS) and Novo-Enzyme – a foreign company that took an enzyme drawn from a Bacteria in Lake Bogoria hot springs about 15 years ago”. It is reported that the royalties will be partly used as bursaries for over 200 local students while part of the funds will be deployed to fund other development projects in the area. However, local civil society organisations have reportedly demanded full disclosure of all the money from the royalties deal.

This blogpost uses the recent news from Baringo County to examine the protection of genetic resources in Kenya, taking into account Kenya’s new domestic and international rights and obligations in this area.

This case of Lake Bogoria’s enzymes spans over more than 30 years. It begins in the 1980s. Between 1984 and 1986 a Ph.D Botany student wanted to establish what kind of enzymes could be found in lakes of the Great Rift Valley of East Africa, namely: Lakes Bogoria, Magadi, Nakuru, Elementaita and Solai within Kenya, and Lake Natron in Tanzania. These lakes are famous for their salt and soda and their extremely hot geysers. Due to the fact that Kenyan universities do not generally possess the kind of powerful laboratory equipment needed to carry out such a research, this candidate arranged to send samples to major laboratories in the world.

The Ph.D candidate from the University of Leicester reportedly got the endorsement of the National Council for Science and Technology (NCST) to carry out her research with the proviso that she would submit a report of her findings to NCST at the completion of her Ph.D. It was also agreed that the British Council, through Leicester University, would meet fees and accommodation costs while the NCST would sponsor the Kenya part of the research.

The candidate completed her Ph. D. work in 1991 and in 1992 she was awarded a Ph.D in Botany of the University of Leicester. She returned to Kenya thereafter and submitted her report. Her thesis had simply identified, classified and named the organisms present in a particular spot of Lake Bogoria. She submitted her report to NCST in Kenya and continued her teaching job in botany at her university.

Industrial Biotechnology Enzyme Innovation Genencor Danisco DuPont

As many may know, among the living organisms collected from Kenya’s Lake Bogoria during the research included one responsible an extremophile enzyme, Puradax cellulase that would later be used by Procter & Gamble to develop an extremely successful line of Tide bleach for stonewashing denim clothes.

In August 2004, the East African newspaper published an article titled: “KWS Seeks Millions From Procter & Gamble” in which it is reported that KWS in conjunction with the International Centre of Insect Physiology and Ecology (ICIPE) was claiming a share of the proceeds accruing to the US multinational giant Procter & Gamble and to Genencor International BV of the Netherlands with respect to the sales of Tide Alternative Bleach Detergent and “stonewashing” material. A copy of the article is available here.

In this regard, the point of contention by KWS was that the research permit which was granted to the Ph.D candidate by the Ministry of Education and Technology in Kenya with the recommendation of NCST did not include any commercial involvement of the research findings whatsoever. KWS maintains that if any such additional prospecting was intended, neither the candidate nor the University of Leicester had ever expressed such intention. If they had done so, KWS states that the researchers would have required a new and different kind of permit. Meanwhile the candidate’s story is that she only obtained a permit to carry out the research she had declared in her proposal and that at the end of her doctoral research, she complied with the requirements of her permit by submitting her report.

The relevant parts of the article read:

“We have evidence to indicate that the samples from which the discovery was made were obtained by Dr William E. Grant of the Department of Microbiology and Immunology at the University of Leicester in the UK,” Dr Lwande [head of Bioprospecting and Molecular Biology at Icipe] said.

It is also clear that Dr Grant did not work alone but was in a group of scientists who, though they went ahead to publish their results in the Extremophile Journal of the UK in 1998, did not have any authorisation from KWS.

“We do not have records showing that the scientists had notified KWS nor any indication that they had acquired a research permit from the Ministry of Education before embarking on the sampling,” said Dr Bagine, who added that although the Education Ministry is normally mandated to issue such permits, KWS is empowered to vet proposals made by researchers working in Kenya’s protected areas.

It has also emerged that the group of Leicester University scientists was accompanied by an employee of Genencor, Brian Jones.

“After samples were collected from Lake Bogoria, Brian Jones of Genencor International purchased the samples from Dr Grant and made an enzyme discovery that Genencor later sold to Procter & Gamble,” Dr Lwande said. He added that the particular enzyme was then used as a critical ingredient in the (manufacture) of Tide Alternative Bleach detergent.”

The article also reveals that KWS had officially written to lawyers working for Public Interest Intellectual Property Advisors (PIIPA) in the US to act on their behalf in pursuing Genencor International and Procter & Gamble for royalties from this discovery and (later) from any other possible discoveries associated with (the) Kenyan samples. In a previous blogpost here, we highlighted PIIPA and one of its questionable involvements in Kenyan IP matters.

To date, Genencor International Inc. (USA), a division of Danisco (Denmark) denies any wrongdoing. It denies that it ever sold any such enzymes to its principal business partner, the US multi-billion-dollar giant Procter & Gamble.

Enter Novozyme.

In 1996, Danish firm Novozyme launched the first commercial product based on laccase enzyme: Denilite I, the first industrial laccase and the first bleaching enzyme acting with the help of a redox mediator molecule. In its 2013 report titled “Enzymes at Work”, Novozyme notes:

The textile industry has been quick to adopt new enzymes. So when Novo developed enzymes for stonewashing jeans in 1987, it was only a matter of a few years before almost everybody in the denim finishing industry had heard of them, tried them, and started to use them.

From an international intellectual property (IP) perspective, it is important to note that there are three important instruments that Kenya has signed and ratified in the context of protection of genetic resources namely the Convention on Biological Diversity (CBD), the TRIPs Agreement and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (recently ratified by Kenya in April 2014).

From a national IP perspective, Article 69 of the Constitution is crucial as it imposes certain obligations on the State in respect of the environment. Article 69(1)(a) states that the State shall ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits (In this regard, consider the example of a benefit-sharing deal between a Cape Town firm and the San and Khoi communities, highlighted here from South Africa).
Article 69(1)(c) further states that the State shall protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities. Finally, Article 69(1)(e) provides that the State shall protect genetic resources and biological diversity.

Interestingly, Article 71 on Agreements relating to natural resources provides that a transaction that involves the grant of a right or concession by or on behalf of any person, including the national government, to another person for the exploitation of any natural resource of Kenya is subject to ratification by Parliament. However this Article of the Constitution will only be operationalised once the relevant Act of Parliament is passed into law.

Against this constitutional backdrop, this blogger reckons that the Ministry for Environment, Water, and Natural Resources would be advised to set up an inter-ministerial committee to address the protection and promotion of genetic resources in Kenya. The work and outcomes from this proposed committee may greatly facilitate co-ordination and co-operation between the national and county governments on the management of in situ genetic resources.

The 2014 Kenya Heroes Act and the Recognition of Intellectual Property Contributions

Mashujaa-Museum-4

“Our children may learn about the heroes of the past. Our task is to make ourselves the architects of the future,” – Jomo Kenyatta, following the declaration of a state of emergency by the British colonialists on October 20, 1952.

Article 9 of the Constitution states that ‘Mashujaa Day’ (Heroes Day) is to be observed on the 20th October of every year as a national day which makes it a public holiday in Kenya. This fifth Mashujaa Day is particularly important since it is the first one since the assent of the Kenya Heroes Act No. 5 of 2014. The Minister responsible for the Heroes’ Act, the Sports, Culture and Arts Cabinet Secretary Dr. Hassan Wario told the media that an interim committee is currently working to put in place structures before the National Heroes Council is fully constituted under the Act.

Among two of the key statutory functions of the Council will be to identify and recommend national heroes as well as formulate and implement policy relating to national heroes. Section 22(4) states that the Council must apply the criteria set out in the First Schedule to determine whether a proposed nominee qualifies for designation as a hero under the Act. The First Schedule sets out 14 functional areas for identification, selection and declaration of heroes, including liberation struggle, spiritual leadership, arts, sports, scholarship professionalism and research, statesmanship, philanthropy, peace-making, entrepreneurship and industry, indigenous knowledge, human rights, environmental conservation, among others.

From an intellectual property perspective, it is clear that the functional area of “scholarship professionalism and research” could be applicable to both creative and inventive works. In addition, the “arts” functional area almost entirely relates to works protectable under the law of copyright and related rights. However, works of inventorship do not appear to fit neatly in any of the functional areas, with the closest area being “entrepreneurship and industry”.

To illustrate this IP-related lacuna in the Kenya Heroes Act, let us consider the case of Richard Turere. The 14 year old Turere a former Maasai herdsboy figured out how to scare off lions by irritating them with an invention widely known as “Lion Lights”. According to WildlifeDirect, a local wildlife conservation group, Turere was discovered while the group was working on a project to find new ways to reduce human lion conflict in the Kitengela area just south of the Nairobi National Park in Kenya. Turere’s invention was born out of a necessity to protect his family’s cattle herd from carnivorous predators, especially lions since they lived right on the edge of the Nairobi National Park. Turere is said to have used his knowledge of lions’ fear of flashing lights to devise an automated lighting system made up of torch bulbs, a box, switches, an old car battery and a solar panel. According to reports, Turere’s lights are “designed to flicker on and off intermittently, thus tricking the lions into believing that someone was moving around carrying a flashlight”. It is reported that “since Turere rigged up his “Lion Lights,” his family has not lost any livestock to the wild beasts, to the great delight of his father and astonishment of his neighbours.” This invention has become very popular and “around 75 “Lion Light” systems have so far been rigged up around Kenya”. With the support of WildlifeDirect, Turere has presented his invention at the well-known TED Conference in 2013 and obtained a scholarship to one of Kenya’s top private preparatory schools.

In reference to Turere’s case, Section 2 of the Kenya Heroes Act reads as follows:

“Child hero” means a hero who is below the age of eighteen years

Therefore, it is possible for a member of the public, an organization, a group of persons or an institution to nominate Turere as a “hero” under the provisions of the Act. However the challenge would lie in applying the criteria set out in the First Schedule. Specifically, this blogger wonders which functional area under the First Schedule would be applicable to the Lion Lights invention, assuming that a Turere’s proposed nomination were made by the public and approved by the Council.

Any takers?

Social Media Law Update – Kenya, Nigeria, South Africa: October 2014

For social media law enthusiasts in Kenya, this month witnessed the 2014 Social Media Awards (SOMA) sponsored by OLX. This second edition of SOMA saw participation of 100 nominees in 21 categories and serves to demonstrate the immense impact of social media for personal and business growth. Leading mobile operator, Safaricom Limited was a triple winner at SOMA. In the Customer Care category, Safaricom scooped the award beating Chase Bank, Orange and Airtel in addition to receiving the overall Corporate-of-the-Year Award. Safaricom Chief Executive Officer Bob Collymore was also voted this year’s most influential corporate personality in Kenya at SOMA. For the full list of nominees and winners, see here. Another big social media related event this month was the launch of the “A-Z of Kenyan Twitter” Report by Nendo Ventures. Read more about #AtoZofKOT here.

Meanwhile, in Nigeria, the main social media law story was the case of Linda Ikeji, whose blog was taken down for copyright infringement but later restored. This blogger has discussed the Linda Ikeji blog story here. Ikeji’s story brought out many interesting issues, one of which was abuse of the take-down provision under the US Digital Millenium Copyright Act (DMCA). It appears that blogs which run on platforms like blogger, tumblr, medium, typepad or even facebook notes are much easier to take down as opposed to stand-alone blog sites with registered domains. However, these blogging sites and other social media site are increasingly unable to comply with a large proportion of the take down notices they receive as these notices are either incomplete or abusive. For instance, between the months of January and June 2014, Twitter did not comply with nearly 1 in 4 takedown notices it received; Wikimedia complied with less than half; and WordPress complied with less than two-thirds. On the issue of DMCA abuse, Automattic, the company behind WordPress (Ahem, the best blogging platform in the world.) has included a Hall of Shame section in is transparency reports which highlights DMCA abuses by all sorts of businesses, organizations, and individuals attempting to silence criticism and other noninfringing speech. See the Hall of Shame here.

In South Africa, the recent judgment in the High Court case of D v V (12537/12) [2014] ZAGPPHC 787 may be of particular importance to social media law enthusiasts. A copy of the judgment is available here. In this case, a Pretoria mother of two, only identified as R, claimed ZAR 750,000 (KES 7.5M) in damages from her husband’s mistress, only identified as C. Her claims were based on adultery, loss of comfort and alienation of affection. R testified that c intended to break her marriage. The crux of R’s case against C was that the latter intended to break her marriage and in support of her case, R relied on seveal communications and photos on Whatsapp and Facebook. With respect to Whatsapp, C sent a picture of her vagina to R’s ex-husband and their son brought it to the attention of R. This picture alerted the plaintiff to the adulterous relationship between C and R’s ex-husband. Thereafter, C sent R numerous vulgar and boastful messages about her adulterous relationship with R’s ex-husband, despite being fully aware that C was happily married to her ex-husband.

PDA pic_fbda1

With respect to facebook, C posted pictures of her kissing R’s ex-husband, including as a her profile picture. R told the court that these acts on facebook were intended to humiliate her, break her heart as well as her marriage. R further argued that C’s conduct led to R’s ex-husband eventually moving out of their communal home after being violent and antagonistic towards R and their son. In light of the above, the court found in favour of R and ordered C to pay R a total of ZAR 85,000.00 as damages for adultery, loss of comfort, society and services of her ex-husband as well as for alienation of affection. In addition, C was ordered to pay R’s costs of suit. This outcome compares favourably with the recent Kenyan case of ES v IMK [2014] eKLR which also addressed adultery established through facebook pictures.

Lessons from Nigerian Blogger Linda Ikeji on Plagiarism, Copyright and DMCA Abuse

Linda Ikeji Blog screenshot

The Linda Ikeji Blog (LIB) commands a great deal of readership and influence in Nigeria with an average of 100 comments per blogpost and over 425,000 followers on twitter. Earlier this month, it was reported that LIB was taken down from the Google-owned “Blogger” platform and later restored by Google. Linda Ikeji disclosed that LIB was taken down following allegations of plagiarism and copyright infringement, presumably under the US Digital Millenium Copyright Act (DMCA). However Google has declined to categorically state why the blog was taken down but generally explained that: “We [Google] take violations of policies very seriously as such activities diminish the experience for our users. When we are notified of the existence of content that may violate our Terms of Service, we act quickly to review it and determine whether it actually violates our policies. If we determine that it does, we remove it immediately.”

This blogpost considers LIB’s recent experience from an intellectual property (IP) perspective and concludes that this case should be an eye-opener to bloggers, especially in Kenya.

As we know plagiarism and copyright infringement are not the same thing. The key distinguishing factor is the use intended. A copyright infringer uses your work in order to derive some commercial benefit. On the other hand, a plagiarizer uses your work in order to assume your identity as the author for purposes of recognition and attribution. Therefore every case of copyright infringement can also be plagiarism but not all cases of plagiarism amount to copyright infringement.

In the case of LIB, Ikeji addresses here the allegations of plagiarism and copyright infringement made against her blog:

“My understanding of plagiarism is when you take someone’s work and republish it verbatim as your own work. I don’t do that. But if I have ever done that in the past then I apologize. It was an oversight. I do get a lot of original content, way more than any other blogger in this country. Some of the biggest news stories in this country in recent times was broken by LIB. From Goldie’s death (God rest her soul) Aluu4, ABSU rape, P-Square saga, Solomon Akiyesi and plenty more. And when I take news from other sources, I always credit them. When I don’t give credit is when the news is everywhere so I write it in my own words and make it mine. I don’t believe that is a crime. I admit that I have used photos without giving credit. I apologize. That will never happen again. You learn every day. And I have learnt from this.”

Here in Kenya, the case of media personality Caroline Mutoko’s blatantly plagiarised article has been aptly by one of her own colleagues here. Despite Mutoko’s vehement denials, it was evident to most observers at the time that the matter was ripe for both criminal and civil action at the instance of the copyright owner who reportedly confirmed that Mutoko never sought authorisation to use the work. Although the fair dealing provision of the Kenya Copyright Act may serve as a defence in cases of infringement, there remains a compulsory requirement of attribution which reads “subject to acknowledgement of the source”.

Still on the issue of copyright, an interesting issue that arose in the LIB story relates to abuse of the DMCA take-down procedures. Ikeji claims that Google restored LIB “in record time” after verifying that the allegations of copyright infringement were “bogus and deliberate sabotage.” Generally speaking, bogus copyright and trademark complaints threatens all kinds of creative expression on the Internet. In this connection, many will recall the recent case where Wikimedia Foundation refused to take down that notorious monkey selfie. The monkey selfie claim by Caters News Agency against Wikimedia is considered by some as “dubious” and a DMCA abuse. See our discussion of the monkey selfie dispute here.

In addition to copyright issues, there is also an important trade marks lesson in the LIB story. It was reported that once LIB was taken down by Google, Ikeji was forced to direct her readers to a temporary site: lindaikeji.mobi since “cybersquatters had acquired all her potential domain names” including the domain name: lindaikeji.net which had been registered by one Mukhtar Dan’Iyan through an alias.

Ordinarily one would expect that any blog which is able to get thousands of comments and sell advertising space to companies, such as LIB, would have long taken the necessary steps to protect the LIB name as a trade mark and register several domain names closely related to LIB as a defensive measure against infringers and squatters respectively. However, this appears not to have been the case in the LIB story.

In the final analysis, any serious online content creator must be aware of the boundaries of IP and operate within those boundaries. The role of IP becomes more critical where the online content creator’s blog or website is commercial in nature.

Kenya’s Middle Income Status Requires Review of Copyright Law

This month, Kenya made news when it joined Africa’s top 10 economies after rebasing of its gross domestic product (GDP). Kenya is now officially classified as a middle-income country after a statistical reassessment of its economy increased the size by 25.3 per cent. Kenya’s economic output was calculated to be 4.76 trillion shillings ($53.4 billion) in 2013 after the rebasing, up from 3.8 trillion shillings ($42.6 billion). This takes Kenya up to ninth in Africa’s GDP rankings from 12th, above Ghana, Tunisia and Ethiopia but below oil-producing Sudan based on a World Bank table for 2013. Kenya became the latest African country to benefit from rebasing its economy after Nigeria overtook South Africa to became the continent’s biggest economy earlier this year.

This blogpost takes a moment to consider how copyright law amendments could play a crucial role in increasing the economic contribution of copyright-based industries to Kenya’s GDP. In particular, this blogpost considers three main areas namely, provisions on online and digital infringement of copyright as well as collective administration of copyright.

A study undertaken in 2010 by the World Intellectual Property Organisation (WIPO) and Kenya Copyright Board (KECOBO) on the economic contribution of copyright-based industries found that the total value addition to Kenya’s Gross Domestic Product (GDP) amounted to Kshs. 85.21 Billion employing 63,131 people, which is 3.26% of the total national workforce. However many agree that the figures revealed in this study pale in comparison to the billions of shillings in revenues lost from piracy and copyright infringement generally, where no taxes are remitted to the State and no royalties are paid out to rights holders.

The advent of the Internet and the digitisation of works has made it relatively easy to infringe intellectual property (IP) through the use of electronic technologies. Therefore, there is is an urgent need to formulate a system of laws that define and protect IP as a response to technological change, particularly emerging circumvention technologies that are constantly defying copyright on electronic systems. In this regard, it is fair to state that Kenya’s IP law is not fully equipped to deal with the growing implications of the Internet, covergence, multimedia, digital technology, m-commerce and e-commerce.

Copyrights are referred to as the rights to ensure protection of information from duplication and distribution. Computers have changed the way that copyrighted goods can be illegally copied and distributed. All of this occurs cheaply and easily. This creates new challenges for copyright owners and law enforcement agencies in that the distinction originally drawn between copying and distribution is blurred. If digitised works are stored or made available for access, of if they are transmitted without authorisation, 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? Furthermore, the removal of rights management information makes it difficult to prove copyright ownership. In this regard, the exclusive rights of reproduction, publication and communication to the public must be reviewed and amended to cater for digitised works that are made available to the public online.

Furthermore, many agree that the internet has introduced special forms of infringement which must be catered for under copyright law, including linking, hyperlinking, framing and caching. In addition, the question of what amounts to fair dealing on the internet ought to be addressed. However the most urgent issue is liability for online copyright infringement. Traditional copyright law provides two types of infringement, namely direct/primary infringement and indirect/secondary or contributory infringement. The latter form of infringement is of particular interest in the context of internet service providers (ISPs). In this regard, Kenya must decide on which approach to take on these issues of copyright infringement, either the American approach as contained in the Digital Millenium Copyright Act (DMCA), the European model as contained in the EU Directive or a home-grown, hybrid approach or approaches as has been generally suggested here.

Aside from addressing digital and online copyright infringement, Kenya must seriously review the existing legislative and regulatory framework for collective administration of copyright and related rights. A glaring case in point is the collective management of rights in the music industry where the three CMOs, Music Copyright Society of Kenya (MCSK), Kenya Association of Music Producers (KAMP) and the Performers Rights Society of Kenya (PRiSK) currently generate a paltry KES 321,322,327 in combined incomes on behalf of authors, producers and performers respectively. Therefore this blogger submits that among the robust legislative measures required to regulate CMOs should be a provision for the amalgamation of CMOs operating in the same industry, such as is the case of music.

Legality of Video Streaming and Territoriality of Intellectual Property

Trevor-3

This month South Africa’s top comedian Trevor Noah announced that he will be joining the award-winning late-night satirical news show, “The Daily Show With Jon Stewart” aired on US cable network, Comedy Central (CC). For those who would want to enjoy this Emmy and Peabody Award-winning television show on demand, there is always “Hulu”, a leading online video service. However for those accessing Hulu outside the US, you are likely to receive the following notice:

We’re sorry, currently our video library can only be streamed within the United States. For more information on Hulu’s international availability, click here.

A similar service to Hulu called Netflix has been the subject of conversation in South Africa in a recent article here by TechCentral South Africa titled: “DStv wont sue Netflix users” then later changed to “DStv to launch Catch Up Plus”. The relevant portion of the article reads:

“[DStv Digital Media CEO John] Kotsaftis says it’s not clear if it’s legal or not for South Africans to watch Netflix and similar services. What is clear, he says, is that these companies are breaking the law when they allow access to services to consumers in markets for which they haven’t purchased content distribution rights.”

In this regard, many Kenyans may ask: “when you purchase a US virtual private network (VPN) to by-pass Netflix or Hulu region locks to watch shows and movies that are supposed to only be available to Americans, is that copyright infringement?” This blogpost explains why this question must be answered in the affirmative.

From an intellectual property perspective, the Daily Show is eligible for copyright protection both as an audio-visual work and a broadcast owned by CC. As a result, Hulu is required to obtain a license from CC in order to make the Daily Show available on its website. Among the main rights granted to Hulu by CC are the making available right (a performing right), the communication to the public (a performing right) and the reproduction right (or mechanical right) in the Daily Show. In turn, Hulu is able to grant its users a non-exclusive limited license to use the Hulu Services, including accessing and viewing the Content on a streaming-only basis through the Video Player, for personal, non-commercial purposes.

The document which governs much of a Hulu user’s service use is the Hulu Terms of Use which begins with the following:

“Welcome to Hulu! It is our pleasure to provide the services described below for your personal enjoyment and entertainment in accordance with these Terms of Use (“Terms”). (…) Use of the Hulu Services (including access to the Content) is subject to compliance with these Terms and any end user license agreement that might accompany the applicable Hulu Service. Therefore, by visiting the Hulu Site or using any of the Hulu Services through any other Access Point, you are agreeing to these Terms.”

These Terms of Use cover a broad range of issues relating to the use of the Hulu service use including certain key clauses which have been reproduced below and highlighted in bold:

3.3 The Content. You may only access and view the Content personally and for a non-commercial purpose in compliance with these Terms. You may not either directly or through the use of any device, software, internet site, web-based service, or other means remove, alter, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notices marked on the Content or any digital rights management mechanism, device, or other content protection or access control measure associated with the Content including geo-filtering mechanisms.”

14.1 International Use. We are a company based in the United States. Hulu’s goal is to bring you as much Content as is legally available. That said, we are limited by the rights that our content licensors grant to us. Using technologies to access the Content from territories where Hulu does not have rights or does not offer services is prohibited. Hulu Plus is not accessible through any devices from outside the United States.”

Therefore, the purchase of a US virtual private network (VPN) to by-pass Hulu region locks to watch Hulu’s content is both an infringement of copyright as well as a material breach of Hulu’s Terms of Use, therefore it is illegal and punishable under civil and criminal law.

In the final analysis, the mere fact that there are Kenyans, South Africans and others willing to pay to indirectly consume US content is a challenge to existing pay TV service providers and other content providers on the continent to take all necessary steps to acquire licenses from US rights holders so as to grow their businesses.

hulu daily show

Demystifying the Role of Copyright as a Tool for Economic Development in Africa: A Review

samro---guitarist

“It is…submitted that the system of alienable copyright is not conducive for countries in Sub-Saharan Africa and cannot, unless the legislatures of these countries intervene, ever give rise to a sustainable, home-bred and poverty alleviating industry.” – JJ Baloyi, 2014.

This blogger has recently come across a compelling article titled “Demystifying the Role of Copyright as a Tool for Economic Development in Africa: Tackling the Harsh Effects of the Transferability Principle in Copyright Law” written by JJ Baloyi in the South African Potchefstroom Electronic Law Journal. A copy of the article is available here. The central argument in Baloyi’s article is that the transferability principle in copyright law has had the inadvertent effect of stifling copyright-based entrepreneurship, and thus economic development in Sub-Saharan African countries that inherited copyright laws from their erstwhile colonial masters, England or France.

This blogpost discusses Baloyi’s well-written article and examines its implications for Kenya especially in light of the possible solutions put forward to tackle the ‘harsh effects’ of the system of assignment under copyright within Africa.

Baloyi’s article asks the question why many Sub-Saharan African countries, though having copyright and related rights laws and though generally endowed with rich cultural resources, have not been able to realise significant economic development and growth from the economic exploitation of intellectual property (IP) works and legally-protectable expressions emanating from such resources. Baloyi, former General Counsel at SAMRO, attempts to answer this question with a focus on the music industry where he draws most of his insights, observations and experience.

The article submits that there are several sets of barriers hindering musical entrepreneurship in Africa including psychological barriers, barriers in relation to the business environment, barriers relating to external ability and barriers in relation to the influence of demographics.

On psychological barriers, the article starts by appreciating the stress and hard work involved in giving us great musical pieces that we, as society, have become accustomed to. In this regard, the copyright regime demands that musicians exert themselves through their skill, time and judgment in order to create works that are original originating from their own efforts rather than slavish copies of works produced by the efforts of others. Therefore the article submits that expecting musical artists to be entrepreneurs in addition to being creators, is requiring more than the ordinary from them! Nonetheless these creators should be encouraged to be entrepreneurs even though it is accepted that not all artists will be entrepreneurs, just as not all lawyers can be entrepreneurs, for instance! Therefore artists who surround themselves with good advisors, would only need to display an entrepreneurial mind-set and leave the entrepreneurial activities to others.

left-brain-right-brain

Still on psychological matters, the article argues that the possession of IP within an environment where there is a strong IP protection regime is a strong determinant of entrepreneurial growth aspirations. Therefore, ownership of copyright in such an environment should be a strong motivation for artists to be involved in entrepreneurial activities.

Regarding barriers in relation to the business environment, the article observes that the lack of social networks becomes crucial in two instances, firstly collaborations where an artist seeks to jointly author a musical work with artists endowed with different skills and secondly marketing where an artist decides to market his own musical works.

The article gives primary focus to the lack of resources which it maintains is the main difficulty experienced by artists in Africa in respect of securing funding for their music entrepreneurial endeavours. In this regard, the article observes that most authors of musical works find themselves with no option but to assign i.e. transfer ownership in, their copyright to music publishers under terms that are highly unfavourable to the authors. It follows that once these authors have accumulated enough savings over time (due to the barriers relating to demographics) to incorporate and market their own publishing and recording companies, they find it difficult to engage in entrepreneurial activities relating to their copyrights as these rights have long been assigned to others. This so-called “endless cycle” is the main problem Baloyi seeks to address through his article.

Therefore the article argues that the artists’ lack of resources necessary to engage in entrepreneurial activities vis-a-vis their copyright works denies them the enjoyment of the rent-creation benefits under copyright licensing whereby the copyright owner may grant either an exclusive or a non-exclusive license to a user, in exchange for payment or compensation. Therefore these licenses would be able to earn the artists (and their heirs in title) income in the nature of rents (i.e. royalties) for the duration of the copyright.

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In light of the above, the article argues that Sub-Saharan African countries should develop its copyright laws to address concerns relating to the internal conditions and developmental needs of their countries. This article points out the examples of United States, Canada, the European Union and India which have moulded their copyright laws in light of their unique prevailing circumstances to produce home-grown solutions. In this regard, the article submits that beyond the minimum standards required in Berne and TRIPs, African nations can craft provisions that would safeguard the interests of their creators while not offending their international obligations.

The article is categorical that the dualist systems in common and civil law traditions of African countries result in the “endless cycle” where authors cannot exploit their copyright works as explained above. In this regard, the article refers favourably to the German system of author’s rights (a monist system) where the economic rights are seen as being interwoven with the moral rights and thus cannot be separated out, making them incapable of being assigned. The article argues that the monist concept of authors’ rights is consistent with the human rights approach to intellectual property rights espoused in South Africa and other Sub-Saharan African countries.

The legislative and policy solutions put forward in the article include, the use of reversionary provisions in copyright legislations, structuring music business contracts to safeguard the interests of artists and strengthening the role of collective management organisations (CMOs). In conclusion, Baloyi appeals to the legislatures in Sub-Saharan Africa to take advantage of the evolutionary nature of copyright and its changing paradigm internationally:-

“Rather than holding to the tenets of a system that has so far failed their countries, it would be responsible for the legislators of these countries to start thinking of those elements in other copyright systems that they can incorporate into their laws to unshackle their authors from the harsh effects of the transferability rule.”

Kenya Supreme Court’s Unanimous Decision on Intellectual Property Issues in Digital Migration Case

Telcoms and prog carrying signals

“In resolving this dispute, account must be taken of the nature of the resource (Spectrum) being contested, the economic fundamentals under-guarding its capitalization, the country’s obligations under international law, and the values decreed in our Constitution. At the end of the day the people of Kenya, local investors, international investors all have a stake. Of course care must be taken so as not to leave this resource to “the tragedy of the commons”. At this stage, we recall the words of Mr. Kimani Kiragu when he urged thus:
“I started by taking you on a flight to the Caribbean and referring to, or quoting Mr. Robert Marley. Let me come back home with regard to the three principles…If I could refer to our very own Ken Wa Maria, ‘these things, these are my things, these are your things, these are our things, these are the fundamentals’.” -Mutunga, CJ & P at para 388.

In the recent case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, the Supreme Court unanimously ruled on several contentious copyright issues relating to Kenya’s ‘imminent shift’ from analogue terrestrial broadcasting to digital terrestrial broadcasting on or before the international analogue switch-off date of June 17, 2015. A copy of the judgment is available here. This blogpost will examine how the Supreme Court addressed the following issues relating to copyright law, namely: (i) whether the Communications Authority of Kenya (CAK) formerly known as Communications Commission of Kenya (CCK) violated the intellectual property (IP) rights of three local free-to-air (FTA) broadcasters: Royal Media, Nation Media, and Standard Group by authorizing two broadcast signal distributors (BSDs) namely Pan African Network Group (PANG) and Signet Kenya Limited along with pay TV broadcasters such as StarTimes Kenya Limited and GOtv Kenya Limited to transmit the broadcasts of the aforementioned FTA broadcasters without the latter’s consent?; and (ii) whether the issue of infringement of IP rights was properly before the High Court, in the petition filed by the FTA broadcasters for the enforcement of their fundamental rights and freedoms?

The digital migration case started off when three local free-to-air (FTA) broadcasters: Royal Media, Nation Media, and Standard Group went to the High Court of Kenya in the case of Royal Media Services Ltd v Attorney General & 2 others [2013] eKLR in a bid to stop the migration from analogue to digital television broadcasting. In its prayers to the court, the petitioners sought, inter alia, an order of permanent injunction restraining several digital broadcasters from broadcasting, distributing or in any way interfering with the Petitioners’ programs, broadcasts, copyrighted material and productions or in any way infringing the Petitioners’ intellectual property rights. Therefore one of the issues for determination in this case was whether these digital broadcasters have breached and or violated the petitioners’ intellectual property rights.

Majanja J. sitting in the High Court dismissed as frivolous the petitioners’ allegations against the pay TV broadcasters for IP rights infringement. According to the learned judge, despite the inclusion of IP rights under Article 40(5), these rights are still considered as ordinary rights as opposed to fundamental rights and freedoms. The court therefore held that only cases of violation of fundamental rights and freedoms warrant a constitutional petition in the High Court. Therefore where IP rights violations occur, the affected person must rely on the specific IP regime established by law to address the area of IP concerned.

signal set top box tv diagram

Dissatisfied with Majanja J’s decision, the three FTA broadcasters appealed to a three-judge bench sitting in the Court of Appeal in the case of Royal Media Services Limited & 2 others v Attorney General & 8 others [2014] eKLR. Two out of the three appellate judges (Nambuye and Maraga JJA) set aside the judgment of Majanja, J in the High Court and made two IP-related findings in their separate but concurring judgments, namely:- firstly, that Majanja J. erred in law in holding the IP rights of the three FTA broadcasters were not violated by the pay TV broadcasters in broadcasting the former’s programs and content without consent; and secondly, that Majanja J. erred in law in holding that infringement of intellectual property rights could not be the subject of a constitutional Petition. This blogger expressed his shock and disappointment at this majority view of the Court of Appeal here.

This brings us full circle to the present decision by the Supreme Court.

From the outset, it is refreshing to see the Supreme Court zeroing in on the copyright issues in this digital migration case. Firstly, the court engages in the important exercise of determining whether or not a chain of title exists between the alleged infringers and the three FTA broadcasters’ rights. In the case of Signet and PANG, the Supreme Court finds a myriad of letters between the CCK and the three FTA broadcasters showing that the latter had given permission to Signet and PANG (and its pay TV operator StarTimes) to carry their respective FTA broadcasts during the pilot phase of the digital migration process. In the case of GOtv Kenya, it was successfully shown that GOtv was an affiliate of MultiChoice and that the latter had signed Channel Distribution Agreements with all three FTA broadcasters.

However, the underlying issue up for determination by the apex court was whether the conduct of CCK/CAK licensees pursuant to Regulations 14(2)(b) and 16(2)(a) of the Kenya Information and Communications (Broadcasting) Regulations, 2009 (the so-called “must carry” rule) could be reconciled with the constitutional right to protection of intellectual property as well as the provisions of the Kenya Copyright Act.

These Regulations provide as follows:

“14. Subscription broadcasting service licenses and subscription management services.
(1) The Commission may upon application, in the prescribed form, grant a subscription broadcasting services licence for —

(a) satellite broadcasting services;

(b) cable broadcasting services; and

(c) subscription Management services.

(2) The Commission may require a licensee granted a licence under paragraph (1) to —
(…)
(b)provide a prescribed minimum number of Kenyan Broadcasting channels.”

“16(2)(a) The Commission may require a person granted a licence under paragraph (1) to distribute on its digital platform free to air and subscription broadcasting services and related data on behalf of other licensed broadcasters.”

Respectfully this blogger disagrees with the Supreme Court’s application of ABS-CBN Broadcasting Corporation v. Philippine Multi-Media System, Inc. & 6 Others, a case decided by the Supreme Court of the Philippines. The point of disagreement is definitional in nature. In the Kenyan context, the Copyright Act defines “broadcast authority” to include “any other broadcaster authorised by or under any written law”. Therefore this means that if Multichoice (which appears to be akin to PMSI in the Philippine case) were licensed to “broadcast” in Kenya, as defined by the Copyright Act, then it would be considered a broadcast authority. In this regard, it is important to note that the definition of “broadcast” under the Copyright Act includes “transmission by satellite”. It follows that Signet, PANG and StarTimes are clearly broadcast authorities since they are all licensed to broadcast by CAK formerly CCK. Therefore it is this blogger’s respectful opinion that the Supreme Court erroneously found that no rebroadcasting had taken place without considering the definition of “broadcast authority” provided in the Copyright Act.

With respect, this blogger submits that the Supreme Court’s attempt to couch the “must carry” rule in fair dealing terms merely confirms the ‘definitional’ argument discussed above. In this connection, this blogger respectfully questions why the Supreme Court brings up ‘fair dealing’ (one of the defences in copyright infringement suits) yet it claims that no act of copyright infringement (i.e. rebroadcasting) was committed by the appellants.

On the issue of constitutional IP protection, this blogger is pleased that the Supreme Court confirmed the precedent set by the learned Majanja J., as discussed above. In this regard, the court held:-

“The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. (…) From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim,and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court.”

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