Copyright refers to a set of exclusive rights enjoyed by the author or creator of an original work. These rights include reproducing, distributing or adapting the work. Copyright protects a range of creative works including artistic work, literary works, musical work, audio-visual work, sound recordings and broadcasts.
Article 40 of the Constitution of Kenya, 2010 entitles all Kenyans to the right to acquire and own property either individually or in association with other people. The right extends to intellectual rights whose scope covers Copyright. Article 40 (5) requires the state to support, promote and protect Kenyans’ intellectual property rights.
The Copyright Act, Cap 130 of the Laws of Kenya provides for the legislative framework for copyright registration. Section 22 of the Act stipulates specific requirements for eligibility of any creative work for copyright registration.
They are:
(a) The work must fall within any of the categories identified in paragraph one above;
(b) The maker/ creator must have expended sufficient effort on giving the work a sense of originality; and
(c) The work must have been written down, recorded or reduced into a material form.
Non-Mandatory Nature of Registration and Benefits Conferred by Registration
The rights under the Act accrue to owners of creative work automatically upon the reduction of the work into a material form. The failure to register the work under the Copyright Act does not bar the owner from making a claim based on the provisions of the Act.
However, registration confers the following benefits:
- The certificate issued by Kenya Copyright Board upon registration acts as a public record of ownership and may be used for evidentiary purposes in the event of any legal disputes;
- The copyright holder may use the certificate of registration as a collateral for a financial facility from a bank; and
- Registration makes it easier for the owner of creative work to enter into commercial arrangements like licensing or assignment.
The Kenya Copyright’s Board Mandate in Copyright Registration
The Kenya Copyright Board, established under section 3 of the Act, facilitates the registration process. Section 22A of the Copyright Act empowers the Board to make entries for all works eligible for copyright upon an application by the owner or their agent. Section 22D mandates the Board to maintain an online portal for registration of copyright work. The registration process is implemented by the National Rights Registry, an office within the Kenya Copyright Board as set out under section 22B of the Copyright Act.
Process of Registration
The registration process is implemented by the National Rights Registry established under section 22B of the Act. The National Rights Registry maintains an online portal which allows copyright holders to register and view/download copyright certificates.
To register creative work an applicant should follow the following process:
- Open the registration portal using the url: https://nrr.copyright.go.ke/;
- Create an account, this may either be an individual or corporate account;
- Fill up the necessary details including the applicant’s name, national ID number or incorporation number, KRA PIN and both the physical and email address;
- Verify the account for security purposes and finalize the registration process;
- Sign into the account using the username and password selected while creating the account;
- Click on registration option, fill in the required details and fill in the ownership details;
- Upload your word subject to the format stipulated on the portal;
- Verify and submit the application for registration;
- Pay registration fees of Ksh. 1,000; and
- Log into the respective account created, within 7 days, to download the copyright registration certificate.
Rights Enjoyed by a Copyright Holder
A copyright holder enjoys rights in two-fold, being economic rights and moral rights. These rights are summarized as follows:
- Economic rights allow the copyright holder to earn income through various forms including reproduction of the work in print or digital form for sale, broadcast or communicate the work to the public through any means and license the work to other individuals in exchange for royalties.
- Moral rights on the other hand are set out under section 32 of the Copyright Act. They include the right to attribute the work to the copyright holder, and the right to refuse an action that intends to mutilate, distort or modify the registered work in a manner that is likely to harm the owner’s reputation.
Duration of Copyright Protection
The duration of protection of a copyright after registration depends on the nature of the creative work for which the certificate has been issued. The same is summarized as follows:
- Literary work which includes computer programs and software, musical, dramatic or artistic work (save for photographs) are protected for the holder’s lifetime plus 50 years after the owner’s death. Despite the Act allowing corporate entities to register creative work, there is no clear provision as to the duration of protection. Many legal experts are inclined to the position that copyright held by corporate entities are protected for a period of fifty years from the end of the year in which it was first published;
- Audio-visual works and photographs are protected for 50 years from the lapse of the year of production, first publication or the first time the work was availed to the public;
- Broadcasts and sound recordings are protected for a period of 50 years upon the lapse of year on which the broadcast or recording was made respectively; and
- Foreign copyright held by individuals from the WTO and Berne Convention member states are protected if they are eligible for protection in the respective countries.
Upon the lapse of the period, the creative work becomes available to the public domain and may be utilized by an individual without the owner’s consent. However, the owner still maintains the autonomy to control the usage of the work to avoid distortion.
Conclusion
Registration of copyright is vital in safeguarding the creator’s interests and enjoyment of the rights stipulated under the Act. Despite the non-mandatory nature of copyright registration, it is essential for all creators both in the creative and digital space to register copyright for any work they publish to the public.
Registration confers various benefits including:
- Legal protection against infringement;
- Ease of attribution;
- Enables the copyright holder to gain income through means such as licensing for royalties, broadcast, and reproduction; and
- Acts as a deterrence mechanism against any potential cases of infringement.
