This blogger has come across a recent judgment from the High Court in Uganda in the case of Ssebagala v. MTN (U) Ltd & Anor. In this case, Ssebagala the former Mayor of Kampala spoke to journalists who were waiting outside the precincts of Parliament. Ssebagala was being vetted by Uganda’s Parliamentary Appointments Committee following his nomination for appointment as a Cabinet Minister.
During the question and answer (Q & A) session, Ssebegala is said to have responded to the journalists using his “characteristic style and skill which obviously generated a lot of merriment”. Ssebagala’s interaction with the press was publicly broadcast in Uganda as current news of public and political events. Thereafter SMS Media Ltd, the third party in the suit, adapted audiovisual recordings of Ssebagala into caller ring back tones (CRBTs) and offered these caller tunes to leading mobile network MTN Uganda for sale to the latter’s subscribers.
The “Maasai market” (not represented here) is an open-air market where shoppers can find curios, paintings, drawings, clothes and fabrics with Kenyan prints, jewellery and wood-carvings, hand-made by local artisans. The venue for the Maasai Market rotates between different shopping centres and other locations within Nairobi. For tourists and locals alike, the prices at Maasai Market are very negotiable subject to one’s bargaining prowess and ability to haggle down to the last cent. No receipts are issued for purchases made at the Maasai Market nor should a purchaser expect any warranties or guarantees on items sold at the Maasai Market.
This leads us to our question of the day (QOTD) which is:
If someone buys a painting from
an art gallerythe Maasai market, do they simultaneously buy the copyright and all rights under that copyright? Can the artist subsequently make copies or postcards of the painting that he/she sold? Can the buyer make postcards of the painting and sell them?
From the explanations above, it is clear that all works sold at Maasai market are subject to copyright protection mainly under the category of artistic works. Further, it must be assumed that these artistic works are sold either by the authors themselves, authorised agents or representatives of the authors.
One possible answer to the QOTD would be in the affirmative on condition that the purchaser waits fifty years after the end of the year in which the author of the artistic work dies. In the event that the identity of the author is unknown (which may be the case with Maasai market works), the purchaser would have to wait 50 years from the end of the year in which the artistic work was first created/published.
However, this blogger submits that there is a better answer to the QOTD. In the context of a Maasai market purchase, it appears that that there is no clear assignment of copyright and exclusive license to carry out any of acts controlled by copyright, including reproduction, adaptation and making of derivative works i.e. post cards. This is because section 33(3) of the Copyright Act provides that such assignment of copyright and exclusive license must be in writing signed by or on behalf of the assignor or licensor of the Maasai market work, as the case may be.
Nonetheless, this blogger argues that the purchaser of a Maasai market work enjoys a non-exclusive license to do any act the doing of which is controlled by copyright. According to section 33(4) of the Act, this non-exclusive license need not be in writing and may be oral or inferred from conduct. The Act however provides that such non-exclusive license may be revocable at any time unless granted by contract.
Therefore, for any IP lawyer, the solution to the uncertainty in ownership of rights to Maasai market works may be resolved by simply having something in writing along the lines of:
“I,……the Author hereby irrevocably assigns, conveys and otherwise transfers to…… the Assignee, and its respective successors, licensees, and assigns, worldwide, all right, title and interest in and to the works, and all proprietary rights therein, including, without limitation, all copyrights, trademarks, patents, design rights, trade secret rights, economic rights, and all contract and licensing rights, and all claims and causes of action with respect to any of the foregoing, whether now known, or hereafter to become known.”
This may be food for thought next time you’re strolling past the Maasai market and something catches your eye.
Today’s Question of the Day (QOTD) is on the duration of copyright where the author of the copyright work is a juristic person.
Authorship is at the core of copyright law. It determines ownership of copyright in the first instance. It provides a defence to alleged infringement. Most importantly, authorship determines the duration of copyright.
Section 2(1) of the Copyright Act defines an “author” in relation to the various categories of copyright works as a “person”
Section 23(2) of the Act states that copyright lasts for 50 years after the death of the author. The duration of copyright is computed from the end of the year in which the author dies for literary, musical and artistic works excluding photographs. The length of copyright protection is measured by reference to the human author’s lifespan.
The cumulative effect of these two sections of the Act would be that the word “person” refers only to a natural person, since the length of copyright protection is measured by reference to the human lifespan.
However, the current practice and procedures for copyright registration in Kenya allow for both natural and juristic persons to be applicants as well as authors for the purposes of copyright registration. Where the application for registration of copyright is successful, the copyright registration certificate issued by the Kenya Copyright Board (KeCoBo) may be in the name of either an individual or a company.
The question then arises, how long does the copyright last where the author is a juristic person and not a natural person?
Given that a juristic person, unlike a natural person, enjoys perpetual succession, does this mean that copyright in works of corporate authorship exist in perpetuity never to expire?
Read the rest over at the CIPIT Law Blog here.
The Copyright Act provides copyright protection for literary, musical and artistic works, audio-visual works, sound recordings and broadcasts. It establishes the Kenya Copyright Board. The Board’s main functions include, directing, co-ordinate and overseeing the implementation of laws and international treaties and conventions to which Kenya is a party and which relate to copyright and other rights recognised by this Act and ensure the observance thereof.
The steps for registration of copyright are as follows:
Step 1: Collect the registration forms from the Kenya Copyright Board offices (also available online here)
Step 2: Fill in the relevant details
NB: Any such person purporting to register a work as an authorised agent, s/he is required to produce an authority letter authorising him/her to act as such agent and a copy of his/her National ID
Step 3: Have the forms commissioned by a Commissioner for Oaths.
Step 4: Attach two ORIGINAL copies of the work.
Step 5: Deposit the prescribed registration fee in the bank account of the Kenya Copyright Board below:-
Bank name: Kenya Commercial Bank
Account name: Kenya Copyright Board
Account number: 1104002450
Branch: Kipande House
Step 6: Present the Bank Deposit Slip at the KECOBO reception, where a reciept of registration will be issued.
Step 7: The ORIGINAL “Certificate of Registration” will be issued within 5-7 days** from the date of registration
** these 5-7 days allow for a rigorous process of verification of the copyright works offered for registration and it is done by KECOBO’s Legal Department.