What is copyright?
Copyright is one of the main types of intellectual property - others include designs, patents and trademarks. Intellectual property allows a person to own things they create in the same way as something physical can be owned. It is the right of an owner to prevent others copying or reproducing their work.
The main legislation dealing with copyright in Kenya is the Copyright Act 2001. (Please see links below).
When does copyright arise?
Copyright arises automatically when a work that qualifies for protection is created. The work must be original in that it needs to originate with the author who will have used some judgment or skill to create the work - simply copying a work does not make it original. There is no need in the Kenya to register copyright although people are allowed to register copyrighted works with the Kenya Copyright Board KECOBO. When an idea is committed to paper or another fixed form, it can be protected by copyright. It is the expression of the idea that is protected and not the idea itself. People cannot be stopped from borrowing an idea or producing something similar but can be stopped from copying.
What does copyright protect?
Under the Act, the main categories of works currently protected in Kenya include:
- literary works such as books, journals, periodicals
- musical works
- artistic works such as paintings, drawings photographs etc
- audio-visual works
- sound recordings &
Who owns copyright?
As a general rule, the owner of the copyright is the person who created it, i.e. the author. An author could be the writer, the composer, the artist, the producer or the publisher or another creator depending on the type of work.
One important exception to this is when an employee creates a work in the course of their employment in which case the copyright owner will be the employer.
Joint ownership of copyright
Where more than one person is involved in the creation of a work and it is not possible to distinguish exactly what each contributed, copyright will be owned jointly and no single contributor can publish or license the work without the consent of the other/s.
What rights does a copyright owner have?
A copyright owner has both economic and moral rights. Economic rights cover acts that only the copyright owner can do or authorize. These include the right to copy the work, distribute copies of it, rent or lend it, perform or show it, communicate it to the public (including making it available online) or adapt it (e.g. making it into a play).
Moral rights (Section 32.1) include the right to claim the authorship of the work, and object any distortion, mutilation or other modification of or other derogatory action in relation to the said work which would be prejudicial to the authors honour or reputation - they can be waived, but not licensed or assigned.
How long does copyright last? Section 23
The duration of copyright varies according to the work involved. For literary, musical or artistic works other than photographs it is 50 years after the end of the year in which the author dies. (if there is more than one author it will be 50 years from the death of the last remaining author).
For Audio visual works and photographs, the duration is 50 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 latest.
For sound recordings the duration is fifty years after the end of the year in which the recording was made.
For Broadcasts the duration is fifty years after the end of the year in which the broadcast took place.
It is an infringement of copyright to do any of the following acts in relation to a substantial part of a work protected by copyright without the consent or authorization of the copyright owner:
- Reproduction in any material form of the original work or its translation e.g. photocopying it
- Distribution of it to the public by sale, rental, lease, hire, loan, importation,
- Communicate it to the public e.g. perform in public
Remedies for copyright infringement
There are a number of remedies a copyright owner can obtain in both criminal and civil action for infringement. These include; fines not exceeding Kshs. 400,000, imprisonment for up to 10 years in prison. For civil actions; seeking an injunction to prohibit further infringement, damages for loss, an order requiring the infringer to deliver all infringing articles to the owner or the right to seize such copies.
A company or institution can be guilty of copyright infringement as can an officer of the company who consented or aided the infringement.
There are a number of specified copyright exceptions in Kenyan law which permit copying in certain circumstances (for instance for scientific purposes, research, private use, criticism or review, reporting of current events subject to acknowledgement of the source etc.) This can be found in details in the Copyright Act.
Under the exceptions for educational purposes Section 26 (d) permits “inclusion of literary or musical work of not more than two short passages from the work in question if the collection is designed for use in a school registered under the education Act or any other university established by or under any written law and includes an acknowledgement of the title and authorship of the work” What therefore goes on in Universities and educational institutions does not fall under this exception contrary to popular misguided belief.
Obtaining clearance to use copyright material
If the material you wish to reproduce does not fall within one of the exceptions, or if you are unsure, you should contact the copyright owner, or someone authorized by them to grant the necessary permission. For most published works this will be the publisher, contact details for which will be found on the publication itself. Permission will generally be needed for each and every occasion the material is used. There are no industry-fixed fees (they are at the discretion of the party granting the permission). In many cases, even when reproduction of the extract may not warrant a fee, merely an acknowledgment, there may be a minimum sum charged to cover administration. Depending on the amount of material you wish to reproduce and the frequency copying is required, you may find it more beneficial to take out a license from a licensing society such as the Kopiken.
Kopiken and copyright Licenses
Kopiken is a collecting society as defined by the Kenya Copyright Act 2001, under section 46. It is authorized by authors and publishers to issue collective licenses which allow copying from books, journals and magazines (including certain electronic publications), within certain limits and subject to certain exclusions. Kopiken issues blanket licences to organisations - the licences are issued on an annual basis subject to an annual fee which covers copying throughout that year (thus removing the need to seek permission every time you want to copy) and includes an indemnity from Kopiken for all copying done within the terms and conditions of the license.
It is hoped that the above provides a helpful overview to the law of copyright and the use of copyright material. It is not intended to constitute legal advice and should not be relied on as such.
Using copyright protected material
This section provides some guidance on how to go about obtaining permissions or licences to use various copyright protected materials.
I want to photocopy an article from a book or magazine.
Buying a Kopiken licence provides blanket permission and avoids the need to contact the authors and publishers each time you want to make a copy.
I want to copy or download an article from an original digital publication.
Certain Kopiken licenses permit copying from digital publications. Most of this include foreign works.
I want to photocopy or scan a magazine article or clipping received from a press agency.
Either can be copied under the Kopiken licence.
I want to use another person's slides or charts in a report or presentation.
You should contact the original creator of the work if it is unpublished or the publisher otherwise. If the work was created during the course of employment then the employer will generally be the copyright owner rather than the individual.
I want to use a copy of a map in a publication or on a website.
You will need to get permission from the map publisher.
I want to copy an article obtained from a document library.
You can make copies when you hold a Kopiken licence.
I want to post published reviews and articles on my organisations website for my customers to read.
There is no standard licence for this type of usage but Kopiken will try to help you in getting permission.
I want to reproduce a design or artwork in a publication or on a product.
You will need to ask for permission from the owner of the copyright.
LINKS (Links open in new windows)
Please look up from the searchable database from the
Kenya Law Reports/National Council for Law Reporting:
From the World Intellectual Property Organization (WIPO):
- The Copyright Act: "ACT NO. 12 of 2001 - Copyright Act"
- The Industrial Property Act: ACT NO. 3 of 2001 - Industrial Property Act"
From UNESCO (the United Nations Educational, Scientific and Cultural Organization):