Demystifying Copyright and Intellectual Property in Kenya

Note: Poets and Writers Online (POWO) is a forum for Poets and Writers that seeks to encourage Kenyan Creative writers to exploit the various opportunities presented by their internet for promotion of their writing.

On Saturday July 16th 2011, the Poets and Writers Online (POWO) organised a meet-up hosted at *iHub_ Nairobi’s Innovation Hub. The theme of this meet-up was: Copyright, Intellectual Property (IP) and Plagiarism.

Here at DR, we are no longer surprised when we receive email forwards containing copy/pasted versions of our blogposts, in fact we look at it as a challenge to keep coming up with more and more enjoyable pieces that can be shared. HOWEVER, this does not in any way mean that we condone plagiarism.
As diasporadicalists (that means you readers) know, we’ve had cases of posts being published in the media without our prior consent or knowledge – and quite understandably, WE WERE PISSED!

So, #POWOJuly was a must-attend event for us and I thank Karimi for the invite. Here’s my brief recap of the salient areas discussed with some comments and observations.

Copyright v.s Industrial Property:
The Intellectual Property law regime in Kenya is divided into two broad categories: Industrial Property and Copyright. Industrial Property includes patents, trademarks, industrial designs and utility models. Therefore if you have a product or process you wish to register as a patent, a logo, brand or name you wish to register as trademark, head over to the Kenya Industrial Property Institute (KIPI). They are now online: http://www.kipi.go.ke/

The second category of intellectual property is copyright. Copyright covers any original musical work, literary work, artistic work, audio visual work, sound recordings and broadcasts. Therefore original works done by poets, writers, bloggers, performers and other creators fall into this category. The most unique feature of copyright unlike industrial property is that ownership of copyright work exists as soon as the work is fixed in material form. Therefore there is no need for registration of works falling under the copyright law category. However copyright registration is provided for under our law as extra protection and it is strongly encouraged. All matters pertaining to copyright are handled by the Kenya Copyright Board (KECOBO). They are now online: http://www.copyright.go.ke/ and also on twitter: @KenyaCopyright.

Ownership and Protection of Copyright:
Now that we know that we own the exclusive copyright to whatever original work we blog, write on paper, sing, perform, the question arises of how do we deal with people who infringe our copyright or plagiarise our work.

As we know plagiarism and copyright infringement are not the same thing!

The key distinguishing factor is the use intended. A copyright infringer copy-pastes/performs/ broadcasts/reproduces/translates your work in order to derive some commercial benefit. On the other hand, a plagiarizer copy-pastes/performs/ broadcasts/reproduces/translates your work in order to assume your identity as the author for purposes of recognition and attribution. Therefore every case of copyright infringement can also be plagiarism but not all cases of plagiarism amount to copyright infringement. So the law rightly recognizes copyright infringement as a criminal offence but not plagiarism.

Plagiarism is however widely considered as unethical and can result in expulsion or strong reprimand in almost all institutions of learning as well as in certain professions like journalism. Therefore the onus is on poets and writers to show that the case of plagiarism complained of also amounts to copyright infringement by showing that the work is being used for commercial gain without the poets’ or writers’ consent.

As far as protection goes, poets and writers writing online are encouraged to add a generic tag of “(c) (author’s name) 2011, All Rights Reserved” at the end of every work they upload online. Your contact details should also be easily accessible both on each individual work and on your site/blog in case attempts are made by a third party to contact you regarding consent to use your copyright work.

The #POWOJuly panel of guests also stressed the need for victims of copyright infringement to use the courts system only as a last resort. Litigation in Kenya is both expensive and time-consuming. The solution is therefore to try and settle out of court by confronting copyright infringers and plagiarizers directly. In the case of copyright infringement, I would add that the Kenya Copyright Board (KECOBO) has State Counsels (paid by your taxes) who are more than willing to act as independent arbitrators and facilitate meetings at KECOBO’s offices between both parties in the dispute with a view to address the infringement issue and arrive at a suitable conclusion.

Once again, it became clear that intellectual property issues have become a highly emotive and sensitive area for Kenyans especially with the recent news of Louis Vuitton’s appropriation of the Maasai shuka for their 2011 Spring/Summer Collection. I have already discussed the Kikoy, Kiondo, Shuka case but I do believe that this issue underscores the real need for Kenyans including poets and writers online to be more aware of their IP assets and be more proactive in exploiting their untapped IP potential.

Need for Poets and Writers Online to Unite:
I believe that it is of utmost important for all writers online to unite under an umbrella body because this is the only way issues affecting them will be given the attention and action they deserve. Although the #POWOJuly guest speakers suggested the setting up of a Collecting Management Organisation (CMO) for poets and writers online, I am of a differing opinion. It’s hard to advocate for a CMO approach with the case of the Music Copyright Right Society of Kenya still fresh in the minds of many, particularly the widely publicised reports of mismanagement and lack of accountability on the part of MCSK. It is a well known fact that musicians in Kenya remain poor despite the fact that many of them churn out hit songs and MCSK collects millions upon millions of Kenya Shillings on artistes’ behalf to be paid out to them as royalties.

My proposal would be that writers and poets online form an association or trade union which will lobby and advocate for their rights under copyright law. This Association could also negotiate terms and conditions for various licensing agreements on behalf of their members. In this regard, I applaud the initiative currently being taken by BAKE (Bloggers Association of Kenya) as an umbrella body that may well be in a position to represent online poets and writers in Kenya as well. Here at DR, we are keenly following BAKE’s development.

Finally, a word of deep thanks to the POWO team for their involvement and support of the creative industry in Kenya. I wish them all the best in their future endeavours and I look forward to attending upcoming POWO events.

7 thoughts on “Demystifying Copyright and Intellectual Property in Kenya

  1. Thanks for such a comprehensive review of the event. We do hope to keep addressing pertinent issues relating to poets, writers and bloggers too. We shall endeavour to remain true to the cause and hope to have you or your team up for future POWO events.

  2. I have a slight concern about this article when this site itself has used images without the consent, or authorization of those photographers that own the copyright on the image. There is an image of mine that is being used here that I know has was taken and used without any permission given as the image is mine and has been posted with the watermark from the site it was taken from still intact. The (c) marking is in place and no message or contact was even attempted that I have seen to even get permission to use the image, as was no credit given, or any link back to the source, when the image was used without my permission. Too see someone (though granted a different writer) from the same site then talk about getting angered when someone copies your work it seems ironic.

    • Dear Tracy,

      I’m as self-righteous as the next guy or gal, that I wont deny.

      In fact during #POWOJuly, one of the issues that came up was that while online writers and poets were crying foul over their work being plagiarised or even stolen, the writers and poets themselves admitted to be guilty of downloading ‘bootleg’ (pirated/infringing) copies of movies, music and series’.

      Where do we draw the line?

      Well, I can only speak for myself. I intend to acknowledge the sources of the photos I use in all future posts and I welcome anyone who claims I used their photo in any of my previous posts, to contact me and I’ll gladly take it down and replace it with something else.

      DR is committed to the nurturing of creativity, the rewarding of innovation and most of all the respect of intellectual property.

      For any further issues or clarifications, email me: misternv@diasporadical.com

      Regards,
      NV

    • Hi Tracy,
      You’ve raised a genuine concern here but let’s look at your case realistically. You did create an image and posted it online, the good folks at DR used the image and yes they respected the owner of the image enough not to tamper with the watermark. Trust me I know some of the writers here and I know their creativity levels when it comes to working with images and all that, If they didn’t respect your work, your watermark wouldn’t be visible especially on this site but on the flip-side I understand your concern of not being credited and the best thing to do is maybe contact the site administrator.
      Peace!

  3. Hey NV!

    I missed the POWO meet up, though am not sure I qualify as a blogger! I was still interested in it and thanks for the quick catch-up.

    Quick question why don’t you guys have a creative commons license on here, make it clearer for people to know just how to copy-paste your posts if they must!

    I could start about section 36…but I won’t! LOL!

  4. Pingback: Feeding the Commons: Creative Commons and Copyright in Kenya | Diasporadical

  5. KIndly discuss the notion of fair use. I have often heard complin about Kajairo “stealing” their songs….It’s only parody…which is construed in this context as a form of critism, whic is allowed under Copyright exceptions.

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