Kenya Flag

In February 2019, a story broke that the Kenyan national anthem had been copyrighted by a British company – De Wolfe Music. An online user had composed a work and attempted to post it on video site YouTube, upon which his video was stuck out for copyright infringement. There was a further claim that the video had been copyrighted by the foreign organization which was then monetizing it to the exclusion of Kenyans.

Such an alarmist outlook of intellectual property matters is misguided, and a closer dissection of the copyright framework is necessary.

Copyright Protection

Copyright exists to give the owner of a work the exclusive right to control how their work is used, communicated and distributed in any medium.

In copyright law, protection of a creative work lasts for the lifetime of the author and an extra fifty to seventy years after death. After this period the work goes into a commonly shared space called the Public Domain, where anyone can freely use the work in any manner (including commercially) without having to ask for any permissions.

With regards to government works, this varies jurisdictionally. In Kenya, per the present Copyright Act, 2001 (section 25) the copyright for a government commissioned musical work lasts for fifty years from the date of first publication.

The national anthem is protected under the Constitution on Kenya, Chapter 2; Article 9 as one of the national symbols of the Republic of Kenya. The national anthem, derived from a folk song Pokomo lullaby, was composed by a five man team in 1963. After fifty years, the copyright in the national anthem expired in 2013 and thus became public domain material and free for anyone to use.

The YouTube Issue

YouTube is a social media site enabling the upload and sharing of original video content by the public under the slogan “broadcast yourself”.

When one uploads a video with copyright content belonging to another, the YouTube algorithm through content identification is set to take down the entire video; after scanning its database of copyright works, even though the copyright contentious clip is only a few seconds long. This YouTube take down procedure is intended to protect the copyright content owned by others on the platform. Although rather harsh, this mechanism means that after three such strikes the account will be disabled and all videos will be removed.

At first instance, a copyright owner will submit a copyright complaint to get certain content taken down for infringement of their copyright. The receiver of the notice will after viewing the claim have the opportunity to counter the notice so that the content is put back up citing various copyright law exceptions and limitations like fair use and public domain use.

The National Anthem Issue

The British company uploaded a video of a compilation of various national anthems. In copyright law, a derivative work is one that is based on an existing work such that if musical, copyright would only extend to the new aspects of the work and not to the copyrighted portions or elements of the work which are in the public domain. Such works will be protected as original works due to the special arrangement or new composition, but, only if the work is substantially original or if furthered by a new additional element. They owner gains copyright in the new derivative work and can license it.

A similar issue arose in 2013 when Sony claimed the rights to a YouTube compilation which included the Greek national anthem, and was faced with the same national furore for copyrighting content that rightly belonged to the nation.

Russian born Igor Stravinsky was no stranger to copyright when his 1944 rendition of the American national anthem “The Star Spangled Banner” got him in trouble with the police for tampering with the national anthem (although in the public domain).


Although, the Kenyan national anthem is in the public domain, the different arrangement in a new work which incorporates it is entitled to copyright protection as a derivative work. This will and should not prevent others who want to use certain portions of the national anthem in their own works from freely doing so. It certainly means that the British company does not own copyright to the Kenyan national anthem, just the rights to the full arrangement of its new compilation. They acknowledged this on their 5th February tweet in response to the Kenya Copyright Board.

The content ID on YouTube usually blocks an entire video if it detects any fragment similar to the copyrighted work of someone else on the same platform. The issue is therefore not with De Wolfe Music or other content creators, but with the YouTube take-down, algorithm.

YouTube from July, 2019 announced a review of its terms to enable time stamping on any copyright infringement claim so that the exact infringing portion is blocked and not an entire video.

 This work is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.


Historically, creativity was the foundation of human expression. Imitating other peoples work was considered the greatest form of flattery, thus people could memorize and copy other peoples works as a form of recognition of the authors work and as a ‘compliment. Shakespeare was indeed one of the greatest such ‘plagiarists’, at that time the culture allowed massive lifting of other people’s  works to create new works without necessarily attributing the original creators.[1]

Come 1709, things changed. The Statute of Anne essentially meant that publishers would have full copyrights in their printed works for a period of 14 years therefore, nobody could copy content without their permissions. This emerging shift to a market economy would enable creators and owners to economically benefit from their works and prevent others from lifting from their works without explicit permissions to do so.

Copyright is therefore a theory over 300 years old, aiming to protect the creative rights of individuals. As soon as we create an original work, it has automatic copyright protection meaning that, we get to have exclusive control and dictate how that work is to be used by others (reproducing/copying it, distributing it/selling it, performing it, broadcasting it and adapting/ making changes to it). All rights are reserved to the owner.

The types of works created and protected by copyright include literary works (anything written like books, journals and magazines), dramatic works (theatrical plays, dances and choreography), musical works and sound recordings, artistic works (paintings, drawings and sculptures), photographs, audio-visual works (movies and films) architectural works (the design of buildings).

It is important to understand that copyright will only protect the way an idea is expressed and this has to be recorded in any of the above forms. Put simply, we may all have an idea about how Kenya will look in fifty years, copyright cannot protect those ideas because they are only in our heads. We have to express those ideas by recording them either thorough paintings, films, sculptures and even making a song about it. As soon as we record those expressions in a tangible medium, copyright instantly comes in to ensure only we can control how our works are used and people thus have to ask permissions before they use the work. Using someone else’s work without getting their permission is called copyright infringement. In this digital age it is very easy to assume that online content is free. This is not always the case, always check who owns the work and whether it is free to use.

To get copyright protection, all you need to do is to create an original work. It is possible to register a copyright, and this is mostly done for evidential purposes i.e. to prove that one owns the work. This is done by the small payment of a fee and after a search by the national copyright office, a certificate is provided to show proof of authorship or ownership of a work.

An author and an owner do not have to be the same person. An author is one who actually creates the work. By taking a picture, the author could decide to transfer their rights to someone else. That person will not be the new author but will be called the owner of that copyrighted work. An author can also licence people to use their work for a fee or by any other arrangement. More than one person can own copyright in one work either individually or jointly as rights holders.

Copyright is usually confused with the other main areas of intellectual property. Whilst copyright is automatic and no registration is required for protection, Trademarks exist to protect the brand of an individual or organization and to distinguish between or identify the source of products and services. One needs to register a trademark to get protection for a period of ten years. Patents are given to inventors to exclude anyone from making or selling the invention (usually a new technical way of doing something which should be useful to society) and twenty years after registration, the invention will go into the public domain.

The public domain is this wonderful space where things which can freely be used by society/public end up. Copyright laws apply differently to each country and thanks to the Berne Convention of 1886, works will be protected the same way in any of the 176 member countries who have signed the agreement as it would in the home country of the author. It is extremely important to realize just how long copyright lasts. Copyright will last for the life of the author and when they die, the work will still be protected for an extra 50-70 years, depending on the country. After that period of copyright expiry, the works will be completely free to use meaning that they will fall into the public domain. In other instances an author may voluntarily dedicate their work to the public domain and where a work is not valid for copyright protection e.g. it contains very many facts like names of places; that work also goes into the public domain.

Not all works will require users to ask permissions from authors or owners. At times some works can be used freely, thanks to some exceptions and limitations in copyright law. Whereas copyright requires explicit permissions before use, sometimes copyrighted works can be used in limited circumstances. One such way is through the fair dealing and fair use guidelines. When a work is being used for a fair purpose then no permissions are necessary from the owner. The American fair use guidelines has four major factors to help you gauge whether your can use someone else’s work for free and without permissions. Using the acronym P.A.N.E, the first factor is that the Purpose of the work should be in any category for teaching, research, private use, criticizing or commenting on it, making a parody, satire or caricature of the work or for news reporting, next the Amount of work used should be very minimal and limited to around 5-20% of the total work, next in the Nature of the work it is preferable to use something that has been published and preferably facts rather than fictional works like Harry Porter, and finally the  use should not affect the Economic market of the original work such that the owner should still be able to exploit their work normally even after you have used that limited portion of their work without permission.

If you would like to get a semblance of sleep , there are ways you can freely use otherwise copyright protected works. Creative Commons (CC) licences do not reserve all rights to the owner, instead, they allow users the opportunity to use works freely as long as they do what any of the six CC licences tell them to do with those works.

BY NC Elizabeth Oyange

This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.

[1] Giancarlo Frosio, Reconciling Copyright with Cumulative Creativity: The Third Paradigm, Edward Elgar Publishing, 2018.


Macaque   (c) David Slater


A man went broke.

He invested cold nights in 2011 in the Indonesian jungle befriending primates, photographing them and apparently cajoling them into taking selfies. One cheeky crested macaque, successfully got baited into the perfect selfie. Mr. Slater forwarded this to his agent for print work and after one newspaper published the image, it went viral and became a free for all.

Amongst those sharing in the spoils, were websites, with some tagging the image as public domain. Mr. Slater no doubt was perturbed by the nature of these events. He sued to get the scavengers off his intellectual property before it was reduced to mere morsels.

Creatives put a lot of effort into their final product. In this case money was spent on travel, bugs were squished, muscles were strained and grit was spawned to befriend the primates. The final product; in this very unfortunate digital world, was a click away for all to claim.

An animal rights organization came into this picture. They sued on behalf of the monkey on the basis that as the ‘thing’ that pressed the button; the monkey, was the actual author and thus the copyright owner.

In copyright, an author is the ‘person’ who creates the work.

Jurisdictional issues aside, it begs the question, were it not for Mr. Slater’s persistence, set up of his camera, being at the right place at the right time and sharing the end product, would the world be graced with this gem of an image?

The prospect of images not necessarily taken by us but by other species or machines, but nevertheless engineered by us, not belonging to us, may be a disincentive for creatives to share gems like this if they believe that they will not be acknowledged for their work or derive any benefit from such creations.

This should not be the intention of copyright law, to act as a hindrance and a barrier to creativity.

There were jabs about which specific monkey it was whose image was in contention and whether the right monkey was suing Mr. Slater for copyright.

Earlier this week, the court finally held that animals can have no copyright. Is this the final, definite, conclusive, long hard nail on the coffin on a battle that has been brewing since 2014?

There is a wad of disappointment here, not because the monkey lost the case, but because we may have missed the chance to give our primal friends (stuck in evolutionary dystopia) the opportunity to finally move on up and own real property in future! Who wouldn’t want to negotiate rent with a primate?

Mr. Slater gave us a Macaque selfie.

May no other human go broke in the creative process.




We are back on Copyright and this is a fairly big week for one branch of it. It is FAIR USE WEEK, 2018, a chance for debates, discussions and general contribution to the acknowledgement of fair use and its impact on usability. What does Fair use mean for users of copyrighted works?

Remembering the automatic ammunition of copyright upon creation of creative works means that it is a stringent and oft rigid protection which gives the author full control on how their work is used. The notion of copyright is that you need the permission of the owner of that work before making use of it.

Permissions, ah! The path of despair upon which many must face, and few reach nirvana!

Luckily, there lies a “Jack-in-the-box” in one modern hero of copyright exceptions. We shall call her Lady Fair Use (sometimes known as Madame Fair Dealing). Because, only a true lady lays down explicit instructions on how her affairs should be run and expects them to be followed to the letter.

She is a refuge to those who need her but a plague to those whose works are being used.

Lady Fair use, holds those who want to use another’s copyrighted work, close to her bosoms and protects them from copyright infringement, on condition that they meet some explicit conditions (You have to give measure for measure if you are going to lay on the bosom).

And if you meet those factors, you have a free pass to use the work for the intended purpose, without any necessary permissions from the copyright owner. That is the public interest bit of copyright.

So, back to the bosom.

Whilst you are here, with your incriminating material at hand, this is what Lady Fair Use shall ask of you, in order to make peace with the copyrighted work. “PANE it”.

  1. Bring the PURPOSE of your use within any of the categories of personal use, study, research, teaching, criticism, review, comment, parody, satire and news reporting. Non-commercial use of the work will make us have more empathy for you.
  2. Make sure that the AMOUNT you use is minimal in relation to the overall work (anywhere between 5-15%) of the overall work is usually feasible.
  3. Ensure that the NATURE of the work you are using is published (made available to the public) and it is better to use factual works than non-factual (fantasy) works.
  4. Ensure that your use of that limited portion has minimal EFFECT on the economic market of the original work.

If you can bring yourself within the ambit of at least these four factors, you are at liberty to use limited portions of the copyrighted work without further permissions from the owner.

And Lady Fair Use will count her duty discharged.

fair use-fair dealing


What is Creative Commons?

Yamashita_Yohei_-_CC_on_Orange_(by)Yamashita Yohei- CC on orange (BY)

When the old man said No, everybody knew they could not just come into his property and take his oranges without permission; he had a loaded gun, ready to protect and punish.

But his old lady was more open, she did not mind people coming to take some oranges because the people were hungry and they really needed some, so long as they told people where they got the juicy oranges from so that they could be known as the growers of the sweetest oranges in town.

Sometimes, the old lady did not want anybody to get the oranges from her freely and sell them to others. That was wrong and she wanted them to pass on the kindness to others. Sometimes, she did not mind them selling some oranges if it would help them feed their own families.

Sometimes, she did not want others to inter-breed her oranges so that they could come up with new breeds of sweeter varieties, this would destroy the purity of her original oranges. Sometimes, she did not mind. New varieties only meant new knowledge and improvement in science.

Sometimes, she wanted people to take and share the oranges under the same conditions that she had given them, sometimes she did not ask or mind.

And people said the old lady was as sweet as her oranges. Now that’s free promotion.

But the old man! The old man, held on to that gun, and woe unto those who trespassed.

Creative commons is like the open-minded generous lady, who despite tough rules, really does want people to benefit in one way or another.

Copyright on the other hand may be seen as a loaded gun, where one would need to ask permissions before using any work.

Both however, work very well together and in fact, complement each other. This is because creative commons is modelled on the notion that although creator have automatic copyrights to control how their work is used, some people want and can share their works freely without any individual requests for permissions. All one needs to do is use the work according to what the license tells them to do.

CC has designed some fun licences that tell you how to use such works if you see the below logos (and thereby making the sweet old lady happy).



Say the work is by ‘Author’ (give credit) then you can copy, distribute, remix and perform the work.


Say the Work is by ‘Author’, then also share and adapt your new works using the same license as this.


Work is by ‘Author’, but if you change it, please do not distribute that new version. Only distribute the original version (unchanged).


Work is by ‘Author’ and you can share and adapt into new works as long as they are not for commercial uses.


Work is by ‘Author’ and you can share and adapt but you must also share you new work with others under the same license as this one.


Work is by ‘Author’ and you can share and adapt but you can neither distribute the adapted version nor use it commercially. Only share the original work.