Kenya: Look no further than the Copyright Act to expand the layer of IP protection

While a 3D trade mark registration of labels and/or packaging used in relation to products sold in the Kenyan market should provide the owner thereof with sufficient intellectual property (IP) protection, owners may add a further layer of IP protection in the labels through copyright in terms of the Copyright Act, 2001 (the Act).

Copyright is a form of intellectual property that gives authors (creators of works) automatic and exclusive rights to deal with the works in whatever manner permissible under the law. To qualify as a work in terms of the Act, the work must be original (not copied) and in a tangible form (written down), including in digital form for example CD, books, music cassettes.

Section 22(1) of the Act defines seven works which are eligible for copyright protection or related rights (subject to compliance with the prescribed conditions), being literary works, musical works, artistic works, dramatic works, audio-visual works, sound recordings, and broadcasts.

In practice, product labels and packaging can be categorised as both literary and artistic works.

Section 22(3)(a) and (b) provides that a literary, musical or artistic work will be eligible for copyright if sufficient effort has been applied on making the work to give it original character, and it has been written down or reduced to material form. Therefore, provided these conditions have been met, the creator of a product label and/or packaging should enjoy copyright protection for these works (subject to exceptions for commissioned works or works created in the course and scope of the creator’s employment).

Section 22A of the Act further provides for the voluntary registration of copyright in Kenya in order to assist with the proof thereof.

The Act safeguards the copyright in eligible works and encourages innovative ideas for the creators and owners of the works to ultimately profit from them.

Our team of experts would gladly provide further assistance and guidance on possible copyright protection in Kenya in terms of the Act.

Aletia Oberholster and Adré Pretorius