The extent I support the doctrine of fair dealing/fair use in Kenya

The extent  I support the doctrine of fair dealing/fair use in Kenya 

The doctrine of fair dealing is good because it strikes a balance between the creator of the intellectual property and the society. By compromising to some little extend, the privileges of the owner, it is greatly helping those who cannot create or have created other unrelated works to use the work.

The number of universities in Kenya is growing rather very fast. This means that more people pursuing undergraduate and post graduate studies is increasing. One of the key requirements for the award of the certificates for the above levels is research papers and thesis. This requires review of related literature. This point necessitates acquiring, reading and using part of the published work. At this point, fair use use comes in to play. The provision of using limited amount of protected literal work without seeking permission is good. Students and lecturers can use materials available to them without exceeding the two pages of the work as provided by the Kenyan Constitution.

In cases where a student, lecturer or researcher exceeds the provision, action should be taken against them. Most universities in Kenya, for instance Moi University has a policy against this practice. For instance the research paper is disqualified and the no award of the certificate is guaranteed. For the case of credentials that could have otherwise led to promotion of the person, this action devalues the person’s integrity hence no promotion. 

I also support fare dealing in dealings of social gatherings that don’t entail commercial transactions. For instances protected music can be used in weddings –except wedding shows-, birthday parties and fundraising without seeking the consent of the song writer, producer or the musician.

Wedding shows should be charged with cases of infringement and breaking doctrine of fair use in cases where they have not sought permission .Because the Television networks and print media are using the shows to make money through the airtime and space fees respectively.

Home taping of e. g of TV programs to watch at later time (“Time shifting”) should be considered fair use .While in conditions where one person buys of the original work then gives to a neighbour who borrows should not be considered fair dealing. Though, this seems far-reached and hard to implement.

 Constructive criticism is always healthy if it establishes a more balanced and informed perspective. It should be embraced in Kenya. It should never be taken personal and should be spoken plainly and sensibly. Critiquing intellectual property sets people for success. By pointing at the weaknesses and strengths of that work, it in some way indicates preferences of the consumers - those using the property. The owner while creating next work will take heed of the correction critics and reviewers should be open with their opinions and give transparent opinions. This is care for the readers and owner. No one is perfect.

Reporters should always acknowledge their sources of news. It is one of the ethics in journalism. This is a show of unselfishness and respect for people’s property. It even publicizes and the owner and the product since the information are passed in mass media platforms like radio and TV.

On the June 28, 2013, Kenya was among the WIPO member states who signed Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (“the Marrakesh Treaty”).-The “Access to published works by visually impaired and persons with print disabilities is important for economic growth and development as the beneficiaries will be able to access published works at the same time with visually able persons.” Kenyan government should implement and ratify this treaty.

 

 

REFERENCES

T he Copyright Act No. 12 of 2001.The Constitution of Kenya

Murunga, BMW (2009) .Emerging Trends in Copyright: LSK CLE Seminar On 3rd April 2009

http://www. Fair Use in Copyright (BitLaw).htm

Ben Sihanya (2003) .Constructing Copyright and Creativity in Kenya… doctoral dissertation, supra note 1.

Sihanya, Ben (undated). Promoting access through legal reform: Kenya case study – a paper presented in a workshop on copyright exceptions and limitations for education and research environments in Ghana.

Ben Sihanya (2005; published 2006) “Copyright law, teaching and research in Kenya,” East African Law Journal Vol 2 2005 at pp.  28-62;

http://musicinafrica.net/sites/default/files/copyright_law_in_kenya_-_prof_ben_sihanya_0.pdf 6  Marisella Ouma: The Copyright Act 2001: A New Era for Copyright Protection in Kenya July-September 2004 e-Copyright Bulletin Copyright Section, Office of the Attorney-General.

Band and Gerafi (2013): The Fair Use/Fair Dealing Handbook

Otike, Japhet (2012). Providing access to copyright works through exceptions and limitations; The experience from developing countries: A paper presented at the WIPO Conference held in Nairobi, Kenya, May 3-4, 2012