What is copyright?

Copyright is a legal right created by the law of a country, that grants the creator of an original work exclusive rights to its use and distribution, usually for a limited time, with the intention of enabling the creator (e.g. the photographer of a photograph or the author of a book) to receive compensation for their intellectual effort.

Copyright automatically protects the original expression of an idea provided that the concept is in tangible form. Copyright does not protect the idea or concept but the expression of the idea in a tangible form.

Section 22 of the Kenya Copyright Act, 2001 provides for the works that are eligible for copyright as follows:

• Musical works;
• Audio-visual works;
• Sound recordings;
• Literary works;
• Artistic works; and
• Broadcasts.

Which law governs copyrights in Kenya?

Applicable laws 

“The Berne Convention”

• The international treaty that governs copyright law is the Berne Convention. The Convention deals with the protection of works and the rights of authors.
• The three fundamental principles envisaged in the Convention are:

• • The principle of national treatment – that works originating in one of the Contracting States should be given equal protection in each of the other Contracting States as the latter grants to the works of its nationals;
  • The principle of automatic protection – that protection must not be conditional upon compliance with any formality;
  • The principle of independence of protection – protection is independent of the existence of protection in the country of origin of the work.

• Member states should comply with the provisions of the Convention.

The WIPO Copyright Treaty 

• The other applicable law is the WIPO Copyright Treaty (the “WCT”). The Treaty’s purpose Treaty is to develop and maintain the protection of authors’ rights in their literary and artistic works.
• The Treaty has been essential in maintaining a balance between the rights of authors and public interest, particularly in education, research, and access to information.

The Constitution of Kenya, 2010

• Article 2(6) of the Constitution states that any Treaty or Convention ratified by Kenya shall form part of the law of Kenya. Kenya has ratified the Berne Convention and the WIPO Copyright Treaty, and therefore, form part of the laws of Kenya and are binding.
• Article 11 (1) states that the Constitution recognises culture as the foundation of Kenya and as the cumulative civilisation of the Kenyan people.
• Article 11 (2) (c) provides for the promotion of intellectual property rights of the people of Kenya by the State.

Copyright Act, 2001 of 2001

• The Copyright Act makes provision for copyright in literary, musical, artistic, audio-visual works, sound recordings, and broadcasts.
• The Kenya Copyright Board (“KECOBO”) is established under section 3 of the Act and is responsible for copyright administration and enforcement.
• The Act contains provisions relating to the works eligible for copyright, the rights of an owner, infringement of copyright, and remedies available.

Basic concepts of copyright

An owner should meet two conditions listed below for the work to be eligible for copyright protection in law:

• • Illustrate sufficient effort on the development of the work to give it an original character; and
  • Write down, record, or reduce the work to material form Elements of copyright 

Duration of protection

• The term of a copyright depends on the type of work;
  • For literary, musical or artistic works, the term is fifty years from the death of the owner;
  • For audio-visual works and photographs, the term is fifty years from the end of the year in which the work was either made available to the public or publication of the work;
  • For sound recordings, the duration is fifty years after the end of the year in which the recording was first made available to the public; and
  • For broadcasts, the term is fifty years after the end of the year in which the broadcast first took place.

Requirements for registration of a copyright 

• The requirements for KECOBO to register copyright are:
  • The work must be of original authorship;
  • The work should be in a tangible format;
  • Submission of two copies of the original work with the application form;
  • Application forms duly filled and commissioned with a Commissioner for Oaths;
  • Submit the application form accompanied by the prescribed fee; and
  • KECOBO issues a certificate of registration after verifying the application.

What rights are acquired when one copyrights?

Copyright confers exclusive rights (economic rights) to the owner to control the doing of the following:

1. Reproduction of any material form of the original work or its translation or adoptions;
2. Distribution to the public of the work by way of sale, rental, lease, loan, importation or similar arrangement;
3. Communication to the public; and
4. Broadcasting of the whole work or a substantial part thereof either in its original form recognizably derived from the original.

Are there any other rights?

Yes.

Copyrighting also confers moral rights. These are:

1. Right to claim of authorship of the work; and
2. Right to object to any distribution, mutilation or other modification of or other derogatory action in relation to the said work which will be prejudicial to his owner or identification.

Moral rights are inalienable and the author will retain the even after the transfer of economic rights.

Can one assign a copyright?

Yes.

Section 33 of the Act provides that copyright shall be transmissible by assignment, licence, testamentary disposition or by operation of law as movable property

Section 33 (2) of the Act provides that an assignment or testamentary disposition of a copyright may be limited so as to apply only to some of the acts which the owner of the copyright has exclusive rights of control or to a part only of the period of the copyright or to a specified country or other geographical area.

What cause of action does the owner have in the event of infringement of economic rights acquired from copyrighting?

Infringement occurs whenever somebody exercises rights reserved for the copyright owner without the author’s/owner’s leave.

Section 35 (1) of the Act provides that copyright can be infringed by a person who without the licence of the owner of the copyright:

1. Does or causes to be done, an act the doing of which is deterred by the copyright; and
2. Imports or causes to be imported otherwise than for his private and domestic use an article which he knows to be an infringement.

The copyright owner has the right to sue the person who infringes his rights but he is required to prove infringement.

How does one prove infringement?

In order to prove infringement of reproduction rights, the copyright owner must prove not only that the work was copied but also that the copying was substantial.

Substantiality can be evaluated by reference to either the quantity or quality.

Steps a copyright owner can take to prevent infringement

As far as protection goes, for all material online one is encouraged to add a generic tag of “(c) (author’s name) 2011.

All Rights Reserved” at the end of every work uploaded online.

Contact details should also be easily accessible both on the site/blog in case attempts are made by a third party to contact you regarding consent to use the copyright work.

Enforcement of rights acquired from copyright

Section 37 of the Act covers this.

The court allows granting of Anton- pillar orders.

If a person has a prima facie evidence of infringement of his right by another party and he satisfies the court that he has a cause of action he intends to pursue and the other person has infringing copies/documents or other things constituting evidence of great importance and that there is real and well founded apprehension that those things may be hidden or destroyed, then the court may make such orders (Anton- pillar orders) if it considers it necessary to secure the preservation of those things.

Future Content in respect of a copyrighted website

Any material that may be added after issuance of the Certificate of Registration of Copyright can still be protected. All you need to do is upload the new content on a CD and accompany this with a copy of the Original Certificate of Registration and tendered over at the Kenya Copyright Board Offices, whose officials will update their records free of charge.

SUMMARY

Our specialist intellectual property and technology lawyers’ work closely with clients to develop, protect, promote and enforce their intellectual property rights. We advise on all aspects of the exploitation and use of intellectual property rights and the acquisition and use of information technology products and services. We work for companies in a variety of industries and our specialist intellectual property expertise ensures that we are able to provide cost effective advice that is commercially sound and practical. Our lawyers are also experienced in both contentious and non-contentious enforcement of intellectual property rights relating to expungement, infringement and opposition proceedings in respect of patents, plant breeders rights, unregistered and registered designs, copyright and database rights, image rights, domain names, trade marks and the law of passing off. We handle and advise on registration of various IP rights through local, regional and international registries. We also advise on legal issues arising from parallel importation of goods.

We offer particular expertise in relation to acquisition of rights, transactions involving licensing and the transfer of technology, technology joint ventures, research and development and franchising agreements.

Our practice and expertise also extends to advising on intellectual property questions arising in connection with mergers and acquisitions and establishment of new businesses. We also advise on regulatory and liability questions on and arising from the introduction and use of transgenic materials in the local market

Authored by Henry Njuguna Adv, MCIArb

We at NKN will gladly help through this process. Reach out on 0722382783.