Authors: Chebet Koros, Joshua Kitili, Cynthia Nzuki and Natasha Karanja
Strathmore University Centre for Intellectual Property and Information Technology Law
Introduction:
Why is it necessary to create a legal and copyright environment that supports text and data mining research in Kenya?
Researchers seeking to contribute to existing bodies of knowledge require access to data and digital tools, like text and data mining (TDM) research. TDM is described as “any application of a computational process to materials to derive data from or about those works”. TDM projects, such as Blue Dot, led to the discovery of the Coronavirus outbreak and advanced vaccine research. Access to technology and resources is crucial to a country’s development and can lead to increased access to educational advancement. The “right to conduct and receive or access research” is justified by the universally shared freedom of expression and the public’s right to information, as recognized by various national laws, such as articles 33 and 35 of Kenya’s Constitution.
The TDM research process involves, among other processes, reproducing copyright-protected works. Actions such as scanning copies of analogue works, formatting texts and data, extracting useful information and storing data after mining may be considered copyright infringements. Some countries like Singapore and Japan have amended their laws to provide a specific copyright exception for text and data mining. In contrast, others have limitations and exceptions (L&Es) to copyright that allow using copyrighted works for specific purposes without obtaining permission. For example, Kenya has an exception for the unauthorized use of copyrighted works for scientific research. This exception is permitted by way of fair dealing in Kenya. There is no global copyright policy for TDM research, and there is a call for international leadership to develop guidelines on applying copyright to TDM technology.
Though Kenya’s copyright law provides an exception for scientific research, it is unclear whether it extends to TDM research. Additionally, this provision is less flexible than other countries’ copyright laws, which provide for a specific exception for TDM research, or adopt a more flexible fair use exception. Other challenges to access and the use of ICTs for education, learning, and research in Kenya are poor internet connectivity and network infrastructure, a scarcity of Artificial Intelligence (AI) experts, and inadequate funding from the government.
CIPIT carried out a study to determine the relationship between Kenya’s technology and copyright legal framework that affect the use of TDM research. It had four specific targets: to determine if Kenya’s technology policy promotes technology, learning, and research; to understand the prospects and plans for enabling a legal environment for research and development of technology; to assess the role of copyright law in enabling TDM research, and finally to provide recommendations for national, regional, and international copyright policies that enable TDM research. This policy brief is a summary of that study with specific policy recommendations resulting from the study.
