Among all intellectual property rights, copyright is the most talked about by the general public but by no means the better understood. A child who bears a striking resemblance to his father is often called a ‘copyright’! The rendition of popular hits in a karaoke performance is also commonly called ‘playing copyright’. Neither of these references describes the true nature of copyright.

As an aspect of intellectual property, copyright is a negative right which enables the holder to stop others from copying or reproducing the work without his permission or payment of royalties. Copyright is a legal mechanism used to ring-fence the work in question against copying by others. It is a unique right that is never exercised until it is infringed.

While other intellectual property rights such as trade marks, patents and industrial designs are acquired through registration, copyright subsists automatically in the works that are eligible for protection under the Copyright Act without the necessity of registration. The relevant works include artistic, musical and literary compilations, sound recordings, broadcasts, computer programmes, cinematographic films, performances, architectural plans as well as graphic and sculptural works. The work must be the original creative output of a person entitled to protection under the Copyright Act.

The Berne Convention of 1886, to which Kenya is a party, provides that copyright vests automatically in the creator of the original work who should enjoy it without any formalities, such as the requirement for registration. Thus, whereas the concept of copyright registration was introduced in Kenya in 2001, registration remains voluntary. There is no mandatory requirement to register copyright under Kenyan law and lack of registration does not affect the validity of copyright in any work that is eligible for copyright protection.

The registration process is therefore a mere administrative data collection exercise by the Government. It merely confirms that the work in question has been deposited with the Government and that the alleged author’s assertion of copyright in the said work has been acknowledged by the Government.

That said, the key benefit of the registration process is that it provides the author with some tangible proof of his claim to copyright in the said work. This evidence is particularly useful for purposes of commercializing the work through licensing as well as payment of royalties.

Another unique aspect of copyright is that it does not protect ideas as such but only the permanent form in which the idea is expressed and recorded. Infringement only occurs when the record of the idea is copied, but not when the idea itself is recorded or used by others. For instance, if I compose and narrate to you a beautiful fictional story which I have not previously recorded in any permanent form then you proceed to write a best-selling novel based on it, the copyright and all resulting royalties belong exclusively to you. I will have no valid claim against you for allegedly ‘stealing my idea’ as Kenyans are wont to say when such situations arise.

A mere idea, no matter how valuable, cannot be the subject of copyright protection or infringement. The rationale is that public interest is better served if ideas are freely accessible.

It therefore behooves anyone seeking copyright protection to ensure that the work in question a) falls in one of the categories that are eligible for copyright protection under the Act, b) is original, i.e. not copied from others and c) is recorded in permanent form. These mandatory elements cannot be substituted by registration.

The twin sister of copyright is the right to copy. This right is also called fair dealing. The rationale here is that there are situations when in the public interest it is fair and just to allow others to copy and use the protected work without seeking the consent of the copyright owner. These exceptions normally constitute defences against infringement claims.

It is permissible to copy protected works for private or domestic purposes where no commercial motive is involved.

Educational institutions are entitled to include a few passages of literary or musical works in their collections for educational purposes and to reproduce a broadcast for instructional purposes.

Copyright works may also be copied for scientific research, criticism and review as well as the reporting of current affairs subject to acknowledgement of the source.

Public libraries, non-commercial documentation centres and scientific institutions are allowed to copy provided it is in the public interest to do so and no revenue is generated from such activity.

Copying is also allowed for use of the protected material in judicial proceedings.                                                                                                                                                  

Finally, no infringement arises from copying if the work in question has already fallen into the public domain e.g. through the expiry of the copyright term.

While the right to copy within the fair dealing provisions is perfectly legitimate and indeed necessary, unauthorized copying of protected works outside the permitted scope constitutes an immoral exploitation of the owner’s effort, stifles creativity and should be declared an economic crime.

The right to copy is lawful but piracy is illegal.

The article was featured in the Business Daily on 3rd July 2018 and can be accessed here.