Intellectual Property And Copyright

Intellectual property is something unique that you physically create but not the idea.  You own this intellectual property if you created it and bought the relevant rights to protect it from being stolen by other people. Protecting your intellectual property makes it easier to take legal action against anyone who steals or copies it. The type of protection you can get depends on what you have created. For example copyright protects intellectual property like writing and literary works, photography, films, TV, music, web content sound recordings, etc. You usually won’t own intellectual property for something you created as part of your work while you were employed by someone else.

Intellectual Property

World Intellectual property Organization (WIPO) 2008 -  states intellectual property as the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic works. 

It refers to the creation of mind such as inventions, literary, artistic works; designs and symbols, names  and images used in commerce.

It also refers to creation of the intellect for which a monopoly is assigned to designated owners by law. IP is protected in law by patents, copyright  and trademarks which enable people to earn recognition or financial benefit. 

 Types of Intellectual Propert

According to Sue A. Purvis, innovation and outreach coordinator , there are four types of intellectual property.

1.Copyrights

Copyright is a form of protection provided to the authors of original works of authorship.

Copyrights protect original works of authorship, such as literary works, music, dramatic works, pantomimes and choreographic works, sculptural, pictorial, and graphic works, sound recordings, artistic works, architectural works, and computer software. With copyright protection, the holder has the exclusive rights to modify, distribute, perform, create, display, and copy the work.

In order to qualify under copyright laws, the work must be fixed in a tangible medium of expression, such as words on a piece of paper or music notes written on a sheet. A copyright exists from the moment the work gets created, so registration is voluntary.

However, registered works may be eligible for statutory damages and attorneys fees in a copyright infringement suit, so you may want to consider registering your work  . With copyright protection, the holder has the exclusive rights to modify, distribute, perform, create and copy the work. Copyright typically expires 50 – 100 years after the author dies depending on the jurisdiction. 

2. Patents

 Sue A. Purvis defines patent as a grant of property rights on an invention, allowing the patent holder to exclude others from making, selling, or using the invention. Inventions allow many businesses to be successful because they develop new or better processes or products that offer competitive advantage on the marketplace. You get a patent by filing a patent application form.

There are three types of patents. Namely:

1. Utility
2. Design
3. Plant

A utility patent is the most common type, covering any process, machine, article of manufacture, or composition of matter, or any new and useful improvements thereof.

To qualify for a utility patent, the invention must be novel, nonobvious, and have some usefulness. Novel means new and not known by anyone else, while nonobvious means that it can't be immediately obvious to someone having ordinary skills in the industry. A design patent covers any new, original, and ornamental design for an article of manufacture, while a plant patent covers any new variety of asexually produced plant. A design patent lasts for 14 years, and a utility or plant patent lasts for 20 years.

With patent protection, the payent holder can take legal action against anyone who copies the patented invention, design, or discovery. Without this legal protection, anyone can use similar designs, products, and processes without risk. In fact, if you don't file for patent protection on your invention within 12 months of releasing it in a public setting, the opportunity to patent it will be gone.

Other companies or individuals can also file for a patent on your idea, taking away your chance to do so first. Before filing for a patent, you should determine who will own the idea. Some companies file for patents on their protected inventions, but if an employee came up with the idea, the individual may be granted holder of the patent. If your business owns the patent, you must protect the patent with the company by having employees involved in the invention process sign an agreement stating that the idea belongs to the company.

3. Trademarks

Sue A. Purvis  terms a trademark as any word,name,symbol or any combination used or intended to be used in commerce to identify and distinguish the goods or services.It protects all of the above mentioned and logo,banner,sound,smell etc.The duration of trademark is ten year terms with ten year renewal terms. For example, the Nike "swoosh" design identifies athletic footware made by Nike.

 Before registering your trademark, conduct a search of federal and state databases to make sure a similar trademark doesn't already exist. This trademark search can help you reduce the amount of time and money you could spend on using a mark that is already registered and trademarked.

To apply, you must have a clear representation of the mark, as well as an identification of the class of goods or services to which the mark will apply. You can submit an online application, and filing fees vary according to several factors, including the form type and the number of classes of goods or services. 

To register a trademark, you can

1. File a "use" application after using the mark.
2. File an "intent to use" application before using the mark.

If a foreign application exists, a trademark holder might be able to rely on that application for use. 

4. Trade Secrets

  Sue A. Purvis says a trade secret is any information that provides economic value that is not in the public domain and that has been reasonably kept secret. Protects formulae, process, pattern, device, or other business information that companies keep private to give them a business advantage over their competitors. Examples of trade secrets include:

• Soda formulas
• Customer lists
• Survey results
• Computer algorithms

Unlike the other types of intellectual property, you can't obtain protection by registering your trade secret. Instead, protection lasts only as long as you take the necessary steps to control the disclosure and use of the information.

Businesses use nondisclosure agreements, restricted access to confidential information, post-employment restrictive covenants, and other security practices to maintain trade secrets.

When protecting intellectual property, look at competitors and others in the industry as if they are in competition for your ideas. Protecting yourself and your company is the best way to make sure that no one else can use your distinctive inventions, works, marks, or other ideas. Meet often with employees to keep them aware of what must stay out of public discussion and away from competitors. Physical and digital protection of ideas is also necessary, so track who has access and limit who can get into important databases.

Looking at the risk and cost-benefit analysis can also help you decide what's worth protecting. Protection of intellectual property often comes at a high cost and takes much time, so make sure your time and money is worth the investment.

5. Trade Dress

 Charles S. Sara (2011) &  Ross and Stevens Law Firm defines the  term "trade dress"  as product's overall image, including its size, shape, color, graphics, packaging, and label. The protection of trade dress is encompassed within the Lanham Act (federal trademark law) because under the definition of "trademark", a registrable trademark may include a "device". One does not need to register their trade dress as a trademark in order to protect it from copying, though federal trademark registration has certain definite advantages

Trade Dress Protection

Trade dress protection is limited in scope. It only prevents competitors from specific types of copying. First, it prohibits copying where a competitor imitates. Other company’s product and make it available to customers in such a manner that they think it is their product, or makes them unsure as to whether it is their product. Trade dress protection also prohibits a competitor from selling a product which is so similar to others that customers instead might think that the product belongs to the competitor and that the original company are the copier.

Examples of trade dress in Kenya.

Colors

NTV Kenya- It has corporate blue as the trade dress. The graphics and presenters' clothing generally have a blue color. Though not registered as the trade dress this identifies the TV station and distinguishes it from other brands.

Citizen TV-Yellow identifies the station, graphics, brand name Citizen, Background during news bulletins and other programmes.                                 

KTN-The corporate blue color is identified with the station’s presenters’ dressing, graphics, brand name and bulletin backgrounds.

KBC-Red color is identified with the stations’ branding, graphics and bulletin backgrounds.

Requirements for Valid Trade Dress

If your trade dress is infringed, there are certain hurdles that must be overcome in order to halt the infringement. These hurdles effectively amount to requirements for having a protectable trade dress. Initially, you must be able to prove that you use and own the trade dress. This is generally not a problem unless someone contends that they were using the same trade dress first. Second and more importantly, you must be able to show that your product is either "inherently distinctive" or that it has acquired "secondary meaning". These terms mean that your product must have a unique enough appearance or "identity" that those who see it would understand that the product comes from one source, even if they do not know the source is you. To elaborate, "inherently distinctive" trade dress has a unique appearance which is so different from the trade dress of similar products that consumers would instantly realise that your product comes from a single unique source. For your trade dress to have "secondary meaning", it generally means that the trade dress of your product, while not inherently distinctive, is widely known to customers as signifying a distinctive brand of product that comes from a single source. The main difference between "inherent distinctiveness" and "secondary meaning" is that inherent distinctiveness generally simply exists without any effort on your part as soon as you put the product on the market, whereas secondary meaning is established by advertising and marketing efforts

Copyright

Copyright is a legal right created by the law of a country that grants the creator of an original work exclusive rights for its use and distribution. This is usually only for a limited time.The exclusive rights are not absolute but limited by limitations and exceptions to copyright law, including fair use. A major limitation on copyright is that copyright protects only the original expression of ideas, and not the underlying ideas themselves.

Copyright is a form of intellectual property, applicable to certain forms of creative work. Some, but not all, jurisdictions require "fixing" copyrighted works in a tangible form. It is often shared among multiple authors, each of whom holds a set of rights to use or license the work, and who are commonly referred to as rights holders.  These rights frequently include reproduction, control over derivative works, distribution, public performance, and "moral rights” such as attribution. 

Copyrights are considered territorial rights, which means that they do not extend beyond the territory of a specific jurisdiction. While many aspects of national copyright laws have been standardised through international copyright agreements, copyright laws vary by country. Typically, the duration of a copyright spans the author's life plus 50 to 100 years (that is, copyright typically expires 50 to 100 years after the author dies, depending on the jurisdiction). Some countries require certain copyright formalities to establish copyright, but most recognise copyright in any completed work, without formal registration. Generally, copyright is enforced as a civil matter, though some jurisdictions do apply criminal sanctions.

Most jurisdictions recognize copyright limitations, allowing "fair" exceptions to the creator's exclusivity of copyright and giving users certain rights. The development of digital media and computer network technologies have prompted reinterpretation of these exceptions, introduced new difficulties in enforcing copyright, and inspired additional challenges to copyright law's philosophic basis. Simultaneously, businesses with great economic dependence upon copyright, such as those in the music business, have advocated the extension and expansion of copyright and sought additional legal and technological enforcement.

Why copyright is important.

The objective of copyright is to promote the public good by encouraging and fostering cultural and scientific activity. Copyright protects cultural works, creative expressions of thoughts and feelings. 

These works are in a variety of forms, including artworks, music, novels and poetry. They are the expressions of culture which is built on by each generation, adding their own perspective to the existing culture, which will enrich the lives of generations to come. Hence, many countries are using copyright to protect valuable indigenous cultures, ensuring their vibrant and individual national cultural expression continues.

The existence of strong and enforceable copyright laws is also a necessary precursor to participation in the global economic community, bringing particular benefits to the economies of developing countries.

Three Pillars Of The Copyright System

There are three pillars of an effective copyright system, namely:

i. Legislation

ii. Enforcement 

iii. Management

Who can claim copyright?

Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright. In the case of works made for hire, the employer and not the employees is considered to be the author.

Where more than one person is involved in the creation of a work and is not possible to distinguish exactly what each contributed, copyright will be owned jointly and no single contributor can publish or license the work without the consent of the others.

What works are protected?

Copyright protects original works of authorship that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include:

1. Literary works
2. Musical works, including any accompanying words
3. Dramatic works, including any accompanying music
4. Pantomimes and choreographic works
5. Pictoria,l graphic,and sculptural works
6. Motion pictures and other audiovisual works
7. Sound recordings
8. Architectural works

What is not protected by copyright?

Several categories of materials are generally not eligible for federal copyright protection. This includes, among others:

1. Works that have not been fixed in a tangible form of expression. For example, choreographic works that have not been notated or recorded , or improvisational speeches or performances that have not been written or recorded.
2. Titles, names, short phrases and slogans; familiar symbols or design,s mere variations of typographic ornamentation, lettering, or colouring; mere listings of ingredients or contents.
3. Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices as distinguished from description, explanation, or illustration.
4. Works consisting entirely of information that is common property and containing no original authorship, for example, standard calendars, height and weight charts.

How to secure a copyright.

Copyright is secured automatically when the work is created and fixed in a copy or phonorecord for the first time. Copies are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. Phonorecords are material objects embodyingthe  fixation of sounds, such as CDS.

Establishing copyright in Kenya

 The steps for registration of copyright are as follows:

Step 1: Collect the registration forms from the Kenya Copyright Board offices.

Step 2: Fill in the relevant details

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:-

Step 6: Present the Bank Deposit Slip at the KECOBO reception, where a receipt 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

Copyright Act In Kenya

The main legislation dealing with copyright in Kenya is the Copyright Act 2001.

 This 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 recognized by this Act and ensure the observance thereof.

Prohibitions in Copyright Act in Kenya.

The Act outlaws certain activities that in their effect promote counterfeiting of copyrighted materials. For instance, under the Act it is a civil wrong to import pirated copies. It is also wrong to circumvent technological devices used to protect copyright rights, remove or alter electronic rights management systems and to distribute, import and broadcast copyright works without the consent of the owner. The remedies provided for under the Act include damages, injunction, and delivery up. The Act also provides for Anton Pillar orders to secure evidence before it is hidden or destroyed by the accused party.

There are a number of remedies a copyright owner can obtain in both criminal and civil action for infringement. These includes fines not exceeding Ksh 400000 or imprisonment for up to 10 years in prison.

 Inspectors of the copyright act.

Inspectors who have powers to enter premises, ship or aircraft to ascertain whether any infringement of the law is being committed therein enforce the Act. Police officers and officers of the board also have powers of arrest under the Act. Prosecution of cases filed in respect to crimes in committed in contravention of the Act is governed by the Criminal Procedure Code, and may be conducted by a public prosecutor or the Board.

What rights does a copyright owner has?

The copyright has both economic and moral rights 

Economic rights

These are cover acts that only the copyright owner can do or authorize  I.e the right  to copy the work, distribute copies, rent or lent it ,perform or show it, communicate it to the public(including making available online) or adapt it(e.g making it into a play) 

Moral rights(section 32:1)

The right to claim authorship of the work and object any distortion,mutilation or other modification of or other derogatory action in relation to the said work which would be prejudicial to the authors honour or reputation.

How long does copyright last? Section 23

The duration of copyright varies according to the work involved. For literary , musical, or artistic works other than photographs it is 50 years after the end of the year in which the author dies (if there is more than one author it will be 50 years from the death of the last remaining author)

For audio visual works and photographs the duration is 50 years from the end of the year in which the work was either made , first made available to the public or first published, whichever date is latest.

For sound recordings the duration is 50 years after the end of the year in which the recordings was made. 

For broadcasts the duration is 50 years after the end of the year in which the broadcast took place.

Exceptions

There are a number of specified copyright exceptions in Kenya law which permits copying in certain circumstances eg for specific purposes , research, private use, criticism or review, reporting of current events subject to acknowledgement of the source etc.

Under the exceptions for educational purposes section 26(d) permits  “inclusion of literary or musical work in question if the collection is designed for use in a school registered under the education Act or any other university established by or under any written law and includes an acknowledgement of the title and authorship of the work. 

Following is a table illustrating several common exceptions to copyright owners' rights.

Copyright board

The Kenya Copyright Board (KECOBO) is a State Corporation under the Office of the Attorney General & the Department of Justice. It was established by section 3 of the Copyright Act 2001 and mandated with the administration and enforcement of copyright and related rights.The first board was appointed by Hon. Attorney General in may 2003 with members from various sectors within the copyright industry and representatives from the relevant government institutions such as the ministries of finance, information , culture and the Kenya police. In 2009, the board relocated from the state law office in Sheria House to the forth floor of NHIF building.  The Board is responsible for organizing legislation on copyright and related rights; conducting training programmes on copyright and related rights; enlightening and informing the public on matters related to copyright; licensing and supervising the activities of collective management societies; and maintaining an effective databank on authors and their works.

Composition of a copyright board

Dr. Marisella Ouma was appointed Excecutive director who is part of the boards 15 members made up of four copyright experts 5 government representative and 5 members from the private sectors,KECOBO currently has 33 members of staff including 5 legal counsels and 9 police officers gazetted as copyright inspectors with Dr Henry Chakava as the chairman of the board of directors.

The Kenya Copyright Board is comprised of members drawn from both the public and private sectors. The members from the private sector are nominated by associations representing software, producers of sound recordings, publishers, film distributors, performers, broadcasting stations, musicians and the audio-visual industry. There are four experts on copyright and related rights and five members who are alternates to the Attorney General, (Police Inspector General), Permanent Secretary - Ministry of Information, Permanent Secretary - Ministry of Sports, Culture and Arts, and the Permanent Secretary - Ministry of Finance.

Functions of Copyright Board

The board is mandated to administer and enforce copyright and related rights in Kenya. The Board may thus;

1. Direct, coordinate and oversee the implementation of laws, international treaties to which Kenya is a party to.
2. Licence and supervise the activities of Collective Management Organisations
3. Devise and carry out training and sensitisation programs on copyright and related rights in Kenya
4. Update copyright legislation
5. Maintain an effective database on copyright and related rights in Kenya .

Photos and Dimensions

Different types of photo dimensions

Photos are visual representations depicted on a flat surface, such as a canvas or a screen. However, not every photo contains flat  two-dimensional images, as various techniques exist to depict three dimensions, while there is also the theoretical possibility of showing only one dimension. In order to understand the difference between these types of photos, you need to know what a dimension is;

Dimensions

Dimensions are used to describe the structure of an object whether it's flat or not, and its extent in space. A dimension in geometry is defined as the number of coordinates needed to specify a point on the object, according to Wolfram MathWorld. For example, if you need two figures, such as (2, 4), to understand where a particular spot is, you are dealing with a two-dimensional shape.

1-D Photos

One-dimensional photos are those containing only one dimension. This is only possible when you're dealing with a line, as the only dimension you have is length, defined by a single figure. For example, you can easily find a spot when you know it's on the third inch from the left. However, a line is 1-D only on a theoretical level, as in real life, a line has a width just hundredths or thousandths of an inch.

2-D Photos

One type of photo you can come across in real life is the two-dimensional one. The two dimensions depicted are length and width and the objects on the picture are flat. Examples of such photos are ancient Egyptian wall paintings or images from video games before the PlayStation era, where visual artists did not want, or could not, give a realistic representation of space.

3-D Photos

Three-dimensional photos contain yet another dimension: depth. This type is the most realistic one, as the depiction of objects or environments resembles the way we see them through our own eyes. Painters use the technique of perspective, drawing distant objects smaller and depicting angles as visible through one's point of view, while 3-D movies use two images superimposed on the same screen. However, such pictures give only the illusion of depth, as the canvas or screen always remains flat.

Photographers rights

According to Bert P. Krages(2003:2) says confrontations that impair the constitutional rights to make photos or images are becoming common.To fight the abuse of your right to free expression you need to know your rights to take photographs and the remedies available if your rights are infringed.

Photographers rights is one of the more fundamental elements of photography.As governments around the globe have tightened anti-terror laws we have had more querries about just what exactly a phographers rights are when he/she is out with a camera.For instance how can you take photos of people in public?,how can you shoot artwork and animals?,when to acknowledge trademark?.

(a) Photographic rights on public property

Members of the public do not need a permit to shoot in public places apart from some notable exceptions.You can shoot private buildings or property as long as you are standing on public land.There are some prohibited places which it is an offence to take photos like factories dockyards and mines.Some public places also have by-lawspreventing commercial photography such as parliament square and some royal parks but if you are not taking photos for commercial gain or causing an obstruction you are unlikely to be restricted.

(b) Photographic rights on private property

It can hard to discern if you are on public or private property as a lot of private property is not clearly marked.Unless you are absolutely sure that you are on the public highway,it pays to be cautious.If you are on private land and the owner asks you to leave failure to do so will be classed as tracepass.They can use reasonable force to make you leave the land,but this does not include grabbing or smashing your kit.

Conclusion

If you develop a new product or formulate a new business idea or you come up with any opf your creation, don’t grapple yourself whether you should protect it or not. You should protect it from being stolen or being copied by other people. You should identify which aspect of your product is protectable by trademark, copyright, patent or trade secret. Each of these types of Intellectual property requires different procedures to protect them from unfair competition and copycats. Most of the times it is advised that you should protect your intellectual property as early as possible failure to do so you might have to protect it defensively later. Protecting your intellectual property makes it easier to take legal action against anyone who steals or copies it.

References

Constitution of Kenya (NO. 12 of 2001)  Copyright Act

Moore, Adam D (2001) “ A Lockean Theory of Intellectual property Revisited” San Diego law Review

Shroeder, Jeanne L (2006) : “Unnatural Rights : Hegel and Intellectual property” University of Miami law Review 60:453

Terry  J Carrol’s (2003) : Copyright F.A.Q

University of Carlifonia (2014) : Copyright