Of Death and Registration: Rethinking Corporate Authorship in Copyright In Light of Emerging Jurisprudence on Corporate Citizenship in Kenya

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In an earlier post, this blogger asked the question: what is the duration of copyright where the owner of the copyright work is a juristic person? This question stemmed from an on-going discussion about a practice at the Copyright Office whereby corporate entities are permitted to register copyright works in their own names.

Two schools of thought emerged: on one hand, corporate authorship does not exist in Kenya therefore “company-produced” works are to be considered as pseudonymous works with the attendant consequences for expiration of copyright. on the other hand, corporate authorship can be presumed to exist and that the corporate entity will enjoy copyright protection in the same way as a natural person.

At the heart of this debate, is a fundamental question of statutory interpretation. What interpretation should be given to the words “author” and “person” in sections 2(1) and 23(2) of the Copyright Act? Should such interpretation have the effect of excluding juristic persons from the Act?

Interestingly, this month the High Court of Kenya delivered a judgment in the matter of Petition No. 278 of 2011 Nairobi Law Monthly Vs. Kenya Electricity Generating Company & Others, which goes further in limiting the “personhood” of corporate entities in Kenya. This judgment sheds new light on citizens’ right to seek information under Article 35 of the Constitution of Kenya, 2010. The case arose following a petition by Nairobi Law Monthly Limited, publisher of the Nairobi Law Monthly magazine, in which it contended that the refusal of Kenya Electricity Generation Company Limited (Kengen) to disclose some information it required constituted abridgment of the Publisher’s right to Information coupled with its freedom to publish information for the public.

The respondents in this matter argued, inter alia, that the use of the word “citizen” with regard the freedom to seek and obtain information under Article 35 of the Constitution meant that the right cannot be exercised by a natural person who is not a citizen or a company, which cannot be considered a citizen even if its shareholding and directorship is exclusively Kenyan.

Read the rest of this article on the CIPIT Law Blog here.

In Support of An Intellectual Property Association of Kenya

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It was in response to Isaac’s post on Afro-IP that this blogger put forth the idea of setting up a bona fide association for intellectual property practitioners and professionals in Kenya. Many of us may have pondered upon this very topic in the past but to-date nothing seems to have materialised.

In the past weeks, there is renewed buzz around establishing such an IP Association, tentatively christened as Kenya Association of Intellectual Property Practitioners (KAIPP).

Within Africa, the only other national IP Association is in South Africa. Established in 1952, the South African Institute of Intellectual Property Law (SAIIPL) is an association representing “some 164 patent attorneys, patent agents and trade mark practitioners in South Africa who specialise in the field of Intellectual Property Law”. According to its official site, SAIIPL states that:-

“It [SAIIPL] is widely regarded as the custodian of South Africa’s intellectual property rights, and comprises practicing attorneys, academics, practitioners in businesses and in general, people interested in the protection and enforcement of intellectual property rights. The members of the SAIIPL represent the majority of national and international businesses who have built their businesses on brands, innovation and technology, and who protect their interests through our country’s intellectual property laws.”

SAIIPL has four types of memberships: Fellow, Associate, Student and Ordinary. It is important to note that unlike Kenya, South Africa has an institutionalised system of IP qualifications. The first is the Patent Attorneys qualification which is a statutory qualification under control of the Patent Examination Board. There is also the Trade Mark Practitioners qualification is offered by SAIIPL to provide proficiency in trade marks and related fields. An Attorney with this qualification is entitled to Fellowship of SAIIPL. A quick browse through SAIIPL’s membership list reveals that the whos-who of South African trademark and patent lawyers are on the list including Prof. Owen Dean (@ipchair), Darren Olivier (@afroIP) as well as this blogger’s former classmate, Jeremy Speres (@jeremysperes), among many others.

Read the rest of this article on the CIPIT Law Blog here.