Kenya Copyright Board on "responsible use of memes": quasi-judicial powers and balanced perspectives

Last week, Kenya's government agency in charge of copyright matters, Kenya Copyright Board (KECOBO) published an advisory via its Twitter handle. The advisory titled "Advisory on memes and copyright law" was published to inform the public that in its (KECOBO's) view, memes are adaptations of copyright-protected works and may only be created with the licence or permission of the relevant copyright owner of the work from which a meme is to be generated.

This advisory is coming in the wake of the proliferation of memes on Kenya's ongoing election campaigns and elections, trending on various social media platforms. 

This post reviews KECOBO’s advisory in the light of Kenya’s copyright law and policy.

KECOBO's advisory on memes and copyright law

The advisory defined a meme as "an image, video or text used in social media for humorous or political banter and illustrative of a line of thought on a topic under discussion". The key points from KECOBO's one-page advisory include:

• Memes are often created from photographs, texts or videos that are protected by copyright. 
• Since a copyright holder has the exclusive rights inter alia to reproduce, make an adaptation of and publish their work under Kenya's Copyright Act, only such copyright holder or their licensee can create a meme from their works.
• Accordingly, memes generated without the authority or licence of the copyright holder of the work underlying the meme (i.e., the source work) would be an infringement of the rights of reproduction, adaptation and publication.
• Even though memes are generally tolerated on social media, they are by no means exempt from the obligation to procure a licence before they can be generated or created.

Executive bodies, quasi-judicial powers and the need for a balanced approach

While section 26(1)(b) of Kenya's Copyright Act as amended grants copyright owners the exclusive right of adaptation and while memes may in fact involve the exercise of the adaptation right, that should not be all that the public should be advised on when it comes to memes and copyright law. This is so for several reasons but this post highlights two.

Copyright law has a two-pronged relationship with fundamental human rights especially the right to freedom of expression. The relationship is on one hand, such that copyright law through the availability of protection for original expressions promotes the right to freedom of expression. On the other hand, the exclusive nature of copyright protection in certain instances lends itself to being used as a tool to restrict freedom of expression. This aspect of the relationship between copyright and the right to freedom of expression is usually more apparent in elections and similar democratic processes where copyright owners may seek to enforce their rights to prevent criticism or (perceived critical) discourse of their work, speech or actions whatever form such criticism or discourse may take.

One may argue that it is in the bid to uphold the tenets of the right to freedom of expression and ensure that the exercise of copyright does not unduly constrain the right to freedom of expression that copyright law offers exceptions that allow the public to criticise or review copyright-protected works and in some jurisdictions, create parodies or caricatures of existing works. In the case of Kenya's Copyright Act, Paragraph A(1) of the Second Schedule provides that "the exclusive rights under section 26 shall not include the right to control":

(a) the doing of any of those acts by way of fair dealing for the purposes of scientific research, private use, criticism or review, or the reporting of current events;

(b) the doing of any of the afore-mentioned acts by way of parody, pastiche or caricature

(emphasis mine)

In the light of the foregoing and also given that the advisory is coming at a time when Kenya is in election season, it is a reasonable expectation that KECOBO would have used its advisory to present a balanced position on memes and copyright law. [KECOBO did mention that a work may be in the public domain because copyright has expired and companies should conduct due diligence before engaging in meme creation]. Memes that serve the purpose of criticism or review or parody or caricature would not be infringing and surely would not require the creator of the meme to obtain permission or licence of the copyright owner of the source work.

Even where the source work is not the object of criticism or review or parody or caricature, there is still the question of the de minimis rule/use. Given the way memes are created or generated, would the use of the source work be that significant to warrant infringement liability?

Beyond the need to provide a balanced and accurate view of copyright statutes, there are positive lessons to draw from KECOBO's work as the copyright regulator in Kenya. One of KECOBO's functions as stipulated in section 5(e) of Kenya's Copyright Act is to "enlighten and inform the public on matters relating to copyright and related rights". This function and the manner in which KECOBO has continued to discharge it - providing advisory and clarification documents on various aspects of copyright law - offers lessons that other jurisdictions (especially those in Africa where judicial interpretations of copyright statutes are far and between for various reasons) may emulate. 

In enlightening and informing the public on copyright matters, executive bodies such as KECOBO perform quasi-judicial functions that stand copyright owners and the public in good stead especially as a stop-gap solution pending "judicial word" if and when it comes. It behoves on such executive bodies performing quasi-judicial functions to apply a balanced approach and present a balanced perspective that not only explains the scope of the rights of copyright owners but also explains the "rights" and entitlements of users.