Photocopying of a copyrighted book is not quite illegal

I have followed up presentations on photocopying and piracy on this page by Abraham Ochieng-Obunga (Saturday Nation, April 22, 2017); John Mwazemba (Saturday Nation, April 15, 2017); Jimmy Brown Mwandigha (Saturday Nation, April 8, 2017); Franklin Mukembu (Saturday Nation, April 1, 2017) and would like to add the following.

Photocopying is not synonymous with book piracy. The definition given by Mr Mwazemba, extracted from International Publishers’ Association (IPA), may not be correct.

According to him, IPA defines book piracy as the unauthorised use of copyrighted works. According to this definition, any person who uses pirated works, including students, is considered to have participated in piracy. This definition is misleading.

A better definition is presented by the Oxford Dictionary, 7th edition. It defines piracy as the act of making illegal copies of video tapes, computer programs, books, etc in order to sell them. Piracy involves mass production of copyrighted materials for commercial purposes.

A student, lecturer or a teacher who produces a few pages from a book is not involved in piracy. Photocopiers are rarely used for mass reproduction of books.

EMPOWERED USERS

According to the two definitions, book piracy and photocopying are not one and the same thing. While book piracy is illegal, photocopying of copyrighted materials is not illegal. To understand this issue clearly, we need to look at copyright, the legal right given to an author or publisher to protect his/her work from being reproduced without his/her authority.

Copyright requires that any person intending to reproduce a document or a book must get authority from the copyright owner. However copyright is now perceived differently from what the definition states.

A good copyright law is supposed to strike a balance between the economic rights of the copyright owner and the public’s interest in the work. The law should ensure that the public or information user is allowed to exploit the information content in the book. The exploitation can only take place if the public is allowed to reproduce a limited amount of the work.

The Berne Copyright Convention, an international agreement on copyright, requires each member state to provide copyright exemptions for certain uses. These exemptions have come to be known as ‘Exceptions and Limitations to Copyright Restrictions.’ These exemptions are referred to as fair use in the US and fair dealing in Britain and the Commonwealth, including Kenya.

However in using this provision in the law, information users must ensure that such reproduction does not economically or financially disadvantage the copyright owner. To guarantee this, the reproduction is strictly confined to private or non-commercial purposes. For commercial uses one must obtain a licence or authority.

In Kenya, section 26(1) of the Copyright Act, 2001 empowers users to reproduce copyrighted works for purposes of scientific research, private study or use, criticism or review, use by the government, publicly funded libraries, scientific institutions, etc. According to this provision in the law, any person in Kenya is free to photocopy a limited amount of copyrighted documents or books.

Without these exemptions, any person wishing to cite or quote a sentence or paragraph in a book or journal would be required to contact the author or publisher. In this regard, photocopying of copyrighted works is not illegal as long as it is not for commercial use.

PIRATE INDUSTRY

Also, in Kenya the law does not state the maximum amount in terms of book pages a person can photocopy at a time. However, according to section 38(3) of the Act, copyright is only infringed if a person is found in possession of two or more infringed copies of a whole document or book. Perhaps this explains why no person in Kenya has been taken to court for photocopying books in academic institutions or libraries. Nor has any person been arrested and charged for possessing single copies of pirated material.

It is important to note that copyright does not cover all literary materials. Materials for public use such as government reports, laws of Kenya, for instance, are not copyrighted. The same applies to materials whose copyright protection has expired. Materials such as Shakespeare’s books and the Bible have outlived the period of protection. Any copyrighted material published over 70 years ago do not qualify for protection in Kenya. Materials whose publishers or authors are not known equally do not qualify for copyright protection.

It would be better for publishers and authors to direct all their effort to monitoring individuals and organizations in the pirate industry. These are the people whose activities have seriously affected the publishing industry.

The industry is losing billions of shillings annually from the activities of these people. The publishing industry should work closely with the Kenya Copyright Board to arrest the activities of the pirates. Publishers should not spend so much time and effort curbing photocopying in libraries and copy shops because it is legal. It does not amount to piracy. After all much of what is reproduced in copy shops in and around university campuses comprises lecture notes, hand outs, past exam papers, and government documents.

The writer is a lecturer specialising in legal information at Moi University’s School of Information Sciences, Eldoret