Exploring the Intersection of Copyright Law and Text and Data Mining Research in Kenya: CIPIT’s Policy Brief

In a previous blog, we discussed the role of copyright law in creating a conducive environment for text and data mining (TDM) research. The article expounded on what TDM entails, the benefits of adopting TDM and the copyright exception (fair dealing) in place that would assist with promoting TDM research within the Kenyan context. The underlying argument for reforming copyright exceptions in Kenya was that the copyright exceptions are narrowly constructed and vague, thus limiting their ability to provide a conducive environment for TDM research.

The Research Underpinning the Policy Brief

This article aims to expound on the above hypothesis by providing evidence through the findings of CIPIT’s research and the recommendations proposed. The study assessed the relationship between Kenya’s technology and copyright legal framework that affect the use of TDM research. A complementary approach was adopted, and three research methods were employed. They included an analytical review of the current technology legal framework in Kenya that promotes TDM research, a comparative analysis of the copyright legal framework for the exception for research in Kenya and South Africa, and a survey of TDM developers and users to assess the practical impact of technology and copyright laws to TDM research.

Research Findings

The following are the key findings obtained from the research.

1. Kenya’s technology legal framework can potentially promote text and data mining research, if implemented and updated.

CIPIT assessed the objectives of technology laws and policies that promote learning, research and technology in Kenya. The Constitution of Kenya 2010 was the starting point of analysis. The right to research is embedded within Article 33 of the Constitution, which expresses the right to freedom of expression that extends to academic creativity and scientific research. The research found that this Article is the foundational basis for technology laws concerning promoting research. The research also found that the Science, Technology and Innovation Act promotes technology, education and research in Kenya through the National Commission for Science, Technology and Innovation (NACOSTI). NACOSTI achieves this goal by giving detailed guidance to researchers on science, technology, and innovation. Additionally, NACOSTI has defined what “scientific research” means, which helps to clarify modern research such as TDM research.¹ Furthermore, the Data Protection Act has a section that encourages research by stating that personal information can be processed if it is in line with the purpose for which it was collected and if the ultimate goal is research.² Moreover, the Computer Misuse and Cybercrimes Act supports the secured use of TDM research by prohibiting unauthorised entry into computer systems and dissemination of false information.

The National Information Communications and Technology (ICT) Policy and Guidelines aim to create a knowledge-based society with accessible, reliable and affordable ICT infrastructure and services. This includes creating a self-sustaining ecosystem for high-quality research. Further, the 2019 Block Chain and Artificial Intelligence Task Force Report³ emphasises the importance of evidence-based policymaking by the state to ensure there is an enabling environment for technology-based research, like TDM research, in Kenya amidst the emergence of the fourth industrial revolution. Moreover, Kenya’s Digital Economic Blueprint and Strategy aim to utilise new technologies, including TDM research. The Strategy calls for progressive legislation that adapts to emerging trends and technology. In addition, collaboration between various stakeholders (academia, industry and government) is encouraged to achieve a unified agenda.

However, this research found that Kenya’s technology laws and policies encounter difficulties in implementation due to lengthy and costly legislative procedures. Although these policies and strategies hold promise, most still need to be implemented, and proposals and initiatives often need to be made more explicit about timelines and funding. Moreover, the laws’ shortcoming is their failure to apply to the current digital world. Despite their potential to foster technology-based research like TDM, these laws need to be implemented and updated efficiently.

2. Kenya’s copyright law can potentially enable TDM research if interpreted and updated.

The research assessed Kenya’s copyright regime concerning the exception for research and compared it to that of South Africa. The assessment began by examining the constitutional provisions of Kenya and South Africa that aim to encourage and protect the right to research. Both countries provide for the right to freedom of expression, which encompasses the freedom of scientific research. The analysis then focused on copyright legislation, comparing Kenya’s Copyright Act 2001 (amended 2022) to South Africa’s Copyright Act 1978 and South Africa’s Copyright Amendment Bill 2018. The research found that Kenya’s Copyright Act offers a more flexible approach to copyright exceptions. Unlike the South African Act, the Kenyan Act provides a comprehensive list of ways to apply the fair dealing exception⁴. However, neither the Kenyan nor the South African Acts clearly define the terms ‘fair’ or ‘research’, leaving ambiguity regarding whether TDM research can benefit from these copyright exceptions.

However, the South African Amendment Bill presents more favourable grounds for TDM research by proposing broader limitations and exceptions to copyright. The bill suggests a shift from fair dealing to a more flexible fair use principle. On the other hand, Kenya’s Intellectual Property Bill 2020 is considered regressive as it mainly focuses on limiting the exclusive rights granted by copyright, which are already present in the current Copyright Act. The bill misses the opportunity to adopt a progressive approach that would promote TDM research. Regarding case law, both countries have a more purposive approach that embraces flexibility in fair dealing exceptions, potentially allowing TDM research to occur.⁵ While there is yet to be a clear understanding of whether TDM research amounts to scientific research or research in Kenyan and South African law, a TDM researcher can employ the six-factor fairness test provided by case law to determine if the use is fair.⁶ South Africa’s legislative developments indicate a more progressive stance, aligning with innovation and technological advancements. At the same time, Kenya’s copyright legislation must catch up in embracing technology-based research such as TDM research.

3. Survey findings and analysis

To assess the relevance of Kenya’s technology policy and copyright laws affecting TDM research, a survey was conducted among TDM developers and users. It was found that the majority were unaware of Kenya’s fair dealing copyright exception. Only 18% of the 34 respondents correctly identified the Copyright Act as promoting technology, learning, and research. Some respondents believed that copyright law affects TDM research in Kenya, citing reasons such as using research to advance knowledge and identify gaps, promoting innovation and the creation of new technologies essential for society, and preventing data misuse. The survey also revealed that many respondents considered a defence against copyright infringement for TDM to be crucial for research. At the same time, a minority disagreed, expressing concerns about the potential abuse of data. The survey findings highlight the importance of improving understanding and awareness of the fair dealing exception within the context of TDM research, which can inform discussions and potential reforms of copyright laws to align with the evolving TDM landscape in Kenya.

Way Forward?

We developed recommendations to create a favourable legal environment for Text and Data Mining (TDM) research based on our findings. These recommendations focus on aligning Kenyan policies to support technology-based research. Clear guidelines and strategies should be established to facilitate access and use of data for research purposes. Additionally, there is a need for flexibility in applying copyright law. Broadening the fair dealing copyright exception and defining ‘fair’ and ‘research’ are essential steps in this regard. Moreover, there is a need for increased awareness and understanding of copyright exceptions within the TDM field.

In conclusion, this blog summarises the essential findings and recommendations outlined in our recently published policy brief, launched at a webinar on the right to research and copyright law in Kenya. The webinar brought together copyright experts and users, featuring a panel that included representatives from Electronic Information for Libraries (EIFL), Kenya Copyright Board (KECOBO), Kenya Libraries & Information Services Consortium (KLISC), and an AI researcher. During the webinar, EIFL delivered a presentation on the right to research and international copyright law, while KECOBO discussed Kenya’s copyright framework and its support for research. KLISC shed light on access to knowledge and information e-resources in Kenya, and the AI researcher shared their first-hand experience with text analytics in Kenya. We hope that the discussions held during the webinar, along with the dissemination of our findings and recommendations will contribute to the establishment of a favourable environment for Text and Data Mining (TDM) research in Kenya.