Stealing ideas from interviewees can lead to costly lawsuits

Hi Eric

My son just graduated from university and has been job hunting. Last month he attended a rigorous interview that involved him sharing samples of his work. He is a graphic designer. After engaging him in three rounds of interviews, he was not hired. However, he shared a lot of ideas and I suspect the company used him to harvest design concepts. Can he sue if they use his ideas despite not offering him a job?

Hi disturbed parent,

This conversation is motivated by some of the epistles written or said by Mahatma Gandhi in what he names the seven deadly sins.

Listening to the story concerning your son, in particular the interview processes, despite the eventual outcome, one gets to understand the importance of honesty in dealings, irrespective of the nature of a relationship.

Law in its application seeks, creates and sustains equality of purpose across people and their relationships, not necessarily to rationalise their actions, behaviours or attitudes, but invalidate what discriminates or potentially causes oppression.

The matter you have raised is known as Intellectual Property, which is an area in and of law that protects and promotes creations of the mind.

There are two branches of intellectual property namely, industrial property and copyright. Industrial Property, which is a mandate of Kenya Industrial Property institute within the realm of Trade Marks Act and Industrial Act, consists of trademarks, patents, industrial designs, utility models, service marks, and layout designs of integrated circuits, commercial names, geographical indications and protection against unfair competition.

However, on protecting varieties of seeds and plants, Kenya has enacted the Seeds and Plant Varieties Act, which may be different in other countries.

Copyright, is a form of intellectual property that gives authors (creators of works) exclusive rights to deal with the works in whatever manner permissible under law, related to literary, artistic and musical works.

These books, computer programs, music, films, photographs, art, and sculptures among others.

There is a presumption in law that such works under intellectual property are produced with various aims, which lead to societal development, at two gain levels.

First is the gain that the originator of such works receives for their efforts in making the works a reality; and second is the satisfaction or benefit by the larger society.

This is where two of Mahatma Gandhi’s epistles come into play. First, he decries how fraudulent it is, for anyone to acquire wealth without prerequisite work.

Similarly, he opined that pleasure without conscience is as dangerous. This lays the ground for the limitations of each action that is done by man.

Article 11 (2-c) provides for the promotion of intellectual property rights of the people of Kenya by the State.

Specific to your son’s incident, the Copyright Act provides for the protection of works like his. Pursuant to Article 11 (2-c) of the Constitution is Section 22 (1) of the Copyright Act which identifies all those works that qualify for copyright.

This comprise of (a) literary works; (b) musical works; (c) artistic works; (d) audio-visual works; (e) sound recordings; and (f) broadcasts.

However, literary, musical or artistic works are not eligible for copyright unless; sufficient effort has been expended on making the work to give it original character; and such works have been written, recorded or otherwise reduced to material form, as stated in Section 22 (2) of the Copyright Act.

Such works require to be registered under the Kenya Copyright Board (KECOBO). For one to register, they must meet the following conditions: that their work(s) are of original authorship and are in a tangible format.

This is then submitted in two copies alongside the application form, which must have been duly filled and commissioned by a Commissioner for Oaths.

Upon payment of the prescribed fee, KECOBO will, as their mandate, verify the application and issue the applicant with a certificate of registration.

Your son has every right to sue, if such material is used by any other person not himself and without his express permission, for as long as he had registered the same as required by law.

Should he move the court he may pray for the granting of his economic and moral rights. The economic rights, if granted should allow him to derive financial benefits from the use of the works, such as distribution to the public of the work by way of sale, rental, lease, loan, importation or similar arrangement; reproduction of the work; communication to the public; broadcasting of the whole work or a substantial part thereof either in its original form recognisably from the original.

Moral rights, if granted, will include the right to claim authorship of the work (paternity right) and the right to object to distortion or modification of the work or any action that is detrimental to the owner’s reputation or honour (The right of integrity).

Even then without a court of law, it is decent for one to remember, Mahatma Gandhi’s caution, that knowledge without character is not far off, commerce without morality.

Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]