Kenya Copyright

Introduction

• A copyright is an intellectual property right granted to the creator of original work for the exclusive use and distribution of the work. 
• 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. 
• Copyright is relevant because it constitutes the ownership of the work. 

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

• 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.  

Elements 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. 

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. 

Rights protected by copyright 

• Economic rights and moral rights are the two types of rights recognised under copyright law. Economic rights allow the owner to derive financial benefits from the use of the works. Copyright grants the following rights to an 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 recognisably from the original. 
• Moral rights, on the other hand, allow the owner to take measures to preserve the link between himself and the work. 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 honour. 

Enforcement of rights

• WIPO Copyright Treaty (WCT) acknowledges the enforcement of rights. The Treaty requires contracting parties to ensure enforcement procedures are available under their national laws for effective action on infringement of rights. Implementation is necessary to prevent the infringement of an owner’s rights. 
• KECOBO is responsible for enforcement. Some of the ways used to enforce rights include:
• • The conservatory or provisional measures, such as Anton pillar orders;
  • Civil remedies;
  • Criminal sanctions;
  • Border control measures; and 
  • Measures, remedies, and penalties against abuses in respect of technical devices. 

Conclusion 

• Copyright has had a profound impact on the development and convergence of information and communication technologies and the creation and use of literary and artistic works. 
• The protection of copyright promotes literary, musical, and artistic creativity, which boosts the enrichment of national cultural heritage and the economic development of a country. The protection of economic and moral rights offers incentives for the creation of new valuable works and investment into the production and distribution of cultural and information goods.