In an earlier post, this blogger asked the question: what is the duration of copyright where the owner of the copyright work is a juristic person? This question stemmed from an on-going discussion about a practice at the Copyright Office whereby corporate entities are permitted to register copyright works in their own names.
Two schools of thought emerged: on one hand, corporate authorship does not exist in Kenya therefore “company-produced” works are to be considered as pseudonymous works with the attendant consequences for expiration of copyright. on the other hand, corporate authorship can be presumed to exist and that the corporate entity will enjoy copyright protection in the same way as a natural person.
At the heart of this debate, is a fundamental question of statutory interpretation. What interpretation should be given to the words “author” and “person” in sections 2(1) and 23(2) of the Copyright Act? Should such interpretation have the effect of excluding juristic persons from the Act?
Interestingly, this month the High Court of Kenya delivered a judgment in the matter of Petition No. 278 of 2011 Nairobi Law Monthly Vs. Kenya Electricity Generating Company & Others, which goes further in limiting the “personhood” of corporate entities in Kenya. This judgment sheds new light on citizens’ right to seek information under Article 35 of the Constitution of Kenya, 2010. The case arose following a petition by Nairobi Law Monthly Limited, publisher of the Nairobi Law Monthly magazine, in which it contended that the refusal of Kenya Electricity Generation Company Limited (Kengen) to disclose some information it required constituted abridgment of the Publisher’s right to Information coupled with its freedom to publish information for the public.
The respondents in this matter argued, inter alia, that the use of the word “citizen” with regard the freedom to seek and obtain information under Article 35 of the Constitution meant that the right cannot be exercised by a natural person who is not a citizen or a company, which cannot be considered a citizen even if its shareholding and directorship is exclusively Kenyan.
The court, at paragraph 81 and 82 of the judgment, determined that the term ‘citizen’ can only mean a natural person who is a citizen of Kenya and therefore the petitioner is not a citizen for the purposes of Article 35 of the Constitution. The court fully concurred with an earlier ruling of Majanja J in the Famy Care Limited case that a body corporate or a company is not a citizen for the purposes of Article 35(1) of the Constitution.
The court found that Nairobi Law Monthly cannot claim to have corporate Kenyan citizenship. This blogger believes that this judgment provides some ammunition for the opponents of corporate authorship under copyright law in Kenya. With the fate of corporate citizenship resting with the appellate court, some may extend the reasoning of this judgment to reject the notion of corporate authorship. Statutory interpretation that favours the extension of personality beyond human beings to cover non-natural persons must carefully interrogate the consequences of such action. Therefore, perhaps it is time we revisited some of the consequences of corporate authorship including the real possibility of copyright protection in perpetuity, since companies unlike humans enjoy perpetual succession and their “death” would only be occasioned by winding-up or liquidation.