“If you don’t know what strategy to apply or what your rights are, how can you leverage, earn a living, and work as a professional?” is the question Kenya Copyright Board Executive Director Edward Sigei posed to delegates at the Third KECOBO forum on copyright & intellectual property held on October 3, 2023.
The forum, facilitated by German development agency GIZ, highlighted several ways Kenyan creative industry professionals leave money on the table and end up losing rights and income from their work.
With contributions from intellectual property (IP) lawyers and other regulatory government agencies, creative industry stakeholders also received insights on how to protect their work and what actions to take when their rights are infringed upon.
1. Not registering copyrights & IP with regulators
The World Intellectual Property Organisation defines IP as: "creations of the mind, such as inventions; literary & artistic works; designs; and symbols, names and images used in commerce."
IP is protected by law through patents, copyrights, trademarks, and trade secrets with the income generated from these commonly referred to as royalties.
Works that can be copyrighted include films, art, literary works, social media content and music. Software source code, industrial designs, utility models, NFTs, catchphrases and trade secrets can also qualify for protection.
Kenyan creators who often find that their work has been stolen and peddled by someone else have often failed to register their IP with the necessary regulators. In the country, these are KECOBO and the Kenya Industrial Property Institute (KIPI).
In addition, IP lawyers as well as media & entertainment lawyers can often assist with registering IP rights internationally.
2. Ignorance - not understanding the business of creative works
Creatives need to actively seek information and legal advice on how to protect earnings from their content and work.
According to David Muriithi, DJ DLite, most Kenyan creatives are yet to understand the importance of holding the requisite rights to their work. Furthermore, they don't know how to value their work and may often not understand the legalese used in the laws of Kenya.
Having built stellar careers of Nameless, Suzanna Owiyo, Kalamashaka, Gidi Gidi Maji Maji and others, Mr Muriithi advises creators to gain an understanding how business is conducted in the creative industry and seek legal advice in their dealings.
He also advised regulators to embrace local vernaculars such as Sheng' when educating Kenyans on copyright and intellectual property.
3. Not investing in marketing
Creative industry professionals also neglect the importance of marketing and advertising for their work.
Stakeholders at the forum pointed out that more than just producing valuable IP and proceeding to protect them with copyright, creating demand for the products is what guarantees steady and increasing royalties from the works.
Market research can also help creators develop products that are already in demand from their audiences.
4. Sharing original ideas without proof of ownership
Speaking at the forum, lawyer and IP consultant Wandiri Karimi clarified that most Kenyan creatives lose income from their work at the idea stage by openly sharing them before they are copyrighted.
Wandiri's advice to creators is to first obtain a protective right for their work before pitching it to potential partners. For example, a filmmaker should develop and copyright a pilot before pitching it to potential partners and in that way safeguard against theft of their idea.
Lawyer Katee David, who represented Nonini in a recent suit against influencer Brian Mutinda, also advised creators to be vigilant in monitoring how their work is used. In that way, they can take action against individuals or entities that infringe on their rights.
5. Regulators offer assistance to creators in copyright matters
Creators are often not aware that government agencies have a mandate to assist in protecting intellectual property rights.
KECOBO, for example, does not charge for consultation on matters of copyright. The Board can also assist in mediation in cases where there's been copyright infringement.
CopyRightX, a free course offered by The GoDown in Nairobi, is also resourceful in helping creators understand copyright laws.