In the Public Interest: How Kenya Quietly Shifted from Fair Dealing to Fair Use
Bibliographic record
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 seized an opportunity to answer the question of how a court should determine whether an act done in relation to a work constitutes fair dealing under Kenya’s Copyright Act. However, in doing so, the court disregarded the statutory approach based on the enumerated allowable purposes in favour of an approach that confers on all courts the responsibility to assess on a case-by-case basis defendants’ assertions that they should be excused for making unauthorized uses of copyrighted works. 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 based on the enumerated allowable purposes toward a single analysis based on fairness of the use of a copyrighted work. Until the Legislature substantively amends section 26 of the Copyright Act, this interpretation of fair dealing by the Supreme Court has binding force in Kenya. Therefore, this paper suggests that Kenya has three options if it wishes to review the fair dealing provision namely: (1) to expand the list of enumerated allowable purposes or (2) to codify the Supreme Court’s fair use approach or (3) to codify the two-step fair dealing approach in the case of CCH Canadian Ltd. v Law Society of Upper Canada which was cited but partially applied by the Supreme Court.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.014 | 0.023 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.001 | 0.002 |
| Science and technology studies | 0.028 | 0.036 |
| Scholarly communication | 0.023 | 0.022 |
| Open science | 0.002 | 0.011 |
| Research integrity | 0.015 | 0.016 |
| Insufficient payload (model declined to judge) | 0.011 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".