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Stay on the Right Side of Creativity: Your Essential Guide to Avoiding Copyright Infringement in Business

In the vibrant economic landscape of Kenya, creativity and innovation are the engines driving businesses forward. However, in the rush to stand out and captivate the market, companies might inadvertently step into the complex web of copyright infringement. “Stay on the Right Side of Creativity: Your Essential Guide to Avoiding Copyright Infringement in Business” serves as a beacon for businesses navigating the intricate world of intellectual property (IP) laws in Kenya. This article provides a comprehensive guide to understanding copyright infringement and outlines strategic measures to avoid it, ensuring your business thrives within the bounds of the law.

Understanding Copyright Infringement

Copyright refers to an exclusive bundle of rights granted by law to authors of literacy works, producers of audiovisual works and films, architects, performers, broadcasters, and other creators of literacy, musical, artistic, audio-visual, sound recordings and broadcasters.

The Copyright Act in section 35 provides infringement of copyright takes place when a person does or causes an act that is controlled by copyright without the license of the owner of the copyright or if a person imports or facilitates the importation of an article that is known to be an infringed copy unless it is for private and domestic use.

Violation of the rights of a performer provided in section 30 of the Copyright Act is an infringement of copyright. In general violation of the rights of persons with exclusive rights over literacy, musical, artistic, audio-visual work and sound recordings is an infringement of copyright.

Penalty for Infringement

There are consequences for infringement of copyright enumerated in the Act. If a person who at the time when copyright subsists knowingly makes for sale, hire, distributes, possesses or imports into Kenya an infringed copy and is convicted shall be liable to a fine of five times the market value of the legitimate work or one thousand shillings for each infringed copy whichever is higher or imprisonment of not exceeding ten years or both (for a first-time offender). If the person repeats the offence and is convicted, they shall be liable to a fine of ten times market value of the legitimate work or two thousand shillings for each infringed copy whichever is higher or imprisonment for a term not exceeding twenty years or both.

Any person who causes literary, musical work, an audio-visual work or sound recording to be performed in public at a time when copyright subsists and is convicted, shall be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding four years or both.

The Legal Landscape in Kenya

Kenya’s legal system provides robust protection for intellectual property, aligning with international standards and treaties such as the Berne Convention.

In Kenya, copyright protection is governed by the Copyright Act, which is enforced by the Kenya Copyright Board (KECOBO).

The Copyright Act establishes the Kenya Copyright Board in section 5. The functions of the Board are to;
1. Direct, and coordinate the implementation of laws and international treaties and conventions in which Kenya is a party and is related to copyright;
2. License and supervise the activities of collective management societies as provided in the Act;
3. Devise promotion, introduction and training programs on copyright to co-ordinate regional or international organisations concerned
4. Enlighten and inform the public on matters related to copyright and related rights
5. Maintain an effective data bank on authors and their works;
6. Administer and enforce all matters of copyright and related rights in Kenya.

The Copyright Act specifies the rights of creators and the mechanisms for enforcement, offering a shield against infringement. For businesses, navigating these laws means understanding the scope of copyright protection, including what constitutes fair use, how to obtain licenses, and the procedures for copyright registration.

The Act provides the legal framework for the protection of literary works, musical compositions, artistic creations, and computer software, among others. Recognizing the boundaries set by copyright laws is crucial for businesses to ensure they respect the intellectual property rights of others while leveraging their creative assets.

Practical Steps to Avoid Copyright Infringement

Conduct a Copyright Audit: Regularly review your business’s use of copyrighted materials to ensure compliance.
Educate Your Team: Make sure your employees are aware of copyright laws and the importance of respecting IP rights.

Obtain Necessary Permissions: Always seek permission or obtain licenses for the use of copyrighted material that is not owned by your business.

Leverage Original Content: Encourage the creation of original content and innovations that reflect your brand’s uniqueness.

Consult Legal Experts: Engage with intellectual property lawyers to navigate the complexities of copyright laws and protect your business interests.

Learning from Others: Examples for Clarification

Kenya has witnessed its fair share of copyright disputes, serving as learning points for businesses. From copyright battles in the music industry to disputes over software infringement, these cases highlight the consequences of copyright negligence. Successful navigation through these disputes often involves timely legal intervention, proper licensing agreements, and adherence to fair use provisions.

Common Pitfalls to Avoid

Businesses often fall into copyright traps by neglecting due diligence, underestimating the importance of licensing, or ignoring the risks associated with using third-party content. Another common mistake is failing to register a copyright for original works, thereby missing out on the legal protections afforded by registration.

Your Legal Companion in Creative Compliance

Navigating the complexities of copyright law requires more than just a basic understanding of the rules; it demands a strategic approach to intellectual property management. CR Advocates LLP stands as your partner in ensuring that your business not only avoids the pitfalls of copyright infringement but also harnesses its creative potential to the fullest. With our expertise in IP law, we provide tailored advice and robust legal solutions that align with your business objectives.

Engage with CR Advocates LLP Today

Empower your business to stay on the right side of creativity. By partnering with CR Advocates LLP, you gain access to expert legal counsel dedicated to protecting your intellectual assets and steering your business toward sustainable growth. Contact us today to secure your creative future and position your business for success in Kenya’s competitive market.

“The information provided in this article is intended for general legal advice and does not constitute legal advice for any specific transaction or case. Since each transaction presents a unique legal context, it is advisable to retain a legal adviser for specific transactions.”

To contact CR Advocates LLP, send us an email at or call +254 100979081 or Book a strategy call HERE or direct message us on WhatsApp at your convenience. Our legal team will be happy to help you.