By. Paul Kaindo
n arts festival is a festival that exhib-
its any one or more intellectual or
creative works such as music, dance,
film, fine art, literature, poetry, comedy,
theatre, drama etc. Fixed expressions in such
festivals raise pertinent copyright and related
rights concerns.
Copyright grants exclusive rights to crea-
tors of original works. Only those persons
granted the exclusive rights can exercise
such rights over the works or license others
to exercise the rights. These rights include;
the right to reproduce the original work or
its translation or adaptation in any material
form; the right to distribute the work to the
public by way of sale, rental, lease, hire, loan,
importation or similar arrangement; the right
to publicly perform the work; the right to
communicate the work to the public; right to
broadcast the whole work or a substantial part
thereof, either in its original form or in any
form recognisably derived from the original;
and, the right to make the work available to
the public.
In order to protect and promote the rights
of artists, performers and craft persons dis-
playing their works in arts festivals, it is
important for festival managers and organis-
ers to strategically manage the copyright and
related rights in the works. These festival
participants are a vital force of any arts fes-
tival. It is the quality of their intellectual and
creative expressions that draw public atten-
tion and define the festival’s eminence. With-
out an appropriate and effective copyright
and related rights management, their rights
can become vulnerable to illicit exploitation
hence demotivating the creators.
There are numerous types of festivals
and different countries celebrate them with a
variety of different events and activities such
as music, drama and display of crafts. Such
festivals play an important public good and
have increasingly become arenas of discourse
allowing people to express their freedom
of expression on wider cultural, religious,
social and political issues. They also play
an immense role in bringing people together
as they celebrate their diversity. In certain
quarters, arts festivals have been used to
promote peaceful coexistence among com-
munities. Balancing between defending this
public good and protecting individual prop-
erty rights in arts festivals is not always easy.
In an effort to create a balance, copyright
law provides for exemptions and limita-
tion. These copyright exceptions and limita-
tions are in the public interest. They allow
members of the public to do any of the acts
exclusively reserved for the copyright owner
without requiring authorisation by way of
fair dealing. Fair dealing exception in Kenya
Copyright laws allows the public to use the
work for the purposes of scientific research,
private use, criticism or review, or the report-
ing of current events subject to acknowledge-
ment of the source.
Copyright law further acknowledges that
while it confers the exclusive right to the
author of the protected work, it is not intend-
ed to stop others from using or being inspired
by the general idea behind the protected
works. What copyright protects is the way
the creator of the original work has expressed
the idea and not the idea itself. It follows
therefore, that the public is free to use or be
inspired by the general idea in the exhibitions
or performances in the arts festival to create
their own independent works.
In addition, in Kenya, performers in arts
festivals have related rights in their per-
formances. They therefore have the right
to control the recording and dissemination
of their performances and their commercial
exploitation. In particular they have the right
to; broadcast the performance; communicate
the performance to the public; make fixation
of the performance and; rent for commercial
purposes to the public, the original and copies
Promoting copyright interests in
Arts and Cultural festivals
Copyright News
of their fixed performances.
To ensure that an arts festival’s copyright
policy is effective, organisers are highly
encouraged to establish written contracts
with all parties involved in the festival,
including members of the public patronising
the festival; persons who are likely to take
photographs; audio recordings and videos
in the festival such as journalists; and, fes-
tival performers and exhibitors. Licenses,
accreditation agreements and performers’
legal release agreements may be used for
this purpose. Legal release agreements can
be used to advise festival performers of the
use of recordings, to seek written consent for
use of recordings and to outline terms of use.
Such agreements cover matters relating to
both copyright and related rights. Effective
contracts can also be a means to sealing com-
mercial deals. They can, for example, provide
for terms relating to the commercial use of
photographs or recordings taken at the festi-
val; donation of copies of recordings to the
festival archive for preservation; among other
terms. The upshot is that organising an arts
festival is a multifaceted task that involves
numerous copyright decision-making ele-
ments. An effective strategy calculated to
efficiently support and promote the copyright
interests of all parties involved in the festival
is supreme.
Unlike arts festivals, cultural festivals
may require a different Intellectual Property
(IP) strategy because of their collective own-
ership nature and the unfixed nature of some
cultural expressions. Cultural festivals are
events that are representative of a culture and
are related to display of cultural knowledge
and expressions such as folklore, cultural
music, cultural art, cultural heritage and other
similar expressions of culture. Some of these
expressions may be secret and/or sacred.
While it is true that conventional IP tools
offer some amount of protection when Tra-
ditional Knowledge (TK) and Traditional
Cultural Expressions (TCEs) are displayed
in arts festivals, complementary measures,
such as cultural protocols, guidelines and
notices may be necessary. An effective and
comprehensive IP management strategy sup-
ports cultural respect and may help generate
economic prospects for the festival while
recognising and celebrating cultural diversity.
The Protection of TK and TCE Act, 2016
(TK and TCE Act) Laws of Kenya provides
a framework for protection of traditional cul-
tural expressions in Kenya. Before the enact-
ment of the Act, indigenous people could
use copyright to protect cultural expressions.
However, the unfixed nature of some cultural
expressions such as folklore and folk songs
made them ineligible for copyright. Further-
more, copyright grants exclusive rights to
identifiable persons such as individuals or
companies and not to amorphous groups such
as indigenous people.
Festival organisers may need to take com-
plementary steps, going beyond existing cop-
yright law, to protect the cultural interests of
participants whose cultural expressions do not
qualify for copyright protection because of
lack of fixation or the communal ownership
character. Other than the regional Swakop-
mund Protocol on the Protection of TK and
Expressions of Folklore, 2010 under the Afri-
can Regional Intellectual Property Organisa-
tion (ARIPO), as of now, there is no interna-
tional instrument protecting TK and TCEs,
other than the protection of performances of
expressions of folklore under the WIPO Per-
formances and Phonograms Treaty, 1996.
That notwithstanding, festival organisers
can take several measures similar to the ones
used in arts festivals to prevent the unauthor-
ised uses of TCEs in cultural festivals such
as: Cautionary notices, guidelines and pro-
tocols advising visitors and members of the
public and media about the need to respect
the IP rights and TCEs of festival partici-
pants, accreditation system clearly defining
the terms and conditions of the festival, set-
ting up measures to monitor use of official
broadcasts and public performances in an
effort to prevent and stop any infringement.