Copyright infringement occurs when a person who, without the licence of the owner of the copyright:
- Does, or causes to be done, an act the doing of which is controlled by the copyright; or
- Imports or causes to be imported, otherwise than for his private and domestic use, an article which he knows to be an infringing copy.
The rights of a performer are infringed by a person who without the consent of the performer:
- Does, or causes to be done, any act specified in Section 30 of the Copyright Act.
- Imports or causes to be imported, otherwise than for his own private or domestic use, an article which he knows would have been made contrary to Section 30 had it been made in Kenya by the importer.
Copyright and related rights are infringed by any person who:
- Circumvents any effective technical measure designed to protect works.
- Manufactures or distributes devices which are primarily designed or produced for the purpose of circumventing technical measures designed to protect works protected under the Copyright Act.
- Removes or alters any electronic rights management information.
- Distributes, imports, broadcasts or makes available to the public, protected works, records or copies from which electronic rights management information has been removed or has been altered without the authority of the right holder.
Reliefs for Copyright Infringement
It is important to note that an infringement of any copyright protected right under the Copyright Act, 2001 is actionable at the suit of the owner of the right.
The following reliefs are available to any such plaintiff:
- The relief by way of damages, injunction, accounts or otherwise that is available in any corresponding proceedings in respect of infringement of other proprietary rights.
- Delivery up to the plaintiff of any article in the possession of the defendant which appears to the court to be an infringing copy, or any article used or intended to be used for making infringing copies.
- In lieu of damages, the plaintiff at his option, be awarded an amount calculated on the basis of reasonable royalty which would have been payable by a licensee in respect of the work or type of work concerned.
- The court may direct an enquiry to be held for the purpose of determining the amount of damages or a reasonable royalty to be awarded and may prescribe such procedures for conducting such enquiries as the court considers necessary.
Point to Note
Before the owner of a copyright institutes any proceedings they are to give a notice in writing to the exclusive licensee or sub-licensee of the copyright concerned of the intention to do so, and the exclusive licensee or sub-licensee may intervene in such proceedings and recover any damages he may have suffered as a result of the infringement concerned or a reasonable royalty to which he may be entitled.
REFERENCES
Copyright Act 2001, Chapter 130 Laws of Kenya
