Intellectual Property Rights: Where does Kenya stand?

In Kenya, the Kenya Copyright Board (KECOBO) has been struggling with online copyright infringement due to the increased digitization of books, music and movies which has made it cumbersome to deal with online piracy. In fact, KECOBO boss Edward Sigei told Music In Africa in March that the industry regulator’s effort to try and counter online piracy had proven difficult since the government was yet to allocate them with adequate resources to try and curb online copyright infringement.

“The whole world is struggling with online Intellectual Property (IP) theft,” he said. ”You cannot completely get read of it but you can reduce it. And to do that you need resources which we currently do not have.”

Gospel musician Wahu Mathenge believes that if Kenyan creatives are educated on IP rights, then they will be equiped with the necessary information on how to protect the content they create.

“Many Kenyan creatives often interact with IP issues, yet many are unaware of the elements, rules, and rights involved,” she said. “Information is power so having it will make it possible for them to sustain themselves. Many Kenyan artists get their music used at a small fee or for free during endorsements campaigns yet they put in a lot of money during production.”

Mathenge said that industry players of all kinds must protect their work specifically, musicians as they have a lot to copyright and trademark for example names and lyrics.

“I remember before I released my song ‘Sifa’ I told my lawyer that it was first done by a choir from Tanzania,” she said. “So he told me not to release it until we got permission from the group or anyone who had the rights. But after several months of searching and even travelling to Tanzania, we were unsuccessful and that’s when we decided to release the songs.”

“So if anyone comes out later and claims it. I will have the paper work trail to show that at least I was courteous enough to try and locate them.”

Mathenge said the new generation artists are currently sampling old classical hits without seeking permission, an act that could see them being sued for copyright infringement.

Some of the East African old songs that have been covered by young artists are ‘You Can Do It’ by Slim Ali and the Hodi Boys which was taken up by Kenyan hiphop artist, Octopizzo in his song ‘Something For You’ and ‘Twist Ni Nzuri’ by John Nzenze, which was adopted by Ugandan singer Serena Bata in ‘Yegwe Munange’.

Kenyan author and Ketebul Music boss Tabu Osusa, who has in the past interacted with both Ali and Nzenze, said both new artists did not acknowledge that they were not the original creators of the music.

“Failure to obtain permission when you sample music is intellectual theft,” he said. “Any artist with the interest of sampling another’s work should acknowledge the original artists you do not have to look for them."

"When I released ‘Le Bucheron’ with my former band, Nairobi City Ensemble, I gave credit to Congolese musician, Franklin Boukaka, the original author of the music, so that the person with the rights could get some money once we sold the music.”

Osusa said that rarely is an artist denied permission to sample music because most of the old musicians are dead and those that own the rights are not so keen as long as they get their share in royalties.

Osusa said in a scenario where an artists has sampled music without permission, the person with the rights can file a complaint against the musician and once KECOBO confirms that the ownership right falls on them, then the regulator moves to file a case with the attorney general who will then take over prosecution.

Apart from the rights holders the general public is also obliged to report any suspicious activities related to IP infringement. As a matter of fact, KECOBO has specifically been conducting trainings with police officers and local business people on copyright across the country.

As of December 2017, KECOBO has received nine copyright infringement complaints associated with music, eight of those cases have been investigated and are pending before court. Between January and March 2018, the regulator has received 18 complaints associated with copyright ten of which have been investigated and eight are pending before court.

The new Kenya Copyright Act Bill 2017 appears to be a significant step taken by the industry regulator towards IPR violations and laws are good, as long as they can be enforced.

In the meantime, there is no doubt that Kenyan creatives need to be educated more on their IPR before the bill assents into law and begins to function.

If you need to file a complaint with KECOBO click here.