QOTD: Corporate Authorship and Duration of Copyright in Kenya

kenya application for registration of copyright form KeCoBo
Today’s Question of the Day (QOTD) is on the duration of copyright where the author of the copyright work is a juristic person.
Authorship is at the core of copyright law. It determines ownership of copyright in the first instance. It provides a defence to alleged infringement. Most importantly, authorship determines the duration of copyright.
Section 2(1) of the Copyright Act defines an “author” in relation to the various categories of copyright works as a “person”
Section 23(2) of the Act states that copyright lasts for 50 years after the death of the author. The duration of copyright is computed from the end of the year in which the author dies for literary, musical and artistic works excluding photographs. The length of copyright protection is measured by reference to the human author’s lifespan.
The cumulative effect of these two sections of the Act would be that the word “person” refers only to a natural person, since the length of copyright protection is measured by reference to the human lifespan.
However, the current practice and procedures for copyright registration in Kenya allow for both natural and juristic persons to be applicants as well as authors for the purposes of copyright registration. Where the application for registration of copyright is successful, the copyright registration certificate issued by the Kenya Copyright Board (KeCoBo) may be in the name of either an individual or a company.
The question then arises, how long does the copyright last where the author is a juristic person and not a natural person?
Given that a juristic person, unlike a natural person, enjoys perpetual succession, does this mean that copyright in works of corporate authorship exist in perpetuity never to expire?
United States copyright law has a notion of cor­por­ate author­ship. Corporate authorship refers to “company-​​produced” works, so to speak, where for instance a bunch of employees develop a software or another copyrightable work that is owned by the employer and registered in the name of the employer. For works of cor­por­ate author­ship in the US, copy­right expires 120 years after cre­ation or 95 years after pub­lic­a­tion, whichever is earlier.
Meanwhile here in Kenya, this blogger is still wondering what is the date of expiry of copyright in cases of corporate authorship. In the absence of any legal or policy guidelines, this blogger is inclined to believe that the expiry of copyright in works of corporate authorship in Kenya must be guided by the provisions of section 23(3) of the Act, therefore such works would be considered as anonymous or pseudonymous works whose copyright expires fifty years from the end of the year in which the work was first published.
Over to you, esteemed readers, what are your thoughts on today’s QOTD?

  1. Caroline W. Muchiri (@Karolainnem)
    Caroline W. Muchiri (@Karolainnem)
    I disagree with your inclination basically three folds:- 1. The absence of legal provision (s) (which i also admit is lacking) in regard to works created by corporations should not be used as a way of denying them the same rights vested in Individuals and for the same period of time. In which case, that would act as demotivating factor in corporations creating copyright-able works; 2. Among the many reasons that individuals incorporate legal entities (companies, trusts, NGOs, LLPs etc) is because they have perpetual succession. For the assurance that these entities will survive them as their founders and be treated in all legal aspects as bodies with perpetual succession and as bodies separate from their founders. Then why limit the length of time that these bodies ought to enjoy their copyrights? If they created the work and they are the author (s) they should benefit from the legislation available. 3. Section 23 (3) has a proviso as to where the identity of the author becomes known that the calculation of the years have to be in accordance with subsection 2. The Corporate is not a pseudo name neither is it unknown. I agree that having the copyright in perpetuity has many downfalls but currently in our Copyright Act, the interpretation that could be had is that the life of the corporate (the person as per section 23 and the author of the work) is perpetual and hence the copyright exists until the corporate 'dies' = wound up. In proprietorship of land, the ownership is limited to specific period for all. Then why cant we have the same for copyrights being intangible property? For the length of the copyright to be from the day of creation and for a specific length of time for all persons whether juristic or natural persons. #mythoughts
    • victor (@vcnzm)
      victor (@vcnzm)
      If I may respond: 1. I highly doubt that an interpretation of the Act that allows corporates to enjoy copyright for 50 years after date of publication would be a demotivating factor. 2. The assurance of perpetual succession is not a compelling enough reason to argue for perpetual copyright! 3. The argument for pseudonymous works relates not to the corporate as the owner but the fact that there is no ascertainable human author or joint author who's HUMAN lifespan can be used to determine the expiration of copyright. Finally, I believe that there is no credible justification for equation the death of a human author with the winding up of a corporate author for the purposes of determining the duration of copyright.
  2. Perpetua N. Mwangi
    Perpetua N. Mwangi
    Four years after this blog post, I find myself in a situation where I have to advise a Client on the duration of Copyright for literary works in the name of an incorporated Trust. I am inclined to agree with the author herein that Copyright in the name of corporate bodies cannot and should not enjoy rights in perpetuity. For starters, if corporate bodies are allowed to own rights in perpetuity, it will create a situation where bodies will simply be incorporated to ensure rights are enjoyed for as long as the body exists and that would greatly interfere with the Public Domain. In my view, Section 23(3) of the Copyright Act may be used to interpret the duration of copyright works in the name of corporate entities.
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