The Efficiency of copyright law in the digital space in Kenya: a case of the making available right in peer-to-peer file Sharing

Project submitted in partial fulfilment of the requirement for the Bachelor of law (LL.B) degree at Strathmore UniversityPeer to Peer (P2P) file sharing is a phenomenon that has been brought about by the digital revolution. With its arrival came new techniques that could enable users to circumvent the copyright regime and commit acts that were seen to violate copyright holders ' rights. P2P functions by granting other users on the P2P network access to files stored on one's hard drive thus enabling others to download from users who have granted them such access. This aspect of the P2P networks allowing users to make files available to other users has been argued to be a violation of the exclusive rights granted by copyright. This study argues that the absence of the making available right in Kenya makes Copyright's exclusive rights ineffective in preventing P2P file sharing of protected works. This paper therefore seeks to assess the scope of these exclusive rights by drawing reference from more advanced jurisdictions and to assess the making available right in a similar manner. It also seeks to make recommendations on how to deal with the possible copyright infringement opportunities via P2P networks which are made possible by the digital age. There is a connection between these two concepts that makes copyright laws able to deal with infringements occurring in the digital space. Consequently, the study recommends the introduction of this right into the Kenyan jurisdiction through an amendment of the Kenyan Copyright Act or through the ratification of the WIPO Copyright Treaty. This paper also briefly looks into the possible causes in delay of ratification of the WCT in an effort to bring to light issues that may need to be addressed before the ratification process is commenced. The paper goes further to suggest alternative solutions to the identified gaps such as the introduction of a non-commercial use levy on P2P file sharing as compensation to rights holders for any possible infringements that may occur on these network