In the Public Interest: How Kenya Quietly Shifted from Fair Dealing to Fair Use
WIPO-WTO IP Colloquium Research Paper Series 2016
12 Pages Posted: 11 Mar 2017 Last revised: 1 Jul 2017
Date Written: December 1, 2016
In 2014, the Supreme Court of Kenya had to determine whether the broadcast rights in free-to-air (FTA) programme-carrying signals were infringed by allowing the re-broadcasting of these signals pursuant to the so-called “must-carry” rule in the Broadcasting Regulations of the Kenya Information and Communication Act. In a unanimous decision, the apex court ruled that the ‘must -carry’ rule fell under the fair dealing provisions of the Kenya Copyright Act despite the fact that the dealing in question did not fit within one of the enumerated allowable purposes.
From a strictly statutory perspective, Kenya is a fair dealing country but the Supreme Court’s approach consisted entirely of a fairness analysis identical to one of an open-ended fair use system. This paper argues that the apex court seized an opportunity to answer the question of how a court should determine whether an act done in relation to a work constitutes fair dealing under Kenya’s Copyright Act. However, in doing so, the court disregarded the statutory approach based on the enumerated allowable purposes in favour of an approach that confers on all courts the responsibility to assess on a case-by-case basis defendants’ assertions that they should be excused for making unauthorized uses of copyrighted works. The court’s emphasis on the importance of limitations and exceptions to safeguard public interest laid the foundation for a shift away from a fair dealing test based on the enumerated allowable purposes toward a single analysis based on fairness of the use of a copyrighted work.
Until the Legislature substantively amends section 26 of the Copyright Act, this interpretation of fair dealing by the Supreme Court has binding force in Kenya. Therefore, this paper suggests that Kenya has three options if it wishes to review the fair dealing provision namely: (1) to expand the list of enumerated allowable purposes or (2) to codify the Supreme Court’s fair use approach or (3) to codify the two-step fair dealing approach in the case of CCH Canadian Ltd. v Law Society of Upper Canada which was cited but partially applied by the Supreme Court.
Keywords: copyright, fair dealing, fair use, fairness, Kenya, law, public interest, broadcasting, limitation, exception, switch over, digital, analog, must carry, rule, Canada, United States, Australia, reform, TRIPS Agreement, Berne Convention, The Philippines
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