6
Copyright News
Watch list to avoid copyright
infringement for festival organisers
By. Mideva Clarrise
C
ultural festivals in Kenya are held to
showcase various communities’ rich
and diverse cultural expressions. They
have also been used to promote peaceful
coexistence within communities. Such fes-
tivals are celebrated through dance, music,
stories, riddles, theatre, arts and crafts, foods,
etc. Some well-known cultural festivals in
Kenya include; the Lamu cultural festival
where activities such as donkey races, dhow
competitions, craft making, and henna paint-
ings take place; Rusinga festival which fea-
tures music, art, cultural sporting activities
and cuisine from the Suba community among
many others.
These festivals are platforms for nurturing
talents and are also huge tourist attractions both
at local and international level.
Intellectual property (IP) is at the heart of
cultural festivals. Whilst protecting cultural
expressions from misappropriation, misuse,
and exploitation, festival organisers should
also identify and protect the intellectual
property-related aspects from any possible
infringement. In principle, the use of works
in which someone else owns the IP requires
owners’ prior consent if the planned exploita-
tion falls out of the fair use ambit.
Copyright is the most relevant area of IP
affecting cultural festivals. It protects literary
and artistic creations of authors. In cultural
festivals, copyright protects the program/
posters/banners, music performed, choreog-
raphy/dances, photography, costumes, stage
set, audio-visual material and other materials
on display.
Copyright also gives authors a bundle of
exclusive rights to make copies of the work,
distribute, display, publicly perform and
make derivatives. These rights enable authors
to control the use of their work and to receive
remuneration. To be entitled to copyright pro-
tection, a work must be original.
The use of derivative
works in festivals
There may be modifications of copyrighted
works, especially from performers during
festivals. This can threaten the owner’s moral
rights. A derivative work is a work based
upon one or more pre-existing works such as
a musical arrangement, motion picture, sound
recording or any other form in which a work
may be recast.
Music covers and movie sequels are com-
mon examples of derivative works. When
one prepares a derivative work without per-
mission, he/she exposes himself to various
remedies for copyright infringement.
Derivative works can be copyrighted. Copy-
right to a derivative work will only extend
to the material contributed to the original
work and does not affect the scope of the
original copyright. Therefore, when register-
ing a derivative work, it will be necessary to
disclaim the portions previously copyrighted.
Copyright ownership for
festival staff & freelancers
Festival staff may be required to create works
or content that can be used to invite people
to the festival or rather used at/during the
festival for instance videos, posters, banners,
festival programs among others.
Where employees create work within the
scope of their employment, the copyright
will be owned by the employer unless there
is a contract stipulating otherwise. This
is because the employer has control over
how the work is created. Due to this, work
created by festival staff will be owned by the
festival organiser.
Festival organisers may hire professional
photographers, videographers, content
creators or news reporters to make
professional and commercial recordings and
reports of the event.
For works that are commissioned or
ordered from freelancers, the copyright
remains with the freelancer. This is because
the freelancer uses his/her tools, decides
how the project will be conducted and bills
the festival organiser. Control differentiates
the freelancer from the festival staff and as
such, the freelancer retains the copyright.
However, if there is a written agreement
signed by both parties, the festival organiser
can claim copyright.
Fair use of copyrighted
materials in festivals
Fair use provisions allow copyrighted
works to be used without a license from
the owners of the work. This use will not
constitute copyright infringement. With these
provisions, attendees can take pictures and
film or record festival performances without
express permission from the owners.
The Kenya Copyright Act, 2001 contains
several general exceptions and limitations to
the exclusive rights granted to authors. In an
attempt to balance rights holders’ rights with
the interests of users, Section 26(1) of the Act
provides exceptions and limitations for the
following purposes: Research, private use,
criticism or review and reporting of current
events subject to acknowledgment of the
source.
Festival Checklist
Festival organisers may come up with a
checklist involving questions such as:
mm Is the work protected by copyright?
mm Who owns the copyright? Do they have
any licenses (e.g. creative commons
licenses) that would permit the use?
mm Would the use violate any of the exclusive
rights given to copyright owners?
mm Do any of the exceptions to copyright
apply?
With this kind of checklist, they will be
able to determine the protected assets and
ensure permissions & license agreements are
granted or cautionary notices/oral warnings
to copyrighted materials are given to all
attendees at the festival to avoid copyright
infringement.
COPYRIGHT PROTECTION
SOURCE: PERMANENT PRESIDENTIAL MUSIC COMMISSION - @PPMC_KENYA.