What is Copyright?
Kenya Copyright Board (KECOBO), states that ‘Copyright (haki miliki in Kiswahili) refers to an exclusive bundle of rights granted by law to authors of literary works; producers of audiovisual works and films; architects; performers; broadcasters and other creators of literary, musical, artistic, audio-visual, sound recordings and broadcasts’. The areas covered by Copyright law in Kenyan include the following:
Books
Computer programs
Music
Films
Photo’s
Art
And sculptures amongst others.
It is also worth noting what type of works are covered by copyright. These include:
• Literary works
• Musical works
• Audio-visual works
• Artistic works
• Sound recordings
• Broadcasts
These include novels, poems, plays, computer programmes, databases, musical compositions, broadcasts, photographs, sculptures, architectural drawings and maps amongst others.
Why is Copyright Protected?
Copyright is protected by the Kenyan law so as to ensure that there is a balance between
the interests of artists and those of the public at large. According to Kenyan Law
‘It is in the public interest that creators of artistic works are motivated for them to promote their creative activity for cultural, social and industrial progress of the state. The Copyright system therefore provides the legal safeguards necessary for creativity to thrive’.
The law therefore provides for certain exclusive rights that belong to creators and owners of copyright, often known as rights holders. This, it does, by safeguarding the interests of the right holders and at the same time giving them an incentive to create. Now it is important to note that copyright DOES NOT cover ideas or concepts, but rather the expression of those ideas or concepts, from being copied illegally.
What Rights Does a Copyright Holder have?
In Kenya, a copyright holder or rights holder for short, is defined as the original creator of the works. A few examples of original creators would include a musician or producer in musical works, or a painter in artistic works, or a film producer who commissions a film or
movie production. They would be seen as the rights holder and this would allow them certain rights under the law. These rights typically cover 3 key areas:
• Economic Rights - In essence the right to make money from the works. Rights holders
have exclusivity when it comes to the:
- Right to reproduce any of the copyrighted works in any form.
- The right to translate or adapt the works.
- The right to distribute. This includes renting, selling, loaning or even importing the
works without the rights holders permission.
- The right to advertise or communicate the works to the public at large.
- The right to perform the works.
- And finally the right to broadcast a part or the whole of the works.
• Moral rights - Essentially these are the personal rights that connect the author (creator) with their works, and these rights CANNOT be transferred in Kenyan Copyright Law. Related rights say that the author has the right to be recognised and to claim authorship of the works. Secondly the author has the right to not have their works distorted or mutilated in such a way that they would hurt or injure the author’s reputation.
• Related Rights - These are rights that are RELATED to the copyrighted rights, but are not copyright in themselves. mondaq.com explains related rights as; “The purpose of related rights is to protect the legal interest of particular individuals who have a hand in the availability of the works in the public space, these include but not limited to those that add
creativity.’’ There are three such rights and they often referred to as Neighbouring Rights;
- Rights of producers of sound recordings; The specific rights given to producers and are meant to protect invested time in the making of a quality recording and the creativity. Often producers are victims of music piracy, so this right tries to protect their commercial interests.
- Broadcasters’ rights; Broadcasting entities are recognised because of their role in making works available to the public. Even though they do not create the copyright they are seen as enhancing the copyright by adding their reach, their audience, their technological capabilities that allow the general public to access the works. This right means one cannot re-broadcast a show originally broadcast by a TV station, as they have now become authors of that broadcast.
- Performers’ rights; The performers are provided the rights to prevent recording, broadcasting and communication to the public domain of their live performances without their voluntary consent.
Copyright & Revenue
Since copyright is how the law protects rights holders, it’s also very important to understand how those rights can be assigned to others. There are two ways of re-assigning
your rights, one can be to license your rights or to completely sell them. Licensing is usually over a fixed term, that allows the seeker of those rights to utilise the rights over the agreed period. The second option means transferring those rights to someone else, who in return would pay you an agreed price for those rights. It’s vital that both assignments are captured in writing, such as a signed contract. Both licensing and re-assignment of rights are means of creating revenues against your copyrightable works. Other examples of revenue streams associated to copyright are ticketed live performances, making and selling copies of your copyrighted works as well as licensing your works for broadcast. Depending on the type of works in question, there are also revenue opportunities like sync licensing which allows a filmmaker to overlay their pictures with your music in exchange for a fee and an agreed period of use. A final example of use of copyrighted works, that has since become very popular with the growth of social media, is the making and selling of ‘branded merchandise’ which uses the underlying copyright to create new forms of products that one can sell to their fans or audiences. Yet again, another exclusive right that is given to authors under Kenyan law. As you can imagine the ways of creating revenue from these rights are only limited by the creators imagination.
The future of Copyright in Kenya
As NFT’s and other forms of digital smart contracts will continue to become more and more predominant, this has a direct affect on the future of copyright. See our previous article. On NFT’s to understand how NFT’s and future technology will affect copyright. The second exciting aspect of Kenyan copyright is the fact that the government, through the legal rights body, KECOBO, there now exists a platform where all forms of copyright can be registered and a license of ownership is issued to the creator. This allows for ease of proof of ownership in the cases of disputes between rights holders. Any Kenyan who is a rights holder can register all their works here . The National Rights Registry (NRR) portal is the central repository collating details pertaining to ownership of various copyright works. If you feel you need a little more information on Kenyan copyright law and how to turn your copyright into cash, contact us via the link below to setup a free 15min consultation TODAY!
Want more info? Check out the Kenya CopyrightBoard's Guide to Copyright in Kenya here
Source Material Further Reading:
https://copyright.go.ke/sites/default/files/downloads/A%20Guide%20to%20Copyright%20in%20Kenya%202018%202PRESS0.pdf
https://nrr.copyright.go.ke
https://www.mondaq.com/copyright/1121730/what-are-related-rights-in-intellectual-property-and-their-importance-to-creative-arts
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