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How to Copyright Software in Kenya: A Step-by-Step Guide

Sources: The Copyright Act, 2001 (Cap 130, Laws of Kenya).

Table of Contents

1. Introduction

2. Eligibility for Copyright Protection

3. Registration of Copyright

4. Requirements for Copyright Registration

5. The Application Process

6. Post-Registration Procedures

7. Copyright Infringement and Remedies

8. Conclusion

1. Introduction

This guide outlines the process of copyrighting software in Kenya, drawing primarily from the Copyright Act, 2001. Copyright protection in Kenya is automatic upon creation of the software; however, registration provides several advantages, including evidentiary proof of ownership and facilitating legal action in case of infringement. This guide will walk you through the steps involved in securing copyright protection for your software in Kenya.

2. Eligibility for Copyright Protection

The Copyright Act, 2001, grants automatic copyright protection to original computer programs. This means that as soon as you create a computer program, it is automatically protected under Kenyan law. Originality, in this context, means that the work must be independently created and not merely a copy of pre-existing work. The Act defines a computer program as a set of instructions expressed in a language suitable for execution by a computer. This includes source code, object code, and other forms of expression of the program. (Copyright Act, 2001, Section 2).

• Originality: The software must be the author's own intellectual creation. It doesn't need to be novel or unique, but it must not be a direct copy of another work.

• Expression: Copyright protects the expression of the software, not the underlying ideas or concepts. Two different programmers could independently create software that performs the same function, and both would be protected by copyright.

• Fixation: The software must be fixed in a tangible medium of expression, such as a hard drive, CD-ROM, or online repository.

3. Registration of Copyright

While registration is not mandatory for copyright protection in Kenya, it is highly recommended. Registration provides several key benefits:

• Evidence of Ownership: A copyright registration certificate serves as prima facie evidence of ownership in court proceedings.

• Legal Standing: Registration strengthens your legal position in case of copyright infringement.

• International Protection: Registration can facilitate the enforcement of your copyright in other countries that are signatories to international copyright treaties.

4. Requirements for Copyright Registration

To register your software copyright in Kenya, you will need to provide the following:

• Application Form: A completed application form obtained from the Kenya Copyright Board.

• Software Description: A detailed description of the software, including its functionality, purpose, and unique features.

• Source Code: A copy of the source code of the software. This is crucial for demonstrating originality and establishing the scope of protection.

• Object Code: A copy of the object code, if applicable.

• Supporting Documents: Any other relevant documents that support your claim of authorship and originality, such as development logs, design documents, or witness statements.

• Fees: The prescribed registration fees payable to the Kenya Copyright Board.

5. The Application Process

The application process involves the following steps:

1. Obtain Application Form: Download the application form from the Kenya Copyright Board's website or obtain it from their offices.

2. Complete the Form: Accurately and completely fill out the application form, providing all the required information.

3. Prepare Supporting Documents: Gather all the necessary supporting documents, ensuring they are clear, legible, and well-organized.

4. Submit Application: Submit the completed application form and supporting documents to the Kenya Copyright Board, either in person or by mail.

5. Payment of Fees: Pay the prescribed registration fees as indicated on the application form.

6. Processing: The Kenya Copyright Board will process your application and review the submitted materials.

7. Certificate of Registration: Upon successful registration, you will receive a certificate of copyright registration.

6. Post-Registration Procedures

After registration, it is crucial to maintain records of your copyright registration and take steps to protect your software from infringement. This includes:

• Record Keeping: Keep a copy of your copyright registration certificate and all supporting documents in a safe place.

• Software Updates: If you release updates or new versions of your software, consider registering these separately to maintain comprehensive protection.

• Monitoring: Regularly monitor the market for potential infringements of your copyright.

7. Copyright Infringement and Remedies

Copyright infringement occurs when someone uses your copyrighted software without your permission. If you suspect infringement, you can take legal action to protect your rights. The Copyright Act, 2001, provides several remedies for copyright infringement, including:

• Injunctions: A court order requiring the infringer to cease the infringing activity.

• Damages: Compensation for the financial losses you have suffered due to the infringement.

• Criminal Prosecution: In certain cases, copyright infringement can lead to criminal prosecution, resulting in fines or imprisonment.

8. Conclusion

Copyrighting software in Kenya is a straightforward process, although registration is highly recommended to strengthen your legal position. By following the steps outlined in this guide and adhering to the provisions of the Copyright Act, 2001, you can effectively protect your software and safeguard your intellectual property rights. Remember to consult with a legal professional for advice tailored to your specific circumstances.