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On Book Piracy, Copyright and Fair Use

By Matunda Nyanchama
May 2nd, 2017
In an article published in the Saturday Nation of April 29th, 2017, Japheth Otike argues that “photocopying a copyrighted book is not quite illegal”. He is wrong! It is true that the law allows “fair use” of copyrighted materials. However, there are clear limits to this. It’s good first to clarify the different key terms that come to play whenever one touches on the subject of copyright.
There are a number of definitions of copyright such as one from www.dictionary.com, where copyright is defined as “the legal protection given to published works, forbidding anyone but the author from publishing or selling them. An author can transfer the copyright to another person or corporation, such as a publishing company.” Note that copyright does not run in perpetuity. Copyright is intended to encourage those in creative endeavours to keep producing supported by meaningful earnings form their works. Jurisdictions set time limits for copyright based on the original date of publication or death of the author
Piracy, which relates to counterfeiting products, is aptly captured in Section 2 of the Kenya Anti-Counterfeit Act, 2008. Sections 2 (a), 2 (b) and 2 (c) are application with section 2 (c) perhaps the most relevant with respect to copying books. It states that [counterfeiting is] the manufacturing, producing or making of copies, in Kenya or elsewhere, in violation of an author’s rights or related rights. Some reports suggest that up to 40% of products in the Kenyan market are counterfeited.
Book pirates are counterfeiters that make imitations of genuine books in order to deceive the market. In the process they defraud copyright owners and their agents. Making copies (as happens in and around many Kenyan universities) and then selling these to students is a clear case of piracy.
Fair use (also from online sources) refers to the “… the doctrine that brief excerpts of copyright material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder”. In the same respect, under certain circumstances (see below) copyrighted material may be copied for similar purposes without seeking permission from the user.
The matter that Mr. Otike focuses on clearly falls under fair use. The question is whether the kind of copying he advocates for meets fair use principles. It is our conjecture that, for it to be deemed fair use, the extent of copying must limited to a few passages or paragraphs of a copyrighted work; it must be done for a special purpose such as research; and it must not prejudice legitimate interest of the author and the author’s agent. At the same time it must not conflict with the normal exploitation of the work by the author and her agent.
A number of principles can be applied to establish whether the purpose and extent of copying of copyrighted material meets the fair use principle. These principles need to be seen in tandem and are complementary in arriving at what can be deemed to be fair use of a copyrighted work.
The intended use of the copied material: Copying a few paragraphs or so from copyrighted material intended for research could meet the fair use principle. Material issued as supplementary student handouts (usually of entire books or sections thereof) clearly violates copyright principles and practices. It not only prejudices the interest of the copyright owner but is clearly not intended for a purpose that would make it of fair use.
The amount of copying involved proportionate to the size of the work: Copying entire copyrighted works, and claiming that to be fair use, is a far-fetched proposition. One can understand that a researcher could copy a few paragraphs from a book for purposes of aiding one’s research, which must attract necessary acknowledgement. However, it is a stretch of imagination to claim fair use when a professor hands out a copy of a book for photocopying for an entire class! Indeed, it is not fair use when someone photocopies an entire book for whatever purpose it may be intended! There are jurisdictions where as much as a few paragraphs have been deemed to violate copyright laws.
The commercial impact on the work or value of the work thereof: Copying small amounts (say a limited number of paragraphs) of a copyrighted material in limited numbers that does not impact the sales of the work can be deemed to be fair use. However, the cases we witness on and around university campuses, where entire textbooks are copied and shared around, impacts the copyright owner’s bottom line. This cannot be deemed fair use by any stretch of imagination. It is typical to find on campuses classes of up to 500 students where each student has a whole copy (or greater parts) of copyrighted material in clear violation of copyright. In a country with low numbers in book sales, such copied books have material impact on the bottom line for the copyright holder.
Another test pertains to the nature of the copyrighted work in question. There may be works where stringent enforcement of copyright may not be desirable, especially works with low creative value or works deemed to be of public interest. However, where such works relate extensively to creative expression, stringent enforcement of copyright and hence restricted copying must be enforced.
Photocopying of copyrighted works can be done legally, though. That is why Kenya has a legal reproductive agency called KOPIKEN to allow for legal reproduction (including photocopying) of copyrighted works. KOPKEN ensures that, for example where photocopying happens, there is a balance between the rights of the copyright holder and the need for fair use. KOPIKEN ensures that copyright holders are paid for photocopying where it warrants. Our information is that universities have generally not been cooperative with bodies such as a KOPIKEN. Yet these institutions of higher should be at the forefront in safeguarding copyright, fight against piracy and live up to the principle of fair use as happens in many global jurisdictions!
As a country, we need to be diligent on matters of copyrighted works. Copyright does not exist for nothing. It is intended to encourage creators of works to continue producing by making the creative endeavour financially viable for them. A writer who earns her worth from her works is likely to continue producing more. It is important that the works earn the measure of their value and contribution they add to society.
There is more. Authors are at the forefront of knowledge creation and Africa (Kenya included) ranks poorly in this respect. Yet it has been recognized that knowledge creation is at the core of any society’s development. Copyright violation stifles knowledge creation processes and negatively impacts development. Our institutions of learning need to be these knowledge citadels that nurture processes for knowledge creation. Respect for copyright and associated practices should be an affirmation of the institutions’ elevated role in society with respect to knowledge creation.

Dr Matunda Nyanchama is an ICT consultant and proprietor of Nsemia Inc. Publishers. He has be reached at matunda@nsemia.com

NB: This article also appeared in the Saturday Nation of May 5, 2017 under the title Why universities should lead the anti-piracy fight

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