In the Public Interest: How Kenya Quietly Shifted from Fair Dealing to Fair Use

Author: Victor B. Nzomo

Abstract: In 2014, the Supreme Court of Kenya had to determine whether the broadcast rights in free-to-air (FTA) programme-carrying signals were infringed by allowing the re-broadcasting of these signals pursuant to the so-called “must-carry” rule in the Broadcasting Regulations of the Kenya Information and Communication Act. In a unanimous decision, the apex court ruled that the ‘must -carry’ rule fell under the fair dealing provisions of the Kenya Copyright Act despite the fact that the dealing in question did not fit within one of the enumerated allowable purposes.

From a strictly statutory perspective, Kenya is a fair dealing country but the Supreme Court’s approach consisted entirely of a fairness analysis identical to one of an open-ended fair use system. This paper argues that the apex court’s interpretation of fair dealing in Kenya is now identical to fair use in the United States and other jurisdictions. The court’s emphasis on the importance of limitations and exceptions to safeguard public interest laid the foundation for a shift away from a fair dealing test toward a single analysis based on fairness of the use of a copyrighted work.

Citation: Nzomo, Victor B., In the Public Interest: How Kenya Quietly Shifted from Fair Dealing to Fair Use (December 1, 2016). WIPO-WTO IP Colloquium Research Paper Series 2016.

Full paper on SSRN: https://ssrn.com/abstract=2929252