Vote for CIPIT in the Best Education Blog Category – 2015 Kenyan Blog Awards!

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We are pleased to announce that this blog (Strathmore Law School’s CIPIT Law Blog) has been nominated in the Best Education Blog Category of the 2015 Kenyan Blog Awards. These Awards organised by the Bloggers Association of Kenya (BAKE) recognize exceptional Kenyan blogs that have great and useful content presented in a creative and innovative format.

For the first time, the 2015 edition of Kenyan Blog Awards has introduced the “Best Education Blog” category. This category rewards blogs about education matters and those run by educational institutions. With your help, Strathmore University can become the first educational institution to receive this Award.

Please VOTE (as many times as you can) for CIPIT Law Blog by clicking >>>> here <<<<

Voting will run from today 2nd March 2015 and will end on April 30th 2015. Let's spread the word using the twitter hashtag: #TeamStrathCIPIT.

About the CIPIT Law Blog

Strathmore Law School’s CIPIT Law Blog is an independent and authoritative voice which explores legal governance issues at the intersection of intellectual property (IP) and information technology (IT). Founded in 2012, the CIPIT Law Blog is the first of its kind in East and Central Africa. It is run and edited by the Strathmore Law School’s Centre for IP and IT Law (CIPIT) and covers on an ongoing basis topical issues of the day.

Blurring the Lines of Public and Private Domain: Robin Thicke, Pharrell Williams v Gaye Family

by Wiseman Qinani Ngubo

blurred lines video

This past week we have seen many different opinions on various platforms on the jury decision to award the Gaye family $7.3 million in the Blurred Lines case. The Gaye family have not only taken a substantial amount of money from Pharrell & Robin Thicke they have also in turn prejudiced the general public by effectively privatising what was in and what should remain in the public domain.

What is the public domain in the context of intellectual property law? The public domain is sometimes referred to as “the commons” and comprises works that are not protected by intellectual property law, works that have lost the limited protection initially granted and fallen back into the public domain as well as aspects of intellectual property where permission is not required such as ideas or fair use/experimental exceptions etc. It is essentially any and all things that are freely available to the general public in respect of all intellectual property.

The case was based on what is said to the “feel” of Blurred Lines being similar to Marvin’s Got To Give It Up. Robin & Pharrell had been quoted as saying they had attempted to invoke an era and had drawn inspiration from the song but had not in fact used any of its elements.

The appreciation of the basic premise of copyright law itself was unfortunately lost to the jury. Copyright (like all intellectual property law) at its core, is not about extending or perpetually protecting private rights but rather, it is about protecting the public domain. The fundamental purpose is to ensure that there is enough material commonly available in order to facilitate and aid further innovation. This is done by granting a limited monopoly as an incentive to creators. The ultimate goal however, is to promote free access and to ensure that the public domain grows. This distinction was best articulated by Thomas Macaulay in his speech to the House of Commons the 19th Century where he averred:

“It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good”

We cannot extend monopoly protection to things that should be or which are already in the public domain. In doing we, effectively decrease what is available for the public to use as inspiration for further innovation.

MARVIN GAYE

Musicians and indeed Marvin Gaye himself, like all creatives, draw inspiration from the public domain. Granting monopoly for the “feel” of the song is tantamount to copyright protecting an idea in its non-material form. This is against natural law and indeed Copyright law itself which requires the idea to first be reduced to material form before it can be protected. Thomas Jefferson expresses this as follows:

“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”

“Feel” is how genres are born. It is unfathomable that one could have copyright protection for the “feel” of all reggae music. In the same breath, how would genres like Techno, EDM, House, Afro-Beats etc be if an individual was granted a monopoly to the “feel” of such genres? This concept is so public that it is pre-programmed into music software and digital instruments like pianos and drumkits. We cannot punish creators for having a muse nor can we extend monopoly protection to those who inspire others. The departure point when dealing with copyright is to understand that ideally, everything should be available to the public. Those who seek monopoly should bear the burden of proof and not the other way around.

The Gaye family and indeed this whole case showcases the dangers of granting copyright monopolies that the early scholars where weary off. Macaulay (quoted in James Boyle’s “The Public Domain: Enclosing The Commons of the Mind”) warned that:

“those who controlled the monopoly, particularly after the death of the original author, might be given too great a control over our collective culture. Censorious heirs or purchasers of the copyright might prevent the reprinting of a great work because they disagreed with its morals”

This case has proven Macaulay’s words true even after 2 centuries of them being uttered. The dangers of the abuse of the copyright monopoly that were apparent then, are manifesting today. The Gaye family has effectively taken what should be commonly available (and indeed that which was available to Marvin Gaye himself when he created the song) and placed it in the private realm for their exclusive use. This is not just a loss for Pharell & Robin Thicke but rather a loss for the music industry, the creative industry as well as the general public as a whole.

The “Blurred Lines” between Homage and Plagiarism

By Wanjiku Karanja

MARVIN GAYE

A California federal jury on the 10th of March 2015 awarded $7.3 million in damages to soul singer Marvin Gaye’s estate, in a copyright infringement suit, in which the former had alleged that performers: Robin Thicke, Pharrell Williams and Clifford Harris Jr. (T.I.), had plagiarised Gaye’s 1977 song “Got to Give it Up” to create their massive hit: “Blurred Lines”.

This is the highest award in a music copyright infringement suit since the 1994 $5.4 million judgment against Michael Bolton for using elements of the Isley Brother’s song “Love is a Wonderful Thing” in his song also titled “Love is a Wonderful Thing”.

After the announcement of the verdict, Thicke, Williams and T.I. in a joint statement said that:

“While we respect the judicial process, we are extremely disappointed in the ruling made today, which sets a horrible precedent for music and creativity going forward. ‘Blurred Lines’ was created from the heart and minds of Pharrell, Robin and T.I. and not taken from anyone or anywhere else….”

This legal drama begun in August 2013 when Robin Thicke, Pharrell Williams and Clifford Harris Jr. (T.I.) pre-emptively sued “Funkadelic” and Marvin Gaye’s estate, seeking to establish their copyright over “Blurred Lines”. They alleged that the Gaye’s estate did not have an interest in the copyright to the composition of “Got to give it up” sufficient enough to establish a cause of action for copyright infringement. They further claimed that while “Blurred Lines” “sounds” the same as “Got to give it up”, their intention had been to evoke a “feeling” of the era in which the latter had been created. They however, failed to obtain a summary judgement and the case proceeded to trial.

On the eve of the trial, Williams and Thicke sought to bar the playing of the “Got to give it up” sound recording during the trial after a revelation that the Gaye estate had failed to properly licence the song’s sound recording under the 1909 Copyright Act. The Gaye family however argued that the composition was embodied in the recording and as such their copyright applied to both the song’s composition and recording.

The court upheld the plaintiffs’ position, stating that Gaye’s copyright to the song was limited to its sheet music composition and as such any comparison between the two songs would be made on the basis of their fundamental chords, melodies and lyrics. Stripped down versions of both songs were however later played during the trial. This ruling is an expression of the fact that songs often embody multiple separate copyrights in: the composition, lyrics and sound recording.

Robin Thicke

The jury in their verdict, which was reached after 8 days of trial, found Thicke and Williams liable for infringement of the musical copyright of “Got to Give it Up” and ordered that they pay $1.8 and $1.6 million respectively in damages. Although the jury awarded $7.3 million in damages and $9000 in statutory damages to the defendants, the Gaye family must chose one kind of damages or other, they cannot collect both.

Accusations of plagiarism are common in the music industry but it is very rare for a case to progress to the level of a jury verdict, much less obtain such a large damages award. The reason for this is that artists often prefer settling such claims out of court rather than subjecting themselves to a tenuous, embarrassing trial and an unpredictable jury. This case, having done both, has resonated throughout the music industry as it raises an interesting question as to the distinction between “playing homage” to a particular “sound” or “era” and plagiarism.

Copyright infringement occurs when a person, without licence of the copyright owner, reproduces a substantial part of the work, which, to a sufficient degree, resembles and forms a substantial part of the copyrighted work. This case however is not about sampling i.e. the reproduction of the actual sound
recording. It is about the copying of some specific elements of the composition. The Gaye estate has however failed to show that there was a substantial similarity between the compositions of the two songs.

The jury’s decision is therefore confusing as it is based on elements that are not contained in the written composition, but were later added in the sound recording, such as the background chatter and percussion.

Furthermore, the verdict ignores the scènes à faire principle of copyright law, which holds that certain elements of a genre cannot be the subject of a copyright claim as they form an essential part of that genre. The similar “walking” bass line in both songs that is typical of the “funk” genre is an example of this.

This verdict therefore calls into question the wisdom of the reliance of juries in deciding copyright cases, as the verdicts are unpredictable and more likely to be based on “emotions” rather than on the law. Robin Thicke’s admissions during the trial that he had been under the influence of drugs and alcohol during the recording and promotion of “Blurred Lines” and that he had lied about co-writing the song probably went a long way in influencing the jury’s decision.

This blogger also notes as disturbing the precedent that this verdict sets with respect to the treatment of music that is “reminiscent” of a different era. All forms of art influence each other and artists often draw their inspiration from different eras. It thus is unconscionable and damaging to creativity to label a song that evokes a “feeling” of a preceding era as copyright infringement. This legal battle is however, far from over with Gaye’s estate filing an injunction on the 17th of March 2015 to prevent the copying, distribution and performance of “Blurred Lines”. The family also sought the amendment of the verdict to include T.I., and labels Universal Music, Interscope Records and Star Trak Entertainment.

This blogger awaits the outcome of this development.

Lingering on the Precipice of Greatness: Realigning Kenya’s ICT Legal Frameworks

by Robert Muthuri

the-kenya-ict-master-plan-2017

A frustration for many IT law enthusiasts has been the tracing of Kenya’s ICT and Innovation policies and their implementation. The Second Medium Term Plan (MTP) of Vision 2030 gives a partial trace of the framework. This MTP identifies key policy actions, reforms, programmes and projects that the Government will implement in the 2013-2017 period in line with its priorities, the Constitution and the long-term objective of Vision 2030. Readers may remember 1999, the dawn of the dot com boom. This is when the fragmentation started with the division of the Kenya Postal and Telecommunications Corporation (KPTC) into Telkom, the Postal Corporation and the Communications Commission. The Government is making amends in today’s information age and the recent amalgamation of the Kenya ICT Board, Department of e-government and the Government Information Technology Services (GITS) to form the ICT Authority (ICTA) was a much welcome move. The latter is a parastatal under the Ministry of Information and Communications Technology mandated to coordinate the ICT sector.

Appointed last year, ICTA’s Board hit the ground running with the chairman, Edwin Ochieng Yida’s pledge to vet all ICT projects henceforth. The board will also appoint a CEO and implement the Authority’s strategic plan. A mention is fitting for ICT Secretary Dr. Matiang’i, who continues to demonstrate formidable leadership even after the recent digital migration upheaval. The Board is mandated with providing strategic direction to ICTA that is currently validating and updating the National ICT Master Plan 2017. There is a clear nexus between policy, legal and institutional frameworks’ that needs to manifest ASAP to avert a seemingly “cart before the horse scenario” in the country’s ICT sector. That said a few pointers might help in that regard.

To begin with, it is imperative that our policies and strategic plans be “future proof”. That the 2nd MTP of Vision 2030 above is calling for alignment of the 2006 National ICT framework with the Constitution shows the policy framework is in dire need of an update. Similarly, the ICT Master Plans are being implemented in five-year phases parallel to the 5 phases of Vision 2030. However, there is no overall plan showing the overriding objectives and the expected results. It has been said that one needs to “dermic” the first phase to arrive at a collection of objectives mainly on infrastructure. Furthermore, there is minimal transition between the plans for instance the second 2013-17 phase makes no mention of the projects in first 2008-12 phase e.g. Madaraka Project, eMado, 9 strategy programme matrix etc. They seem to change depending on the whim of the Incumbent at Telposta Towers.

The legal framework is equally wanting thus further jeopardizing its midwifery role of transitioning the policy framework into achievable institutional objectives. For example, while the 2nd MTP above celebrates our open data portal as the second in Africa and 22nd worldwide, the Sunlight Foundation, which assesses open governance tools, has recently described the project as “floundering” for ministries’ reluctance to release data. While our ICT Master Plans aspire for a knowledge economy, the first step ought to have been the liberalisation of data. Accordingly, Data Protection and Freedom of Information legislation should have been enacted before the launch of the portal in 2008. Moreover, any BPO/ITES envisaged with the west will not take off without safe harbour principles usually guaranteed in such legislation.

CABLES

On the institutional front, the amalgamation and upgrade of the relevant institutions to parastatal status in ICTA will help to focalize the sector. However, we should aim for a full reunification with the communication angle i.e. CAK. This will reflect the convergence in communication and information technologies in the semantic web and the soon to come Internet of Things (IoT). Relatedly, the Postal Corporation of Kenya, which has the widest postal network in Kenya, has closed 56 branches cumulatively between 2006-11. In other words, the only institution with the infrastructure to implement distance selling for e-commerce is dying. Unfortunately, that only serves to remind us that we have not initiated a legal framework for e-commerce.

There is a lesson to be learnt from our neighbours in Rwanda as Michel Bezy, an Associate Director of the new Carnegie Mellon University campus in Rwanda, elucidates. They may not rival the size of our economy but their ICT Master Plans are traceable to the government’s Vision 2020 both having four-phased 20 year plans. The National Information Communication Infrastructure (NICI) plans comprise NICI 1 (2000-05) the establishment of an enabling environment, NICI 2 (2005-10) infrastructure development, NICI 3 (2010-15) service sector development, and NICI 4 (2015-20) a knowledge economy. They are modest yet achievable remaining on target almost to the letter 14 years later. Moreover, they build into each other i.e. one can trace a project from NICI 1, its revision in NICI 2 and its completion in NICI 3. What’s more, their monitoring and evaluation is external thus integrating transparency and objectivity. Hopefully, a comparable approach will be adopted in the Monitoring and Evaluation Policy and Act envisioned in the 2nd MTP of Vision 2030.

In conclusion, it is undeniably easy to be blinded by the flurry of activity currently exhibiting in Kenya’s ICT sector. However, we need to aim for strategic progress and results. The Rwandese experience above may hint at why we lost the former ICT Board CEO, Paul Kukubo to Rwanda albeit to their capital markets. As the ICTA’s board sets to seek out a new CEO, it is imperative that they conduct a comprehensive review of the ICT policy, legal and institutional frameworks dating back to the 2006 National ICT Sector Master Plan 2006. Otherwise, countries such as Ghana and Rwanda, having rightly identified the issues and building on them cumulatively, will catch up and overtake us on the race to Africa’s Silicon Savannah, as we linger on the precipice of greatness.

Revisiting the Case of “The Lion Sleeps Tonight”: A Triumph for Copyright Law in Protection of Traditional Knowledge

by Wanjiku Karanja

lion king

The Disney animated movie “The Lion King” is a fixture of popular culture having generated millions of dollars in revenue for Disney since its 1994 release. It is however the controversy surrounding the origin and rights thus appertaining to its title song “The Lion Sleeps Tonight” that forms the subject of this blogpost.

In 1939, a Zulu entertainer called Solomon Linda recorded a song called “Mbube” (Zulu for Lion) which was a hit throughout Southern Arica selling nearly 100,000 copies. This song incorporated a Zulu war cry (“Uyimbube”) in its melody. Linda unfortunately assigned his worldwide copyright to his song to the Gallo Record Company for a consideration of 10 shillings. In 1950, the song came to the attention of Pete Seeger who transcribed it and made his own song that he called “Wimoweh”, which was later incorporated in “The Lion King” as “The Lion Sleeps Tonight”.

After Linda’s death, the American music publishing company, Folkways, which had gained control of “Wimoweh”, exacted for a consideration of one dollar; an assignment of his widow’s rights to the renewal term of “Wimoweh” under copyright law. Upon her death, they exacted a further assignment of worldwide rights to “Mbube” from her daughters for another dollar. In the year 2000, an article was published in the “Rolling Stone” magazine exposing these machinations and estimating that the song had generated 15 million dollars from its use in “The Lion King” alone. This article caused an outcry in South Africa where Linda’s daughters were living in abject poverty.

Due to the publicity generated by this article, Owen Dean, a South African copyright lawyer brought an action on behalf of Linda’s family staking a claim to proceeds from the “The Lion Sleeps Tonight” version, the acknowledgment of the South African origin of the song and Linda’s role in creating it. He relied on little known legal provision: Section 5(2) of the 1911 Imperial Copyright Act, a statute of general application in South Africa during the life of Solomon Linda, which states that:

“where an author assigned his copyright during his lifetime, 25 years after his death the copyright reverted to the Executor of his estate, as an asset in that estate, notwithstanding any other assignments of copyright which might have taken place in the meantime”

This “reversionary copyright” had therefore been vested in the Executor since 1987 (i.e. 25 years after Solomon Linda’s death) and did not become the property of his widow or daughters unless and until such time as the Executor transferred it to them. Since such a transfer never occurred the assignments made by Linda’s widow and daughters in favour of Folkways had no force.

In the year 2004, a settlement was reached between the parties acknowledging “The Lion Sleeps Tonight” as a derivative of “Mbube”, designating Solomon Linda as its co-composer and creating a trust to administer the Linda’s heirs’ copyright in “Mbube” and to receive on their behalf the payments due out of the use of “The Lion Sleeps Tonight.”

Awakening The Lion by Owen Dean

The most interesting aspect of this case is the precedent that it sets in enabling heirs who are not benefiting from the copyrighted works of their forbears, to obtain remuneration arising from the exploitation of such works. This reversionary interest applies in all countries of the former British Empire in which the Imperial Copyright Act (1911) was a statute of general application.

This blogger also notes as compelling the application of copyright law in the protection of “Mbube”, a folk song, against the common view that copyright through its protection of the perceived author’s interest often fails to take into account the indigenous origin of the creation.

Application of Bitcoin Technology in Protection of Digital Intellectual Property

by Wanjiku Karanja

BitcAfri-poster-p-1-bitcoins-brave-new-world-east-africa-950x534

The turn of the 21st century saw the creation and use of digital currencies i.e. internet based mediums of exchange that allow instantaneous transactions and borderless transfer of ownership. These currencies developed during the internet boom of the 1990’s. Examples include: E-gold and Liberty Reserve (both shut down by the US government).

There has, however, been a resurgence in the interest in and creation of digital currencies in the last decade. The most notable of these creations is “Bitcoin”; the most widely used and accepted digital currency.

Bitcoin is touted as the world’s first decentralized currency as it allows transactions to occur directly between parties without the mediation of a financial institution. This feature makes it extremely attractive as it provides a degree of anonymity to the parties. Bitcoin employs cryptography to secure its transactions and control the creation of new units. Its protocol limits the total number of coins that can be created to 21 million units, thus eliminating inflation due to the lack of the erosion of the parties’ purchasing power.

While the true identity of its creator(s) remains unknown, its creation is credited to a Satoshi Nakamoto. It is however speculated that “Nakamoto” may be a pseudonym. The domain bitcoin.org was registered on the 18th of August 2008 at anonymousspeech.com and the first bitcoin transaction took place on the 12th of January 2009 between Nakamoto and Hal Finney; a developer and cryptography activist.

Central to the bitcoin network is a shared public network known as the block chain, where its financial transactions are tracked and recorded. The block chain contains every past bitcoin transaction in chronological order and is maintained by all bitcoin users. These transactions are grouped into “blocks” which are then timestamped and published. Each timestamp is linked to the time-stamp before it thereby forming a chain. Once a block is recorded, it cannot be changed without redoing the work and as blocks are chained after it, it is not possible to change a block without redoing all the following blocks. This creates a public database of all bitcoin transactions.

coindesk proofofexistence

Beyond its use in the bitcoin network, this technology can also be applied in the protection of digital intellectual property due its ability to demonstrate the property’s authenticity, ownership and time of creation, while still preserving the confidentiality of its contents. This would be enabled by the development of commercial services based on it such as the “Proof of Existence” service; a decentralized method of verification built by Manuel Araoz an Argentinian developer, where users pay a fee to upload a document and have its cryptographic proof included in the block chain.

In this respect bitcoin would provide a “means” rather than an “end” in the protection of digital property as it only goes as far as assisting in the enforement of intellectual property rights and would thus require widespread acceptance and enabling legislation to enable the use of its general ledger as a mainstream method of verifying digital property authorship.

A practical avenue for such implementation would be in the maintenance of the Patent Roll. This would help resolve conflicts that often arise during patent registration in cases where it is difficult to establish which party registered a patent for an invention first, as the party with whom the right to the patent lies would be identified from the Patent Roll based on the time of registration.

While bitcoin’s profitability in the financial world cannot be ignored, this blogger notes that its technology’s application in the protection of digital intellectual property may prove to be extremely lucrative due to its capacity to revolutionize the Intellectual Property Management status quo.

Drones and the Law in Kenya

A drone similar to this one fitted with cameras can often be seen flying over Uhuru Park during large public events

A drone similar to this one fitted with cameras can often be seen flying over Uhuru Park during large public events

Recently, the Government through the Kenya Civil Aviation Authority (KCAA) issued the following circular “for information, guidance and necessary action”.

The 2015 Circular reads in part as follows:

ACQUISITION AND OPERATION OF UNMANNED AERIAL VEHICLES IN KENYA

The Government of Kenya has noted with concern the proliferation of unmanned aerial vehicles (UAVs) in the Kenyan Airspace that are operated by various entities or individuals.

With immediate effect all Government, private institutions/entities or individuals intending to test, operate or procure UAVs should first seek approval from the Ministry of Defence”

A plain reading of this Circular is that the Government proposes to regulate unmanned aerial vehicles (UAVs) affectionately known as ‘drones’ the same way it regulates guns, for instance. According to media reports, KCAA has stated on the record as follows in relation to drones in Kenya:

“It is true that we don’t have regulations. So the authority is not licensing any drones at the moment. In fact, any drone or small aircraft seen at public functions is being operated illegally”

KCAA is reportedly in the process of coming up with Regulations on the operation of drones in consultation with several key Ministries including Transport, Defence, ICT and Communications, among others.

From a legal standpoint, this blogger submits that the Circular is an important first step and that the use of drones in Kenya raises several important issues that should be considered in the making of Regulations.

In the case of drones at Uhuru Park during public functions, what happens if a drone loses power or malfunctions, or is improperly flown and comes down on somebody’s head? What if two drones covering the same public event collide? According to media reports, a court in Oloitoktok, Kajiado County recently handed down a fine of Shs 50,000 to an Austrian national for operating a remote controlled aircraft at Amboseli National Park. It is reported that the Austrian pleaded guilty to operating the device in a manner that endangered people, property and other aircrafts. Could this be the first court precedent in the area of drones and the law? This blogger wonders under which Act the Austrian was charged and the specific offence alleged to have been committed?

For drone inventors and owners, it may be argued that this Circular curtails their enjoyment of their private property. With the uptake of drones in Kenya, this blogger is skeptical whether the Ministry of Transport has the budget, infrastructure and skilled manpower to regulate drones in the same way it regulates personal cars on Kenyan roads. Furthermore, this form of regulation would have a chilling effect on innovation in the drone industry and its applicability in various sectors of the economy in Kenya. One such sector is wildlife conservation. According to media reports, a wildlife surveillance drone project by Ol Pejeta Conservancy dubbed ‘Aerial Ranger’ had been halted by the Government for national security reasons. To ensure proper regulation of drones in Kenya, the legal framework must take into account various categories of drone operations by: hobbyists and other recreational users, government agencies, non-recreational users such as Ol Pejeta and commercial users such as delivery companies.

Be it as it may, there are many reasons why a proper legal framework is needed to regulate drones in Kenya. Let’s begin with the elephant in the room: Property rights.

Long ago, before mankind thought of flying machines, let alone drones, the Latin maxim was coined, “cujus est solum ejus usque ad coelum”. This rule may be translated as: “Whose is the soil, his it is up to the sky” or simply “He who possesses the land possesses also that which is above it”. Other interpretations are: “He who owns the soil owns everything above (and below) from heaven (to hell)” and “He who owns the land owns up to the sky”.

NoTrespassing

Therefore with this maxim in mind as well as Article 40 of the Constitution on Right to Property, this blogger foresees interesting disputes arising between land owners and drone owners.

Under the law, land owners may require that drone owners do not operate their drones over their land. If a drone flies over privately owned land, is that trespassing? Can a land owner shoot down a drone for trespassing? These questions would impose additional obligations on the regulator KCAA to ensure that licensed drones are restricted from flying over certain privately owned land. In addition KCAA would also have to keep a publicly accessible register of all licensed drone owners and their locations.

Several other interesting areas of conflict between the public and drone users would be privacy and environment enshrined under Articles 31 and 42 of the Constitution.

#CreativeEconomyKe: Reflections from First National Creative Economy Conference

logo economy of creativity

Recently, the Creative Economy Working Group (CEWG) successfully held the first Kenya National Creative Economy Conference aimed at demonstrating the current and prospective place of the arts, creativity and culture in Kenya’s economic and national life by presenting the opportunities and challenges facing the creative economy as a potentially significant contributor to national development.

CEWG was established in June 2013 with the support of the Ford Foundation. Its objectives include to showcase how Kenya can harness the creative economy to create jobs and boost the entire economy, to re-position the creative economy as a viable economic sector in Kenya and to influence legislation relevant to the creative economy sector.

According to CEWG, the creative sector in Kenya has long been marginalised. In particular, it is noted that:

“Successive Kenyan governments have been guilty of neglecting and lacking commitment towards the creative sector’s growth and development.(…) Kenya’s National Policy on Culture and Heritage has had no significant effect on the lives of creative economy practitioners.”

In this regard, CEWG moots for a creative economy policy and legislation. In particular, it is proposed as follows:

“The Kenya government assets that it has provided an enabling environment for the creative industry through policy. How should this environment be improved? Policies that answer this question and are relevant to both present and future generations need to be enacted.

The creative economy needs to be defragmented and coherence brought to all its domains. There is a need for a coordinating body that will ensure that the creative sector presents a unified front and is self-regulating. This body would also work towards rebuilding political goodwill, procuring government funding for the sector’s development and implementing government and international policies and conventions. A National Arts Council or a Creative Economy Council of Kenya is proposed here.

Another of the mandates of this body would be to manage a seed fund (such as an Endowment Fund) for young, up-and-coming practitioners in the arts and culture industry. The seed fund would be made possible by a National Cultural Endowment Policy.”

This blogger submits that the opportune moment for CEWG has presented itself in the form of #CultureBillKE, a consultative and stakeholder-led process initiated by the Ministry of Sports, Culture and the Arts to formulate an overarching legal framework for culture as mandated by Article 11 of the Constitution.

Youtube-in-Kenya

The two key note speakers at the conference: David Ndii and Bitange Ndemo shared several important insights on the creative economy in Kenya.

Ndii begun his remarks by stating that Apple’s market capitalization is $700 billion. Using the case of Apple, Ndii argued that Apple’s leading products: the iPhone, iPad, Mac, iPod and others are merely devices for accessing content therefore the key to Apple’s success has been helping its customers access the thriving creative economy made up of limitless content created, consumed and shared worldwide. During his remarks, Ndii reckoned that Kenya’s success as an economic leader is hinged on her ability to infuse creative and cultural features to all its products destined for both local and foreign markets. In the context of international trade, Ndii argues that infusing creative and cultural aspects to our products would act an invisible trade barrier that gives Kenya a comparative advantage over factory made plain sweatshop products produced in mass by other developing economies. Ndii re-emphasised the importance of promoting local creative and cultural industries in strategic and meaningful ways. One such example he gave was a government directive that public officers must wear local fashions at work as opposed to import Western clothing.

SKA_dishes_big

Ndemo focussed his remarks on the unprecedented opportunities presented by digital migration. According to Ndemo, digital migration supports the country’s social development and economic agenda through the creation of jobs especially in the area of content development, distribution of digital receiving equipment as well as rollout and maintenance of the digital signal distribution infrastructure. As a result, Ndemo stated that Digital migration would also generate foreign exchange and attract direct foreign investment in form of content service providers and infrastructure providers. Therefore Ndemo argued that the challenge for content players within the creative economy is to create high quality content will take advantage of the good picture quality and abundant broadcasting space associated with digital television broadcasting.

Interestingly, Ndemo explained that the frequencies that will be saved as a result of transitioning to digital broadcasting, otherwise known as digital dividend shall be used to roll out broadband and mobile services thereby supporting universal access to communication services throughout the country as well as creating wealth for Kenyans. In Ndemo’s words: “Soon, Safaricom will be the largest broadcaster in Kenya!”

How African Countries Scored on the Digital Evolution Index 2015

Digital Evolution Index 2015

The Digital Evolution Index (DEI) was developed by The Fletcher School at Tufts University in collaboration with MasterCard and DataCash. The aim of the Index was to identify how selected countries around the world stack up against each other in terms of readiness for a digital economy. The index is derived from four broad drivers: supply-side factors (including access, fulfillment, and transactions infrastructure); demand-side factors (including consumer behaviors and trends, financial and Internet and social media savviness); innovations (including the entrepreneurial, technological and funding ecosystems, presence and extent of disruptive forces and the presence of a start-up culture and mindset); and institutions (including government effectiveness and its role in business, laws and regulations and promoting the digital ecosystem). The resulting index includes a ranking of 50 countries, which were chosen because they are either home to most of the current 3 billion internet users or they are where the next billion users are likely to come from.

Based on the performance of countries on the index during the years 2008 to 2013, one of four trajectory zones were assigned to them: Stand Out, Stall Out, Break Out, and Watch Out.

Stand Out countries have shown high levels of digital development in the past and continue to remain on an upward trajectory.
Stall Out countries have achieved a high level of evolution in the past but are losing momentum and risk falling behind.
Break Out countries have the potential to develop strong digital economies. Though their overall score is still low, they are moving upward and are poised to become Stand Out countries in the future.
Watch Out countries face significant opportunities and challenges, with low scores on both current level and upward motion of their DEI. Some may be able to overcome limitations with clever innovations and stopgap measures, while others seem to be stuck.

Out of the 50 countries in the index, there were four African countries namely South Africa, Egypt, Kenya and Nigeria. The highest ranked African country, South Africa (33rd place) is categorised as a Break Out country along with fellow BRICS countries India, China and Brazil as well as other countries like Vietnam, and the Philippines which are said to be improving their digital readiness quite rapidly. According to experts, staying on this “Break Out” trajectory means confronting challenges like improving supply infrastructure and nurturing sophisticated domestic consumers.

Egypt (48th place), Kenya (49th place) and Nigeria (50th place) are categorised as Watch Out countries along with Indonesia, Russia, which are all said to have important things in common like institutional uncertainty and a low commitment to reform. These countries are said to possess one or two outstanding qualities — predominantly demographics — that make them attractive to businesses and investors, but they expend a lot of energy innovating around institutional and infrastructural constraints. According to experts, unclogging these bottlenecks would let these countries direct their innovation resources to more productive uses.

South Africa Digital Evolution Index

Egypt Digital Evolution Index 2015

Kenya Digital Evolution Index

Nigeria Digital Evolution Index

In the African context, many experts concur that e-commerce is now one of the key and arguably the leading enabler for growth within the consumer sector in Africa adding that e-commerce is set to dominate African retail markets over the next five years. Consequently, a myriad of opportunities are being provided for consumers and businesses to buy and sell both new and used items online. Among companies that provide such e-commerce platforms are OLX, Jumia, Rupu, Kaymu.

From a legal perspective, this blogger notes that Kenya’s digital economy will only be able to flourish under the proper legislative and regulatory conditions. In this regard, there are four critical laws which need to be enacted namely: a Data Protection Act, an Access to Information Act, an e-Transaction Act and a Cybercrime Act.

#bloggersforum: Blogging in Kenya – Should It Be Regulated?

This past month, the Bloggers Association of Kenya (BAKE) organised a forum to discuss blogging, its merits, demerits and whether this space should be regulated or not. The forum also intended to shed some light on the differences (if any) between journalism and blogging, and therefore how the Government and regulatory bodies should handle them (the same way, or differently?).

BAKE invited different players to get input on this topic including government, media practitioners and interested stakeholders. For those who missed the event, you can view online on youtube as captioned above and re-trace the conversation on Twitter via the hashtag “#bloggersforum”.

As many may know, the Kenya Media Council Bill was recently passed by Parliament and assented to by the President amidst hue and cry from the ‘Fourth Estate’, claiming that the legislation was intended to muzzle free speech and radically curtail freedom of the media enshrined in the Constitution. This blogger contends that the Media Council Act may be used as a tool to regulate ‘bloggers’ and other ‘journalistic’ social media users in Kenya.

In section 2 of the Act, the definitions provided for “Journalism” & “Journalist” are all-encompassing and may possibly be interpreted to include bloggers. For instance, “journalism” is defined as the “collecting, writing, editing and presenting of news or news articles in the internet. This is a major departure from the narrow definitions in the previous 2007 Media Act Chapter 411B Laws of Kenya.

With regard to the application of the Act, section 4 appears to suggest that the Act will apply to bloggers either in their capacity as “journalists”, “media practitioners” (The Act does not define the term “media practitioner”) or “consumers of media services”. In light of the above, this blogger contends that there may be need to review the definition of “journalist” to exclude those not engaged in a regular and professional manner in the dissemination of information to the public via media.

With regard to the functions of the Media Council, Section 6(1)(g) provides for the accreditation of journalists. This further complicates the definition of ‘journalist’ in the Definitions section. It may be argued that a possible distinguishing factor between a journalist and a blogger would be accreditation by the Council. Again, there may be need to review the definition of “journalist” to address this ambiguity.

In addition to the functions of the Council, the Act goes further to elaborate the powers of the Council, which include:-
1. the establishment and operation of the internal alternative dispute resolution mechanism for disputes relating to the media
2. the setting of procedures for determination of disputes relating to the media.
3. the establishment and operation of systems to receive, investigate and deal with complaints made against bloggers.
4. the power to summon and receive information or evidence relating to any matter.

With regard to complaints and dispute settlement, the Act under section 38(1)(f) creates and empowers the Complaints Commission to order a fine of not more than one hundred thousand shillings (KES 100,000) for any violation of the Bill or Code of Conduct committed by a journalist, which may by extension include bloggers. However the Act under section 42 provides for Appeals to the High Court against a Council decision on a complaint within thirty days after the decision.

The Act creates the offence of failing or refusing to comply with the direction of the Council without lawful justification. Upon conviction, the penalty is a fine not exceeding two hundred thousand shillings (KES 200,000) or six months imprisonment or both. For offenders convicted for any subsequent offences, the fine is one million kenya shillings (KES 1,000,000) or a prison term not exceeding ten years or both.

Schedule 2 of the Act provides a Code of Conduct for the Practice of Journalism. This Code of Conduct may be a useful read for all bloggers. It can be summarised under the following broad headings:-

– publication of fair, accurate and unbiased stories on matters of public interest
– independence from those seeking influence or control over news content
– integrity of news presented
– accountability of journalists to the public and the profession
– opportunity to reply be accorded to any person/entity when reasonably called for.
– disclosure of sources
– confidentiality of source of information where necessary
– information or pictures should not be obtained through misrepresentation
– Reports must not be obscene or vulgar
– publications must not be exchanged for payment of money
– caution and restraint when covering ethnic, religious conflict
– consent to tape or record interviews and conversations
– individual right to privacy outweighs public’s right to know
– sensitivity and discretion in cases involving grief or shock
– non-discrimination of sexes, genders
– disclosure of financial interests prior to reporting
– cases relating to children
– non-disclosure of names of sexual offences victims
– caution in the use of picture and names
– non- disclosure of innocent relatives of friends connected with convicted or accused persons
– presentation of acts of violence and other anti-social conduct
– editor’s responsibility for content and advertisements.
– careful quoting of hate speech and derogatory remarks

All in all, the Act is significant as it blurs any distinction between journalists and bloggers, with the latter group ostensibly being subsumed in the definition of the former group. Therefore once the Chairperson and Members of the Media Council have been appointed, it will be interesting to see how the Council interprets the application of the Act to bloggers and other relevant categories of social media users.

#CAExp: Communications Authority of Kenya Sets Record Straight on #DigitalMigration

COMMUNICATIONS AUTHORITY OF KENYA ADVERT DIGITAL KENYA DIGITAL MIGRATION 2015

Since our last update on #DigitalMigration here, the so-called “Analogue 3″ namely Nation Media Group, Royal Media Services and Standard Group have pulled their television broadcasts off-air after the Communications Authority of Kenya (CA) seized their analogue broadcasting equipment on February 14, 2015 following a ruling by the Supreme Court that reinstated the CA’s switch-off deadlines for digital migration.

The on-going stand off between the regulator and the Analogue 3 has led to accusations and counter accusations on which party is at fault for failing to abide by the deadlines and information from the three media houses all blaming CA for this state of affairs. Due to the power the Analogue 3 yield, many Kenyans have only heard one side of the Digital Migration story there the Bloggers Association of Kenya invited the CA to tell the other side of this story for Kenyans to fully understand why things are as they stand. The forum with CA took place on February 25, 2015 at the Nailab and was very well-attended. For those who missed the forum, you may re-trace the conversations via the twitter hashtag: #CAExp.

During #CAExp, CA’s representatives did a good job of convincing the audience that the regulatory action it has taken thus far have been both legal and in the public interest. CA maintains that the Supreme Court of Kenya on February 13, 2015 ruled that the analogue switch-off dates remain as scheduled ahead of the international deadline of June 17, 2015. According to CA, the apex court’s ruling also implied that any stations still broadcasting on the analogue platform in the areas already switched off were required to migrate to the digital platform with immediate effect. CA therefore gave media houses on the analogue platform up to midnight of 13th February 2015 to migrate to the digital platform. All media houses migrated to the digital platform except the three media houses, Nation Media Group, Standard Group and Royal Media Services, operating under investment company Africa Digital Network (ADN). Therefore on February 14, 2015 CA proceeded to take necessary regulatory action to switch-off the Analogue 3’s analogue signals. Thereafter CA claims that the Analogue 3 of their own volition went ahead and withdrew their content from the digital platform (SIGNET and Pan African Network Group signal distribution networks) and selected pay TV service providers (Star Times, DStv and GOTv).

CA is adamant that Digital television broadcasting is a technological change with numerous benefits to the country. The process begun in 2007 and all media houses and other players have had enough time to prepare financially, commercially as well as technically to migrate to the digital platforms. The media houses failed Kenyans by not preparing for this technological change. It should be noted that Kenya’s failure to migrate will negatively impact the frequency planning in the country and neighbouring countries. In this connection, CA argues digital migration will create thousands of jobs and huge investment opportunities. The Authority has already licensed over 40 content service providers on the digital platform. The providers have to create content and this will uplift the media and film production industry and create employment.

What next in the Analogue 3 vs CA stand-off?

The Supreme Court ruling of February 13, 2015 directed CA to restore the self-provisioning authorization and the requisite frequencies with a condition that the media houses abide by all the conditions that had earlier accompanied the grant of authorization for self-provisioning. CA confirms that the three media houses, through their consortium, ADN have applied for a set-top box vendor’s licence from CA and that the application is now under consideration. However, CA notes that ADN is yet to submit a sample set-top box for type-approval.

CA LETTER DIGITAL MIGRATION RESUMPTION

In a recent letter by CA to the Analogue 3 dated February 26, 2015, the regulator states as follows:

“The Authority has noticed with grave concern that you have terminated the transmission of your broadcast programmes on the digital platform since 17th February 2015 to date (….) Both the Supreme Court decision and the resultant Authority’s directive only required switch off of analogue transmissions as per the gazetted switch off schedule, and not digital transmissions.

Consequently, the Authority hereby requires you to reinstate your channels on the digital platform within seven (7) days of this letter (….) Failure to reinstate the channels and to stop broadcasting the misleading information shall invite regulatory action by the Authority without further reference to you.”

The #digitalmigration saga continues…

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