Just who owns the copyright of social media content in Kenya?

Facebook, WhatsApp and Instagram

Social media platforms are often used to share copyrighted material without permission from the copyright holder.

Photo credit: File | Lionel Bonaventure | AFP

What you need to know:

  • In Kenya, social media platforms are considered intermediaries under the law, which means that they are not responsible for the content posted by users.
  • Another important issue related to UGC and copyright is the use of copyrighted material in the context of satire or parody.

With the rise of social media, user-generated content (UGC) has become increasingly prevalent across the world. UGC refers to any content created and shared by users on social media platforms, such as photos, images, videos, and text posts. 

You’ll find it on Facebook, Instagram, Twitter and TikTok but while UGC can be a valuable source of information and creativity, it also raises important legal questions of copyright and who owns the rights to the content that is created and shared online.

Copyright law in Kenya, governed by the Copyright Act 2001, defines copyright as the exclusive legal right to control the reproduction, distribution, adaptation, and public performance of a work. This applies to original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works.

A complex question

Now, the question of who owns the copyright to the content on social media can be complicated. In many cases, the person who creates the content is considered the author and therefore the owner of the copyright.

However, there are situations where the copyright may belong to someone else. For example, if an employee creates content as part of their job, the copyright may belong to the employer. Additionally, if a person creates content as a contractor or freelancer, the copyright may belong to the person or company that hired them.

One of the most important issues surrounding UGC and copyright is the role of social media platforms. In Kenya, social media platforms are considered intermediaries under the law, which means that they are not responsible for the content posted by users.

However, this does not mean that social media platforms are completely immune from liability. Under Kenyan law, intermediaries can be held liable if they fail to take action against infringing content once they have been notified of it.

AI systems are not perfect

The intermediaries have a responsibility to remove infringing content once they are aware of it. This can be a difficult task, as there is a large amount of content being posted on social media platforms at any given time.

To help address this issue, many social media platforms have implemented automated AI systems to detect infringing content. However, these systems are not perfect, and it is important for users to report any infringing content that they come across.

It is important for users to be aware of these terms of service and the implications of granting a license to their content. In some cases, users may want to consider using a Creative Commons license, which allows others to use and share their content under certain conditions. This can be a useful way for users to retain control over their content while still allowing others to use it.

Another important aspect of UGC and copyright is the issue of infringement. Social media platforms are often used to share copyrighted material without permission from the copyright holder. This can include things like sharing copyrighted music, videos, or images without the copyright holder's consent.

Kenya's copyright act has certain provisions that deal with this issue by criminalizing copyright infringement and allowing copyright holders to take legal action against infringers. However, it can be difficult for copyright holders to enforce their rights in the context of social media, as it can be difficult to identify infringers and take action against them.

How to prevent infringement

In this regard, social media platforms have a responsibility to take steps to prevent copyright infringement on their platforms. This can include implementing measures such as content filtering or using technologies like digital watermarking to help identify copyrighted material.

Another important issue related to UGC and copyright is the use of copyrighted material in the context of satire or parody.

The copyright act has provisions that allow for the use of copyrighted material for the purpose of criticism, comment, news reporting, teaching, scholarship, or research, as well as for the purpose of creating a new work that is transformative in nature.

This means that the use of copyrighted material for the purpose of creating a parody or satire may be considered fair use, provided that it does not damage the market for the original work. However, it is important to note that the determination of whether a use is fair use is highly fact-specific and can be a complex legal question.

Additionally, the Act also recognizes the concept of "moral rights," which give creators the right to be identified as the author of a work and the right to object to any distortion, mutilation, or other modification of the work that would be prejudicial to the creator's honour or reputation. This means that even if the copyright of a work has been transferred or licensed, the moral rights of the creator remain protected.

In conclusion, user-generated content (UGC) raises important legal questions about copyright ownership and infringement in the age of social media. In Kenya, the copyright of UGC is typically held by the person who created the work, but it can be transferred to another party through a license.

Users should be aware of the terms of service of social media platforms and the implications of granting a license to their content. Additionally, copyright infringement is an ongoing issue in the context of social media, and social media platforms have a responsibility to take steps to prevent it.

Christopher Sasaka Ochieng is an expert in Internet Law and Policy and an advocate of the High Court of Kenya

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