Intellectual Property Rights in Kenya

Artists have different definitions, opinions and philosophies on everything about art - from what art is; what constitutes good art; who a successful artist is etc.

One thing however they all agree on is the issue of copyrights and intellectual property rights, especially when it comes to their work.

My definition of copyright in reference to the visual arts (a slightly twisted definition of Wikipedia & the Oxford dictionary combined) is that it is the exclusive right of ownership to the creator of the original work of art (read the artist).

In Kenya, the code that governs copyright is vague and easy to manipulate. It is administered by the Kenya copyright board which was created as a statutory body by the Copyright Act of 2001. The first Board was appointed in May 2001 and comprises 17 members drawn from both the public and private sectors. From the Private sector, there are seven members representing the software, producers of sound recordings, publishers, film distributors, performers, broadcasting stations and audio visual industry (no representation from the visual arts).

There are four experts on copyright and related rights and five representatives from the Office of the Attorney General, Commissioner of Police, Ministry of Information, Ministry of Gender, Sports and Culture, and the Ministry of Finance and an Executive Director.

The board is mandated to among other things; Direct, co ordinate and oversee the implementation of laws, international treaties to which Kenya is party to, License and supervise the activities of Collective Management Organizations, Devise and carry out training and sensitization programs on copyright and related rights in Kenya, Update copyright legislation and Maintain an effective database on copyright and related rights in Kenya .

Whether it does this (or not) is debatable! But a look at recent discussions and events in the Kenyan creative industry suggests that the laws only exist on paper; or in the minds of the copyright board members.

Firstly, the rules seem to be copy-pasted from someone else’s set of rules without really understanding what they mean or how they apply in the Kenyan context.

The board’s representation is also questionable as it is biased towards music and digital media with government agents not adequately equipped with relevant information.

This makes it operate more like the Music Copyright Society of Kenya with all their energy seemingly channeled towards music and popular culture leaving visual arts unprotected and at the mercy of goodwill from art practitioners thus just governed by “a gentlemen’s agreement”

This however leaves artists on very precarious ground as on numerous occasions, their intellectual rights have been infringed by greedy and unscrupulous agents who know the loopholes in the rules and are able to bend and manipulate them. When this happens, the artist is normally left punching in the dark with no one in authority understanding his predicament hence vicious cycle continues.

As a result, most artists have passed on genuine opportunities in an attempt to avoid rogue agents or have come up with their own set of rules that you either have to ”take or leave” if you want work with them.

And from any government agent you can reach, they got a well memorized line that goes something like, “You have to form an association that can use to petition… lobby… the government doesn’t listen to individuals.”

In the meantime, someone’s getting paid every month!