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What can be copyrighted and what amounts to infringement?

By | November 30th 2010

Talking law/ WITH SUDI wandabusi

My last week's article had me receiving calls from very unlikely quarters. I had to contend with eloquent admonitions from my learned seniors as well as frantic calls from innocent book authors wondering whether what had been written in that article was indeed true. The statement accompanying the picture in that article was a result of an editorial error; it is not true that books can be patented.

Books are protected under copyright law, the subject of this week’s article. Writers and artists alike have asked me severally, where they can register the copyright of their works so as to avail themselves the protection under the Copyright Act. I shall proceed to answer that question as well as what exactly can be copyrighted and what amounts to copyright infringement.


Copyright subsists automatically in any copyrightable material as provided by the Copyright Act, Cap 130. There is, therefore, nowhere that one needs to go and register before one acquires copyright in his work. Section 22 of the Copyright Act lists works that are eligible for copyright.

They include literary works, musical works, artistic works, audio-visual works, sound recordings and broadcasts. The section further provides that before a broadcast can become eligible for copyright, it must first be broadcast. And as for a musical, artistic or literary work, it shall not be eligible for copyright unless sufficient effort has been expended on making the work to give it an original character; and the work has been written down, recorded or otherwise reduced to material form. In disputes over copyright infringement of artistic works, the question has arisen as to what amounts to something being called artistic and therefore eligible for copyright protection. At section 2 of the Copyright Act, "artistic work" is defined,

""artistic work" means, irrespective of artistic quality, any of the following, or works similar thereto- (a) paintings, drawings, etchings, lithographs, woodcuts, engravings and prints; (b) maps, plans and diagrams; (c) works of sculpture; (d) photographs not comprised in audio-visual works; (e) works of architecture in the form of buildings or models; and (f) works of artistic craftsmanship, pictorial woven tissues and articles of applied handicraft and industrial art"

In the case of Alternative Media Ltd versus Safaricom Ltd, while dismissing the contention of the defendant that the effort put in the coming up of the artistic work which was the subject of the dispute by the plaintiff was not "uniquely artistic", the learned judge said, "…To my mind, the law does not require a person to prove that his or herwork was uniquely artistic, for it to be an "artistic work"". From the definition provided in the Act, the quality of the given work is immaterial in determining copyright infringement.


Section 26 of the Act provides for the nature of copyright in a literary, musical or artistic work or audio-visual work.

It includes the exclusive right to control the doing in Kenya of any of the following acts, namely the reproduction in any material form of the original work or its translation or adaptation, the distribution to the public of the work by way of sale, rental, lease, hire, loan, importation or similar arrangement, and the communication to the public and the broadcasting of the whole work or a substantial part thereof, either in its original form or in any form recognisably derived from the original.

This therefore means that doing any of these things without the express permission of the copyright owner shall constitute copyright infringement.

To avail oneself with the protection under Act, a person needs to prove that in the coming up with artistic work, he did not just copy it from somebody else. He needs to prove that he had to utilise his knowledge, labour and skill, so as to produce something that nobody else had yet done. It is possible to establish infringement by proving that the defendant adapted or translated the copyright work.

This means that though the end product may not be the exact reproduction of the original copyright work, it is possible to prove infringement if it can be shown that there was deliberate variations including altered copying or colourable imitation. , as was referred to in the case of Designers Guild Ltd versus Russel Williams (Textile) Ltd (2001).

The writer teaches at Inoorero University

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