Recently, the Copyright Amendment Act, 2019 (Laws of Kenya) inserted a section that makes body corporates e.g. companies, partnerships, liable to copyright infringement. The Act defines a body corporate as a firm or association of persons. Most body corporates use others’ copyright or related rights works on a regular basis e.g. music, art, photographs, magazines, videos etc. It is important to understand how corporates may use these works in their business without infringing copyright. In principle, the use of any copyrighted works requires the owner’s prior consent if the planned exploitation implies the use of all or part of the rights granted to the copyright owner. For example, if a corporate wishes to play recorded music for its customers, it will need a license from the owner to play the music. Even if the corporate uses just a part of a copyright work, it will still need prior permission. There’s however works that a body corporate can use without prior permission. These works include;
- Works that are in the public domain meaning the protection period has lapsed, the author has renounced his/her rights or it’s a foreign work that does not enjoy protection in Kenya
- Works that are covered by the concept ‘fair dealing’ under the Copyright Act e.g. using the work for private use, research purposes, review and criticism, news reporting etc.
- Works that are not protected under the Copyright Act. For example, if you are using the facts or ideas from a protected work, rather than the author’s expression since copyright does not protect ideas, only the expression.
Any other use that does not fall in the above category must be done with the permission of the copyright owner or else the body corporate will be engaging in copyright infringement. A company can be held liable for acts committed by its employees under the Act.
To avoid litigation, which is always detrimental to a business, body corporates may; Develop policies to monitor and ensure employees do not use copyrighted works without prior consent, block websites that employees can use to download infringing content like music, movies etc., obtain express written permission, licenses and assignments before using copyrighted materials and educate its staff in order to create awareness on copyright issues and the consequences that the business may face in case of infringement. Seeking expert advice from intellectual property practitioners before conducting business will save a body corporate from unnecessary law suits and loss of revenue.