An in depth look at Copyrights law in Kenya

1. UNDERSTANDING
INTELLECTUAL PROPERTY
BY ERIC K KIVUVA
Advocate & Commissioner for oaths
Registered Patent Agent

2. INTELLECTUAL PROPERTY
• The product of innovation & creativity
• Copyrights
• Related rights
• Trademarks
• Industrial designs
• Patents
• Geographical indications

3. Copyrights
• Artists, writers, composers
• Poems, tv programs, paintings, computer programs
• Expression of thoughts vs ideas
• Moral & economic rights(reproduction,Distribution,Public
performances,Public broadcasts,Translation & adaptation)
• Automatic vs registration
• Life of Author & 50 years after Death

4. MORAL RIGHTS
 Moral rights remain with the creator even if he has sold his
economic rights to another.
 This gives the original creator of the work right to claim
authorship and object to any modification or derogatory action
in relation to the work that has the effect of harming the honor
or reputation of the creator.

5. Related Rights/Neighbouring Rights
• Performers (artists,Musicians, singers, Dancers)
• Producers of Sound recordings
• Broadcasting organizations

6. RISKS
• Copyright Infringement
• Plagiarism

7. ENFORCEMENT OF COPYRIGHTS
Civil remedies
 Damages
 Injunction
 Conservatory orders

8. ENFORCEMENT OF COPYRIGHT
Criminal sanctions
 Jail term (up to 10 years in prison)
 Fine (800k)

9. DOCTRINE OF FAIR USE( COPYRIGHT
LIMITATION)
 Certain type of uses are held to not need the authorization of
the copyright holder. Fair use presumes that the use of
copyrighted is so minimal such as to not warrant the need of the
creator’s authorization.
 In some cases national laws do create exceptions and limitations
to copyright law. (the Kenya Copyright Act)

10. FAIR USE CONTD’
Cases where fair use is applicable:-
 Use of copyrighted material for commentary. This includes criticism or otherwise of
another’s work or touching on that work
 Use of copyrighted material for teaching purposes. This is probably the biggest reason
for creation of the free use or fair use concept to allow for use of work by way of
illustration in class
 Use of work for the purposes of news reporting
 Use of work for parody that is making fun of work does not need the authorization of
the owner
 Quoting from protected work as long as source and name of the creator of the work is
mentioned. This is practice in education and research papers or even authors quote each
other and can do to the extent that it remains within the boundaries of fair practice.

11. FACTORS TO BE CONSIDERED WHEN
ADJUDGING FAIR USE
 The purpose and character of the use, including whether such
use is for a commercial purpose or not is an important
consideration
 The nature of the copyrighted work – to use purely factual work
like a dictionary is more likely to be considered fair use than use
of someone’s creative work

12. FACTORS TO CONSIDER Contd’
 The amount of work and/or significance of when compared to
the whole copyrighted work.
 The effect of the use on the capability of the owner to benefit
commercially in that exposed market. (Is the use likely to affect
the potential earnings that the creator can make in the market)

13. FAIR USE IN KENYA
The Kenya Copyright recognizes the following as exceptions falling under the concept of fair use:-
 use of the works for educational purposes,
 the incidental inclusion of works in a broadcast or film,
 the non-for-profit use of works in public,
 the broadcast of works intended to be used for systematic instructional activities,
 the use of works by the government, public libraries and non-commercial documentation centers
as well as the use of works for judicial purposes, provided the author and the source are indicated
 the legitimate owner of a computer program shall be able to do the following acts without the
authorization of the author:
 the reproduction of a single copy of the sound recording for fair use (a blank tape levy is to be paid
to the producers of the sound recording by the importers or manufactures of the blank media, at
the point of first sale in Kenya)

14. Q&A