WHAT CAN BE COPYRIGHTED?

A copyright is the exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material.

A.            What is a Copyright?

A copyright is the exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material.

 

Anyone exercising any of these exclusive rights without permission of the copyright owner is an infringer and subject to liability for damages or statutory fines.

 

The protection of copyrights in Kenya is governed by the Copyright Act, No.12 of 2001. The Copyright Act establishes the Kenya Copyright Board which is the body mandated with the overall administration and enforcement of copyright and related rights including registration of copyright.

 

B.            What can be copyrighted?

 

Section 22 of the Copyright Act provides that the following works are eligible for copyright or related rights:

 

(i)          literary works such as literary works such as novels, poems, plays, reference works, newspaper articles, computer programs and databases. Literary works are protected provided that the work is original, has been reduced to writing, recorded or otherwise reduced to a material form.

 

(ii)        musical works;

 

(iii)      artistic works like paintings, drawings, sculpture, photographs and etc;

 

(iv)       dramatic works includes dance and etc;

 

(v)         audio-visual works like television programs, movies and etc;

 

(vi)       sound recordings like songs, spoken words, sounds and other recordings; and

 

(vii)     broadcasts, provided that the work has been broadcasted.

 

C.            What are the Requirements for Copyright Protection?

 

For works to be protected under a copyright:

 

(i)            there must be an expression of ideas in the works;

 

(ii)          the works must be original;

 

(iii)        the works must be reduced to material form e.g. written down, recorded on film, tape, computer or otherwise.

 

D.            What does Copyright Protect?

 

Copyright protects expression of ideas and not ideas in themselves, procedures, methods of operation or mathematical concepts from being copied without authority. For example, copyright in a book would protect the words in the book but not the idea of the storyline in the book.

 

Copyright does not also protect brand names, logos or titles. The expression of an idea is the form in which the idea is translated.

 

E.            What are the rights granted under a copyright?

 

Copyright grants to the owner the following rights:

 

a)   Economic rights- These are rights granted to the owner of the works to prohibit or authorize:

 

(i)          the reproduction in any material form of the original work;

 

(ii)        the translation or adaptation of the work;

 

(iii)      the distribution to the public of the work by way of sale, rental, lease, hire, loan, importation or similar arrangement;

          

(iv)       the communication to the public of the whole work or a substantial part thereof, either in its original form or in any form recognizably derived from the original;

 

(v)         the making available of the whole work or a substantial part thereof, either in its original form or in any form recognizably derived from the original; and

 

(vi)       the broadcasting of the whole work or a substantial part thereof, either in its original form or in any form recognizably derived from the original.

 

b)   Moral Rights- these rights are independent to the economic rights and are granted to an owner to enable the owner to claim the authorship of the work and to object to any distortion, mutilation or other modification which would be prejudicial to the owner’s honor or reputation.

 

F.             What are the Registration Requirements?

 

Under the Copyright Act, literary, musical, artistic, dramatic, audio-visual works and sound recording are eligible for registration subject to the same being original works and the work being written down, recorded or otherwise reduced to material form.

 

Registration of copyright is however voluntary noting that works are protected under copyright from the time the work is reduced to material form.

 

It is however, highly recommended to undertake registration with KECOBO and obtain a certificate of registration, which is a strong documentary evidence that can help you initiate quick actions of enforcement and reduce the difficulty in evidence collection and preservation. Registration of copyright also makes it easy to commercialize the copyright.

 

G.            What is the term of a copyright?

 

The term of copyright protection is dependent on the works being copyrighted. Section 23 of the Copyright Act sets out the validity period of various works as follows:

 

(i) Literary, musical, dramatic, or artistic work other than photographs -Fifty years after the end of the year in which the author dies. In the case of a work of joint authorship, then the work shall expire 50 years after the death of author who dies last.

(ii) Audio-visual works and photographs- Fifty years from the end of the year in which the work was either made, first made available to the public, or first published, whichever date is the latest.

 

(iii)Sound recordings- Fifty years after the end of the year in which the recording was made.

 

(iv)         Broadcasts- Fifty years after the end of the year in which the broadcast took place.

 

Conclusion

Copyrights are therefore protected from the time they are reduced to material format without the need for registration. It is however important to register the copyright in order to commercialize it.

We are happy to provide legal advisory and general legal services related to your intellectual property matters.

Published on Aug. 22, 2024, 1:10 p.m.