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.