LEGAL AND INTELLECTUAL PROPERTY (IP) ISSUES IN PODCASTS
By Paul Kaindo and Faith Amatika-Omondi
1.0 Introduction
A podcast as a digital audio or audio-visual file made available on the internet for downloading
to a computer or mobile device, typically available as a series, new instalments of which can
be received by subscribers automatically. The word podcast is drawn from two words: ‘pod’,
from iPod and ‘cast’ from broadcast. An understanding of what the iPod is (was) gives
meaning to what a podcast does. It is the dissemination of recorded audio or audio-visual
content over a digital platform. While podcasts are downloadable digital files, broadcasts are
transmissions of audio or audio-visual content over electronic media to a dispersed audience.
Podcasts are generally unregulated and may focus on certain defined topics. On the other hand,
broadcasts are highly regulated. For instance, there are prescribed regulations on the airing of
local content which broadcasters must adhere to. Regulation 35 of the Kenya Information and
Communications (Broadcasting) Regulations, 2009 provides for this. This is not applicable to
podcasts.
2.0 How podcasts work
Podcasts are generally a discussion of any topical issue. Due to their unregulated nature, anyone
can develop a podcast and put it out for people to listen to or watch. All that is needed is the
podcasting software/app and a steady source of internet if the podcast includes more than one
person in different locations.
Podcasts take several forms; they could be interview podcasts, fictional podcasts, news recap
podcasts, educational podcasts, etc. The duration of the podcast varies and there are no rules
on the specific time it should last.
It is important to publish one’s podcast on a podcast app as opposed to other available channels
for instance YouTube. This is important to retain the ‘podcastness’ in the podcast otherwise,
there will be no difference between it and a YouTube channel. Some popular podcast apps
include Google podcast and Podcast go. Take note of the terms and conditions of the podcast
apps especially the IP Policy.
3.0 Protecting IP Rights in Podcasts
3.1 Copyright – this refers to the exclusive bundle of rights granted by the law to a copyright
holder. The rights include the right of reproduction, adaptation, distribution, making available
to the public, public communication, and broadcasting among others as provided for in s 26 of
the Copyright Act. Under s 22(1) of the Copyright Act, works protected by copyright include
artistic works, literary works, musical works, sound recordings, audio-visual works,
broadcasts, and dramatic works.
3.1.1 Copyright in the podcast – the cumulative interaction between all the multimedia
referred to above including the podcaster’s presentation all constitute a work of
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copyright protectable either as a sound recording (audio podcasts) or as an audiovisual work (video podcasts). The podcast episode(s) therefore attract(s) copyright
protection and any dealing in the podcast without the express permission of the
podcast owner amounts to copyright infringement. The owner of the podcast
should register the episode to help protect their copyright in it.
3.1.2 Ownership of a podcast – As an employee, any creation made in the course of
employment is deemed to be the employer’s intellectual property. This means that
if A is employed by B which is engaged in developing podcasts and making them
available, any Intellectual Property Right (IPR) in the podcast that A develops
belongs to B, subject to any contract executed between the employer and the
employee. This is provided for in section 31 of the Copyright Act.
3.1.3 Third-party rights – a podcast is likely to include copyright works for instance
music, text, images etc. belonging to third parties. It therefore is important to get
rights clearance first before using them in a podcast. If the podcast owner is also the
owner of such copyright works, it is recommended that they obtain copyright
registration for them.
3.1.4 Scripts – some podcasts may include scripts which are used by the presenters, or
interviewers/interviewees. These are works of copyright protected as literary works.
3.1.5 Logos – a podcaster may wish to design a logo which is distinct and a unique
identifier for the podcast in the market. The logo can be protected by copyright as
an artistic work.
3.1.6 Copyright in Streaming - Streaming involves reproducing copyright content. It also
involves public performance and the exploitation of other exclusive rights of
copyright holders. For instance, in the streaming of an event such as a wedding
ceremony, copyright works such as sound recordings end up being publicly
performed since the audience that can view the ceremony is wider than the
traditional private setting. As such, rights clearance must be sought before the
streaming of events where copyright works are in question.
3.1.7 Streaming of broadcasts - In the case of sports matches, and other broadcasts, the
live streaming of such without the broadcaster’s authorization is an infringement of
copyright in the broadcast. Therefore, it is important to obtain streaming licenses
from the broadcasters to avoid infringement.
3.1.8 Streaming Channel Terms and Conditions - if the person streaming the content is
the owner of the content, it is necessary to abide by the terms and conditions of the
streaming site or channel. They should also get copyright registration for the content
for instance the songs, photographs, audio-visual content, etc.
Copyright protection for artistic, literary, and musical works is for the lifetime of the
author plus fifty (50) years. For audio-visual works and sound recordings, which is the
category in which podcasts fall, the protection is for fifty years from the end of the year
the work (podcast) is published or made public as provided for in s 23 of the Copyright
Act.
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3.2 Trademark – trademarks protect the commercial origin of a product or service. They
could be in the form of a name, logo, slogan, colour, numeral etc. In Kenya, trademarks are
protected under the Trademarks Act, Chapter 506.
3.2.1 Name of the podcast – it is very important to give the podcast a name for
identification in the market. The name should be distinctive and not descriptive. It
should also be a catchy name/phrase to attract traffic to the podcast. Once a suitable
name has been coined, the same should be protected under the Trademarks Act.
3.2.2 Logo – in addition to copyright protection as an artistic work, a logo is one of the
unique identifiers of a product in the market and is protected by trademark.
3.2.3 Goodwill/Intangible value – over time, the podcast may become very valuable due
to its popularity. The podcast owner must be aware of this value and make wise
decisions in case of licensing, sale, or any other monetizing venture. Consider
coining catchy phrases, names, slogans, etc. for your podcast.
3.2.4 Domain names - Unique domain names must be obtained and registered as well.
This helps in adding value to the podcast.
3.2.5 Unregistered trademarks – along with the brand value that a podcast may accrue
over time, some podcast owners may opt to not register the names, logos, etc. of
their podcasts. This implies that when there is an infringement, the owner may not
have the option of filing a claim of trademark infringement as provided for in
section 7 and 8 of the Trademarks Act. Their recourse may lie in pursuing a passing
off claim/tort under common law under s 5 of the Trademarks Act.
Under s 23 of the Trademarks Act, protection can be for an indefinite period provided
the proprietor renews it every ten (10) years.
3.3 Industrial Designs – Industrial designs protect the ‘look and feel’ of a product. They
protect the physical tangible aspects of the product. They are provided for in the
Industrial Property Act, No. 3 of 2021. Section 84 of the Act defines an industrial
design as: ‘any composition of lines or colours or any three-dimensional form,
whether or not associated with lines or colours, provided that such composition or form
gives a special appearance to a product of industry or handicraft and can serve as a
pattern for a product of industry or handicraft’.
As such, for audio-visual podcasts, certain physical appearances may be eligible for
industrial design protection. The colour scheme of the podcast and any patterns in the
background may be protected by industrial design.
It is however advisable to choose the most appropriate IPR for any aspect of the
podcast. Some aspects can be protected by more than one IPR and it is therefore wise
to choose the most appropriate. For instance, any design patterns in the background,
that are unique to the podcast may be protected by copyright (artistic works), trademark
(shapes), or as industrial design (the pattern).
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Industrial design protection can be for a maximum of fifteen (15) years, i.e., the initial
five years renewable up to two more times as provided for in s 88.
5.0 Exceptions and limitations of copyright in podcasts
5.1 Fair dealing
There are certain legal exceptions and limitations concerning the exploitation of
copyright works. Not all uses without the express permission of the copyright holder
attract sanctions. Under Article 9(2) of the Berne Convention on the protection of
Literary and Artistic works (1886) as amended in 1979 in Paris, the reproduction of
copyright works is permitted provided it:
a) is for certain special cases
b) does not conflict with a normal exploitation of the work
c) does not unreasonably prejudice the legitimate interests of the author
These three basic exceptions have come to be known as the ‘three-step-test’ and they
form the basis of national legislations on exceptions and limitations of copyright. In
Kenya the second schedule of the Copyright Act provides for such exceptions and
limitations, and they include quotes, criticism,scientific research, educational purposes,
archiving purposes, etc.
Therefore, the use of copyright works in an educational podcast or during the live
streaming of an educational event, for instance, may be exempt from infringement
claims.
5.2 Creative Commons
In addition to the statutory limitations, there exist other public licenses that permit users
to use copyright works according to the laid down terms and conditions. Such licenses
include the Creative Commons (CC) licenses which a podcast owner may license their
podcast under. On the other hand, a podcaster may look out for works licensed under
the CC licenses and use them in the podcast to avoid copyright infringement claims. In
live streams, one should also endeavor to stream works (songs) licensed under any of
the licenses. There are six CC licenses as follows:
I. CC BY: This license allows users to distribute, remix, adapt, and build upon
the material in any medium or format, so long as attribution is given to the
creator. The license allows for commercial use.
CC BY includes the following elements:
BY – Credit must be given to the creator
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II. CC BY-SA: This license allows users to distribute, remix, adapt, and build upon
the material in any medium or format, so long as attribution is given to the
creator. The license allows for commercial use. If you remix, adapt, or build
upon the material, you must license the modified material under identical terms.
CC BY-SA includes the following elements:
BY – Credit must be given to the creator
SA – Adaptations must be shared under the same terms
III. CC BY-NC: This license allows users to distribute, remix, adapt, and build
upon the material in any medium or format for non-commercial purposes only,
and only so long as attribution is given to the creator.
It includes the following elements:
BY – Credit must be given to the creator
NC – Only non-commercial uses of the work are permitted
IV. CC BY-NC-SA: This license allows users to distribute, remix, adapt, and build
upon the material in any medium or format for non-commercial purposes only,
and only so long as attribution is given to the creator. If you remix, adapt, or
build upon the material, you must license the modified material under identical
terms.
CC BY-NC-SA includes the following elements:
BY – Credit must be given to the creator
NC – Only non-commercial uses of the work are permitted
SA – Adaptations must be shared under the same terms
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V. CC BY-ND: This license allows users to copy and distribute the material in any
medium or format in unadapted form only, and only so long as attribution is
given to the creator. The license allows for commercial use.
CC BY-ND includes the following elements:
BY – Credit must be given to the creator
ND – No derivatives or adaptations of the work are permitted
VI. CC BY-NC-ND: This license allows users to copy and distribute the material
in any medium or format in unadapted form only, for non-commercial purposes
only, and only so long as attribution is given to the creator.
CC BY-NC-ND includes the following elements:
BY – Credit must be given to the creator
NC – Only non-commercial uses of the work are permitted
ND – No derivatives or adaptations of the work are permitted
The Creative Commons Public Domain Dedication
CC0 (aka CC Zero) is a public dedication tool, which allows creators to give up their
copyright and put their works into the worldwide public domain. CC0 allows users to
distribute, remix, adapt, and build upon the material in any medium or format, with no
conditions.
6.0 Other legal issues in podcasts/live streams
6.1 Image Rights – These are the rights of any guest or interviewee who appears or speaks
in a podcast/live stream. It is important, as a podcast owner to have a written agreement
with the guest that they are agreeable to their image, voice or any other attribute being
used in public following the podcast/stream. This is necessary to prevent future claims
of infringement of image rights.
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6.2 Contracts – in creating a podcast, several contracts may be executed. They include the
following:
6.2.1 Podcast Software/App – whether executed physically or downloaded from an app
store, a podcaster executes a contract with the owner of the software/app. They are
bound by the terms and conditions of the software/app owner. It is therefore
important to read and understand all the terms and conditions prescribed before
executing. The same applies to streaming sites or channels.
6.2.2 Employees/Co-workers contracts – it is important to have a defined working
relationship with co-workers as well as freelance staff. Have defined terms of
engagement for instance on some important, valuable information that should not
be divulged. It may be important to have non-compete clauses as well.
6.2.3 Where to stream or air the podcast – the podcast must be aired on some platform.
This may be a webpage, or any other digital platform or channel. If the podcaster
or streamer doesn’t own the platform, they must execute a contract defining their
terms of engagement.
6.3 Defamation/Libel
Podcast aggregators, streaming channels, or apps may be liable for some defamatory
uploads of individual podcasters. Claims of defamation may be levelled against a
podcast aggregator/ streaming channel where individual podcasters post or upload
defamatory content. As such, podcast aggregators should have clear terms and
conditions that absolve them of such liability.
6.4 Inclusion of a logo or other commercial identifier of an independent entity in a
podcast or stream. This may raise claims of trademark infringement. This is because
the viewers of the podcast may associate the trademark/logo with the podcast. On the
other hand, if the inclusion of the logo is incidental and not intentional, the podcaster
may absolve himself/herself from liability (claims of copyright infringement). Such
incidental inclusion is one of the exceptions and limitations of copyright provided for
in paragraph 1(f) of the Second Schedule of the Copyright Act.
6.5 Copyright infringement claims – if a podcaster uses a copyright work without
authorization, the podcast platform may be cited for copyright infringement. It is
therefore important for the channels to have clear terms and conditions absolving them
of liability in such cases. That notwithstanding, if served with a take-down notice by a
copyright holder for the alleged infringement, the podcaster should proceed to pull
down the infringing content as soon as is practicable.
6.6 Data protection – the creation of podcasts involves the collection of personal data for
instance, names and contacts of interviewees or other presenters. The processing of
such data should be done in a way that adheres to the data protection principles
enumerated in section 25 of the Data Protection Act.
7.0 Conclusion
Everyday comes with new uses of the internet. The challenges facing humanity also
force us to invent and find new ways of surviving. The more we use the internet the
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more we use our Intellectual Property Rights. The use or availability of such rights on
the internet does not mean they are free to use. The right to use such works/assets must
be obtained first or the user risks being cited for IP theft. Podcasts and live streams are
some of the ways in which humanity has re-invented itself in the face of the COVID19 pandemic. People can still follow their favorite matches at the comfort of their homes
and participate in the live chat just as though they were watching the match in a club
together with their friends. However, all rights must be cleared to avoid infringement
claims.
The writers are Senior Legal Counsels, Kenya Copyright Board