7
ISSUE
35
By Clarrisse Mideva
C
opyright is a bundle of negative rights,
meaning, it prohibits others from
doing certain acts. These acts can only
be carried out by the copyright owner. If they
are to be done by someone else, they can only
be done with the consent of the copyright
owner, either through licenses or assign-
ments. If one undertakes any of the restricted
acts without the consent of the copyright
owner, the person is said to have engaged in
copyright infringement.
Copyright infringement is, therefore, the un-
authorised use of an individual’s or organisa-
tion’s copyrighted materials. It includes repro-
ducing, distributing, performing or displaying a
whole or part of the original work without prior
permission from the copyright owner. Section
35 and 38 of the Copyright (Amendment) Act,
2019 highlights the acts that constitute an of-
fence under copyright law. The Act states that
economic rights may be infringed if someone,
without authorisation, is doing an act that the
copyright owner alone has the exclusive right
to do (e.g. making copies of a novel), dealing
commercially with an infringing work (e.g.,
selling pirated CDs) or importing an infringing
work. Moral rights on the other hand would be
infringed if one’s contribution, as the author
of the work, is not recognised and if the copier
passes himself off as the author of the work or if
one’s work is subjected to derogatory treatment
or modied in a way that would be prejudicial
to his/her honour or reputation.
Infringement by body corporates
The Copyright (Amendment) Act, 2019
defines a body corporate as a firm or
association of persons. Most body
corporates use others’ copyright or related
rights works on a regular basis. It is
important to understand how corporates
may use these works in their business
without infringing copyright. In principle,
the use of any copyrighted works requires
the owners prior consent if the planned
exploitation implies the use of all or part
of the rights granted to the copyright
owner. For example, if a corporate wish
to play recorded music for its customers,
it will need a license from the owner.
Even if the corporate uses just a part of
a copyright work, it will still need prior
permission. There’s however, works that
a body corporate can use without prior
permission. These works include;
Works that are in the public domain
meaning the protection period has
lapsed, the author has renounced his/her
rights or it is a foreign work that does
not enjoy protection in Kenya.
Works that are covered by the concept
of ‘fair dealing’ under the Copyright
Act e.g. using the work for private use,
research purposes, review and criticism,
news reporting etc.
Works that are not protected under the
Copyright Act. For example, if you
are using the facts or ideas from a
protected work, rather than the authors
expression since copyright does not
protect ideas.
Any other use that does not fall in the
above category must be done with the
permission of the copyright owner.
Infringement can be either primary or sec-
ondary. Primary infringement is where a person
does or authorises someone else to engage in
one of the exclusive acts. Secondary infringe-
ment on the other hand is where a person facili-
tates the infringement. Secondary infringement
consists of the doctrines of contributory and
vicarious liability. Contributory infringement
is where one who directly contributes to copy-
right infringement is held responsible alongside
the person who committed the act. Vicarious li-
ability holds someone responsible for the acts
committed by another.
Suppose person A performs a copyrighted
song before a public audience, inside a hall be-
longing to B, with a go ahead from his manager
C? A will be held for direct/primary infringe-
ment. B will be vicariously liable because even
though he had no idea, he proted from the per-
formance. And C will be held for contributory
infringement since he knew about the perfor-
mance and encouraged it.
Secondary infringement comes to play un-
der Section 38A of the Copyright (Amendment)
Act where in case an infringement occurs in a
body corporate, every person who at the time
the offence was committed was in charge of or
was responsible to the body corporate for the
conduct of its business and affairs is deemed to
have committed the offence and shall be held li-
able. The Act further holds the person in charge
of the affairs of the body corporate liable if the
offence was committed with his consent, con-
nivance and lack of due diligence.
What body corporates need to do
to reduce risk of infringement
To avoid litigation, body corporates may;
Develop policies to monitor and ensure
employees do not use copyrighted works
without prior consent, block websites that
employees can use to download infringing
content like music, movies etc., obtain
express written permission, licenses and
assignments before using copyrighted
materials and educate its staff in order to
create awareness on copyright issues and
the consequences that the business may
face in case of infringement.
Intellectual Property, especially copyright,
is at the heart of every business conducted by
body corporates. Seeking expert advice from
intellectual property practitioners before con-
ducting business will save a body corporate
from unnecessary law suits and loss of revenue.
Copyright Infringement by Corporates
to be Punishable Under New Law
EDITORIAL OPINION