Words for the Unwary: Intellectual Property and Political Parties in Kenya

Political parties in Kenya would be advised to take some lessons from recent happenings in Ghana and South Africa, relating to intellectual property (IP). With elections around the corner, there are a number of important issues that must be addressed by political parties to ensure that they do not fall foul of existing IP laws and procedures.

Here are IPKenya’s words to the unwary:

1. Copyright Registration of Party logos

Under both Kenyan and international law, copyright registration of a work is not the basis of the copyright. In other words, registration is not what gives a claimant copyright protection. Thus original authorship receives automatic protection without the need for formalities or registration. Therefore, copyright protection may be granted under other statutes of a specialised nature, such as the Political Parties Act with respect to party symbols or logos.
Under this Act, there is a mandatory requirement to supply the Registrar of Political Parties with certain particulars for the registration of a political party, including “name, emblem, motto and any other marks or features of the proposed political party”. The symbol of a party applying for registration is so significant that the Act prohibits the use of the symbol or emblem to communicate ethnic, gender, regional or religious particularism. Therefore it is possible to assert copyright ownership of party insignia on the basis of a political party registration certificate.

Recently, in Ghana, the former First Lady Nana Konadu Agyemang Rawlings somehow managed to register the logo of the ruling National Democratic Congress (NDC) with the Ghana Copyright Office. She has now threatened to “take back” the NDC logo alleging that the party has failed to live up to the ideals espoused by her husband, the former President Jerry Rawlings. The ownership dispute between NDC party officials and Mrs Rawlings is important in that it illustrates the limitations of copyright registration. Mrs Rawling’s claim to ownership is based on copyright registration of the logo, whereas the NDC officials claim that the NDC logo belongs to the NDC as a political party. In light of the above, prior political party registration clearly trumps the registration of copyright by Mrs Rawlings unless she can prove that she is the original author of the symbol.

Meanwhile in South Africa, the recent controversy surrounding a gallery exhibition by Brett Murray named “Hail to the Thief II” has raised interesting issues that political parties in Kenya will have to grapple with. The work in question is pictured above and depicts the logo of the ANC with an inscription “FOR SALE” and “SOLD”. The ANC has taken the matter to court claiming that “Murray’s work has not only defaced a symbol that the ANC has intellectual property right to, but is a clear sign of attack on the ANC as an organisation.”
Under copyright law, every political party enjoys moral rights in respect of their logos. Section 32 of the Kenya Copyright Act provides that political parties have the right to: “object to any distortion, mutilation or other modification of or other derogatory action in relation to, the said work which would be prejudicial to his honour or reputation.”

2. What is on the Internet is generally not free to take

Materials such as photos, videos, music, illustrations and logos that are found on the Internet (or elsewhere) are not necessarily in the public domain and cannot simply be appropriated and used without authorization.

Earlier this year, IPKenya highlighted the case of Nairobi County Gubernatorial Candidate Evans Kidero who “borrowed” a picture from the blog of local photographer Mutua Matheka for his campaign. Matheka claimed that his permission was not sought nor was any compensation paid to him. Copyright law was clearly on Matheka’s side and if he had opted to sue, Kidero and his campaign team would have coughed up significant sums as compensation.

Therefore, political party employees and officials must be careful when using materials obtained from the internet. Most websites have clear User Policies and specific Licensing requirements and modes of attribution as well as contact details of the copyright and or trademark owner(s).

3. What you create vs What you own

The simple rule is that you don’t own what you did not create. Copyright confers ownership rights in respect of all literary, musical, artistic and audio-visual works. The law vests ownership of copyrights in the creators of original works unless they are works “commissioned by a person under a contract of service” or “made in the course of the author’s employment under a contract of service.”

For political parties during campaigns, copyright ownership of things like your website design, materials published on your website, and print, radio and television ads is very important. In the case of commissioned works, where the party commissions work from a person which is not a party employee, the copyright is deemed to have been transferred to the person who commissioned the work. However, the author would have copyright in case she has specifically reserved copyright under the contract between herself and the party.

At any rate, political parties are advised to ensure that all licenses to use or assignments of the materials from the copyright owner are reduced to writing.

4. Be careful with fair dealing exceptions and limitations

The concept of fair use or fair dealing, which permits the use of copyrighted works of others under certain conditions, is frequently misunderstood.

In the case of political parties in Kenya, section 26 of the Copyright Act provides a list of several exceptions and limitations to copyright. We acknowledge that political parties will often need to use video clips, pictures and sound clips of other copyright owners as part of their own campaign ads and other materials. The Copyright Act allows such use if it is solely for the purpose of criticism or review.

The line between fair dealing and infringement is not easily defined and copyright owners may challenge certain uses of their work depending on the facts of the specific case in question.

5. No license, no play

Like many modern democracies, the hallmark of an election year is the endless amount of campaign rallies and public events. Political parties must remember that copyright law imposes certain rights and obligations on their use of music during those campaign related events.

It must be understood that recorded music embodies at least two separate works of authorship, each protected by separate copyrights: the musical composition and any accompanying lyrics (termed the “musical work”) and a particular recorded rendition of that music (termed the “sound recording”).

One recalls that as recently as last month, the Music Copyright Society Kenya (MCSK) warned that political parties holding public rallies risked prosecution if they did not obtain licenses for playing music. This license is a Public Performance license and will cost a party roughly 180,000 shillings.

Therefore, political parties must ensure that they pay up licenses fees before conducting their rallies and public events so as not to fall foul of copyright laws and deprive artists of revenue.