Copyrights Protection under Kenyan Laws

The Copyright Act, (Act No. 12 of 2001), is the main legislation dealing with administrative and enforcement structures and mechanisms for copyright protection and related rights in Kenya.  It came into force on 1st February, 2003.
The main features of the Copyright Act, inter alia, include:-

1.  The Establishment of the Kenya Copyright Board (Kecobo), which is the body mandated with the overall administration and enforcements of copyright as well as the related rights.  Kecobo has copyright inspectors and special prosecutor who are mandated to investigate and prosecute copyright infringement cases.
2.  Moreover, Kecobo has introduced the anti piracy security device which are used to identify the legitimate products especially in the audio and audio-visual works. This provision is intended to help in the identification of works.  Trading in works without the anti piracy security device amounts to an offence.  Kecobo is also mandated to licence and supervise the activities of the collective management societies (also known as the Reprographic Rights Organisation) provided for in the Act. These include, the Music copyright Society of Kenya (MCSK) which is a body mandated to collect royalties in public performance and broadcasting on behalf of its members and distribute the same to members.  These also include Kenya Reprographic Rights Organization (KOPIKEN), which seeks to protect and promote authors and publishers of literary works. Kecobo works with other related government agencies like the Kenya Revenue Authority and the Anti- Counterfeit Agency to ensure proper systems are put in place for copyright and related rights protection.  
3.  The Act grants the owner of copyrighted work exclusive economic and moral rights over the works. These include exclusive rights of the reproduction or distribution of copyrights rights for any economic gain, exclusive rights of communication or broadcasting of the work to the public, and exclusive rights to import and export the copyrighted work.
4.  The Act has both civil and criminal remedies and sanctions for the enforcement of copyright and related rights. Thus, the owner of copyrighted work is mandated by the Act to institute civil suit for a claim of compensatory damages against the offender for illegal reproduction or use of the work. Under the criminal sanctions, copyright is infringed where one is found in possession of at least two counterfeit copies of the copyrighted work.    The word “copy” in the Act is defined to mean a reproduction of a work in any manner or form and includes any sound or visual recording of a work and any permanent or transient storage of a work in any medium, by computer technology or any other electronic means.   
5. There are specific provisions for Anton Piller (search and seizure) orders in order to ensure protection of evidence and where the offender is likely to abscond.
6. The Act outlaws activities that are likely to encourage counterfeiting and piracy such as circumvention of technological devices used to protect copyright rights or the removal of rights management systems.

The maximum fine payable under the Act is Kenya Shillings 800 000/= (about US$ 10 000) and a maximum jail term of 10 years.

The Act provides for the following exemptions- also known as “fair dealing’:
Utilization of copyrighted works for purposes of scientific research, private use, review or reporting of current events subject to acknowledgement of the source;The inclusion of a collection of literary or musical works of not more that two passages from the work in question for use in registered school or university;
Reproduction or a work by or under the direction or control of the government or by public libraries, non-commercial documentation centres and scientific institutions for public use;
Computer programmes can be reproduced for purposes of correction or error, for back-up and for customisation or for purpose that is not prohibited under any licence or agreement whereby the person is permitted to use the programme or software.

Categories of copyright works to be registered by Kecobo include:

•     Musical;
•     Audio Visual;
•     Literary like charts tables and computer programmes;
•     Artistic;  
•     Sound recording ;and
•     Broadcasts.

Please note that literary, musical or artistic works is eligible for copyright protection if it meets the following conditions:-

(a) The work must be original;
(b) The work must be in written, recorded or in material form (that is, it      should neither be oral nor verbal in nature).

The Procedure for the Copyright Registration in Kenya
Only original literary, artistic, musical, audio visual works, sound recordings and broadcasts are eligible for copyright protection.

For any of the above works to be eligible for registration:

1. The work must of original authorship that is, not copied from somebody else.  
2. Application for registration must be in the prescribed form which can be obtained from Kecobo. The  applicant will be required to fill in  his name, physical and postal addresses and the category of the works- either literally, artistic, musical or audio visual.;
3. The applicable must attach two copies of the works, where applicable, to the application;
4. The work must be in tangible form including digital form e.g., books, cassettes, CD, flash disc, VCD,CD or DVCD; and
5. The duly completed application form must be witnessed by a commissioner for oaths and accompanied by the required fees of about KShs. 600/-.

A agent employed to register work  will be require to produce identification documents as well as letter of authority to act as agent from the original owner of the work.

On receipt of the application, Kecobo may, after making such inquiry as it may deem fit, enter the particulars of the work in a Copyright Register.The Certificate of Registration will then be issued to the author after registration.
The whole process takes about one month to two months.
Copyright protects work for duration of fifty (50) years after the death of the author. After this period, anybody is free to reproduce it without permission from the author or publisher. In case of joint authorship, fifty (50) years aforesaid counts from the date of death of the last author. 
The sound recordings and broadcasts are protected for 50 years after the end of the year in which the recording was made, or the broadcast took place, respectively.
Kenya also a signatory to the following treaties on copyright rights protection:

•     The Berne Convention, 1886;
•     The Rome Convention, 1961;
•     WIPO Performances and Phonogrammes Treaty, 1996;
•     WIPO Copyright Treaty, 2001; and
•     The Trade Related Aspect of Intellectual Property (TRIPS), 1994.