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.

Microsoft 4Afrika IP Hub


Last week I attended the launch of the Microsoft 4Afrika Intellectual Property Hub launch event on a cool Nairobi evening.

The event pooled in software developers and IP enthusiasts like this quail who were keen to see what this new kid on the block had to offer.

Indeed most creatives are not fully aware of how to protect their creations and we have certainly heard of big corporations exploiting these unprotected creations commercially.

The Microsoft 4Afrika IP Hub promised to be a place of refuge for all things intellectual property and is further strengthened by working in conjunction with a law firm to advice and protect developers IP rights.

This is promising. It for one may motivate more innovators due to the reduction in exploitation of their creations.

Innovation is still very low but with organisations like these investing in intellectual property, more knowledge on the issues and protection will mean increased enthusiasm for creatives.

It is even more exciting because the intellectual property space is slowly expanding as is evident from the faith of this IT giant investing in the country.

Second hand Society: Innovative plug?

Secondhand society

There streets in most developing countries are flooded with second hand cars. They come in all makes and sizes at a price more expensive than the last owner would care to pay for. They have contributed to the already certified traffic menace on the road and increase by the day.

Why is there very little innovation in Kenya and probably East Africa with regards to the motor manufacturing and assembly industry? For Intellectual Property to flourish, there needs to be a motivation for innovation.

There is a car bazaar on any vacant space along a key road and many more second hand imports available online. It is no wonder that the seeds of innovators withered a long time ago with the Nyayo Pioneer car. The Nyayo Pioneer were the first ever Kenyan made cars in 1986 by University of Nairobi students at the behest of the then president. They were sourced from local raw materials and were pretty okay by the then standards. It failed for lack of funds.

A society that depends too heavily on imports hinders innovation. Will there ever be another opportunity to nourish our fledged car industry? By the look of the imported steel outside my window, the answer: a blatant nay!Nyayo pioneer