In late 2023, the Star Newspaper reported that the Kenya Copyright Board (KECOBO) had plans to launch investigations into social media users who shared copyright creations unlawfully. In the report, the head of the Copyright Board warned the public against participating in activities that undermine Intellectual Property Rights and reminded the public of the criminal sanctions that one could face if found guilty of infringement. The widespread sharing of pirated TV shows, movies, books, and pictures in Kenya is not a new phenomenon. However, the decision by KECOBO to focus on enforcing copyright as a state actor raises questions about whether the law permits the state to enforce copyright on behalf of rights holders, especially on digital platforms. This article will briefly examine the persons responsible for enforcing copyright under the Copyright Act of Kenya.
Overview of Copyright Enforcement
Intellectual Property Rights, by nature, are private negative rights. This means that when these rights are breached or infringed, it is the responsibility of the owner of those rights to enforce them. For example, copyright grants the creator or holder the exclusive right to use their work or creation. This restricts other individuals from using or dealing with the copyrighted works in any way without permission from the creator/right holder. Ideally, it is then up to the right holder to monitor and check to ensure that unauthorized persons are not dealing with the works.
In case of infringement, the right holder can initiate civil action and seek, among other remedies, an injunction to stop the third party from continuing to infringe. The right holder can also choose to initiate criminal proceedings. Upon being found guilty, the infringing party will pay a fine or serve jail time. What can be gleaned from this is that in either case, action is still required from the right holder in terms of monitoring. Subsequently, they must either report the act to the police or initiate a civil action.
Enforcement of Copyright in Kenya
The Copyright Act of Kenya identifies two persons who can enforce copyright. The first option is the traditional route, which involves going through the right holder as discussed above. It is as mentioned above, with the responsibility left to the owner to monitor and then enforce their rights.
The second aspect involves individuals referred to as Inspectors in the Act. These inspectors are empowered to enter premises, including but not limited to shops or cars, to ascertain whether there has been a contravention of the Act. They can detain any substance or article that there is reasonable cause to believe is an infringing work, as well as any document that may be required in proceedings under the Act. These inspectors can also make arrests with or without warrants. The Director of Public Prosecution, through special prosecutors, can prosecute individuals arrested by these inspectors.
These provisions are easy to implement in the physical world as the inspectors can precisely follow the Act’s instructions i.e.; entering, inspecting, and, where there is reasonable cause, seizing and even arresting the person perpetrating the infringing act. In the digital world, however, these actions are a bit hard to do, particularly without the right holder first making a report to the operators of social media platforms or Internet Service Providers (ISPs). This is because the inspectorial powers do not extend to the online platform. Furthermore, the Act does not authorize social media websites, among other online platforms, to take action against infringers on their own.
Long story short, yes, the Copyright Board can investigate and prosecute infringement of rights on its own initiative, but this authority does not extend to the digital realm. This requires action from the right holder in terms of a report; therefore, their intended suo moto probe into social media users unlawfully sharing copyrighted content online is not wholly sanctioned under the Act. The Board, along with the Communications Authority of Kenya, runs the risk of being accused of conducting illegal surveillance and data collection if not careful, in an attempt to enforce a private right.
This also seems unnecessary because the Act already provides a mechanism for right holders to enforce their rights through a Takedown process. When a copyright holder comes across an infringing content online, they can issue the host website or Internet Service Provider (ISP) with a notice to take down the infringing content. The Internet Service Provider (ISP) is required to notify the alleged infringer. If the ISP does not receive a counter takedown notice, it will then take down or disable access to the infringing material. An example would be instances where you see content online being removed from social media platforms because it infringes on another person’s copyright. This is what the Takedown procedure involves.
Conclusion
While the move by KECOBO to address digital copyright infringement may be welcomed by right holders, it may not necessarily lead to improved economic rewards or greater respect for copyright. The Act does not obligate the state to inform the right holder of instances when investigations are conducted, arrests are made, or prosecutions are initiated. It also does not direct KECOBO to allocate a portion of the fines paid in such instances to the creator or right holder.
Considering that Intellectual Property Rights in Kenya are among the most underappreciated rights in the country, a multifaceted approach is required to change people’s attitudes. Such an approach should ensure that equal effort is being expended on educating the public about what Intellectual Property Rights are, just as much as the creators/inventors. Only by fostering respect for intellectual property can you ensure better compliance with the laws governing it as well as better economic rewards for creators.
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