COPYRIGHT: CREATION, ENFORCEMENT AND INFRINGEMENT

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Now onto today’s topic;

Copyright refers to a legal framework that grants exclusive rights to creators of original works, such as literary, musical, artistic, and audio-visual creations. This protection safeguards the expression of an idea rather than the underlying concept or idea itself, and does not extend to elements like logos, titles, or factual information. 

The exclusive rights granted to authors and creators, which can include authors of literary works, composers of musical works, producers of sound recordings and films, architects, performers, and broadcasters, allow them to control actions like reproducing, adapting, distributing, performing, and broadcasting their work. The primary goal of copyright protection is to encourage creative activity by providing incentives and legal safeguards for creators, thereby fostering cultural, social, and industrial progress.  

How is Copyright Created? 

Copyright protection for a work comes into existence automatically once the work is in a concrete or tangible form. This means that the creator does not need to register their work for copyright protection to be effective. This approach is widely recognized internationally. 

While registration is not a prerequisite for copyright, the Kenya Copyright Board maintains a database for authors and their works, and registration is a voluntary process. Choosing not to register a work does not prevent authors from exercising their rights under the Copyright Act. 

Generally, copyright protection for a work lasts for the lifetime of the author plus 50 years after their death. However, there are specific durations for other scenarios:

• If the author remains unknown, the protection period is 50 years from the date the work is published.
• For works created by joint authors, copyright lasts for the lifetime of all the authors, and then 50 years after the death of the last surviving author.
• For audio-visual works, photographs, sound recordings, and broadcasts, the protection lasts for 50 years from the date of their first publication.

Examples of Copyrighted Works 

Copyright protection applies to a wide range of original creations, primarily falling into categories such as literary, musical, artistic, and audio-visual works. Specific examples of works that can be copyrighted include:

• Literary works: This covers creations like novels, poems, plays, books, and also computer programs and databases.
• Musical works: This refers to musical compositions and music in general.
• Artistic works: Examples include photographs, sculptures, art, and architectural drawings and maps.
• Audio-visual works and films: These creations, including films and other audio-visual productions, are also protected.
• Sound recordings.
• Broadcasts. 

 How Copyright is Enforced

Detecting Infringement: Copyright is considered a private right, meaning the owner is expected to actively monitor the market to identify any instances of infringement. Infringement occurs when someone other than the author or an authorized person performs actions that are the exclusive rights of the owner, such as reproducing, translating, adapting, performing, selling, or hiring the work without permission.

Involving Government Agencies: While the primary responsibility lies with the copyright owner, government agencies, including the Kenya Copyright Board (KECOBO) and the Police, can become involved. However, these agencies cannot act without a complaint being made to them by the aggrieved copyright owner. If a complaint is made and an arrest occurs, the suspect might be released if the complainant fails to appear in court.

Legal Actions: A copyright owner whose work has been infringed upon has two main legal avenues: 

• Civil Action: The author can pursue a civil lawsuit against the infringer. If the court determines infringement has occurred, the author may be entitled to several remedies, including:

        ▪ Injunctions to stop the ongoing infringing activity.
        ▪ Damages to compensate for losses suffered.
        ▪ An account of profits made by the infringer.
        ▪ Seizure of infringing copies through orders like Anton Pillar orders.
        ▪ The court may also order the destruction of the infringing items or their disposal as deemed appropriate.

• Criminal Action: The right holder can also choose to initiate criminal proceedings against the infringer by lodging a complaint with the police. If the suspect is found guilty, they face potential fines up to Kshs 800,000/=, a custodial sentence of up to 10 years, or both fines and imprisonment. Additionally, private infringing works are liable to be destroyed, regardless of whether a suspect is found guilty.

Concurrent Actions and Jurisdiction: It is important to note that criminal and civil actions are not mutually exclusive and can proceed at the same time. In Kenya, only the Magistrate's Court or the High Court has the original jurisdiction to hear copyright matters. The Copyright Act also makes it an offense to circumvent technical measures designed to protect copyrighted works or to remove any rights management information in the digital environment. 

 

In summary, copyright protects creativity by giving creators control over their work while balancing public access through exceptions like education and criticism. It is created automatically, enforced through rights and remedies, and limited to ensure fairness. At its heart, copyright is about respecting creativity and encouraging innovation. 

 

 

 

 

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

REFERENCES 

Kenya Copyright Board. (2018). A Guide to Copyright in Kenya. Nairobi: Kenya Copyright Board.