Introduction: Defining Copyright
Copyright is the exclusive and transferable legal right granted to the originator for a specific period to print, publish, perform, film, or record literary, artistic, or musical material. This legal protection is fundamental for creators to control the use of their original works. Unauthorized exercise of these exclusive rights constitutes infringement, making the offender liable for damages or statutory fines.
In Kenya, the protection and administration of copyrights are governed by the Copyright Act No. 12 of 2001. This Act established the Kenya Copyright Board KECOBO, the body mandated with the overall administration and enforcement of copyright and related rights, including the registration of copyrighted material.
Works Eligible for Copyright Protection
Section 22 of the Copyright Act enumerates the types of works eligible for copyright or related rights. These include:
- Literary works: This category encompasses various forms such as novels, poems, plays, reference works, newspaper articles, computer programs, and databases. Literary works are protected provided they are original and have been reduced to writing, recorded, or otherwise captured in a material form.
- Musical works.
- Artistic works: Examples are paintings, drawings, sculptures, and photographs.
- Dramatic works: This includes performances such as dance.
- Audiovisual works: This covers materials like television programs and movies.
- Sound recordings: Such as songs, spoken words, and other recorded sounds.
- Broadcasts: Protection is offered provided the work has been broadcasted.
Essential Requirements for Copyright Protection
For a work to receive protection under copyright law, it must satisfy specific criteria:
- Expression of Ideas: There must be a tangible expression of ideas within the work.
- Originality: The work must be original, meaning it must not be copied from another source.
- Material Form: The work must be reduced to a material form. This could be by writing it down, recording it on film or tape, saving it on a computer, or capturing it in some other concrete format.
The Scope of Copyright Protection
It is crucial to understand what copyright actually protects. Copyright safeguards the expression of ideas, not the ideas themselves, procedures, methods of operation, or mathematical concepts. For instance, the copyright in a book protects the specific arrangement of words in that book but does not protect the underlying storyline or concept.
Copyright also does not protect elements like brand names, logos, or titles. The expression of an idea refers to the specific form in which the abstract idea is translated into a tangible work.
Rights Granted Under a Copyright
Copyright grants the owner two main sets of rights:
1. Economic Rights
These rights allow the owner to prohibit or authorize specific actions related to their work:
- Reproduction of the original work in any material form.
- Translation or adaptation of the work.
- Distribution of the work to the public through sale, rental, lease, hire, loan, importation, or similar arrangements.
- Communication of the whole work or a substantial part of it to the public, either in its original form or in any form recognizably derived from the original.
- Making available the whole work or a substantial part of it, either in its original form or in any form recognizably derived from the original.
- Broadcasting of the whole work or a substantial part of it, either in its original form or in any form recognizably derived from the original.
2. Moral Rights
These rights are independent of the economic rights and enable the owner to claim authorship of the work. They also give the owner the right to object to any distortion, mutilation, or other modification that would be harmful to the owner’s honor or reputation.
Registration of Copyright
Under the Copyright Act, works such as literary, musical, artistic, dramatic, audiovisual works, and sound recordings are eligible for registration, provided they meet the criteria of originality and reduction to material form.
Registration of copyright is voluntary because works are legally protected from the moment they are reduced to a material form. However, registration with the Kenya Copyright Board KECOBO is strongly recommended. Obtaining a certificate of registration provides robust documentary evidence. This simplifies enforcement actions and minimizes difficulty in evidence collection and preservation. Furthermore, registration facilitates the commercialization of the copyrighted material.
Duration of Copyright Protection
The term of copyright protection varies depending on the type of work being copyrighted. Section 23 of the Copyright Act outlines the validity periods as follows:
- Literary, musical, dramatic, or artistic work excluding photographs: Protection lasts for fifty years after the end of the year in which the author dies. For a work of joint authorship, the term expires fifty years after the death of the last surviving author.
- Audiovisual works and photographs: Protection is valid for 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.
- Sound recordings: The term is fifty years after the end of the year in which the recording was made.
- Broadcasts: Protection lasts for fifty years after the end of the year in which the broadcast took place.
Conclusion
Copyright protection begins the moment a work is captured in a material format, eliminating the need for mandatory registration to secure basic rights. Nevertheless, registering the copyright is an important step, particularly for those intending to commercialize their work effectively and strengthen their legal position for enforcement.
