Kenya Intellectual Property law: Copyright law

Copyright law is intended to protect and to reward original expressions embodied in tangible material or fixed form. In the first category an idea does not infringe copyright but once it is expressed in some form, then it becomes tangible when expressed, you don’t only have the idea in your head you have expressed it and its somehow in fixed form.  Not everything that is new is patentable unless they are original expressions and are in original form.

Subject matter of copyright is divided into two broad categories

1.            Primary works;  Americans call these works of original authorship. These include literally works, artistic work, musical work ,sound recordings are physical embodiments of primary works.

1. Secondary Works – sometimes called neighbouring related or allied.

Primary works include - These include literally works, artistic work, musical work.    Literally works are defined under Section 2 of Copyright Act as meaning irrespective of literally quality.  When a play is in writing it is a literally work but the moment you perform it is called a performance.  A treatise is a book that deals with one subject in great detail.  Essays and articles are also copyrightable.  Letters are copyrightable.  Reports are copyrightable.  Memorandum including MOUs are copyrightable, summons are copyrightable.  Charts and tables, computer programs or software, tables and compilation of data are copyrightable.

Literally works do not include judicial decisions and statutes.  A headnote is copyrightable.

Musical works – means any musical work irrespective of musical quality and includes works composed for musical accompaniments.

Artistic works – means irrespective of artistic qualities, paintings are artistic works, etching, lithographs, woodcarvings and maps etc. photographs which are not comprised in audiovisual works i.e stills,  the photographer owns the copyright in a picture for exercising skill and judgment in taking the photo,  the poser is not responsible for the composition of the photograph.

An author is the first owner of a copyright.

Payment is not the basic issue in intellectual property, the issue is who exercises skill and judgment.  Works of architecture in the form of buildings are artistic works and are copyrightable. 

Industrial handcrafts and clothe designs.

Secondary works or neighbouring works – these works do not belong to the cathedral of creativity.  Poets, painters, musicians

2.            Audiovisual works –  a VHS or DVD are audiovisual they are both audio and visual or have both qualities – it is the director who owns the copyright for audiovisual work.

3.            Sound recordings - sound recordings are physical embodiments of primary works.

4.            Broadcasts – this is any transmission intended to be received whether it is received or not,

What is a performance S. 30 (6) of the copyright Act defines a performance as "performance" means the representation of a work by such action as dancing, playing, reciting, singing, declaiming or projecting to listeners by any means whatsoever;