Let’s respect the copyright of our artistes to build creative industry and make jobs

Thursday September 24 2015

Pirated copies of music and feature films by local and foreign production companies are prepared for destruction in Nairobi on June 9, 2015. Purchasing pirated music — the Sh50 CDs on the side of the road — may seem harmless but greatly undermines efforts by musicians and other artistes to build the creative industries. PHOTO | TONY KARUMBA | NATION MEDIA GROUP

Pirated copies of music and feature films by local and foreign production companies are prepared for destruction in Nairobi on June 9, 2015. Purchasing pirated music — the Sh50 CDs on the side of the road — may seem harmless but greatly undermines efforts by musicians and other artistes to build the creative industries. PHOTO | TONY KARUMBA | NATION MEDIA GROUP 

Vogue Magazine has an online feature called “73 Questions”, in which a celebrity is asked 73 rapid-fire questions as he/she casually walks around their house or another venue.

Academy Award winner Lupita Nyong’o recently appeared on the feature and three minutes into the interview she was asked to sing her favourite song.

The audio in the video is cut off and we merely see Lupita mouthing words to a song, with large subtitles appearing: “Lupita is singing the Disney copyrighted Just Around the Riverbend.”

Seconds later she finishes, the audio returns, and the interview continues.

COPYRIGHT LAWS

Songs, including the lyrics and music, are artistic works and are protected by copyright laws.

Other artistic works protected by copyright include books, movies, photos, sculptures, engravings, websites, plays, and paintings.

The artistic work needs to be fixed (that is, tangible), and involve some level of originality, but satisfying those criteria is all that is required in order to obtain copyright protection.

In fact, it is not even necessary to register a work in order to have copyright protection, although registration at the Kenya Copyright Board (Kecobo) provides the copyright owner with a registration certificate and other benefits.

EXCLUSIVE RIGHTS
Copyright laws provide exclusive rights to the author(s) of the work. If the author is an employee or a consultant, then the rights are given to the employer.

The rights granted by copyright include the right to reproduce (copy), adapt (make derivatives), and distribute.

Without permission from the copyright holder, anyone taking such actions with an artistic work would potentially be infringing the copyright.

There are some narrow exceptions under the law for certain types of activities, such as teaching, news reporting, and scientific research.

With respect to Ms Nyong’o’s interview, Vogue could not or did not wish to obtain the licence to reproduce Disney’s song lyrics and to avoid any potential trouble with Disney over copyright issues, the song was removed from the interview.

COPYRIGHT INFINGEMENT
Some high profile copyright issues have appeared in Kenyan media and courts. For example, in 2012, a book by Mr Miguna Miguna was leaked and widely circulated via email and other means.

Such circulation amounted to copyright infringement on a very large scale.

In 2014, Safaricom and the popular musician, JB Maina, reached a settlement involving a large payment, of approximately Sh15 million, over the unauthorised use of his songs as Skiza ringtones.

An interesting recent copyright issue involves the Happy Birthday song — for decades it has been under copyright and commercial users (for example movies) have had to pay royalties to an American publishing company.

This situation may come to an end soon as new legal challenges may remove the copyright to a song that is widely believed to be in the public domain.

MUSIC PIRATION
Purchasing pirated music — the Sh50 CDs on the side of the road — may seem harmless but greatly undermines efforts by musicians and other artistes to build the creative industries.

Such industries provide jobs for Kenyans and could, if given the chance, create many more jobs and significant exposure for Kenya on a global scale.

Kenyans should ideally shun buying these CDs.

The Kenya Copyright Board is the government parastatal tasked with administering copyrights in Kenya.

Kecobo also licenses and oversees collective management organisations such as the Music Copyright Society of Kenya, the Kenya Association for Music Producers, and the Performers’ Rights Society of Kenya.

PATENT RIGHTS

The Kenyan courts have the capacity to handle copyright matters and enforcement against copyrights can be carried out successfully.

In addition, the Copyright Tribunal exists to handle conflicts over copyright matters.

Finally, copyright does not apply to inventions that are useful in industry — this is the realm of patent rights.

One exception to this is computer software — although software is functional in nature, it does enjoy copyright protection as well as, potentially and upon application, patent protection.

For more details on software please visit http://www.copyright.go.ke/awareness-creation.html

Dr Rutenberg is a director of the Kenya Copyright Board and a senior lecturer at Strathmore Law School. [email protected]