Copyright Week 2018: Fighting for better Copyright Law and Policy

In early 2018 Creative Commons took part in a week of writing and posting articles dedicated to ‘Copyright Week’; a week dedicated to ‘Fighting for Better Copyright Law and Policy.’

Everyday saw a new topic of conversation that affected the copyright community in one way or another; the topics of discussion included: public domain and how copyright policies should encourage creativity, controlling one’s own device with licensing agreements and (trying) to find loopholes around technological restrictions, transparency in the laws and copyright policies, copyright being used to encourage freedom of speech and discourage censorship and finally the safe harbor protections.

The movement was alive and active on Twitter with many writers interacting and sharing their voice to the discussions; transparency was key as many individuals criticized their national policies as well as international agreements and treaties for not doing enough in safeguarding copyright rights.

The initiative is attempting to end Internet Censorship worldwide through the above – by discussing, criticising and in some cases even suggesting alternative reforms – and providing a voice as well as information on all things copyright to individuals who are well-versed and laymen in copyright laws. Organizations such as Wikipedia, Internet Archive, and Public Domain Review (to name a few) are lending their resources and platforms to Creative Commons in an attempt to ‘protect and expand the public domain’.

As the world moves forward into further technological advancements initiatives such as Copyright week as well as the use of social media sites will become key in advocating for the rights an individual has in terms of the way they use the public domain to share their work and voice and how they can protect themselves when the question of provisions comes into play.

This initiative is something that Creative Commons Kenya or even Creative Commons Africa as a whole can partake in in order to increase their own spheres of influence in their respective states. This blogger is of the opinion that in order for Copyright Infringement to be more of a household subject in homes, beyond just authors looking to protect their works, is to educate the masses. In 2015 this blogger wrote about the School of Open. Open access and Open education should be an initiative that should be further pushed and followed in 2018.


Open Education

Open Education week is in March of 2018. A blogger for the Creative Commons blog described Open Education as the following:

(They) are laws, rules, and courses of action that facilitate the creation, use or improvement of OER. While this chapter only deals with open education licensing policies, there has also been significant open education resource-based (allocate resources directly to support OER), inducement (call for or incentivize actions to support OER), and framework (create pathways or remove barriers for action to support OER) open education policy work…licensing policies insert open licensing requirements into existing funding systems (e.g., grants, contracts, or other agreements) that create educational resources, thereby making the content OER, and shifting the default on publicly funded educational resources from ‘closed’ to ‘open.’…if the public pays for education resources, the public should have the right to access and use those resources at no additional cost and with the full spectrum of legal rights…

As our world becomes fuelled by technology so does the need to protect ideas and projects born on these online platforms. Authors and content creators from technologically developed countries and the West have recognized this need to protect their work and the methods required to go about doing so. African countries such as Kenya are still to learn and catch up to this realization. Open Education, as phrased in the above statement, would benefit and make the maximum use of taxpayers’ money.

But many people still have the assumption that countries in Africa are too busy fighting geo-political issues and have no time for technological-fuelled developments but this is far from the truth. An idea is born every day but when one lacks the education and resources required how one can begin to acknowledge that they have an idea forming, let alone protect it, is the issue that must be tackled.

This blogger previously wrote a post on School of Open in South Africa. Shortly after Nigeria, Tanzania and Kenya followed suit. In Kenya UNESCO began to (in 2016) oversee the Open Education initiative by providing resources (referred to as Open Education Resources – OER).

A lack of consistency and drive will lead the push to Open Education and the progress the School of Open initially began to make (in 2013/2014) null and void among African countries.

The Creative Commons blog recently put up a blog inviting individuals interested in advocating for Open Education to join the conversation and initiative in any way they could; from signing up for the email list to signing up on Slack (under #cc-openeduchannel)

The reasons that the Open Education initiative was made open to the general public (through the blog that can be assumed as an open invitation) is due to the need for investors and the need for global growth; this will lead to outreach programs and even solutions being suggested at the Global Summits while encouraging the individuals involved to meet other advocates all over the world.

Hopefully in the coming future African countries, and particularly Creative Commons Kenya, will follow suit in the push and advocacy through Open Education awareness.


Creative Commons Global Summit 2018

The Creative Commons Global Summit is one of the biggest events that graces the Creative Commons community every few years. The CC Global Summit is generally a collaborative, fun space for everyone and anyone interested in exploring the future of the Commons and sharing the users, creators and activists.

The past summits were held in Toronto, Canada (in 2017); Seoul, South Korea (in 2015); Buenos Aires, Brazil (in 2013) and Poland, Warsaw (in 2011). This blogger previously wrote on the 2015 Global Summit in Seoul and about how the summit was a successful one.

The 2017 Summit also went as promisingly as expected as there were problems that arose during the 2015 Summit that the 2017 Summit addressed. One of these problems included lack of financial funding of the African Creative Commons community and as a result they could not attend the 2015 Summit. The Creative Commons society provided financial funding for the delegates from Africa and Latin America to attend the 2017 Summit (making it one of the most attended summits thus far).

Among the delegates were new members, outside the Creative Commons and open access community, making the 2017 Summit a diverse one; this blogger feels like this in itself is a big success and step in the right direction for the community as it means that it is making an impact and having an outreach to individuals beyond the CC scope.

The summit also made moves at gender-balanced panels as opposed to the largely male based panels the past summits had.

The CC Global Summit returns again in 2018 to Toronto once more. While expecting delegates in the near thousand this will be the first meeting of the Global Network Council. The Council will help in determining decisions regarding the future of CC Global Summits as well as the CC community.

It will be interesting to see what new ideas will come up during the 2018 summit. Submissions for proposals for the summit are now open.

Fair use and fair dealing

“Fair dealing” and “fair use” both refer to users’ rights under copyright law. However they are not used synonymous as their meaning and scope are defined differently due to the fact that they are incorporated into two different legal systems.

Fair dealing is incorporated in jurisdictions that utilize the common law system. Fair dealing is a right granted by copyright law to an author of a creative work.

Fair use is incorporated in United States and Canadian copyright laws. Fair use allows individuals to use author’s works without asking the author for permission.

Due to one of Kenya’s sources of law being Common law Kenya utilizes (legally) fair dealing in its Copyright laws. However upon further research this blogger came across a research paper by Victor Nzomo. In his research paper Nzomo discusses a judgement made by the Supreme Court of Kenya in 2014. The case was based on broadcast rights in assessing whether there was infringement occurring by allowing free-to-air (FTA) programme-carrying signals to re-broadcast signals “pursuant to the so-called “must-carry” rule” that is mentioned in the Broadcasting Regulations of the Kenya Information and Communication Act; the “must –carry” rule was found to be included under fair dealing provisions of the Kenya Copyright Act.

This brings us to the fair use versus fair dealing discussion; the Supreme Court’s discussion further blurred Kenya’s approach to which (from fair use and fair dealing laws) it takes. Nzomo’s paper further analyses how the court disregarded statutory approaches and, instead, emphasised the importance of limitations and exceptions to safeguard public interest and how this laid the foundation for a shift away from a fair dealing test that focused on the fairness of the use of a copyrighted work.

Section 26 of the Copyright Act looks at the nature of copyright in literary, musical or artistic works and audio visual works. This allowance is far too wide and Japhet Otike, a professor at Moi University, stated the same in his paper: “Photocopying of a copyrighted book is not quite illegal”. A statement mentioned in the paper, “photocopying is not synonymous with book piracy” a definition given by Mr. Mwazemba, extracted from International Publishers’ Association (IPA), however Otike states that this is not correct as the definition of piracy was the making of illegal copies of video tapes, computer programs, books for commercial gain. Piracy, on the other hand, involved mass production of copyrighted materials for commercial gain.

Fair use’s exception is that any works can be used so long as the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of what has been taken from the copyrighted work and the effect of the use upon the potential market for the copyrighted work were flexible in the way they were being used.

Fair dealing’s exception is that they outline specific purposes for which a reproduction of a work is permitted, without requiring the copyright owner’s permission. However a person is not liable for copyright infringement if the use amounts to fair dealing for the purposes of: non-commercial research or private study, criticism or review, reporting current events, parody among many others.

This means that fairness of the use must also be proven for the exception to apply and whether it is used fairly or not is not taken into consideration.

In regards to Copyright law/infringement an author would be better protected by fair use (a point both Nzomo and Otike agree on) and that Section 26 of the Copyright Act would need to be amended in order to better protect authors and their creative works.

Bassel Khartabil

This blogger previously wrote about Bassel Khartabil, a Syrian born open-source software developer, who had been detained by the Syrian government from 2012. During the first week of August it appears that his captors ordered for his execution.

Bassel’s death is a tragedy that has shaken the open access world. Creative Commons and the hacktivist world. Bassel was a pioneer and advocate for free speech, free culture and democracy in the Arab world.

There is evident outrage from human rights groups, followers of Bassel’s work as well as friends and family of Bassel at the decision to capture and execute Bassel Khartabil. But rather than shaking the foundation Bassel created his execution has simply and evidently fuelled the fire he fought for – open access by sharing culture and knowledge.

The Bassel Khartabil Memorial Fund page was created in order to push the above criteria. On the page the following is stated:

“At the request of Bassel’s family, Creative Commons has established the Bassel Khartabil Memorial Fund to support projects in the spirit of his work. Creative Commons is accepting donations, has seeded the fund with $10,000, and invites the public to celebrate Bassel’s legacy and support the spread of his work. Contributions to the fund will go towards projects, programs, and grants to individuals advancing collaboration, community building, and leadership development in the open communities of the Arab world. The fund will also support the digital preservation, sharing, and remix of creative works and historical artifacts. All of these projects are deeply intertwined with CC’s core mission and values, and those of other communities to which he contributed and who will benefit from the establishment of the fund.’’

In an attempt to honor all the contributions made by Bassel Creative Commons has begun a new initiative that deals with fellowship. Details on that can be found here.


Taken from Bassel Khartabil’s Wikip

Will using an artist’s brand amount to copyright infringement

The Kenyan music scene has been running into hurdles as of late; Kenyan musicians have been speaking out against companies who have been taking advantage of them and their work. Enter: Wangechi Waweru, known by her stage name Wangechi, is a Kenyan rapper and songwriter.

Continue reading “Will using an artist’s brand amount to copyright infringement”

The thin line between copyrighted material and copyright infringement

The European Union (EU) Court of Justice’s ruling in GS Media BV v. Sanoma has caused a stir. The European Court Of Justice ruled that linking copyrighted material would not solely constitute to copyright infringement. Instead there had to be knowledge that those materials were copyrighted especially in the event that those works (with the accompanying link) was being published for profit.

Continue reading “The thin line between copyrighted material and copyright infringement”