Copyright License: How to Protect Intellectual Property in Kenya

  • In the struggle of doing your business, you may author a book, develop a new drought-resistant seed or launch a ground-breaking mobile application that will live beyond your years.

    To ensure that you can financially benefit from these creations, you need to familiarize your self with  Intellectual Property or IP law.

    Most nations, including Kenya, have an IP Law, which helps convert ideas into IP assets by using regimes in the law to protect an idea.

    To protect your idea from being stolen, you need to secure one or more of the four different types of intellectual property (IP). 

    So how do you protect your intellectual property? Keep reading this article to find out how.

    Types of Intellectual Property (IP) rights

    There are four types of IP rights:

    1. ​​Copyrights

    2. Patents

    3. Trademarks

    4. Industrial designs

    1. Copyright

    What is copyright?

    Copyright is a legal right created by the law of a country, that grants the creator of an original work exclusive rights to its use and distribution, usually for a limited time, with the intention of enabling the creator (e.g. the photographer of a photograph, the author of a book or movie script, film, music, or paintings) to receive compensation for their intellectual effort.

    The copyright law in Kenya is governed by the Copyright Act- Act No. 12 of 2001.

    The Kenya Copyright Board (KECOBO) is the institution tasked with the registration of copyright in Kenya.

    Works elligible for copyright include musical works, audio visual works and sound recordings.

    Note: Literal, Musical and Artistic works cannot be copyrighted unless the work has been written down, recorded or otherwise reduced to material form.

    Basic concepts of copyright

    The basic concept of copyright is originality.

    The parallel of this is the Patent law which carries with it the aspect of novelty.

    A copyright work need not to be novel. All that the author needs to demonstrate is that he was the first to create a particular express embodied in his work thus the ideas and themes may have appeared in earlier works.

    Where work has been copied from an earlier work, the 2nd work can be denied originality on the basis that not enough skill, labor and judgment has gone into its creation to make it a work.

    How does one register a copyright?

    Here is the procedure:

    1. Collect the registration form from the Kenya Copyright Board offices or download it from their website.

    2. Fill in the relevant details

    Note: Any such person purporting to register a work as an authorized agent, she/he is required to produce an authority letter authorizing him/her to act as such agent and a copy of his/her National ID

    3. Have the forms commissioned by a Commissioner for Oaths.

    4. Attach two ORIGINAL copies of the work. The work must be of original authorship and should also be in tangible format, including digital format

    In the case of a website, the work may be uploaded to a CD. Ensure all the pages of the website are clear, with all the content displayed. The author must be present to demonstrate how the website will operate.

    5. Deposit the prescribed registration fee in the bank account of the Kenya Copyright Board below:-

    Bank name: Kenya Commercial Bank

    Account name: Kenya Copyright Board

    Account number: 1104002450

    Branch: Kipande House

    One may also pay the registration fee via M-PESA

    Go to M-PESA menu

    Select lipa na M-PESA

    Select paybill

    Enter paybill no. 522052

    Enter account number:

    -To pay for the Registration fee: TYPE R/TITLE OF COPYRIGHT WORK

    Enter amount

    Enter pin and send

    6. Present the Bank Deposit Slip or the message you received after the Mpesa transaction at the KECOBO reception, where a receipt of registration will be issued.

    7. The ORIGINAL “Certificate of Registration” will be issued within 5-7 days from the date of registration.

    The 5-7 days allow for a rigorous process of verification of the copyright works offered for registration and it is done by KECOBO’s Legal Department.

    What are the benefits of acquiring a copyright?

    Copyright confers exclusive rights (economic rights) to the owner to control the doing of the following:

    1. Reproduction of any material form of the original work or its translation or adoptions.

    2. Distribution to the public of the work by way of sale, rental, lease, loan, importation or similar arrangement.

    3. Communication to the public and broadcasting of the whole work or a substantial part thereof either in its original form recognizably derived from the original.

    4. Copyrighting also confers moral rights. These are:

    a. Right to claim authorship of the work.

    b. Right to object to any distribution, mutilation or other modification of or other derogatory action in relation to the said work which will be prejudicial to his owner or identification.

    Note: Moral rights are inalienable and the author will retain the even after the transfer of economic rights.

    Duration of Copyright

    Your entire lifetime + 50 years after your death.

    Statutory cost:

    Ksh1, 000

    Application Duration:

    5-7 working days

    Note: 

    1. If your copyright is ever infringed, do not go on a social media rant, follow it up legally. If you rant, there is a likelihood that you are walking into a defamation law suit, which only waters down your case. 

    2.To prove copyright infringement, there has to be substantial replication of the original copyright to be able to make a claim. That means you need to have proof that the idea was yours first. 

    2. Patent

    This is the highest form of IP protection.

    Patents are more common in the scientific community. Owning a patent means you are the only brilliant mind on earth to have created what you created.

    Your creation is extremely novel, never been seen before, a factor that skyrockets your company’s value. That’s why you find huge corporations like IBM, Canon and Samsung have thousands of patents for different inventions they create for their products.

    This also adds more to your net worth as a company. Patents need to be industrially applicable. Your innovation could be in physical form, or in form of a scientific formulae for instance.

    You own a patent for 20 years and get to renew it every 20 years.

    What large corporations do is, around the 17th year of the patent, they refine their concepts into another potentially patent-worthy invention.

    On renewal, a company then renews its initial patent and a second invention as well, based on the last innovation.

    Note: More patents mean more value for your company.

    Worth noting is that it is not enough to have registered intellectual property, you still need to have other legal contracts that go hand-in-hand with the IP you own

    Statutory cost:

    From Ksh100, 000 upwards. There is also an annual fee to be paid once it is granted.

    Application Duration:

    20 years 

    Government Body in Charge:

    Kenya Industrial Property Institute (KIPI)

    Ownership duration:

    20 years and renewable on expiration of the 20 years

    3. Trademark

    This is the IP that protects exclusive use of a brand name, logo or made up words, for instance Google.

    You can also protect your brand colours, which restricts you to those colours only. Anyone can benefit from a trademark whatever their industry.

    Trademarks provide exclusivity to the use of your brand, which also protects the reputation of your brand. 

    For example, Nameless, the Kenyan musician, could trademark his stage name, making him the only “Nameless” in Kenya.

    And that gives him full control of its use; if another artist or an establishment was to use his name, they would have to seek his permission and pay him for its use or compensate him for the misuse of the name as penalty for trademark infringement.

    Trademarking is especially advisable for those in the fashion and entertainment industries. 

    Statutory Cost:

    From Ksh10, 000 upwards, depending on the trademark category.

    Application Duration:

    Six months

    Government Body in Charge:

    Kenya Industrial Property Institute

    Ownership duration:

    10 years and renewable on expiration of the 10 years

    4. Industrial Designs

    This is IP protection for the beauty of your creation, and combines lines and colour.

    An example is perfume bottles. If you pay attention to higher end perfumes, different brands have different shaped bottles, which is a signature IP for their unique brand.

    This also applies to shoe designs, hair clip designs, hats, even unique prints of a fabric, for instance the unique checkered Burberry Fabric. That is an industrial design IP.

    Statutory cost:

    From Ksh15, 000 onwards per design

    Application Duration:

    4-6 months with several stages of registration

    Government Body in Charge:

    Kenya Industrial Property Institute

    Ownership duration:

    15 years renewable, renewal fees paid every five years

    5. Traditional Knowledge

    This type of IP protects certain unique creations whose initial creator is unknown, but is part and parcel of a culture.

    For example the Ghanaian Kente cloth which is a cultural signature of the Ghanaian people. With this, no one can state claim to this  design.

    Source: Daily Nation