• Articles 11 and 40 of the Constitution obligates the government to support, promote and protect intellectual property rights.
• Intellectual property is an internationally agreed system of incentives to support creators and innovators to release products useful for improved human experience.
One of the unintended impacts of the measures to curb coronavirus spread is the return of the newspaper forwards in PDF format on social media.
It is, therefore, a good opportunity to explain the legal position on intellectual property rights, including copyright.
Articles 11 and 40 of the Constitution obligates the government to support, promote and protect intellectual property rights. Intellectual property is an internationally agreed system of incentives to support creators and innovators to release products useful for improved human experience.
In Kenya, they include patents, trademarks, copyright and design rights. The Constitution and laws of Kenya extend this protection to corporates and individuals based or domiciled in Kenya, as well as foreign entities. This is by virtue of the international treaties and conventions that Kenya is a signatory.
Intellectual property rights or IPR consist of exclusive rights to the authors, inventors, or the corporates that employ them. If these rights are infringed, the infringing party becomes liable for criminal and civil action.
IPR system is relied on by sectors that are shaped by cutting edge knowledge produced by costly research and development that includes ICT, publishing, pharmaceuticals, amongst others.
The exclusivity offered by intellectual property law is a key consideration that businesses look at before making investments in a country. The system, therefore, determines the economic competitiveness of a country. It affects it ability to grow the local economy or attract foreign direct investment.
Copyright law protects products of authorship in the form of music, film, publishing and other art sectors. The products of the copyright sector support our education, offer pleasure and cumulatively constitute culture, thus called the cultural industries.
The main right in copyright law is the right to ‘copy’. The copies so made are then made available for sale and distribution by the owner to extract the economic value in the market during the period of exclusive existence of those rights. This principle of exclusivity and control of the making and selling of copies applies for both analog and digital works. Where copies whether digital or physical, are made with the authority of the owner, it is legal
For digital works, copyright law supports the principle of exclusivity by allowing the use of the technical protection measures, usually software deployed to control access and copying therefore secure those works made available in online platforms.
I have received credible reports that the recent upsurge is being pushed by a few people that have knowingly set up the download and distribution of newspapers online for commercial purposes that bring the matter in the realm of criminality.
Newspapers are works protected by copyright being literary works. The corporates that publish and organise them do so at great expense and deserve their just reward just like all authors and owners of the copyright.
The recent acts of unauthorised access onto the online platforms of the mainstream media are acts of infringement of copyright or piracy.
The criminal acts include offence of circumvention of technical protection devices by way of hacking into ICT systems, making copies by downloading newspaper files and selling or illegal distribution through social media and emails. For one to share the newspaper articles through any of the above means, they require the express authority of the rights holder, in this case, the media company that owns the newspaper.
Unfortunately, this form of piracy is observed in the trade-in PDF versions of books through the same platforms.
This article is, therefore, intended to serve two principal purposes. First, to raise awareness to those who may have unknowingly shared copyright works that it constitutes acts of piracy.
This infringement has a deleterious impact on journalists that author the content and look forward to a paycheck and stable employment.
I constantly recall the expressions of indignation observed every time fundraising is required to give a decent funeral for many a renowned author and remind all of us that this is a result of a combination of many such acts by their audience market.
Secondly — for the few that are in it for commercial purposes —that there shall eventually be civil and criminal consequences.
I consider building respect for copyright and other intellectual property rights as a pillar, if Kenya is to grow as a knowledge-driven economy that fulfills its potential in creativity, innovation and research which Covid-19 has shown an abundance of.
The consequences of this activity are already being felt and will be for many years by the publishing sector.
It is time for Kenyans to come together to buy genuine copyright and other products and avoid acts that damage our economy.
Edward Sigei is the executive director, Kenya Copyright Board