Feeding the Commons: Creative Commons and Copyright in Kenya

“Feeding the commons is about ongoing effort. Releasing your work to as many people as possible gets you attention for the next thing you do. It’s so simple. It’s not about selling any one thing anymore, it’s about selling your stream.” – Adam Fields.

Recent studies show that the copyright industry contributes approximately 2.3% to our Gross Domestic Product and employs thousands of Kenyans involved in everything from music, film, book publishing, software development, visual arts, theatre etc. But Kenya has not even began to cash in on the enormous potential within the core copyright industries due to the ever-present and prevalent menace commonly known as ‘piracy’. “Copyright piracy”, as it is commonly called, is the unauthorised commercial use of copyright works and it is a crime under our current Copyright Act.

With all this in mind, iHub Nairobi recently organised a Session on Creative Commons (CC) in Kenya. CC is a nonprofit which has come up with six standardised copyright licenses pro bono for copyright creators so that they can offer their creative work with the freedom they intend it to carry. Using these licenses, a musician might allow his music to be used for noncommercial purposes (by kids making a video,for example, or for sharing among friends), so long as attribution to the artist is kept. Or a lecturer might permit her writings to be shared for whatever purpose, again, so long as attribution is maintained. Or a collaborative project such as a wiki might guarantee that the collective work of the thousands who have built the wiki remains free for everyone forever. In short, whereas Copyright says “All Rights Reserved”, Creative Commons says “Some Rights Reserved”.

Supporters of Creative Commons argue that we live in an age of information overload where endless amounts of information is freely accessible from the internet. However, this culture of openness fostered by digital technology doesn’t mean that creators can’t make money from the sweat of their copyright work. The assumption made by advocates of CC is that the both entrants and major players in the copyright industry will at one stage or other want to showcase some of their work to the public for free so as to promote themselves and attract followers and fans. Therefore Creative Commons allows the creators/ artists to be free to choose how best to license their work arguing that copyright was meant for authors, and that authors should have the control over their copyright.

And with that out of the way, I have just five comments to make about this whole Creative Commons:

1. Creative Commons Licenses falsely presume authenticity:
Just because I put a creative commons license on my blog or my website or my flickr page, that doesnt mean I own the work that is available on those sites. Whereas our Copyright Act specifically requires that all copyright holders willing to register their work must formally apply for registration and submit original copies of their work for verification before it can be registered.

2. Creative Commons Licenses are cast in stone:

Any person who has once legally acquired a copy of a creator’s work under a certain CC license continues to be free to use this copy according to that license even if the creator withdraws the work from the CC system. In short, CC licenses are irrevocable which totally deprives the creator’s ability to enjoy the rights to his/her by altering or modifying the terms of any CC license.

3. Creative Commons system is falsely premised on goodwill:

Kenyans love freebies. The argument that you can offer up a few of your songs for free on one occasion to lure fans then later release other songs for sale is flawed. Can artists and musicians, online writers and photographers continue offering their hard-earned work for free in the hope that one day they’ll be able to cash in on their acquired fame so as to be in a position to get willing buyers for their work? I think not. Well, atleast not always.

4. Creative Commons Licenses are impossible to enforce:

Look, we already have problems fighting piracy of tangible copyright work eg. music CDs, movie DVDs, textbooks, etc. How will Kenya be able to enforce copyright in digital works? Which provisions of the law will our learned prosecutors rely on in court? The Communications Act is silent, the Copyright Act is silent, the Constitution is vague, at best. Aside from not having the requisite legislative framework for protection of digital copyright, the Creative Commons system itself doesn’t make provision for enforcement mechanisms. So basically, if someone violates any of the terms on the CC License on your site, your only option is to spend your money engaging a IP lawyer to sue for damages.

5. Creative Commons License Porting presents challenges

As I understand it, CC Licenses were conceived with the US Copyright laws in mind therefore for them to be comprehensible and enforceable in our jurisdiction, the CC licenses have to be ported. Porting means that a bunch of volunteers will sit down and harmonise the CC licenses with our Copyright Act.
Other than the logistics, the main challenge I see is that we have an archaic copyright law which would greatly restrict the meanings in the CC licenses.eg. drawing a distinction between between “commercial” and “noncommercial use” of CC licensed work.

So, if someone can clear up these issues/concerns for me, I’ll be all for CC. But as reiterated earlier, I think Kenya is neither at a stage where copyright enforcement is so stringent and excessive that creators want to free up some of the rights to their works nor has the Kenyan market evolved to the extent that copyright creators can rely on goodwill from music user and consumers to enjoy freebies but still be willing to go out and buy the original work once produced. I may be just speaking for myself and maybe I’m speaking for you too, no?

Note: Today, Wednesday 10th August from 2pm, iHub Nairobi will be hosting a Session on Intellectual Property and Creativity. I hope to raise some of these CC issues including other IP and Copyright issues I’ve raised previously here and here. All are invited.

Our Next President Had Better Be a Rainmaker

Aside: This short post is a reaction to an article on MSNBC: “Worst drought in 60 years: 12 million Africans face ‘fight for survival'”. Read it. Some of the comments on there are so O’Reilly-esque not to mention borderline ignorant and insensitive, it’s appalling.

I know it’s silly to expect the President to make rain. After all, the man is a trained economist and a politician of four decades’ standing. But certainly I do expect him to understand a little about where rain comes from unlike some of our bone-headed MPs.

It is widely accepted that everything rises and falls on leadership. The quality of national leadership determines the quality of life and level of development of a nation. Quality leadership is, indeed the most invaluable asset for any nation.

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The Sad Case of the Errant African Diplomat

I can say without fear of contradiction that there is no Kenyan that doesn’t know who Michael Ranneberger was, or who Rob Macaire is. These are not just names of foreign envoys or figure heads of distant lands, these are people who Kenyans have come to know, hate them or love them. This is because Western envoys in this country do not just come to Kenya, settle in Muthaiga, move in to their plush Chancery offices, ship their kids off to the International School of Kenya then kick their feet up and say they have arrived. Western envoys go beyond the call of their diplomatic duties and actually take an interest in the affairs of the country. As for the African diplomats, many have been concerned with their loud silence on any major issue of national importance. It’s almost as if there is a silent agreement between our government and the African diplomatic corps to remain silent: Live and let live.

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Ain’t No Love in the Heart of Nairobi..

I was waltzing down the streets of the city; on my way to pay bills and become broke again; when I noticed a man jump out his vehicle and begin pushing another car that had stalled. ‘Wow, it’s been a while since I saw such selfless charity.’ I watched him try and fail. He was old and heavy and the car was older and heavier. This did not stop him from pushing the immobile hunk of junk with all his might. Inspired, I strapped my backpack on tight and joined in pushing.

As the car finally began rolling forward by the centimeter, I felt a sense of accomplishment. The driver – an old wrinkly lady – yelled thank yous as the other pusher gave me a severely angry look. Odd. Had I not just helped this man? Continue reading

Why Do You Women Hate Martha Karua?

Dear Women Leaders of Kenya,

I know I’m asking a rhetoric question but humour me all the same. Why do you feel or think that Martha Karua is not worthy enough of your precious time? I must admit that I am one of those Kenyans that has stopped looking forward to Prime Time news because it is inundated with politics, more politics and even more politics. But God bless those fantastic male and female athletes of ours, never a dull moment when they’re on the news, innit? So I’ve digressed, but it was only to give you time to manufacture a response to my question.

What am I going on about? Well, your conspicuous absence from any of Martha Karua’s public events, ofcourse! And most notably the official ceremony to launch her presidential bid in 2012. Even the media picked up on that and it definitely raised my half-asleep eyebrow. Your silence has indeed been deafening.

You claim to be representing women, championing gender equality, proud feminists and advocates of social justice yet you’ve missed every opportunity to stand up and be counted as among the other Kenyan women that would like to see another Kenyan woman ascend to the highest public position in the land.

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Increased Cost of Living – Cartels? Pirate Money? Or Not.

I’m sure most people are glad that the church took some time off holding prayer rallies and meetings for some of the Ocampo 6 to petition the two principals to address the rising food and fuel prices in the country. Despite the news and newspaper headlines over the past 3 months being dominated by another issue – the real issue that’s been eating into most Kenyans has been the increased cost of living. Everything seems to be going up: ugali unga; unga ngano; bread, oil, fuel… The official inflation figures confirm the price increments; the inflation rate in January was 5.42%, February 6.54% and March 9.19%-the result, public outcry culminating in last week’s mass action protests peaceful demonstration by the Consumer Federation of Kenya (COFEK).

The (inflation) facts speak for themselves, the question is WHO IS TO BLAME for this extra burden on Kenyan citizens? Some people have laid all the blame on cartels others claim that the influx of Somali pirate money has led to increased demand which has led to a corresponding increase in prices. Others have blamed the government for inaction.

While there may be some truth to some of the ‘explanations’ above it is important to remember that a lot goes into rising prices than pirate money or cartels.

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