African Copyright and Access 2 Knowledge Country Report: Kenya

Abstract

The two main hypotheses tested by this research were: that the copyright environment in Kenya is not at present maximising access to learning materials; and that the copyright environment can be changed in order to optimise access. The copyright environment, for the purposes of the research, encompassed not only laws and policies, but also actual practices. In Kenya, the variables of copyright protection, copyright promotion and enhancement of access to teaching and learning material tend to be discussed largely in polemical terms. On the one hand, some copyright-holders and supporters advocate for absolute protection, while on the other hand, some users or anti-copyright activists argue for no or limited copyright protection. The conflicting interests have necessitated this survey, with a view to establishing common ground on which the antagonistic standpoints converge through (the essential and intricate process of) consensus-building. In as much as the need to protect copyright cannot be overstated, protection should not function to deny users or consumers access to works that are crucial to teaching and learning. If creativity is to be encouraged and rewarded, there must be a ready market for literary works and related educational material. Also, access to knowledge is essential for the functioning of a healthy and democratic society. Without a well-informed citizenry, enlightened public discussions on political, social, environmental or economic issues cannot take place. It is universally acknowledged that access to knowledge is fundamental to education, research and creation of the human capital upon which the development of society depends. This is especially true in the information society where economic progress depends on having a literate and educated population.Copyright law in Kenya is governed by the Copyright Act 12 of 2001 and related laws on education, communication and archiving. It provides for exclusive rights, subject to limited exceptions and limitations. Kenya also currently has a draft Intellectual Property Policy and there are also specific government policies that enhance and facilitate access to teaching and learning materials. There are also policies to address gender disparities in access to education or information. However, the copyright law is seen to be gender-neutral. Women and girls in Kenya fare worse than men and boys in terms of learning materials access, because the social, economic, political and cultural environments favour males in terms of access to education and information. Copyright law potentially impedes access to teaching and learning materials, particularly when exclusive rights are strictly enforced or when exceptions and limitations are not effectively utilised. However, in Kenya, enforcement of rights conferred by copyright has, in the past, not been effective; as a result, infringements largely went unpunished, especially in the education system. It is only recently that rights-holders have started to systematically enforce their rights through, for instance, collective management organisations (CMOs) and litigation. Users of copyright-protected material, such as students, researchers, universities and libraries in Kenya, are now being asked to obtain a licence to reproduce works for educational purposes. This is due to the fact that access-enabling copyright exceptions and limitations (Sections 26-29) in the Copyright Act are very narrowly constructed, making it (in most cases) illegal to create copies of works without the authority of the copyright-holder. (Significantly, however, public libraries are allowed to reproduce copyright-protected material without obtaining permission from authors or rights-holders if it is deemed to be in the ‘public interest’ to do so and if it is for non-commercial purposes.)Copyright-holders in Kenya tend to feel that the current copyright law allows access, rather than hampers access, as it protects rights-holders’ rights; it thus gives rights-holders the incentive to produce material that can be used for advancing teaching and learning at various stages. Copyright-holders also argue that the existing exceptions and limitations, including those for educational use, are adequate. Information and communication technology (ICT) has enhanced access to copyright-protected material in Kenya because ICT facilitates cheaper reproduction and dissemination, especially for students in open distance and electronic learning (ODEL) programmes in colleges and universities. The cost of the equipment, Internet connectivity and bandwidth are, however, some of the challenges faced in the transition to the digital platform. Another ICT-related challenge is that the Kenyan copyright law makes it illegal to circumvent technological protection measures (TPMs) and provides no exceptions to this provision, which in effect blocks access to certain electronic content which would otherwise have been accessible. First, this report provides some background information about national indicators relevant to access to knowledge, access to learning materials and copyright in Kenya. Thereafter, the report carries out a doctrinal analysis as well as a qualitative analysis to test the project’s aforementioned hypotheses. The analysis shows that, in Kenya, a difference exists between the provisions of the copyright law and the practice ‘on the ground’. The law severely restricts access to copyright-protected materials, while the practice on the ground is one where users are securing a certain degree of access via activities such unauthorised photocopying – activities which go against the law but are not punished because the law is generally not enforced.As a result, few copyright-related cases have been determined by the courts in Kenya, especially those that would have a bearing on access to teaching and learning materials by educational institutions, libraries and other users. Finally, the report concludes that increased enforcement of copyright is likely to have an impact on access to learning material in Kenya, especially where it strictly limits photocopying of copyright-protected material. However, paradoxically, it is also concluded that copyright, as applied today in Kenya, has little impact on teaching and learning materials, because it is not being fully enforced.