Intellectual rights: Why artists and lawyers have to rumba
By Imende Benjamin
Artists have to embrace professionalism and networks in order to grow and capitalize on the available business opportunities in the entertainment industry. Intellectual property experts contend that legal protection for artists’ work offers a critical business model that holds promise to a better future for artists.
“Most artists focus on creativity, leave out legal protection and forget the business part, which is more important to generate jobs and contribute both to an artist’s individual life and the economic empowerment at large,” says June Gachui, principal of Intellectual Property (IP) Boutique.
She says performers should understand the creative art business requirements in order to maximize on profits. “For every stage throughout the creative work we must have a transfer or license to protect our work as people in the creative work business.”. She adds that it is important to keep track of minutes and emails, which can be used as evidence in case of litigation.
However speaking to The Nairobi Law Monthly some artists felt the problem is bigger than the lawyers think, arguing that the industry did not have requisite structures to enable them work closely with lawyers.
Popular artist who features on several local soap operas Gerald Langiri says that artists experience “serious bullying” at the hands of other industry players who pocket millions of shillings from their work yet they struggle to make ends meet. “The industry is controlled by few cartels, and the lack of a standard legal framework to support creative work.”
“Producers take too long to pay or even don’t pay and yet our work is already on the market. Piracy and sex harassment rampant but many of the artists do not know how to go about it in order to deal with it,” says Langiri.
Langiri states that an artist risks by being blacklisted if he/she sues a producer. “We are paid as little as sh60,000 for five (TV) episodes. This is very little amount for you to engage a lawyer if your intellectual right is abused,” says Langiri.
The actor says that producers in most cases ambush them with contracts without giving them time to go through or get a lawyer to help the artists. “If you delay to sign other artists are lined up for that role,” says Langiri.
However Gachui argues that labour unions can help resolve such challenges. She urges artists to come up together and form strong organized associations that would empower them to collectively champion their rights.
According to Gachui, such bodies would set standards and encourage competition and hence quality music. “They will have to create a revolution so that their clients can take them seriously and respect their work.”
“Artists should do a good research to understand market needs and requirements, and areas that require the protection of intellectual rights,” says Gachui, a practicing advocate. “It will help you have a binding contract that will protect you in a court or any legal stage when someone violates your intellectual rights.”
Gachui says that having competent agreements on every stage of production is a cheaper investment compared to court litigation or the lack of contracts to protect their interests. “You have the ground for you to argue your case and protect your interests. The paperwork is thus important.”
Gachui says that terms for hiring lawyers vary depending on the type of the case, lawyer’s interests and the artist’s relationship with the advocate. She challenges artists to consider a lawyer’s past record and the field of specialization.
“Knowing a lawyer’s area of specialization is important. I once had a client to represent in court but his contract suited a car dealer. His previous lawyer who developed the contract deleted the word car to replace it with ‘production work.”
James Okeyo of Muthoga Gaturu and Company Advocates adds that “people will respect your work if you effectively use the law to protect it”.
“Let’s sue and sue again and again that’s the only way the law will be interpreted,” says Okeyo. He contends that through continuously challenging the issues in court, they will interpret the laws and create clarity which is currently missing.
Kikao IP founder, event organizer and consultant Liz Lenjo says that artists have an option of retaining professional services in a production. Kikao IP is a pro bono legal forum that brings together the creative industry stakeholders, including lawyers, government officials, artists and consumers. “As an artist, you need to embrace legal protection to secure your intellectual rights. This is the safest way to reduce conflicts with producers and other interested parties.”
She adds, “We need to embrace different business models to have a successful creative industry in Kenya. Different markets different needs.”
However she argues that there is a misconception that lawyers are unaffordable. “It’s false. As entrepreneurs, artists need lawyers just like any other business entities and it’s actually easier to capitalize on their services to maximize on profits,” says Lenjo.
An intensive study on Intellectual Property rights by Prof Japhet Otike of the Moi University argues that IP protects and promotes creations of the mind. It protects creative efforts. He further explains that IP comprises copyright, patents, trademarks and industrial designs.
“Authors have to stop others reproducing their work without their consent. It gives the authors monopoly to enjoy the fruits of their labour,” says Prof Otike. “Copyright duration is 50 years. In case of literary materials, it is 50 years after the death of the author.”
The purpose here is to enable the authors or producers to be compensated for the cost, time and effort that went into producing the work.
According to Prof Otike, piracy sustains quite a number of people in developing countries. IP abuse in Kenya has had a negative effect on foreign direct investment and discouraged the growth of local entrepreneurship. “It is estimated that rights holders in Kenya lose about Sh30 billion annually in counterfeit and piracy.”
In the study he says that problems encountered in fighting piracy include lack of public awareness about copyright law in general and piracy in particular.
“Lack of training and awareness on copyright by copyright owners, too, has worsened the problem. Many rights owners do not know what they are entitled to under the law. Similarly, many of them are not aware of copyright exceptions and limitations provided by the law. They believe that copyright law restricts everything”
Prof Otike adds that there is weak co-ordination between various people involved in the management of copyright in Kenya. These include the police in their capacity as law enforcement agents, the Kenya Copyright Board, and the rights holders, that include among others, the publishers, authors and collective management organizations.
The expert states that high cost of litigation makes it hard for ordinary rights holders to take the suspects to court for infringement of copyright. “The cost of hiring good lawyers are unbearable to an ordinary citizen.”
Widespread unemployment among the youth has boosted piracy. “A good example is the hawking of pirated music in the form of CDs, DVDs, and compact cassettes in bus stations, restaurants, etc. Since the government cannot guarantee the youth jobs, and since whatever they do, does not affect public security, the government prefers to keep mum until they alerted by the rights holders,” the scholar says.
The Kenya Copyright Board is responsible for the administration of the Copyright Act. “Both fines and jail term have been reviewed upwards up to Sh100,000 for fine and/or two years imprisonment for first offenders,” says Prof Otike. Police have powers to inspect premises they suspect are used for piracy, arrest and charge perpetrators.
The law provides compensation for the affected parties, payable from fines awarded by the courts.
The Act has introduced “Anton Pillar Orders.” This allows the copyright owner, if he has sufficient evidence that an infringer is pirating his work, to get orders from the court to enter his premises where the pirate materials are suspected to be kept and confiscate them in order to avoid further infringement and preserve the evidence,” says the Moi University lecturer.
However, he points out several weaknesses in the law. For instance, the Kenya Copyright Board which is supposed to comprise all stakeholders in the publishing industry, is heavily dominated by copyright owners.
“There is no single representative from information professionals namely, librarians and archivists. This makes the Board biased towards copyright owners. The Board is supposed to strike a balance between the interests of copyright owners and those of the users.”
The chair of the Board has since its establishment in 2001, been headed by a publisher.
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