• Disclaimer of 'Fair Use' does not hold water outside the US, but it's complicated
With most people holed up in their houses due to the shutdown, humanity has turned to social media for entertainment and entertained we have been! From risqué live streams on social media to viral challenges on the ‘gram’, people have found interesting ways to keep themselves entertained and busy during the lockdown.
On the forefront of entertaining us and bringing us joy in our homes are our very own disc-jockeys, aka DJs, who have sprung up to keep us dancing and entertained with their live streams of mixes hosted on various social media platforms.
I will be the first to admit I enjoy most of these live DJ mixes, especially any that has reggae songs or rhumba. On almost all of these live streams, you are most certain to come across a familiar phrase, “Disclaimer: This show is for entertainment purposes only. Section 107 of the Copyright Act 1976 allows this material for fair use.”
This phrase is meant to mean that the music being played by the DJ, which I am always vigorously dancing to in the privacy of my home, is protected by all claims of copyright infringement by the owner/producer of the music. Unfortunately, this is a fallacy.
The Copyright Act of 1976
To begin with, the Copyright Act of 1976 is the primary copyright law in the United States. It is a domestic law applicable only in the United States and to its citizens. It beats all logic for a Kenyan DJ playing Kenyan content to use the Copyright Act of 1976 disclaimer, while streaming Kenyan content. The Copyright Act Cap 130 is Kenya’s domestic and primary statue dealing with copyrights.
Each country has its own domestic copyright laws that apply to its own citizens and to the use of foreign content when used in one’s country. This allows creators and content owners around the world and citizens of many countries to enjoy copyright protection in countries other than their own.
However, copyright remains a creation of law in each country, and, therefore, there is no such thing as an international copyright law. International copyright law simply does not exist!
Nevertheless, nearly 180 countries have ratified a treaty – the Berne Convention of 1886, administered by the World Intellectual Property Organization (WIPO) – that sets a minimum set of standards for the protection of the rights of the creators of copyrighted works around the world.
However, these treaties do not govern the copyright law in any country. Rather, the countries that adhere to the treaties must include the WIPO minimum standard of copyright protection in their own copyright legislation.
The owner of copyright in a work has certain exclusive rights in that work. Anyone who violates the exclusive rights of the copyright owner is an infringer of that copyright.
However, under Section 107 of the Copyright Act 1976, allowance is made for "fair use" for purposes such as criticism, commenting, news reporting, teaching, scholarship, parody (which makes memes possible) and research. Fair use is use permitted by law that might otherwise be infringing.
The Copyright Act establishes four factors to determine Fair Use: (1) the purpose and character of the use, including whether such use is of a commercial, nature, or is for nonprofit educational purposes, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, (4) the effect of the use upon the potential market for or value of the copyrighted work.
In Kenya, the Copyright Act provides for fair use or fair dealing under Section 26 (1a) by allowing for 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.
Are Streamed DJ mixes considered Fair Use?
When a DJ creates a live stream and starts broadcasting music to the Internet, the DJ has become a radio station and as such, the DJ needs to have the appropriate licences from copyright owners or collective management organisations. Facebook Live does not have any streaming audio licences that would authorise any such content.
Additionally, using a disclaimer by itself will not help. If the fair-use factors weigh against you, the disclaimer will not make any difference. In most of the live streams, there is usually a request to ‘appreciate’ the DJ by sending them money via Mpesa/Paypal. This removes the content from the protection of fair use as the content becomes commercialised and ceases to be for ‘non-profit’.
Keep in mind, just because there is not a way to detect infringing works does not make streaming “legal.” If a label/artiste holding the rights to a song somehow discovers you using their songs in a stream, and really wanted to take legal action against you, they would have enough grounds to start a case.
There is no straightforward answer to determine if the Fair Use defence applies to streamed DJ mixes. Only a judge can make this determination based on the fair use guidelines, so the outcome in any given case can be hard to predict.
However, I, like many, have enjoyed being entertained by these hardworking DJs and can only pray that no suit against them from a copyright owner comes forward. Living under the lockdown is tough, a little entertainment is essential.