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Copyright In Kenya

This article is provided by Mohamed Madhani & Co 


In the throes of doing your business, you may author a book or even an article to enlighten others in your area of expertise.

 So how do you protect your intellectual property?

 I will tell you how!

 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.

 Which law governs copyrights in Kenya?

 The Copyright Act- Act No. 12 of 2001.

Which institution is tasked with registration of copyright in Kenya?

 The Kenya Copyright Board (KECOBO)

The Board is located on NHIF Building, 5th Floor

What is the subject matter of copyright?

 Section 22 of the Act provides the following works as being eligible for copyright:

 

  1. Musical Works;

 

  1. Audio Visual Works;

 

  1. Sound Recordings; and

 

  1. Broadcasts.

 

P.S Literal, Musical and Artistic works cannot be copyrighted unless the work has been written down, recorded or otherwise reduced to material form.

 

Basic concepts of copyright

The basic concept of copyright is originality.

 

The parallel of this is the Patent law which carries with it the aspect of novelty.

 

A copyright work need not to be novel. All that the author needs to demonstrate is that he was the first to create a particular express embodied in his work thus the ideas and themes may have appeared in earlier works.

 

If copying is allowed, can an application of copyright then be denied?

Yes.

 

Where work has been copied from an earlier work, the 2nd work can be denied originality on the basis that not enough skill, labor and judgment has gone into its creation to make it a work.

 

While it is clear that a certain amount of skill and effort must have been expended, a work that is as a result of the application of sheer effort is unlikely to qualify as a work.

 

How does one register a copyright?

The steps for registration of a copyright are summarized as under:

 

Step 1: Collect the registration form from the Kenya Copyright Board offices or download it from their website.

 

Step 2: Fill in the relevant details

 

NB: Any such person purporting to register a work as an authorized agent, she/he is required to produce an authority letter authorizing him/her to act as such agent and a copy of his/her National ID

 

Step 3: Have the forms commissioned by a Commissioner for Oaths.

 

Step 4: Attach two ORIGINAL copies of the work. The work must be of original authorship and should also be in tangible format, including digital format

In the case of a website, the work may be uploaded to a CD. Ensure all the pages of the website are clear, with all the content displayed. The author must be present to demonstrate how the website will operate.

 

Step 5: Deposit the prescribed registration fee in the bank account of the Kenya Copyright Board below:-

 

Bank name: Kenya Commercial Bank

Account name: Kenya Copyright Board

Account number: 1104002450

Branch: Kipande House

 

One may also pay the registration fee via MPesa

 

Go to m-pesa menu

Select lipa na m-pesa

Select paybill

Enter paybill no. 522052

Enter account number:

-To pay for the Registration fee: TYPE R/TITLE OF COPYRIGHT WORK

Enter amount

Enter pin and send

 

Step 6: Present the Bank Deposit Slip or the message you received after the Mpesa transaction at the KECOBO reception, where a receipt of registration will be issued.

Step 7: The ORIGINAL “Certificate of Registration” will be issued within 5-7 days from the date of registration. The 5-7 days allow for a rigorous process of verification of the copyright works offered for registration and it is done by KECOBO’s Legal Department.

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;

 

  1. Distribution to the public of the work by way of sale, rental, lease, loan, importation or similar arrangement;

 

  1. Communication to the public; and

 

  1. 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

 

  1. 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.

 Duration of Copyright

  1. For literary, musical or artistical works other than photographs – 50 years after end of the year in which the author dies;

 

  1. For audio-visual works and photographs- 50 years from the end of the year in which the work was either made first available to the public or first published whichever date is later;

 

  1. For sound recordings- 50 years after the end of the year in which the recording was first made available to the public; and

 

  1. For broadcasts- 50 years after the end of the year in which the broadcast first took place.

 

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

 

  1. 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.

PARTING SHOT

Your Intellectual property ought to be protected at all times to avert others from benefiting from your hard work and diligence.

During registration, many issues, such as contention of who own the copyright, may arise hence it is always advisable to retain an Advocate to act on your behalf when registering intellectual property.

Copyright © 2016 Mohamed Madhani & Co . All Rights Reserved.

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