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Enhancement of Copyright Protection in Musical Works and Sound Recordings on the Digital Platform: a Case Study of the Kenya Copyright Board

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Enhancement of Copyright Protection in Musical Works and Sound Recordings on the Digital Platform: a Case Study of the Kenya Copyright Board UNIVERSITY OF NAIROBI SCHOOL OF LAW MASTER OF LAWS PROGRAMME 2014/2015 THESIS SUBMITTED IN FULFILMENT OF THE REQUIREMENT FOR THE AWARD OF THE DEGREE OF MASTER OF LAWS (LLM) OF THE UNIVERSITY OF NAIROBI TITLE: ENHANCEMENT OF COPYRIGHT PROTECTION IN MUSICAL WORKS AND SOUND RECORDINGS ON THE DIGITAL PLATFORM: A CASE STUDY OF THE KENYA COPYRIGHT BOARD SUBMITTED BY: ABUBAKAR MARIAM ADAM REG No.: G62/75590/2014 SUPERVISOR: PAUL NJOROGE KIMANI NOVEMBER 2016 i DECLARATION I Abubakar Mariam Adam, do hereby declare that this thesis is my original work and has not been submitted to any other university or institution for any award. I hereby now submit the same for the award of Master of Laws Degree of the University of Nairobi. ABUBAKAR MARIAM ADAM DATE: This paper has been submitted for examination for the award of Master of Laws Degree for which the candidate was registered with the approval of the University Supervisor. MR. PAUL NJOROGE KIMANI DATE: ii ACKNOWLEDGEMENT Firstly, I thank the Almighty for bestowing me with grace, patience, tenacity and wisdom through the process of conducting the study. I acknowledge the guidance, criticism and counsel of my supervisor to maintain clarity of thought and expression throughout the study. I also acknowledge my family, friends and colleagues for their support and encouragement. iii DEDICATION I dedicate this work to my beloved husband and brother whose support and encouragement were positive motivating forces. I love you both dearly. iv GLOSSARY OF ACRONYMS CA 2001 Copyright Act 2001 (Kenya) CD Compact Disc CMOs Collective Management Organizations CDPA 1988 Copyright, Designs and Patents Act 1988 (United Kingdom) GDP Gross Domestic Product I.P Intellectual Property ISP Internet Service Provider IPRs Intellectual Property Rights KAMP Kenya Association of Music Producers KECOBO Kenya Copyright Board M-Commerce Mobile Phone Commerce MCSK Music Copyright Society of Kenya PRISK Performers Rights Society of Kenya TRIPS Trade Related Aspects of Intellectual Property Rights TCP Transmission Control Protocol UK United Kingdom v VAS Value Added Services WCT WIPO Copyright Treaty WIPO World Intellectual Property Organization WPPT WIPO Performances and Phonograms Treaty vi LIST OF CITED CASES Bleistein v Donaldson Lithographing Company 188 U.S. 239 (1903) Designers Guild Limited v Russell Williams (Textiles) Limited (2001)1 WLR 2416 Dymow v Bolton 11F.2d 690 (2d cir.1926) Eichel v Marcin (D.C.) 241 F. 404 Elanco Products Limited v Mandops (Agrochemical Specialists) Limited CA 1979 EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444 Gramophone Limited v. Stephen Carwardine (1934) 1 Ch 450 Ladbroke (Football) Ltd v William Hill (Football) Ltd (1964) 1WLR 273 LB Plastics Limited v Swish Products Limited CHD 1979 Ludlow Music v Robbie Williams (2002) EWHC 638 (Ch) Mazer v. Stein 347 U.S 201 (1954) Metro Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. 545 U.S. 913 (2005) Nichols v Universal Pictures Corp 45 F.2d 119 Nonny Gathoni Njenga and another v Catherine Masitsa and 2 others (2014) eKLR Nouveau Fabrics v Voyage Decoration and Dunelm Soft Furnishings Limited (2004) EWHC 895 (Ch) Sony Corp. of America v Universal City Studios, 464 U.S. 417 (1984) vii Temple Island collections ltd. v New English Teas ltd (2012) EWPCC 1 viii LIST OF STATUTES REFERRED TO 1. Constitution of Kenya 2010 2. Copyright Act (Amendment) Regulations 2015 - Kenya 3. Copyright Act (Amendment) (No.2) Regulations 2015 – Kenya 4. The Copyright (Amendment) Act 2012 – India 5. Copyright, Designs and Patents Act 1988 – United Kingdom 6. Digital Economy Act 2010 – United Kingdom 7. Ghana Copyright Act 2005 8. Indian Copyright Act 1957 9. Kenya Copyright Act 2001 10. Judicature Act 1967 - Kenya LIST OF CITED INTERNATIONAL LEGAL INSTRUMENTS 1. Convention Establishing the World Intellectual Property Organization 2. The Berne Convention for the Protection of Literary and Artistic Works 1886 3. The Electronic Commerce (EC Directive) 2002 4. United Nations Universal Declaration of Human Rights 1948 ix Table of Contents DECLARATION .......................................................................................................................... ii ACKNOWLEDGEMENT ........................................................................................................... iii DEDICATION ............................................................................................................................. iv GLOSSARY OF ACRONYMS ................................................................................................... v LIST OF CITED CASES ........................................................................................................... vii LIST OF STATUTES REFERRED TO .................................................................................... ix LIST OF CITED INTERNATIONAL LEGAL INSTRUMENTS.......................................... ix CHAPTER ONE: A BACKGROUND ON UNDERSTANDING THE NEED TO PROTECT COPYRIGHT IN MUSICAL WORKS AND SOUND RECORDINGS, BY THE KENYA COPYRIGHT BOARD (KECOBO) .................................................................. 1 1.0 Introduction ......................................................................................................................................... 1 1.1 Back ground to the study .................................................................................................................... 1 1.2 Statement of the Problem .................................................................................................................... 6 1.3 Justification of the problem................................................................................................................. 8 1.4 Objectives of the study ........................................................................................................................ 9 1.5 Research questions ............................................................................................................................ 10 1.6 Hypothesis......................................................................................................................................... 10 1.7 Literature Review .............................................................................................................................. 11 1.8 Theoretical Framework ..................................................................................................................... 20 1.9 Chapter breakdown ........................................................................................................................... 24 1.10 Research Methodology ................................................................................................................... 26 1.11 Limitations ...................................................................................................................................... 29 CHAPTER TWO: THE CONCEPT OF COPYRIGHT INFRINGEMENT AND THE IDEA/EXPRESSION DICHOTOMY ....................................................................................... 30 2.1 Definition of musical works and sound recording ............................................................................ 31 2.2 Copyright infringement ..................................................................................................................... 34 x 2.3 Idea/ expression dichotomy .............................................................................................................. 40 2.4 Conclusion ........................................................................................................................................ 44 CHAPTER THREE: CHALLENGES ENCOUNTERED BY KECOBO IN FIGHTING PIRACY AND ENFORCEMENT OF COPYRIGHT IN MUSICAL WORKS AND SOUND RECORDINGS ON THE DIGITAL PLATFROM .................................................. 46 3.1 Why copyright has to be examined in the digital platform ............................................................... 46 3.2 Definition of music piracy ................................................................................................................ 52 3.3 Background and effect of piracy on Kenyan music .......................................................................... 53 3.4 Reasons for piracy ............................................................................................................................. 56 3.5 Mechanisms put in place by KECOBO in fighting piracy and the challenges these mechanisms encounter ................................................................................................................................................. 60 3.6 Conclusions from question 1............................................................................................................. 64 3.7 Conclusions from question 2............................................................................................................. 66 CHAPTER 4: COMPARATIVE STUDY: PROTECTION OF MUSICAL WORKS AND SOUND RECORDINGS ON THE DIGITAL PLATFORM IN OTHER JURISDICTIONS ...................................................................................................................................................... 67 4.1 The United Kingdom ........................................................................................................................ 69 4.1.1 Legal remedies ..........................................................................................................................
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