Rights in a Performance in Kenya

• Pages: 59-85
• Citation: (2013) IPLJ 59
• Published date: 16 August 2019
• Author: Ben Sihanya
• Date: 16 August 2019

59

RIGHTS IN A PERFORMANCE IN

KENYA

Ben sIHanya

*

Professor, University of Na irobi Law School

1. IntrODuctIOn

For a long time, the Kenyan and trans national legislative framework regarding

intellectual prope rty (especially copyright) did not recognise the r ights

of performers. Some scholars arg ued that this non-recognition of right s of

performers mig ht have been due to three reasons. First, the t ransitory nature

of performances meant t hat they could not satisfy the requirement of materia l

form that was widely considered to be a pr erequisite for the subsistence of

copyright.1 Second, a pe rformer’s i nterests were considered to be subserv ient

to the interests of the und erlying or ‘proper” rights holders: namely authors,

composers, and playwr ights.2 Third, it was claimed that p erformers are

protected i ndirectly by the entrepreneur ial rights; that those na ncially

responsible are best placed to pur sue imitators and that to give copyr ight to

all performers in a play, a l m or an orchestra would lead to unnecessary

co mple xit y.3

Currently, perfor mers in numerous cultura l eld s, for example, musicians,

singers, actors, and d ancers, among others, enjoy certain i ntellectual property

rights aimed at protect ing and promoting their perfor mances and the use

made of their work.4

This paper discu sses three aspects of rights i n performances in Kenya. First ,

the concept of rights in per formance and its various components in Kenya, as

well as its regional and tran snational legislative framework. This includes the

rights of a performer; t he rights of a director; a producer; or other key players

in the performa nce, xation, broadcasting, or reproduct ion of a pe rformance.

Second, the challenges emergi ng out of t he leg islat ive a nd pol icy f ramework,

* JSD (Stanford). Advocate of th e High Court of Kenya and forme r Dean, University of Nairobi

Law School. Mr Tim Waful a, Mr James Mbugu a, Ms Ndunge Wambua and Ms Ma rtha Ndung’u

provided useful research assistance.

1 Lionel Bently & Brad She rman Intellectual P roperty Law 3 ed (2008) 304. Se e Ben Sihanya

Intellectual P roperty and Innova tion in Kenya and Africa , Innovative Lawyeri ng & Sihanya

Mentoring, Nai robi & Siaya (forthcoming 2013) chs 8 & 10.

2 Bently & Sherman (n 1) 304. In Engl and, the Copyright , Designs and Patents Act , 1988 (as

amended), recog nises ‘dramatic works’ a s a specific category. In Keny a, a written play is a

literar y work; a performed play fall s under rights of a perfor mer (s 30 of t he Copyright Act,

2001) .

3 William Corn ish, David Llewelyn & Tanya Aplin Intelle ctual Property: Paten ts, Copyright,

Trade Marks and Allied R ights 2ed (2010) 584.

4 WIPO Guide on Sur veying the Econo mic Contribut ion of the Copyrigh t-based Indust ries (20 03).

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(2013) IPLJ 59

© Juta and Company (Pty) Ltd

as well as the current pr actice of rights in performance. Finally, the proposals

for reforming the national and i nternational regime in rights to per formance.

2. cOncePtualIsIng rIgHts I n PerfOrMance unDer transnatIOnal anD

kenyan law

Rights in perfor mance connote the rights that d ifferent natural and other

juridical persons e njoy over a p erformance of a literary or a musical work.5

It is still in its formative stages i n Kenya and most African countr ies. There

are ter minological, doctrinal, and conceptual difculties. There is not much

scholarship from a Kenyan or Af rican perspective on its key paramete rs and

scope.

Rights in perfor mances are rights related to and ad ditional to copyright.6

These rights exist pr imarily to protect and promote the interes ts and rights of

the key parties to the p erformance.

Literary works, musical works, a nd other works protected under copyright

laws are capable of being performed.7 Copyright a s a legal concept is a bundle

of rights that protects and p romotes the creators of literary, musical and ar tistic

works, as well as sound recordings , audio-visual works, and broadcasts.

The rights promoted und er copyright laws are divided into economic a nd

moral rights. The econom ic rights promoted and protected under copy right

include reproduction, dist ribution, communication to the public, ad aptation

and translation, pe rformance and broadcasti ng of the work.8 Moral rights

protected under copy right include the right to claim patern ity, the right

against false attr ibution, mutilation, distortion or modication of one’s work.9

This paper specically discusses the rights that the key pe rsons i nvolved in a

perfor mance enjoy.

Rights are entitlements (not) to perform cer tain actions, or (not) to be in

certain st ates; or entitlements that others may (not) perform certa in actions

or (not) be in certain states.10 Rights ca n be categorised into two: positive

rights and negative rights. T he holder of a negative right is entitled to non-

5 In this cont ext and under Kenyan and mo st African stat utes a ‘literary work’ in cludes poetry

and plays. Ben Siha nya ‘Constructing C opyright and Creativ ity in Kenya: Cultu ral Politics

and the Political E conomy of Transnational Int ellectual Proper ty’ (2003), thesis submitted for

completion of Juri dical Science Doctor (JSD) in Sta nford Law School.

6 Catheri ne Colston & Jonathan Galloway Moder n Intellectual Propert y Law 3ed (2010). Other

rights relate d to IP include databa se rights, rights rela ting to digital rig hts management (DRM ),

technological p rotection measure s (TPM) and rights man agement informatio n (RMI), public

lending righ ts, and artis ts’ resale royalty rig hts (or droit d’suite). See Bently & Sherman (n 1) 303.

7 UK l aw includes dramatic wo rks, and choreograph ic works.

8 P Sriv astava Copyright in Aca demic Libraries in Dig ital Environment (2008) 13.

9 As dis cussed below, the copyright a nd related laws of Kenya and the releva nt African count ries

focus on the rig ht to be named (pater nity right) and the free dom from modificat ion, mutilation,

distortio n or mutilation in a man ner that adversely affe cts the reputation or ho nour of the author

(or integrity r ight). Privacy rights a re not entirely clear.

10 Leif Wenar ‘Rights’ in Edw ard N Zalta (ed) The Stanford Ency clopaedia of Philosophy (2 011)

(2011). Availa ble at http://plato.stanford.edu/archives/fall2011/ent ries/rights/.

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