Edward Sigei: An owner’s failure to conduct succession to copyright works is an act of negligence

Over the years, I have noted that the estate of deceased artistes from the zilizopendwa golden generation have not been taken through succession.

Most of those artistes composed hundreds, if not thousands, of songs that continue to be played decades later. This is happening as the term of the right of producers of those sound recordings done before 1973 is expiring.

In copyright law, the songs are ripe for re-recording, subject to the authorisation of the use of the lyrical composition by the deceased’s estate.

Many young musicians admire the style of composition by these deceased artistes and would love to give it the modern touch. Indeed, many have recorded new versions without authority of the estate of the deceased artistes.

By neglecting to undertake succession, the proceeds of the estate cannot be accessed and any contractual arrangements entered into without undertaking succession are invalid for lack of capacity.

The process strengthens the claim of successors to be able to fight off and assert ownership against marauding pirates that can decimate the value of the property.

Succession enables the heirs to have a full inventory and value of the copyright assets of the deceased, to be able to manage it effectively. Delay in undertaking the process leads to loss of original documentation and dubious claims and family disputes following death of a parent or sibling. A succession process led by third-generation heirs is complicated and likely to delay.

I have observed cases of brinkmanship over submission of key documents like the death certificate or proof of ownership to enable the process to commence.

Worse, majority of the deceased artistes from that generation never settled their affairs by preparing a will or keeping records. The polygamous background of some of them adds to the complexity of the process.

While documenting compositions, for example, heirs and their advocates are forced to just assert that their kin wrote the songs without documentary evidence. This has led to families of such artistes to live in squalor as prize assets lie idle or are wasted by strangers.

The process of succession is straightforward; it should not take longer than 18 months if pursued diligently. The process can unlock proceeds held pending succession for essential expenses.

Succession cases are filed at either the Magistrate’s Court or the High Court, depending on place of residence of the heirs. It is important to seek the services of an advocate(s) for representation to ensure a complete process. This may be a significant barrier to many heirs. However, one can, alternatively, seek the support of the office of the Administrator (Public Trustee), which has a wide presence in the counties.

To unlock the issues that usually arise, let the process commence immediately after the burial of the deceased. This will deal with persons who mistakenly assume that copyright dies with the owner from invading the assets left behind.

All claimants to the estate must, as much as possible, be brought into the process. All parties with credible interest should be included. It is important to nominate an honest diligent person(s) to lead the process as administrators of the estate. They must bring as much details as possible into the cause as part of due diligence.

Where disputes arise, resolve them at the family or community level to avoid legal complications or lengthy and costly litigation.

It is important for an artiste to maintain records of their work and prepare a will. The registration of works at Kenya Copyright Board on nrr.copyright.go.ke and maintaining a file with all contracts is voluntary but desirable.

The certificate of copyright registration is one document that can be used to prove ownership in succession matters. Those intending to use works of older or deceased artistes must seek written authorisation from the estate.

Coming back to opportunities for author and composer families after the end of 50-year term of producer rights, it is key to identify the rights the deceased owned with specificity to be able to transact on behalf of the estate of the deceased. Most importantly, learning from the mistakes of the older generation, legal advice and guidance of the estate is essential if the property is to be of commercial value.

Considering that the rights in a copyright work are valid for a fixed term, families with pending succession issues should not delay.

- Mr Sigei is the executive director, Kenya Copyright Board. [email protected].