EXPLAIN THE DOCTRINE FAIR USE FAIR OR FARE DEALING TO WHAT EXTENT DO YOU SUPPORT THIS DOCTRINE IN KENYA?
Definition of terms
The doctrine fair use or fair dealing in Kenya is derived from the copyright law
thus it’s important to know more about copyright before embarking on the fair
use.
Copyright is a legal right that protects the
work of an author or creator from unauthorized reproductions.
Copyright law thus enables the creators of the works to enjoy the economic,
moral and related/neighboring rights from their creations. It gives the authors
monopoly to enjoy the fruits of their labor
Copyright law in Kenya covers
literary works, musical works, artistic works audio-visual works, sound
recordings and broadcasts. Literary, musical or artistic work is eligible for
copyright protection under the following conditions:
v If
the work is original
v If
the work is written, recorded or in material form this means it should not be either
oral or verbal in nature.
Copyright protects works for duration of 50
years after the death of the author. After that, the work becomes public
property and anybody is free to reproduce it without permission from the author
or publisher. In the case of joint authorship, it is 50 years after the death
of the author who dies last.
Copyright
law in Kenya is infringed in instances where one is found with two or more
infringing copies of a copyrighted work .This means that reproducing a copy of
a work or being in possession of one infringed copy is not illegal. (Section
38(3) of the act)
Therefore, Fair use or Fair dealing refers to
copyright exemptions that permits the use of copyrighted materials without the permission of the copyright owner
provided the use is fair and reasonable i.e. does not substantially impair the
value of the materials and does not curtail the profits reasonably expected by
the owner.
It generally involves copying of
copyrighted material done for a limited and transformative purpose, such as to
comment upon, research or criticize a copyrighted work. In other words, fair use is a defense against
a claim of copyright infringement. If your use qualifies as a fair use, then it
would not be considered an illegal infringement.
Fair dealing is strictly applied
when the copyrighted materials are reproduced for non commercial purposes.
HOW THE DOCTRINE “FAIR USE” IS
APPLIED IN KENYA
The
copyright Act of Kenya provides the followings exemptions for use of
copyrighted works.
I.
Use of copyrighted work for the purposes
of: scientific research; private use;
criticism or review; or the reporting of current events subject to
acknowledgement of the source.
II.
The inclusion in a collection of
literary or musical works of not more than two short passages from the work in
question for use in a school registered under the Education Act or any
university. Where this is done, acknowledgement of the source is required.
III.
Reproduction of a work by or under the
direction or control of the government or by such public libraries,
non-commercial documentation centers and scientific institutions for public
use.
The fair dealing doctrine also allows the
reproduction of Computer programmes for the following purposes:
To
make copies for the purpose of correcting errors
To
make back-up copies
Testing
a programme to determine its suitability for the person’s use.
(b) TO WHAT EXTENT DO
YOU SUPPORT THIS DOCTRINE IN KENYA?
Inclusion of fair dealing in the
copyright law of Kenya has been of great benefits to Kenyans:
It has allowed free sharing of ideas
Fair
dealing allows borrowing of ideas and knowledge from someone’s work without
infringing the copyright law. This has promoted free sharing of ideas since one
do not have to consult the creators of the materials in order to get permission
before sharing. Free sharing of ideas leads to an informed society thus solving
problems becomes easier. Copyright exemption in this case has allowed people to
use knowledge and ideas of the creators without any restrictions.
It has led to development of the
education sector
Since
it allows the use of the copyrighted materials for educational purposes, fair
use has greatly promoted education in Kenya. Students and scholars can easily
get information from the materials and use them for their education as long as
they acknowledge the original author or creator of the work. Fair dealing also
allows students to use the copyrighted materials for research works leading to
developments in their various fields of study.
It allows criticism thus make the
authors /creator to be more careful on the works
Positive
criticism allowed by the fair use doctrine in Kenya has motivated authors and
creators of the copyrighted materials to be more creative and careful with
their works. Criticism acts as an eye opener to most authors who take it positively.
The authors are able to identify their points of weakness and thus make efforts
to improve their works. This has led to great improvement and competition among
the authors or creators of these materials.
It has led to new inventions and
innovation
Fair dealing allows the use of copyrighted
materials for research and educational purposes. This has encouraged
creativity, innovation and new inventions especially in the field of
information technology. New systems have been developed from the existing ones
thus leading to growth and development in the IT sector. New software programs
developed from the ideas borrowed from the copyrighted materials makes work
easier leading to efficiency and effectiveness.
It enables one to have a back up copy
for a certain work
Fair
use permits the reproduction of copies of the copyrighted materials for the
purpose of backup. This enables a person to get a copy of the same materials in
case the original get lost or destroyed. Back ups are very vital in case of a
disaster in an organization since information stored in one place is vulnerable
loss or damage.
Allows the use of the copyrighted
materials to report current events thus informing the public
Because
of fair use doctrine, one is allowed to report current events without
infringing the copyright law. This enables the media personnel to use
information I n the films, videos, audio visuals and sound recordings to report
current events to the public. This allows freedom of expression and free flow
of information to the public without any restrictions.
THOUGH FAIR DEALING HAS BEEN
BENEFICIAL TO MANY KENYANS, IT HAS ALSO LED TO THE FOLLOWING CHALLENGES:
It has deprived the authors or the
creators the right to enjoy economic benefits from the creations
Since
fair dealing allows reproduction of the copyrighted materials for some specific
purposes, people have taken advantage of this doctrine for their own financial gains.
In Kenya, this doctrine has negatively affected the music industries since many
people go for the cheap pirated works as opposed to the original.
Fair
dealing therefore has deprived the author the right to gain financial benefits
from their creations. This doctrine have discouraged most upcoming authors and
artists since people hide in this copyright exemption doctrine to reproduce the
materials for their own selfish gains. The copyright law has been infringed in
homes since many people burn cds and do home taping without being noticed.
It has led to a lot of plagiarism
in research works
Since
fair dealing permits the use of copyrighted materials for research and
educational purpose, students have taken advantage of this doctrine to
plagiarize peoples work and present it as their own. They just copy and paste
the online materials but fail to acknowledge the owner of the works. Plagiarism
has negatively affected the education sector especially in campuses in Kenya.
It has led to laziness of students
and also production of half baked graduates
Fair
dealing have made students to rely fully on other peoples knowledge and ideas .since
copyright law allows borrowing of ideas, students have become too dependent on
the information from the internet, thus they fail to think much so as to
generate new ideas. They have become too lazy hence plagiarizing other peoples
work hence leading to the half baked graduates.
Some
negative Criticism has led to discouragement of upcoming authors
Fair
dealing allows criticism of peoples work or creation. Negative criticism has
discouraged some upcoming authors thus making them lose hope. Discouragements
come as a result of negative comments on the materials. This makes the authors
and artists to lose morale.
CONCLUSION
According
to the discussion above, I can frankly conclude that copyright law in Kenya in
still under crisis and inclusion of fair use or fair dealing in the law even
makes it more complicated. The question in case is; how fair is the fair use to
the creators? As much as fair dealing is beneficial to many, it has negatively
affected the authors and the creators of these copyrighted materials.
Therefore, there is a crucial need to review
the copyright law so as to reinforce strict rules to enable the authors to
enjoy their moral and economic rights as they deserve. Authors or the creators
of these works spend a lot of time and resources so as to come up with their
creation thus there is need to review this fair use doctrine so as to make it
fair to both the creators and the users.
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