Tuesday, July 24, 2012

The lawyer in me... Copyright

Yes fashion is my passion but I have more layers SO TO SPEAK. I was trained to be a lawyer and yesterday while doing some work on my old PC I came across some of my work. It has to do with Copyright laws in Kenya. As a blogger trust me you need to acquaint yourself with it. This is specifically for my Kenyan readers. Do enjoy

The law of copyright rests on a very clear principle: that anyone who by his or her own skill and labor creates an original work of whatever character shall, for a limited period, enjoy an exclusive right to copy that work. No one else may for a season reap what the copyright owner has sown.
The basic rule is that the first owner of a copyright in a work is the person who created the work, the author .However, where a work has been commissioned, the first owner is the commissioner as per S. 31 as read together with S. 23 and S. 24 of The Copyright Act 2001. Where a work is made within and in the course and scope of employment, the ownership vests in the employer. Works made in the course of government employment belong to the government while those made in the context of employment in international bodies belong to those bodies.
Authorship deals with the question of who has brought a work into existence whereas ownership deals with who has proprietary interest over a work. Section 2 of the Act defines “author” in relation to-

a) a literary, musical or artistic work, means the person who first makes or creates the work;
b) a photograph, means the person who is responsible for the composition of the photograph;
c) a sound recording, means a person by whom the arrangement for the making of the sound recording were made;
d) audio-visual works, means the person by whom the arrangements for the making of the film were made;
e) a broadcast, means the first broadcaster;
f) a published edition, means the publisher of the edition;

g) a literary, dramatic, musical or artistic work or computer program which is computer generated, means the person by whom the arrangements necessary for the creation of the work were undertaken; and
h) a computer programmer, means the person who exercised control over the working of the program.

S.31 (3) in this section “owner of copyright”-
a) where the economic rights are vested in the author, means the author;
b) where the economic rights are originally vested in a physical person other than the author or in a legal entity, means that person or entity; and
c) where the ownership of the economic rights has been transferred to a physical person or legal entity, means that person or entity

Copyright is divided into two broad categories; moral rights and economic rights. Moral rights have to do with the author’s right to integrity and freedom from false attribution. The author has a right to be named, and the right to claim authorship and ownership when not credited. Moreover, the author has the right to object to any distortion, mutilation, or other modification, as well as any derogatory or disparaging reference to the work. Moral rights live and die with the author. Economic rights seek to secure the material or financial benefits from or of innovation or creativity. These include: the right to reproduce work, communicate to the public, broadcasting a work or distributing it, developing a derivative or adapted work from an original work that is controlled by the author because his economic interest are affected.

The significance of authorship and ownership under Kenya’s Copyright law.

Not only is the correct identification of the author important for determining who the first owner of a copyright work, it is important in respect of infringement, moral rights, and determining the duration of the copyright term.
As stated above the general rule is that the author is the person who creates a literary, artistic or musical work. Reason demands that the creator of an artistic, literary, or musical work etc be entitled to the ownership of his creation. The argument is that the creation of a person’s mind is an extension of his personality. This is the main derivative of the Kenyan law of copyright and thus the author, except where others, may have a prior claim, is presumed to have the first ownership of copyright.
Ownership of copyright may vest in a variety of people depending on the circumstances of each particular case under consideration. Thus copyright in a work may belong to an individual author, joint authors, an employer; a person or institution who commissioned the work; the government; an international agency; a testamentary assignee on death of the author; or a licensee.
The author mainly deals with moral rights and economic rights where the same have not been transferred where as the owner of a copyright works mainly deals with economic rights. Infringement of copyright is the dealing with a work which is controlled by copyright in a manner that is contrary to the interest of the copyright owner without his authority, consent, license or permission. Moral rights live and die with the author whereas economic rights can be transferred and thus be infringed.
In Kenya copyright generally lasts for lifetime of the owner plus fifty years. This does not apply to secondary works such as audio- visual works and photos, sound recordings and broadcasts. © Act in Kenya grants © to the © owners. It subsists for the life of the owner plus 50 years. In case of sound records, they compute 50 years after the year in which the first recording was made. The problem with duration is that most computer programs have a very short life span and there is no need of protecting them for 50 years plus. Anonymous Works: © subsists for the duration starting from the year of publication which is strictly 50 years but if the author decides to disclose his identity before he dies, then it will persist for his lifetime and then another 50 years after the author’s death. These are called pseudononymous works.

The footnote references are as per below in numerical order :
Designers Guild Ltd vs. Russell Williams Ltd (2001) F.S.R 113
S.11(1) Copyright Act 2001 Laws of Kenya.
S.6(1) & S.11(2) Copyright Act 2001 Laws of Kenya.
S.32 Copyright Act 2001 Laws of Kenya.
S.26-29 Copyright Act 2001 Laws of Kenya.
S.23 Copyright Act 2001 Laws of Kenya

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