Legal Clinic: I need justice for my stolen work

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I am a writer, and I recently came across one of my articles on a reputable website bearing the name of someone else. 

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What you need to know:

  • The law concerning this kind of discourse is known as Intellectual Property Law, which gives people four forms of rights, including patents, trademarks, copyrights, and industrial designs.
  • In your case, we will speak to the concept of copyrights.
  • These are legal rights created by the law of the country to give creators of original work exclusive rights to use, distribute, and receive compensation owing intellectual effort for a given period of time, for as long as such works have been put into a written or material format.
  • In your case, infringement seems to have occurred, as authorship of the original works is claimed by another person.

Hello Eric,
Thank you for the good work on legal matters. I am a writer, and I recently came across one of my articles on a reputable website bearing the name of someone else. I was quite disturbed by it because it takes a lot of effort to write, and I wanted to be acknowledged and compensated. What steps can one take?

Dear reader,
Justice is the reason law exists, especially when applied to resolve conflicts. The dispute you raise is on Intellectual property that refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. The law concerning this kind of discourse is known as Intellectual Property Law, which gives people four forms of rights, including patents, trademarks, copyrights, and industrial designs. In your case, we will speak to the concept of copyrights. These are legal rights created by the law of the country to give creators of original work exclusive rights to use, distribute, and receive compensation owing intellectual effort for a given period of time, for as long as such works have been put into a written or material format. In your case, infringement seems to have occurred, as authorship of the original works is claimed by another person.
Your situation can be remedied since the Intellectual property law is founded in the Constitution of Kenya. Article 11 (2 c) obligates the state to protect or take such actions to promote the intellectual property rights of Kenyans. Pursuant to the Constitution is Section 2 of the Copyright Act No. 12 of 2001, which emphasises the rights of the original creator or author of any written works. An author is entitled to various rights over their work, and these include amongst others; the right to copy their work, the right to distribute copies of their work to the public, the right to publicly perform their work and the right to publicly display their work. Similarly, an author enjoys moral rights which consist of the right to be named and acknowledged as having authoured work and to object to its alteration, mutilation, or distortion. 
Section 22 (1) of this Act, provides works that can be copyrighted. This includes literature, book publications, articles, music, art, motion pictures, television shows, architectural works, computer programs and much more. Further, in Section 22 (5), it is provided that works become protected automatically once the author puts the ideas in a tangible form of expression, and non-registration of a piece of work does not bar a claim from an author. Section 31 provides circumstances under which exclusivity of original works diminishes: First is when an author’s original work is arrived at during a course of employment, assumedly being part of job actualisation as may be covered by their contract of service: and: second, when someone else, not necessarily the original author commissions the work. Save from this, Section 23 and 24 of the Copyright Act solely confer copyrights to the creator of the works.
The Court of Appeal in the case of Mount Kenya Sundries Ltd V Macmillan Kenya (Publishers) Ltd [2016] stated as follows: An author may produce copyright material in the course of his/her employment or may produce such material under the control or direction of an organisation. In that event, it is the employer or organisation which owns the copyright in the material so produced. However, if an individual without the consent of the author either distributes, copies, publicly performs, or carries out any activity which violates an author’s exclusive right, the same will amount to copyright infringement, as provided for at Section 35 of the Copyrights Act. The claim of infringement notwithstanding the weight of the action of the purported infringer must also be qualified as substantive and not trivial. In the Indian case of S.K. Dutt vs. Law Book Co. the court held, to sustain a claim for infringement of a man’s copyright, there must be a substantial infringement of the work and a mere fair dealing with any work falls outside the mischief of the Copyright Act. Also, In the case of Ringgold vs. Black Entertainment Television, the Court opined the copying of the protected material to be so trivial as to fall below the quantitative threshold of substantial similarity, which is always a required element of actionable copying.
In your case, there are two scenarios. If your works originated from a line of employment, then you have less room for a claim, not unless an agreement existed between yourself and such employer on how the proceeds or commercialisation of the works were to be handled, and so the employer is in breach. If the article in question is an original piece by you within strict exclusiveness outside provisions of Section 31 of the Copyrights Act, then you can make claim, by either approaching the website owners to resolve the grievance or institute a suit against them in the High Court claiming breach of copyright and orders compelling them to acknowledge you. You can also pray for both general and special damages.
Just as Nick Harckaway, author of the Blind Giant asserted, the connection of a creator to their works cannot be reduced or removed from their control and use, even if the same has been set loose into the world. Intellectual property laws allow such creators a line of exclusivity, and you have it. 
Mr Mukoya is a lawyer with over 17 years of experience. He's the Executive Director of, Legal Resources Foundation. Legal query? E-mail [email protected]
 

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