I'm Just Saying.

My passion for IP was sparked by my fourth year LLB lecturer at the University of Fort Hare, Mr. Du Plessis. He walked into a 2pm IP class with a jar of marmite and a bottle of fanta. That was the beginning of my affair with IP.

I'm so passionate about it that my LLM thesis was based on IP related events and now I've been challenged to a rebuttal to respond to this article here, yes @kinyio is me.

Let me first say that copyright registration is a good idea, part of it anyway. However I don't believe its necessary. Lets look at it this way, the TRIPS agreement and Berne Convention tell us copyright protection should be formality free, this means that requirements such as registration of copyright before one can claim for infringement would go against these conventions.

Although there are countries such as the US which encourage registration of copyright, the standard rule is that copyright exists as soon as it is created and from then on your rights begin to flow. In the US registration of copyright enables the copyright owner to have a wider range of remedies should there be infringement and for works that originate from the US to have redress to the copyright infringement action, then the copyright has to be registered.

Registration makes things nice and tidy for the Government in terms of records of copyright material and copyright holders but for the owner of the copyright this just creates the illusion that your material is not yours until you register it. What happens then when someone copies your idea and rushes to have it registered before you?

Our copyright Act 2001 is drafted in such a way that copyright protection relies heavily on registration especially due to the introduction of the authentication device to be implemented by KECOBO and the KRA. This device was first thought to be a banderole system to track registered copyright goods. This could have easily been copied (ironic isn't it?) and fall prey of the very piracy it would seek to redress. I am more in favour (if you twist my arm that is) that a hologram system such as that implemented in Nigeria be used and am glad that recently the trend is that the device would be a hologram and bar code sticker system. The authentication device is meant to be for audio visual and sound works, and it appears that trading in these works without an authentication device would be illegal. Creating the question that if it is voluntary to register the copyright works why then would it be illegal to trade in goods that are not registered?

Its worth it to note that the UK did away with copyright registration back in the 1900s after the Copyright Act of 1911 came into play, this took away the almost perpetual right to copyright that was created by the trio of the Statute of Anne, the Star Chamber and the Stationers Company which granted licenses for printing of copyright works.

In a nutshell it seems the registration of copyright in Kenya is crucial if the Copyright Act 2001 is to actually work. The drafting of this Act seems to be geared toward the implementation of the authentication device to combat piracy. In my view there are other ways to combat piracy such as the new anti-counterfeit act, combining criminal offences and offering stiffer penalties and even convincing copyright holders to lower prices of their works to deter people from going for the fake stuff.