Licensing Digital Works and Copyright Law in Kenya

Editor’s note:
IPKenya invites you all to an IP discussion session dubbed ‘IP Check-in’ to be held at the Nairobi Innovation Hub (*iHub_) on Saturday May 12, 2012 from 11 am. The topic of software licensing and intellectual property will be discussed.

Our point of departure is that in Kenya, the definition of a ‘computer program’ under the Copyright Act envisages software to be part of literary works. A computer program is defined as follows:

a set of instructions expressed in words, codes, schemes or in any other form, which is capable, when incorporated in a medium that the computer can read, of causing a computer to perform or achieve a particular task or result.

In some jurisdictions, like the US, software has been protected under copyright and patent as well.

Licensing is one of the means by which the owner of copyright can exercise his or her economic rights. In this regard, Section 33 of Kenya’s Copyright Act states that:

33.(1) Subject to this section, copyright shall be transmissible by assignment, by licence, testamentary.disposition, or by operation of law as movable property.

The Copyright Act mentions two types of licenses in section 33(3) and (4): exclusive and non-exclusive licenses respectively. The key difference between these two licenses is that an exclusive license means that the licensor grants several licensees with different rights whereas a non-exclusive licenses means that the licensor grants the same rights to a copyright work to several licensees within the same scope or field, consecutively or simultaneously.

Licenses for electronic works specify exact terms of use and re-use, even if they are stricter than the exceptions and limitations permitted in the copyright law. Therefore, in the digital environment, contract law tends to override copyright law. For instance, if a license does not permit the work’s inclusion in a digital collection, then prior permission has to be sought and fees paid to the rights holders if required.

It has been noted that many authors and creators now use open source license to make their works more accessible in the digital environment. these licenses are more flexible and user-friend; for example the GNU Free Document License and Creative Commons licenses.

Creative Commons (CC) licenses:

CC seeks to offer digital creators methods to protect their works while also encouraging certain uses of them. Its sponsors argue that the licenses seek to improve a copyright system marked by increasingly restrictive default rules with “a layer of reasonable, flexible copyright”.

How does this work?

CC have developed a web application that assists people in dedicating their works to the public domain or allows them to retain their copyrights while licensing them for no charge for specified purposes based on certain conditions. Thus for online works, a creator can apply for a certain CC license from the CC website by choosing the license that applies based on preferences. The selection will include the HTML code that will automatically generate “some rights reserved” button with a statement that the work is licensed under a creative commons license or a “no right reserved” button if that work is selected to be put into the public domain.

Of the six licenses by CC, the “Attribution-ShareAlike” license (CC BY-SA) is noteworthy since it is often compared to “copyleft” free and open source software licenses. The CC BY-SA license allows users to remix, tweak, and build upon your work even for commercial purposes, as long as they credit you and license their new creations under the identical terms. All new works based on yours will carry the same license, so any derivatives will also allow commercial use. This is the license used by Wikipedia, and is recommended for materials that would benefit from incorporating content from Wikipedia and similarly licensed projects.

Open-Source Software (OSS)

Open Source Software (OSS) is computer software that is available in source code form. Under OSS system the source code and certain other rights are normally reserved for copyright holders are provided under a software license that permits users to study, change and improve the software. According to opensource.org, an oversight organisation for the open source movement, the “open source” does not just mean that licensees have access to the source code; software must comply with certain criteria. OSS groups that are active in Kenya and Africa include Free Software and Open Source Foundation for Africa (FOSSFA) and Linux Chix.

Copyright registration of software

Although registration is not a prerequisite for ownership of copyright, software creators are advised to register their work with the Kenya Copyright Board (KECOBO). It is also advisable to insert the (c) symbol accompanied by the name of the creator and the year of creation. The process of registration in Kenya is entirely voluntary but it is advisable as it provides additional benefits to software creator.

In order for the software to be registered, the applicant must meet the following criteria and requirements: First, the work must be original. Second, the applicant must fill in an application form. Details of the registration process can be found here.

And to conclude, IPKenya would like to raise some additional issues for discussion:

1) Should copyright licenses be governed by contract or copyright law? In case of a dispute, which of the two doctrines prevails?

2) Does the requirement in s33(3) of the Act that exclusive licenses and assignments of copyright be put in writing contravene the Berne Convention?

3) Does s33(7) of the Act make any sense in its current form? Weren’t the drafters of the Act referring to a “license” and not an “assignment”?

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3 thoughts on “Licensing Digital Works and Copyright Law in Kenya

  1. You knew that last bit would get me going…BUT…we are not discussing registration…good question on the issue on Article 5 (2)of the Berne -formality free enjoyment of rights. However the governing laws of the country where protection is claimed prevail and hence (in the Kenyan situation for maximum protection) one must always err on the side of caution: reduce to writing and register rather than litigate later!

    Looking forward to meeting everyone 🙂

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