Although it is widely believed that no idea is original in and of itself, there are an infinite number of ways in which any single idea can be expressed and this fact may qualify to make each expression unique and original. For instance, the idea behind mobile money transfer in Kenya may well have been implemented differently had it been originally disclosed to a banking institution or a computer company instead of a mobile service provider. Therefore copyright protects that unique expression of any idea provided it has been translated into some tangible and material form.
Recently, in a case reported in the Kenya Law Reports on the 25th March involving a University of Nairobi student who plagiarized the postgraduate thesis of a Maseno University student, the High Court made it clear that the thesis was a work protected under copyright law. Accordingly, plagiarism of such work is copyright infringement and the court therefore restrained the University of Nairobi from including the student’s name in its list of graduands last year. Such cases clearly demonstrate the seriousness with which issues related to copyright are taken in the country.
The Kenya Copyright Board being the government agency mandated with the administration and enforcement of Copyright and related rights, encourages all owners of copyright works to register the same with the Board especially for those that intend to sell their work to the public such as producers and manufacturers of music and audio-visual works.
Although the Berne Convention, which Kenya has ratified, states that copyright may not be bound by any formalities, Kenya encourages its right holders to register their work because it is the only way the public can distinguish between genuine copyright works and pirated copies of the same. Once your register your copyright work, you as the legitimate copyright owner must apply for the Board’s authentication mark which consists of a bar-code sticker and a hologram. This authentication mark is to be placed on all copies of your work that are distributed for sale.
The advantages of registration can be broadly expressed in two ways. First and foremost, registration is prima facie evidence of the subsistence of copyright especially in today’s digital age. This gives the copyright owner an initial advantage in litigation when establishing ownership of the original work as distinguished from the infringing or pirated copy of the copyright work. Secondly, registration is useful for both the copyright owners and the State for the following reasons.
Firstly, it facilitates negotiations in respect of the copyright work since it puts the world on notice of the copyright owner’s identity and claim to copyright. Secondly, the data collected from copyright owners and their works helps the State, through the Kenya Copyright Board, to build and maintain a comprehensive database of authentic copyright works existing in Kenya. Thirdly, registration serves a signaling function in that although registration is simple and inexpensive and the Board denies very few registration applications, the fact that the copyright owner takes even the minimal pains necessary to register his or her work suggests that the owner believes that the work has some economic value in excess of the minor expenses.