What is Copyright?
Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings (WIPO).
We assist our clients to register their copyrights in Kenya
We hold seminars, workshops and in-house corporate trainings on copyrights and related issues
We resolve copyright disputes through mediation, negotiation and arbitration
COPYRIGHT PROTECTION IN KENYA
Copyright is legal protection granted to creators of original literary and artistic works for the exclusive use and distribution of their creations. It does not protect ideas and concepts but express of the ideas in tangible form. While creator of such works assume automatic protection of their intellectual property rights in the works, registration is important because it reduces the burden of proof in the event of ownership dispute of such works.
Section 22 of the Kenya Copyright Act, 2001 provides that works that are eligible for protection under the Act are include:
- Musical works;
- Audio-visual works;
- Sound recordings;
- Literary works;
- Artistic works; and
In law, there are three basic requirements for copyright protection: that which is to be protected must be a work of authorship (literary or artistic in nature); it must be original; and it must be fixed in a tangible medium of expression.
Legal Framework for Copyright Protection in Kenya
Copyright protection in Kenya is governed by The Berne Convention, The WIPO Copyright Treaty, The Constitution of Kenya, 2010, and Copyright Act, 2001.
A. The Berne Convention
The Berne Convention deals with protection of works and rights of authors. Anchored in this convention are the following principles:
- 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.
B. The WIPO Copyright Treaty
The World Intellectual Property Organization (WIPO) Copyright Treaty (the “WCT”) purposes to develop and maintain the protection of authors’ rights in their literary and artistic works. This Treaty has been essential in maintaining a balance between the rights of authors and public interest, particularly in education, research, and access to information.
C. The Constitution of Kenya, 2010
The key articles of the 2010 Constitution of Kenya that deal with Copyright are:
- Article 2(6) of the Constitution states that any Treaty or Convention ratified by Kenya shall form part of the law of Kenya. This applies equally to Berne Convention and the WIPO Copyright Treaty.
- Article 11 (1) of the Constitution recognizes culture as the foundation of Kenya and as the cumulative civilization of the Kenyan people.
- Article 11 (2) (c) provides for the promotion of intellectual property rights of the people of Kenya by the State.
D. Copyright Act, 2001
The Copyright Act makes provision for copyright in literary, musical, artistic, audio-visual works, sound recordings, and broadcasts. The Act establishes Kenya Copyright Board (“KECOBO”) under its section 3 as the body responsible for copyright administration and enforcement. Copyright Act contains provisions relating to the works eligible for copyright, the rights of an owner, infringement of copyright, and remedies available.
Duration of protection
Under copyright, two types of owners’ rights are protected: economic and moral rights. Economic rights allow the owner to derive financial benefits from the use of the works. Copyright grants the following exclusive and transferable rights to the owner:
- Distribution to the public of the work by way of sale, rental, lease, loan, importation or similar arrangement;
- Reproduction of the work;
- Communication to the public;
- Translation into other languages;
- Adaptation of the work, such as a novel into a screenplay; and
- Broadcasting of the whole work or a substantial part thereof either in its original form recognizably from the original.
On the other hand, moral rights allow the owner to take measures to preserve the link between himself and the work. Moral rights are exclusive and not transferable. The Berne Convention requires members to grant the authors the following moral rights;
- The right of paternity – the right to claim authorship of the work; and
- The right of integrity – the right to object to distortion or modification of the work or any action that is detrimental to the owner’s reputation or honor.
The magical 50 years of protection of rights of an author applies as follows:
- 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.