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.

#WorldIPDay: Some Thoughts on World Intellectual Property Day 2015

World Intellectual Property Day 2015 Events - WIPO Map

As many may already know, every April 26 Kenya joins the rest of the globe to celebrate World Intellectual Property Day as a means of promoting discussion of the role of intellectual property (IP) in encouraging innovation and creativity.

As discussed previously, the theme selected by the World Intellectual Property Organization (WIPO) for this year’s World IP Day is: “Get up, stand up. For music”. According to WIPO, music is the “most universal of creative expressions” which “transcends borders and connects with some primal beat within all of us”. Through this theme, WIPO also appears to be paying tribute to the “inspiration and hard work of thousands of creative people around the world – singers and songwriters; musicians and publishers; producers, arrangers, engineers and many others” who are responsible for the music that we enjoy today. This year’s World IP Day theme invites us all to explore some of the changes shaping the music industry today, and interact with those intimately involved in the business of making music about how they see the future.

The above map by WIPO (available here) shows some of the activities and events planned by countries across the world to celebrate World IP Day 2015. It is sad to note that the African continent, made up of 54 countries, has only registered a paltry 6 events with Kenya and South Africa holding 2 events each and two other events planned in Tanzania and Nigeria. Sadly, the creators and innovators in African countries, led by their respective IP offices, would benefit greatly from using the World IP Day as an opportunity to educate and empower their people to harness the power of IP as a tool for economic and social development.

This blogger submits that a crucial sub-theme for this year’s World IP Day is the question of piracy. The unauthorized commercial use of copyright popularly known as piracy is an infringement of Copyright. In simple terms, piracy occurs when a person who is not the author of copyright works, and who has not been authorized by the author reproduces, sells, distributes or communicates to the public such works for financial gain. It also includes the manufacture and distribution of devices used to perpetrate acts of piracy. Piracy is a big problem in Kenya.

Although it permeates the entire copyright sector, the music industry with a piracy rate of 98%, is by far the most affected. Music pirates are fierce and aggressive. It is alleged that in certain instances they release pirated copies even before the genuine product hits the market. There are various categories of piracy. One is where a person has a complete reproduction facility with several duplicators, a printing press complete with a paper cutting machine, a design site and packaging materials. This pirate doubles up as a distributor of the pirated works. He also employs hawkers who set-up temporary stands in estates and other outlets. Their replication facilities are usually in deserted buildings or their homes. Their products are simple CDS, DVDS and VCDs with, single leaf covers indicating the songs covered with a transparent cover. The content is made up of hit songs. The second category consists of pirates with a similar outfit as described above. However, here, the pirate makes an exact replica of the original works. The third type is where a hawker or shop owner who keeps a computer, printer and scanner at either his business or residential premises. He/she buys an original CD/VCD which serves as a master to reproduce and replenish his stock.

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This year, during the World IP Day celebrations in Kenya, the national IP offices led by Kenya Copyright Board (KECOBO) have organised an event on April 25th 2015 under the sub theme: “Learn How to Monetize Your Talent”. Thereafter the Ministry of Sports, Culture and the Arts will hold a validation forum for Kenya’s first ever National Music Policy. A copy of the policy is available online here. Our previous comments on the draft Music Policy are available here and here.

On Copyright and the Regulatory Framework for the Audiovisual Sector in the Digital Age

WIPO KECOBO Regional Seminar on Copyright and Audiovisual Sector

On 15th and 16th April of 2015, the World Intellectual Property Organization (WIPO) and Kenya Copyright Board (KECOBO) organised a Regional Seminar on Copyright and the Regulatory Framework for the Audiovisual Sector in the Digital Age as part of WIPO Development Agenda Project on “Strengthening and Development of the Audiovisual Sector in Burkina Faso and Certain African Countries”. As some may recall, the first seminar under this project took place in Nairobi in 2014 as previously highlighted here.

For those who missed this recent WIPO-KECOBO Seminar, you may follow some of the conversations online through the twitter hashtag: #WIPOKECOBOSeminar.

From an intellectual property (IP) perspective, participants at the seminar discussed at length the on-going digital switchover (the topic of digital migration has been previously here) in light of the opportunities and challenges for the audiovisual industry. In this regard, the Communications Authority of Kenya (CAK) came under fire from several quarters due to its lacklustre performance thus far in promoting and protecting the rights of copyright owners whose works are blatantly infringed by CAK licensees. Similarly, CAK was at pains to explain the local content quota requirement for CAK broadcast licensees, including how the quota will be calculated and enforced.

In the specific case of copyright law in the audiovisual sector, the point of departure was section 26(j) of the Copyright Act which sets out a fair dealing provision that protects broadcasting organisations who use audiovisual works that are already published. This section provides that a rights holder does not control the broadcasting of a literary, musical or artistic work or audiovisual work already lawfully made accessible to the public with which no licensing body is concerned. Broadcasters thus have a possibility to show published audiovisual works freely, where there is no CMO functioning in the audiovisual industry. Therefore it is only when rights holders mandate a CMO to manage their broadcasting rights in their audio-visual works that broadcasters will need to ask for their permission, i.e. get a license from the CMO.

Currently there is no CMO in Kenya functions for copyright owners of audiovisual works. However if a company limited by guarantee for the collective management of audiovisual rights would be set up, the number of rights holders it would potentially represent is a central issue. However from as early as 2011, KECOBO, the body that accredits and regulates CMOs, has expressed its willingness to set up a CMO “for the audio visual works which will collect for the rental and use of audio visual works such as films on behalf of the rights holders”.

Finally, it was stated during the Seminar that the administration of the blank tape levy (private copying levy) provided under the Copyright Act would commence on 1st of July 2015. According to Section 28(5) of the Act (as amended in 2014) the blank tape levy shall be collected by KECOBO and then distributed to “the respective copyright collecting society registered under section 46”. As many may know, the private copying levy (or the audio blank tape levy as it known in Kenya) is currently the only efficient mechanism which allows creators to be compensated for widespread copying of their works for private/domestic use. It therefore follows that the blank tape levy would be applicable to blank CDs, tapes, cassettes, DVDs, VCDs, USB Disks, MiniDiscs, Memory Cards, Mobile Phones among others. It will be interesting to see how owners of audiovisual works will benefit from this levy.

Thin SIM Technology: A Threat to Data Privacy in Kenya?

By Wanjiku Karanja

Equitel SIM

Equity Bank’s plan to launch mobile phone services though “Thin SIM technology” was blocked by the High Court on the 18th of December 2014 following an application by legal advocacy lobby “Kituo cha Sheria”, which argued that the use of the technology raises legitimate concerns as to the security of data or personal identification numbers (PIN) on the primary SIM. The lobby further accused the Communications Authority of authorizing the technology without a full audit of the security risks to the subscribers’ personal data of the primary thin SIM that will be overlaid by the thin SIM. The court orders barring the roll out of the SIMs were directed to Finserve Africa Ltd, a subsidiary of Equity Bank, and the Communications Authority of Kenya.

“Kituo” sought the order in pursuance of their constitutional right to institute court proceedings to claim a contravention or threatened contravention of the Constitution, as under Article 258 of the Constitution, as a matter of public interest. Thin SIM/ Skin SIM technology is an overlay technology that involves the placing of a paper-thin plastic sheet (skin SIM) on top of a standard SIM card without affecting the original service provider’s network reception but while providing an additional service. This essentially creates a dual SIM feature. This technology was developed in China nearly a decade ago by a Shanghai based company; F-Road, to address the demands of Chinese customers who frequently found that their mobile phones were roaming when travelling outside their home province.

This SIM technology has been brought to Kenya not by a mobile operator, interestingly enough, but by Equity Bank. Equity was licensed as a mobile virtual network operator (MVNO) in early 2014 under the name “Equitel”, making it the latest entrant into a fiercely competitive mobile money market that has long been dominated by Safaricom. Following a hearing before a Parliamentary Committee on Energy, Information and Communication in September 2014, the Communications Authority of Kenya (CAK) gave Equity Bank the green light to roll out its thin SIM cards in a yearlong pilot scheme. In a press release, Equity CEO James Mwangi stated: “ In this venture of enhancing our mobile banking offering, we are as always, driven by our focus of making financial services convenient, accessible, affordable and inclusive”. He further added that the charges under their service would be at a “sixteenth of the current market charges”.

While it may seem that Safaricom’s main concern is its 73% mobile money market share, the company claims that their concerns are essentially based on what they claim is the technology’s potential to:
– Record and divulge mobile user PIN details (including Mobile Banking PINS)
– Intercept, manipulate and/or destroy Unstructured Supplementary Service Data (USSD) communications
– Cause denial of service to existing SIM’s by intercepting, manipulating and/or destroying SIM toolkit instructions
– Carry out actions without the explicit permission or knowledge of the mobile user for example monitor calls and SMS
– Obtain unauthorized access to the SIM card and change configuration settings and thus impacting the customer experience adversely.

Taisys Technologies, the manufacturers of the thin-SIMs, however insist that the technology is neither intended, nor has the capability, to disrupt or interfere with the functions of the primary SIM card.

Motives aside, the issues expressed by Safaricom raise major concerns as to the implications of the technology on the consumers’ right to privacy. Article 31 of the Constitution of Kenya (2010) protects the right to privacy of every individual including the right not to have information relating to their family or private affairs unnecessarily required or revealed or the privacy of their communications infringed. The Kenya Information and Communication Act and Consumer Protection Regulations (2010) further provides that a consumer has the right to personal privacy and protection against unauthorized use of personal information. The roll out of a technology that compromises the security of the data of members of the public is in blatant contravention of these two provisions.

The case, which continues, to be heard is bound to have a far-reaching impact on the mobile money sector status quo, irrespective of its outcome. However, it is only in the fullness of time that the implications of this technology will be clear.

This blogger awaits further developments in this case.

Defamation on Facebook in South Africa: Emerging Cases on Social Media and the Law

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In a South African case reported as Isparta v Richter 2013 6 SA 4529 (GP) the plaintiff instituted an action for defamation against the defendants following comments made by the first defendant on her “Facebook Wall”. The first defendant tagged the second defendant concerning the defamatory postings. For the first time in a South African court, damages were awarded for defamatory comments made on Facebook. The judge had to determine whether the alleged defamatory statements did indeed relate to the plaintiff and whether the comments, individually or collectively, could be considered defamatory. In the last instance, the judge had to decide what amount of damages would be appropriate for harm resulting from defamatory comments on Facebook.

A copy of the judgment is available here.

The facts of the case are that the plaintiff, a senior manager employed by the South African Revenue Service, sued the defendants for defamation arising from the “posting” of certain comments on the First Defendant’s “Facebook Wall”. The plaintiff and the second defendant were married to each other, but were divorced after acrimonious litigation. The plaintiff and the second defendant are still engaged in consequent litigation. The plaintiff obtained an order for the committal of the second defendant for contempt of court. She also obtained an interim interdict against him, with a return date in September 2013. The ongoing litigation concerns the second defendant’s alleged failure to comply with a settlement agreement entered into between the plaintiff and the second defendant in their divorce proceedings. The plaintiff has remarried and the first and second defendants have married each other. The plaintiffs husband has a son aged 16, who lives with her and her husband. She also has two children from her marriage with the second defendant. They are a girl, P-A, then aged 6, and a boy, G, aged 4.

The first defendant posted several comments concerning the plaintiff on her Facebook Wall. In each case she tagged the second defendant. The judge found that two of these postings were defamatory. In the first posting the first defendant ridiculed the plaintiff’s alleged interest in her private life. She used the plaintiff’s first name as well as the names of her two children. The second defamatory posting appeared a bit later than the first. This posting referred to an incident where the sixteen-year-old boy was in the bathroom with his six-year-old sister. The posting in Afrikaans has been translated in English as follows: “To all moms and dads… what do you think about people who allow stepsons to bath little sisters every evening because it makes the mother’s life easier????

The posting attracted negative comments from viewers of the first defendant’s Facebook wall. The plaintiff, being the only person who gave evidence in court, explained the context of the bathroom scenario and this was accepted by the judge. The defendants admitted that the comments had been posted on the first defendant’s Facebook Wall and that the second defendant had been tagged to the comments. They offered no defence, apart from the fact that they were of the opinion that they had been entitled to publish anything they want about anybody because, they argued, Facebook is open for everybody to express their opinions.

The first issue for determination by the court was whether the two facebook postings referred to the plaintiff. It is trite law that A plaintiff in a defamation action must prove that the impugned statements are directed at him or her. If a plaintiff is not directly referred to in the defamatory statement, the plaintiff must plead the circumstances which would have identified him or her to the addressees.
In this regard, the court found that the plaintiff succeeded in showing that a reasonable reader of the postings would associate the comments with her even though the first defendant had three other facebook friends with a similar name of L to that of the plaintiff. However, there was one facebook posting where the plaintiff was not referred to by name. In this regard, the court accepted that one approach is as set out as follows by Viscount Simon LC in Knupffer v London Express Newspapers Ltd to determine whether defamatory material refers to the plaintiff where the plaintiff is not directly named. This test asks two questions namely: (a) can the words be regarded as capable of referring to the plaintiff? and (b) did the words in fact lead reasonable readers who know the plaintiff to the conclusion that they do refer to the plaintiff? Another approach set out in the same case by Lord Atkins who formulated the question as a single one as follows: “The only relevant rule is that in order to be actionable, the defamatory words must be understood to be published of and concerning the plaintiff.” Ultimately the court finds that regardless of which approach one adopts, the second posting (i.e. the one where the plaintiff is not referred to by name) unambiguously refers to the plaintiff.

The second issue for determination by the court was whether the two facebook postings were individually or individually and collectively, defamatory. In making an affirmative finding in favour of the plaintiff, the court stated as follows:

The first comment is to the effect that the plaintiff is meddlesome and interfering. It is a personal message addressed to the plaintiff. If the first defendant had an issue with the plaintiff, she could have addressed it with her personally However, she chose to publish it on Facebook where all her friends and friends of the plaintiff would read it. Although the first message does not constitute serious defamation, publication thereof on her Facebook wall was gratuitous and with the intention to place the plaintiff in a bad light.

The second impugned posting is scandalous to the extreme. It suggests that the plaintiff encourages and tolerates sexual deviation, even paedophilia Some of the defendants’ friends lapped it up with relish and added their own snide comments, compounding the damage to the plaintiff’s reputation.

I therefore find that both statements are defamatory, individually and collectively.

In the end, the court ordered that the plaintiff be awarded the sum of R40 000 in damages because the defendants did not want to apologise or retract the defamatory comments on their Facebook Wall.

In light of the above judgment and taking into consideration postings by users on social network services in general and specifically on Facebook, commentators note that Facebook users should in the future be exceedingly careful not only about what they post but also with regards to being “tagged” by other users.

Legality of the “Nanny Camera” in Prevention and Detection of Child Abuse

by Wanjiku Karanja

A legitimate concern for working parents is the safety of their child at the hands of their caregiver, while the parents are away at work. This fear has become more solidified with the increased reporting of cases of abuse of children at the hands of their caregivers or nannies. Parents are increasingly installing nanny cameras in their homes to discretely record the actions of their caregivers while they are away at work.

The “Nanny Camera” is a colloquial term used to describe a small hidden camera that is installed in homes, by parents, for the purposes of: monitoring a babysitter/caregiver, so as to ensure that their child is not being abused or for the prevention of theft. A nanny camera is often disguised in everyday objects, such as teddy bears. They are often wireless and transmit a signal to a receiver connected to a Digital Video Recorder (DVR) or Video Camera Recorder (VCR) or even directly to the parents computer, tablet or cell phone via the internet.

Recently the video captioned above of a nanny brutally assaulting a toddler went viral on social media, generating widespread anger and shock at the brutality of the nanny’s actions. The child’s parents who upon observing injuries on their child, installed a nanny camera in their sitting room to record their nanny’s activities. Following the above recorded footage, the nanny in question was arrested and charged with torture under the Ugandan Anti-Torture Act and later convicted of the crime and sentenced to a term of 4 years in prison.

While this case brought to the forefront the concerns of many working parents of their children’s safety when left with caregivers in homes, it also raises several constitutional and legal issues.
The use of nanny cameras is a contemporary issue and Kenya has not enacted specific legislation that addresses it. Therefore when establishing the legality of nanny cameras, the reliance is primarily on precedents from other jurisdictions although there are some important provisions in the Kenya Constitution.

The use of hidden cameras in the workplace is generally legal as long as the company has a legitimate need to film, the areas under surveillance are public, and employees know about the filming. In the case of nanny cameras however, the parent’s home serves as the “workplace” of the caregiver. This then raises the question: is there an expectation of privacy in the homes of others?

Courts have addressed this issue as seen in the case of State v Diaz 706, A. 2d 264 (1998), where the Court answered this question by stating that the United States’ Constitution did not protect the nanny’s privacy in someone else’s home and as such there is no expectation of privacy in another person’s home. The installation of a hidden camera by parents in their home does not amount to an invasion of privacy.

There is a however a caveat attached to this position as: the installation of the nanny cameras must be for a legitimate purpose i.e. the monitoring of the nanny with the intent of thwarting any possible child abuse,

This is because the right to privacy, as protected by Article 31 of the Constitution of Kenya, can only be limited by an overriding legitimate interest such as the need to protect the safety of a child. This interest is protected by the Constitution, which, in Article 53(1d), provides that every child has the right to be protected from abuse, neglect, all forms of violence and inhumane treatment and punishment.
Installation of nanny cameras must also be done in common places of the home where someone has no reasonable expectation of privacy. Installation in private areas such as bathrooms used by the nanny would amount to invasion of privacy. The nanny cameras should also not be used for voyeurism, blackmail, and dissemination of private information to the public or for any other commercial purpose.
Some nanny cameras have an audio capability but the use of this feature complicates the issue as some laws e.g. the Wiretap Act, prohibit the recording of speech without the consent of the parties. The rationale behind this is to prevent the possible use of audio in a surreptitious manner and the recording of audio through a hidden camera qualifies as such.

The proposed Kenya Data Protection Bill (2013) also limits the extent of protection afforded to personal data, relating to a living individual who can be identified from that data (footage recorded), by Article 31 of the Constitution of Kenya, for the purpose of safeguarding legitimate interests under which the protection of children falls as previously discussed.

The question which remains is: what recourse do caregivers have against parents who install nanny cameras? Nannies have a right to full disclosure of the particulars of their employment but it is difficult to compel parents to inform them of the hidden nanny cameras. The only available recourse would arise when the nanny cameras are installed without a legitimate purpose and are used to infringe on the caregiver’s right to privacy. In such a situation, a nanny may institute a tort for invasion of privacy due to an unreasonable intrusion upon the seclusion/solitude of another.

In conclusion, while the installation of nanny cams is attractive to many parents it is important to consider the ethical implications of filming someone without their consent or knowledge. It may result in the damaging of the employee–employer relationship between the parents and the nanny. It is therefore important to: assess the effect that the surveillance system may have on personal privacy and ensure that the camera system minimizes the privacy intrusion to that which is absolutely necessary to achieve its lawful goals.

March 2015: Intellectual Property Month in Review

world intellectual property day 2015 poster get up stand up for music worldipday

This past month, there have been several interesting intellectual property (IP) law related developments from the World Intellectual Property Organization (WIPO) and African Regional Intellectual Property Organization (ARIPO), several important decisions from courts in Uganda and Kenya on copyright and trade mark matters and two significant legislative developments from East African Community (EAC) and Kenya respectively.

At the WIPO level, this month marks the unveiling of this year’s World IP Day theme titled: “Get up, stand up. For music”. In its press release, WIPO describes music as the “most universal of creative expressions” which “transcends borders and connects with some primal beat within all of us”. Through this theme, WIPO also appears to be paying tribute to the “inspiration and hard work of thousands of creative people around the world – singers and songwriters; musicians and publishers; producers, arrangers, engineers and many others” who are responsible for the music that we enjoy today. This year’s World IP Day theme invites us all to explore some of the changes shaping the music industry today, and interact with those intimately involved in the business of making music about how they see the future.

At the ARIPO level, there have been two major developments. Firstly, ARIPO announced the launch of its web-based Intellectual Property (IP) Administration System under POLite+ – the ICT Infrastructure Modernization Project sponsored by Korea International Cooperation Agency (KOICA). During the launch, ARIPO reports that new paper-based applications for patents, industrial designs, trademarks, utility models and search requests domains and notifications or documents associated to IP applications were captured into the system successfully. Secondly, ARIPO successfully executed its on-going series of Region-wide “Roving Seminars” in Kenya with the first two days (Monday 16th and Tuesday 17th of March 2015) being devoted to copyright matters under the theme: “Copyright in the Digital Environment” and last two days (Thursday 19th and Friday 20th of March 2015) being devoted to industrial property matters under the theme: “Protection and Promotion of Patents, Trade Marks, Industrial Designs and Geographical Indications”.

Meanwhile in Uganda, the High Court delivered a significant judgment in the case of Ssebagala v. MTN (U) Ltd & Anor. In this case, Ssebagala the former Mayor of Kampala spoke to journalists who were waiting outside the precincts of Parliament. Ssebagala was being vetted by Uganda’s Parliamentary Appointments Committee following his nomination for appointment as a Cabinet Minister. During the question and answer (Q & A) session, Ssebegala is said to have responded to the journalists using his “characteristic style and skill which obviously generated a lot of merriment”. Ssebagala’s interaction with the press was publicly broadcast in Uganda as current news of public and political events. Thereafter SMS Media Ltd, the third party in the suit, adapted audiovisual recordings of Ssebagala into caller ring back tones (CRBTs) and offered these caller tunes to leading mobile network MTN Uganda for sale to the latter’s subscribers. In its judgment, the court found against Ssebagala stating that he cannot claim authorship for the purposes of the Ugandan Copyright and Neighbouring Rights Act and therefore no economic or moral rights allegedly belonging to Ssebagala had been infringed by MTN and SMS Media. From the judgment, it is clear that counsel for Ssebegala gravely erred in claiming Ssebagala was author/co-author of the ringtones and that the copyright in the suit ringtones vests in him.

Back in Kenya, there were two significant decisions by the Court of Appeal and High Court respectively. In the case of Sony Holdings Ltd v Registrar of Trade Marks & another [2015] eKLR, the main challenge was whether the Registrar of Trade Marks acted within his powers in extending time within which a notice of opposition to the registration of two trade marks could be lodged. In its judgment, the appellate court upheld the decision of the High Court and found that the Registrar of Trade Marks had the discretion to extend time periods under Section 21(2) the Trade Marks Act read with Rules 46 and 102 of the Trade Marks Rules.

Meanwhile in the High Court, an important ruling was made in the case of Weetabix Ltd v. Manji Food Industries Ltd HCCC No. 53 of 2013. In this case, Weetabix had approached the High Court seeking a temporary injunction restraining Manji Foods, the makers and distributors of Multibix from engaging in any commercial dealings with the product Multibix. According to Weetabix, the application became necessary because despite the ruling of the Registrar of Trade Marks (as highlighted here), Manji Foods has continued to distribute and sell the Multibix product causing damages as result of trade mark infringement. The court found for Weetabix allowing its application for injunction. At the core of the ruling by Ogolla J was an unequivocal affirmation of the decision by the Registrar of Trade Marks from In Re TMA No. 66428 “MULTIBIX” Opposition by Weetabix Ltd 31 August 2012 where Weetabix had successfully brought opposition proceedings against the registration of the trade mark “MULTIBIX” in respect of “biscuits” (in class 30) on the grounds of likelihood of confusion contrary to Section 14 of the Trade Marks Act and that “WEETABIX” was a well-known mark under Section 15A of the Act.

Finally, an important legislative development is in the works within the EAC with the EAC Creative and Cultural Industries Bill, 2015 which was read for the first time and committed to the Committee of General Purpose during the Fourth Meeting of the 3rd Session of the 3rd Assembly plenary session held in Arusha, Tanzania. In the course of this past month, an EAC Committee has been covering all EAC Partner States holding public hearings to sensitise stakeholders on the Bill and receive views and contributions from them to be incorporated into the Bill.

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.

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