RESEARCH AND COPYRIGHT; THE KENYAN REALITY.

Copyright is a legal right that authors, publishers and other producers of information-related

materials have to protect their work from unauthorized reproduction (Lesman, 1995).

It is argued that it originated from the industrial revolution in Europe. Pre-1800, publishing was a preserve of the higher echelons of society; those well-heeled individuals able to pay “copiers” to manually make copies of manuscripts which was both tedious and expensive. With the revolution, came production en masse which threatened publishers who went to their government for protection as they feared for their monopolies over the intellectual, economic and moral rights they held over their publications. This lead to creation of laws to protect intellectual property rights including but not limited to copyright. The Berne Convention (1886) and The Universal Copyright Convention (1952) are two of the earliest treaties signed into existence to adopt uniform standards in enacting copyright legislation and protect the copyrighted works of authors across borders in all member countries.

In Kenya the main Laws that impact on access to information are the Constitution, the Official Secrets Act, Cap 187; and the Copyright Act, 2001(revised 2009.) The most relevant one to writers and researchers is the  Copyright Act 2001(revised 2009) Copyright in a literary, musical or artistic work or audio-visual work shall be the exclusive right to control the doing in Kenya of any of the following acts, namely the reproduction in any material form of the original work or its translation or adaptation, the distribution to the public of the work by way of sale, rental, lease, hire, loan, importation or similar arrangement, and the communication to the public and the broadcasting of the whole work or a substantial part thereof, either in its original form or in any form recognisably derived from the original.

The new law took into account the various changes that have occurred in the industry in the past fifty years which hadn’t been represented in previous legislation. Copyright serves two major purposes and a delicate balance is required to fulfill both; the widest possible reach of the writers work and the ability for other academics to build up on already published work versus the need to protect the economic and intellectual rights of the author.

In recognition of the balance needed, exemptions are made albeit with their own restrictions to the copyright laws. The law allows for use of copyrighted work by way of fair dealing; for the purposes of scientific research, private use, criticism or review, or the reporting of current events subject to acknowledgement of the source;

Schools and registered educational institutional facilities, an allowance is given for “two short passages” and this is subject to acknowledgement of the author and the work. Fair dealing is however left fairly vague. There is nothing mentioned on the amount of work that can be used which might lead to narrow interpretation of the relevant clause by writers and publishers or broad interpretation of the clause by the users of the work (depending on which side your bread is buttered.)

The exception for research and private study under the 1988 Copyright Act in England has recently been narrowed and this could be used in part or whole to seal the loopholes in our Kenyan Copyright legislation

(i) under its wording, ‘research’ is to be treated as distinct from ‘private study’. ‘Research’ for these purposes should not only encompass the initial stages of an academic project when material is being collected but also subsequent stages which involve the analysis and publication of the results.

(ii) ‘research’ in this context should be regarded as ‘non-commercial’ in any circumstances where the taking of copyright material is fair and the presentation of the results will be without charge to the recipients or will be at a charge which can only be expected to cover the reasonable costs of production and distribution, including the reasonable profits of a commercial publisher.

(iii) research which is financed by a research council or charitable foundation is presumptively non-commercial

(iv) charges which are not covered by the exemptions, because the research to which they relate is commercial, should be reasonable and competition authorities and the copyright tribunal should be able to restrain abuse.

There exists an absence of case law in matters relating to this and it may make equitable rulings difficult in that respect. In the spirit of enlightenment, many authors and publishers are sensitive on their rights and are eager to pursue maximum benefits from their rights even though the legal backing might be weak. Threats of litigation have become a norm in matters where infringement is suspected but very few authors, research oriented included, are familiar with the actual law and rely on hearsay or on advice from other ignorant fellows in their profession. Few actually ever go to court, though because of the relative cost of the benefits against the cost of litigation and the opportunity cost.

At an annual meeting for the Poets and Writers Online (POWO), a panel of guests stressed on the use of the courts as an action of last resort. They suggested out of court settlements through direct deliberation with the infringers or plagiarizers. The Kenya Copyright Board (KECOBO) has state counsels (in simplified terms: paid by your taxes) who can act as arbitrators and facilitate meetings at KECOBO’s offices between parties with the aim of finding suitable resolutions to disputes that may arise.

Researchers all over, including Kenyan ones push for the right to use other people’s copyrighted worked without overpaying for it yet at the same time fight for the protection of copyright since they are also authors. There have been few reported cases of research copyright infringement in Kenya but this is not because they do not exist. This is because most research institutes in Kenya receive submissions in hardcopy format which make it virtually impossible to use plagiarism software which is effective in determining whether work is original or has been copied using a complex set of algorithms. Plagiarism and Copyright infringement are however not the same thing.

Plagiarism is a violation of academic norms but not illegal; copyright violation is illegal. Plagiarism applies when ideas are copied, whereas copyright violation occurs only when a specific fixed expression (e.g. sequence of words) is copied. A copyright infringer copies one’s work for commercial benefit while a plagiarizer copies one’s work to assume the identity as the author for purposes of attribution and recognition.

Thus all cases of copyright infringement are plagiarism but not all cases of plagiarism are copyright infringement.

The Science, Technology and Innovation Act 2012 was signed into law and it repeals the Science and Technology Act, Cap 250 of the Laws of Kenya with the establishment of the National Council for Science and Technology (NCST). It was created to regulate matters of research among other matters in the country. Sec 4(k) gives the authority the mandate to carry out independently or in co-operation with any appropriate person, body of persons, agency or institution such surveys and investigations as the Council may consider necessary for its tasks.

What this means is that it’s a toothless bulldog. Terms in the act such as liase with and advise on, give it no direct or inherent power to make decisions in any capacity and are limited to giving recommendations. In the case of research misconduct, they can carry out an investigation but are not empowered to do anything about it but can co-operate with a body considered necessary for its tasks.

Section 3 of the Copyright Act 2001(revised 2009) however, establishes The Kenya Copyright Board which among other functions, administers all matters of copyright and related rights in Kenya as provided for under this Act and to deal with ancillary matters connected with its functions under this Act. The board possesses the ability to issue Copyrights, terminate Copyrights e.t.c. The Act criminalises copyright infringement and thus dealing with this matter, KECOBO can work with the police for the arrest and prosecution of the infringers

In essence, nothing that we write is original. Everything that we write has been written by someone else in a different form, language or context and thus we are all in our own way “copyright-infringers.” Our world view and view on specific matters is influenced by experiences and more often than not literature that we have already read and unless we use a direct quote or excerpt, we are unlikely to quote the source which questions our right to vehemently call for the strict enforcement of copyright laws.