Property law is concerned with the bundle of rights a person may have on land. Such rights may be exclusive or otherwise.
Property law defines the range of functions a person may exercise in a given situation at a given time. It confers proprietary rights and imposes obligations on owners/holders of land.
Land includes physical strata, water all things growing on it, buildings or other things permanently annexed on the land.
Common law conception of land is based on the maxim cujus est solum which literally means that land encompasses more than just the soil. It includes all things found in the aerospace above and the geospace below. Land includes all the permanent fixtures. The common law conception of fixture is expressed by the maxim Quic Quid plantatur solo solo codit which literally means whatever is attached to land belongs to the land.
At common law, fixtures were deemed to be part of the land and could not be removed. However, this principle was modified and certain categories of fixtures could be removed e.g.
Trade fixtures to enable a tenant carry out his trade
Ornamental and domestic features if they did not cause substantial damage to land
Agricultural fixtures could be removed from 1948
The common law principles of applies in Kenya‟s property law, however it has been modified by statute law e.g. The Water Act,1 The Mining Act, The Way leaves Act2 and The Agriculture Act.
POSSESSION AND OWNERSHIP
Whereas ownership signifies title or a bundle of rights exercisable with respect to the subject matter, possession is the mere right to hold and may be actual or constructive.
Ownership confers proprietary rights.
However, in certain circumstances, possession may confer the right to use.
Ownership of land may take three forms:
1. Sole ownership
2. Joint ownership
3. Common ownership
SOLE OWNERSHIP
The land in question is owned by one person who exercises all the rights in relation to it
JOINT OWNERSHIP
A situation where property is owned by two or more persons. It enjoys all the characteristics of a single owner. Proprietors have no individual shares in the property. Joint ownership is characterised by four unities namely:
Unity of title
All the persons derive title from the same title
Unity of possession
All the persons are entitled to each and every part of the land. They have the same rights to use any part of the land.
Unity of interest
All the owners own a similar interest in nature, extend and duration
Unity of time
The interest of the owners commences at the same time
Jus Accresscendi / Right of ownership
Means that when a proprietor or owner dies, his interest vests in the survivors. In a joint ownership, interest in the property cannot be disposed off by will or by intestacy. At common law, if joint owners die together, the younger is deemed to have survived the older
COMMON OWNERSHIP
This is the ownership of separate but undivided shares in the land. It does not confer the right of survivorship and a common owner can transfer his share to others with consent of the other owners. Common ownership terminates when the land is sold or partitioned
INTEREST IN LAND
It may take any of the three forms:
1. Estate
2. Servitude
3. Encumberances
ESTATE IN LAND
An estate in land may be freehold or leasehold.
FREEHOLD ESTATE
Confers a bundle of rights exercisable for an indefinite duration. It may be acquired by inheritance or otherwise. The rights it confers can be transmitted to future generations.
Freehold estates include;
Free simple
Free tail
Absolute proprietorship
1. FEE SIMPLE
This is the largest freehold estate a person can have on land at common law. It confers the largest quantum of rights. It confers unrestricted right to use, misuse and to dispose. In the event of death, the rights are transmitted to the person entitled to inherit the estate failing which it escheats to the state. No conditions are attached as to its inheritance. Holder can dispose it bydeed or by will, wholly or in part, conditionally or unconditionally.
The holder of a fee simple is entitled to commit waste on the land. Waste may be:
a) Ameliorating waste – Consists of acts which improve the value of land.
b) Permissive waste – Consists of acts not detrimental to land
c) Voluntary waste – Consists of acts detrimental to land
d) Equitable waste – This is wanton destruction of land.
Creation of Fee Simple
This estate may be created by:
i. Grant:- if it is transferred by one person to another
ii. Inheritance: – if inherited from a deceased
iii. Enfranchisement; – applies to agricultural leases where the government on expiration of the term of the lease, converts it to a freehold estate
2. FEE TAIL
A freehold estate which confers a life interest on the holder. Descends only to specified persons.
Confers the right to determine the person or persons entitled to inherit. The estate is generally created by inheritance
3. ABSOLUTE PROPRIETORSHIP
Created by Sections 27 & 28 of The Registered Land Act CAP 300.
Section 27 provides inter alia upon registration, the owner acquires all the rights and privileges associated with such ownership. These rights include right to use, misuse or dispose. The rights of the registered holder cannot be defeated unless as provided for by the Act. The person to whom the land is registered becomes the absolute owner to the exclusion of all others. This estate is illustrated by the decision in Obiero V. Opiyo. The registration terminates all customary rights previously exercisable on the land.
Creation of Absolute Proprietorship
i. Registration after Adjudication
ii. Conversion from other registers
iii. Transfer
iv. Inheritance
v. Consolidation
EXAMPLES OF FEE SIMPLE
• Life Estate
An estate which lasts for the life of the grantee and is created by inheritance. Death of the grantee terminates his interest
• Estate Pur Autre Vie
An estate in the life of another. It lasts for the life of that other person and lapses on his death. May be created by Express Grant or Assignment
It is a freehold estate but reverts to the grantor when the person dies. Person on whose life the state is measured is the Cesqui que.
LEASEHOLD ESTATE (Tenancy)
Lease refers to a transaction which creates the relationship of landlord and tenant between the grantor and grantee. The formal document by which this is done is a lease.
Leasehold is the quantum of rights which a lease grants to the lease. It is a secondary interest in land derived from a primary interest. Confers upon the leasee / tenant exclusive possession of another land.
CHARACTERISTICS OF TENANCIES/ LEASES
1. Exclusive possession
A tenancy confers upon the grantee/ tenant the right to hold the interest to the exclusion of all others. Means that no other person has an equal right to it. It was so held in Helcht V. Morgan.
2. Defined premises
The premises to which the tenancy or lease refers must be defined or ascertained. It must be identifiable by reference to the agreement. It was held in Heptulla V. Thakore.
3. Certain period
A lease must commence at and exist for a certain period or for a period capable of being ascertained. It was so held in Marshalls V. Berridge
4. Scope of grant or Quantum of Rights
The bundle of rights conferred by a lease must be definite or capable of being defined.
The leasee must know the rights exercisable under the lease.
TYPES OF TENANCIES OR LEASES
•Fixed Tenancy
A tenancy created for a fixed duration. Its commencement and termination must be specified. Such a lease determines when the duration expires
• Periodic tenancy
Tenancy / lease which continues indefinitely from a period to period e.g. 1 year. Such a lease may be express or implied. Its duration is not specified and it may arise if a fixed period tenant remains in possession and continues to pay rent.
• Tenancy at will
Tenancy whereby the tenant occupies premises on the terms that either party may determine the relationship at any time. The tenancy terminates in the event of death of either party or committing an act inconsistent with the tenancy.
• Tenancy at sufferance
Arises whenever a fixed period tenancy holds over or remains occupation without the landlord‟s consent. This tenancy is created by operation of law. If landlord accepts rent, it becomes a periodic tenancy. However, the tenant may be ejected at any time without notice.
•
Service tenancy
Created to enable the tenant perform a particular service. The occupation is necessary for performance of the service; however the tenancy terminates on determination of employment.
Under the Law of Contact Act CAP 23, a lease or tenancy must be evidenced by some note or memorandum hence the creation of a lease is subject to formalities. Under the Indian Transfer of Property Act (ITPA), a tenancy exceeding 1year must be registered. Under the RegisteredLand Act,a tenancy exceeding 3years must be registered. An unregistered lease will only bindthe parties to it. It is VOID as against 3rd parties.
OBLIGATIONS OF THE PARTIES
A tenancy/ lease imposes upon the parties certain legally binding obligations.
DUTIES OF LANDLORD/LESSOR/GRANTOR:
1. Duty not to derogate from the grant
He must not do anything inconsistent with the tenancy or lease. These are acts likely to render the premises unfit for the purpose for which they were rented.
2. Duty to ensure quiet enjoyment
The landlord, his servants and agents must not interfere with the tenant’s enjoyment of the premises. Tenant is entitled to peaceful occupation without unlawful interference or interruption.
3. Duty to grant premises fit for purposes Landlord must ensure that the premises let are fit for the particular purpose for which it is let.
4. Duty to suspend or adjust rent
If the premises or part thereof is destroyed/ damaged without the tenants negligence rendering it wholly or partially unfit for occupation or use, the lessor is bound to suspend or adjust rent depending on the nature of damage until the premises are rendered fit for use or occupation.
5. Duty to repair
As a general rule, it is the duty of the lessor to repair the roof, main walls, main drains, common passages and installations. This duty is statutory if only part of a building is let
6. Duty to put the tenant in possession
The lessor is bound to hand over to the lessee, the mains which enable him enter into occupation.
DUTIES OF TENANT/LESSEE/GRANTEE:
1. Duty To Pay The Rent Reserved
It is obligation of lessee to pay the rent as agreed. Such rent is payable irrespective of occupation.
2. Duty To Pay Rates And Taxes
Lessee is bound to pay all rates and taxes except where the landlord is under statutory obligation to pay.
3. Duty Not To Commit Waste
Lessee is duty bound not to commit waste i.e. he must not do anything which reduces the value of the premises. Fixed term tenants are liable for voluntary and permissive waste.
4. Duty not to transfer, sublet or part with possession
As a general rule, the lessee must not transfer, sublease or charge the premises without the lessor‟s written permission.
5. Duty To Permit Landlord To View The Premises
It is the duty of the lessee to enable the landlord appreciate the condition of the leased premises. The obligation is generally implied where the lessor is bound to repair the premises.
6. Duty To Make Reparation For Any Breach
The lessee is bound to repair and make good any defect or breach of agreement for which he is to blame. Reparation must be made within reasonable time as may be specified by a notice given by the lessor.
7. Duty To Make Material Disclosure
The lessee is bound to inform the lessor of any external interference by third parties or of any action he is about to take which affects the value of the premises
8. Duty Not To Erect Fixtures
The lessee must not, without the lessor’s consent erect any permanent structures on the property. However, structures erected for agricultural purposes are permissible
9. Duty To Put The Landlord In Possession
It is the lessee’s duty on expiration of the lease to put the lessor in possession of the leased premises.
If a tenant is guilty of breach of terms of the lease e.g. non-payment of rent, landlord has an action in damages or may distress the tenant pursuant to the provisions of the Distress for Rent Act3.
TERMINATION OF TENANCIES/LEASES
A tenancy agreement may terminate in the following ways:-
• By Notice
Applicable where the tenancy is for a fixed duration or where either party desires to terminate the leases before the duration expires. The notice must sufficiently indicate the parties intention to terminate the lease.
• Lapse Of Time/ Expiration Of Time
A fixed period tenancy terminates on expiration of the duration
• Forfeiture
This is the right of the lessor to re-enter the premises and there-by prematurely determine the lease in the event of certain breaches. The lessor may do so pursuant to a forfeiture clause or in accordance with the provisions of the ITPA or Registered Land Act e.g. If the lessee is bankrupt or insolvent or upon the winding up of the company
• Surrender
The giving up by the tenant, to the landlord, of the leased premises. Express surrender must be made in a prescribed form
• Merger
Under the ITPA and Registered Land Act, a lease determines if the lessee or some other person becomes entitled to the property as of right. A merger must be express.
• Enlargement Or Conversion
A lease determines if it is converted into some other interest e.g. freehold in accordance with the law.
• Frustration
As a general rule the doctrine of frustration does not apply lease agreements. However, a lease is terminable by frustration if the property or part therefore is rendered unusable.
• Disclaimer
This is the right of the lessee/tenant to disclaim the lease. He can only do so if authorised by statute. On doing so the lease terminates.
A Lease differs from a Licence in that traditionally, licence is permission given by the occupier of land which without creating an interest in the land allows the licensee to do some act which would otherwise be a trespass.
A licence does not confer the right to exclusive possession of the land. It is a mere permission by a party to another to enter upon the licensor‟s land. It does not require any writing or registration and is not transferrable
SERVITUDES
These are rights in alieno soloi.e. a right conferring a power on another‟s land for the benefit of the right holder or his estate.
At common law, servitudes include:-
(i) Easements
(ii) Profit apprendre
(iii) Restrictive covenants
EASEMENTS
right attached to a parcel of land which allows the proprietor of the land either
To use the land of another in a particular manner
To restrict its use to a particular extent.
An easement may be positive or negative. It is positive if it authorises the use of another‟s land in a particular way. It is negative if is restricts that other in the use of his land.
CHARACTERISTICS OF AN EASEMENT
1) There must be a dominant and a servient tenement
There can be easement properly so-called only if there be both a servient and a dominant tenement. An easement must be connected with the dominant tenement.
2) Dominant and servient tenement must be owned/ occupied by different persons
This is because an owner cannot have an easement over his land. It has been observed that in order to obtain an easement over land, you must not be the possessor of it for you cannot have the land itself and also an easement over it.
3) Easement must accommodate the dominant Tenement
What this requires is that the right accommodates and serves the dominant tenement and is reasonably necessary for the better enjoyment of that tenement.
4) Easement must be capable of forming the subject matter of the grant
This characteristic means that the easement must be capable of being granted by deed hence there must be:-
A capable grantor
Capable grantee
The right must be sufficiently definite
Right must be of a nature capable of being granted.
An easement differs from a licence in that it is a proprietory interest attached to the land. It differs from a lease in that it does not confer possessory rights over the land.
CREATION OF EASEMENTS
An easement may be acquired in the following ways:
1.Express Grant
A situation where the grantor expressly confers the right to the grantee in prescribed form which must specify the nature of the interest, duration and other conditions or limitations.
2. Statute
An easement may be granted by an Act of Parliament to facilitate the discharge of a statutory obligation.
3.Prescription
Under the Limitation of Actions Act, 20 years of continuous use of another’s land grants an easement to the user. The use must have been uninterrupted.
TERMINATION OF EASEMENTS
1. Lapse Of Time
Under the Registered Land Act, an easement terminates on expiration of the prescribed duration.
2. Occurrence Of An Event
The Registrar of lands is empowered to cancel the registration of an easement on application by the party affected by any breach of its terms
3. Unity Of Seisin
Acquisition of full ownership of both the dominant and servient tenements by the grantee or some other person destroys the easement.
4. Merger Of Interest
Under the Registered Land Act, an easement terminates if the dominant and servient tenement are vested in the same person provided the tenements are combined under one title and registered as such.
6. Release or Abandonment
A grantee may by executing a deed abandon the easement to the grantor thereby terminating the same.
7. Judicial Discharge
Under Section 98 of the Registered Land Act, the court is empowered on application by an interested party to order termination of an easement if satisfied that there is reasonable cause to do so.
PROFIT APPRENDRE
The right to take something off another’s land.
It is the right to go on the land of another to take particular substance from that land, whether the soil or products of the soil. A profit enables the grantee to take something capable of ownership from grantor’s land.
If a profit is enjoyed by others, it is referred to as profit in common/common. If it is enjoyed to the exclusion of others it is a several profit. If a profit is attached to the land, it is said to be a profit apportionment.
A profit may be created or acquired by:
1. Express grant
2. Prescription by law
May be terminated by:
1. Release/Abandonment
2. Unity of Seisin
RESTRICTIVE COVENANT
An agreement by which a proprietor or land owner undertakes to restrict the use of his land in a particular manner for the benefit of some other land. Such an agreement may arise between two landlords or tenants owning or occupying adjoining properties. The covenants are created by agreements which are registerable under the law.
They are terminable by mutual consent.
ENCUMBERANCES
These are rights in alieno solo which constitute burdens on the property. They are generally of a temporal character. Encumbrances are either mortgages or charges.
MORTGAGES
In the words of Lindley J in Santley V. Wilde (1859) a mortgage is a conveyance of land or assignment of chattels as security for payment of a debt or the discharge of some other obligation for which it is given
CHARACTERISTICS OF A MORTGAGE
Conveyance of the title to the mortgage
A proviso for reconveyance on payment
The right of redemption
The law relating to mortgages and charges in Kenya is contained in the Indian Transfer of Property Act, Registered Land Act and Equitable Mortgages Act.
Under Registered Land act, A Charge is an interest in land as a security for the payment of money/ monies or the fulfilment of any condition.
TYPES OF MORTGAGES
The ITPA recognises the following types of mortgages:
1. Simple mortgage
A mortgage transaction whereby without delivering possession of the mortgaged property, the borrower binds himself to pay the mortgagee and agrees that in the event of non-repayment, the mortgagee shall have the rights to sell the property and the proceeds applied in the payment of the mortgaged money.
2. Mortgage by conditional sale
A mortgage transaction whereby the borrower ostensibly sells mortgaged property to the mortgagee on condition that the event of default, the sale becomes absolute or in the event of payment the sale becomes void.
3. Usufructuary mortgage
The lender (mortgagee) takes possession of the mortgaged property and uses the proceeds to repay himself.
4. English Mortgage
The borrower binds himself to repay the mortgaged money on a specific date and transfers the mortgaged property to the mortgagee subject to a re-transfer upon repayment of the mortgaged money.
5. Anomalous Mortgage
Created by Section 98 of the ITPA. The rights of the parties and other terms and conditions of the transaction are determined by the mortgaged instrument.
6. Equitable Mortgage
Created by the Equitable Mortgages Act CAP 291. The borrower deposits his title deed with the mortgagee but without delivering possession of the mortgaged property.
DUTIES OF MORTGAGORS AND CHARGORS
1. To repay the principal sum and interest
2. To pay all taxes and rates
3. To honour previous obligations if the charge or mortgage is a subsequent transaction
4. To keep the premises in repair
5. To insure the property in the joint names of the parties
6. To farm according to the rules of good husbandry in case of agricultural land.
7. To honour the terms of the lease if the property is a lease.
These obligations terminate upon the discharge of the charge or mortgage or on cancellation of the transaction by the registrar
REMEDIES OF MORTGAGES AND CHARGES
1. Foreclosure
A Court order which denies the borrower the right to redeem his security. The remedy may be availed by the court after the mortgage debt is due but before redemption. It is provided for by section 67 of the ITPA
2. Appointment Of Receiver
A mortgagee/ chargee is empowered to appoint a receiver to take over the security given by the borrower to facilitate payment of the debt. Exercisable in circumstances in which the lender has the right foreclose. A charge may appoint a receiver if there is a default which continues for one month or if the borrower does not honour a demand notice in three months. The amount recovered by the receiver must be applied to pay rates and taxes, prior mortgages, any commission payable, insurance premium, interest payable under charge/mortgage
3. Statutory Power Of Sale
The power of mortgagee or charge to sell the mortgaged property in the event of default by the borrower. This right is exercisable if:-
a) There is no contrary provision in the mortgaged instrument
b) Borrower’s signature has been attested to by an advocate
c) Notice to pay the amount has been served upon the borrower who has not responded in three months time or interest has in arrears for 2months. The monies realised must be applied to pay prior encumberances, expenses of the sale, mortgage or charge, subsequent encumberances if any.
4. Consolidation
The equitable right of a chargee holding several charges to insist that all be redeemed together. This right is only exercisable if:-
i. The mortgages had been executed by the same borrower
ii. The charges are held by the same chargee
iii. There has been default in respect to all of them
iv. The securities are still in existence
v. The right to consolidate is expressly reserved by the instruments
5. Suit On Personal Covenant
The right of a chargee or mortgagee to sue the borrower in the event of default. It is an action for recovery of the amount lent. The right is exercisable if: –
i. The mortgagee/ borrower has executed a personal covenant to repay
ii. Security provided is destroyed by a wrongful act or default by the borrower
iii. The borrower has refused to deliver possession to a mortgagee who is so entitled.
RIGHT OF REDEMPTION
This is the right of the borrower to recover his security from the mortgagee/chargee. The right is recognised by common law and equity. During the contractual period of the transaction, the borrower has the legal right to redeem by paying the amount due at any time.
If the amount is not paid within the contractual period, the borrower loses the legal right to redeem but has an equitable right to redeem which must be exercised within a reasonable time as it is conferred by equity. The equitable right to redeem is only exercisable after the legal right to redeem is exhausted.
In law the borrower has unrestricted equitable right to redeem his security. Any provision in a mortgage or charge purporting to deny the borrower the equitable right to redeem is void. This right must not be subjected to any conditions by the charge or mortgagee.
However, the equitable right to redeem is lost when the property is sold or a foreclosing order is made by the court. The right of redemption is exercisable by
Any person having an interest in the property
An executor or a signee
A guarantor
A judgement creditor
The equitable right to redeem must be distinguished from equity of redemption which is the residual interest in property conveyed to the chargee or mortgagee which is retained by the borrower. This interest is extinguished on foreclosure.
The equity of redemption enables the borrower exercise equitable right to redeem.
INTELLECTUAL PROPERTY RIGHTS
These are rights awarded by society to individuals or organizations rincipally over ccreative works. They give the creator the right to prevent other from making unauthorized use of their property for a limited period of time.
PATENT
It is the certificate that a person gets from the patent office after one has made an invention. It is the relationship that exists between an inventor on one hand or patentee and the patent office, the estate or society.
It is a juridical relationship between an inventor or patent owner on one hand and on the other hand the patent office or the state or society in general. The inventor is that person who has brought out a new process or a new invention. A patent owner is the person who holds the rights.
It is a government authority or licence to an individual or organisation conferring a right or title for a set period especially for the sole right to make, use or sell some invention
The state here is Kenya and the office is the Kenya Industrial Property Institute (KIPI).
STANDARD/CRITERIA FOR PATENTRY
1. The invention must be novel/ new
2. The invention must constitute an inventive step and must not be obvious
3. The invention must be industrially applicable and useful
4. The invention must not be excluded by statute
In Kenya the inventor must apply to KIPI and the patent may be grante or declined. If a patent is granted, there should be an application to register it whereby the patentee must disclose the patent to the state.
Patents are granted for a limited period of time, mostly 20 years under TRIPS (The Trade Related Intellectual Property convention)
A patent may be obtained/owned by a natural or juristic person.
Under section 17 of the Science and Technology Act4 inventions made by scientists in research institutions established under the Act (e.g KEMRI) are patented in favour of the research institute and not the individual inventor but the inventor must be named as per section 33 of the Industrial Property Act5.
COMPULSORY ACQUISITION
This may be done by the government where:
The patentee has refused to work the patent
The patentee has refused to licence other persons to work the patent on equitable terms
The owner of the patent has been promptly and adequately compensated
The inventor’s employer may also own a patent regarding the employee‟s invention but the invention must have occurred in the course and within the scope of the employment.
THE PATENTEE’S RIGHTS
1. To be granted a patent, subject to the substantive and procedural legal requirements
2. Exclusive rights to make, import, sell, offer for sale or use the product which is covered by the patent
3. The rights to exclude all other persons from dealing with the patent
4. The right to exploit the patent through contractual licensing and assignment
5. The right to receive royalties in the event of compulsory licensing
OBLIGATIONS OF THE PATENTEE
1. Disclose the invention to KIPI
2. Give information concerning foreign corresponding applications and grants
3. Duty to pay the prescribed fees
4. Obligation to refrain from unfair, abusive and uncompetitive terms and provisions in contractual terms and licences, assignments or patent applications
PATENT INFRINGEMENT
This is the unauthorized use of or dealing with a patented product or process contrary to the interests of the patentee, with or without his consent, licence or permission
It is conduct which goes against the claims as stated in the patent application and in particular, the final grant.
A case on patent infringement may be brought by the patentee or his personal representative.
Defences to Patent Infringement
1. That the invention had been published and therefore lacked novelty
2. Absence of specificity in the claims i.e. the claims are not specific enough
3. Non-patentability of the subject matter because of exclusions
Remedies
2. Injunctions
3. Damages
4. Account of profits
5. Delivery up – an order that requires the defendant to deliver up all infringing material including all equipment and contraptions
Criminal Sanctions
They are available under the Intellectual Property Act and the Trade Marks Act. They may take the form of fines, imprisonment and forfeiture (delivery-up)
Section 109 of the Industrial Property Act declares infringement of patents to be criminal and one would be liable to a fine of between Kshs. 10,000 and 50,000 or a jail term of between 3 and 5 years or both.
Fundamental Weaknesses in the Enforcement of Criminal Sanctions
Lacklustre government attitude towards IP and IP rights
General public ignorance
Lack of resources
Limited knowledge by judges and magistrates
COPYRIGHT
These are economic rights given to creators of literary and artistic works including the right to reproduce the work, make copies therefrom, perfom or display the work publicly
Copyright law is intended to protect and to reward original expressions embodied in tangible material or fixed form. In the first category an idea does not infringe copyright but once it is expressed in some form, then it becomes tangible when expressed, you don‟t only have the idea in your head you have expressed it and its somehow in fixed form. Not everything that is new is copyright protected unless they are original expressions and are in original form.
Subject matter of copyrights
Subject matter of copyright is divided into two broad categories
1. Primary works – Known as works of original authorship. These include literary works (poems, softwares, sermons), artistic work (sculptures, paintings, maps and musical works)
2. Secondary Works – sometimes called neighbouring related or allied works. They include: performances, audio-visual works (films, cinemas, broadcasts, sound recordings etc)
Rules of copyright
1. It subsists automatically upon the creation of the work. It need not be granted or registered
2. It governs both primary and secondary works.
3. The subject matter must be original;
It originates from the author and no one else
It is not a copy
The work embodies skill, judgement, labour and effort
4. Ideas in the mind don’t count as copyright.
Duration of copyright
The Copyright Act6 in Kenya grants Copyrights to the Copyright owners. It subsists for the life of the owner plus 50 years. In case of sound records, they compute 50 years after the year in which the first recording was made.
The problem with duration is that most computer programs have a very short life span and there is no need of protecting them for 50 years plus.
For anonymous works, Copyright subsists for the duration starting from the year of publication which is strictly 50 years but if the author decides to disclose his identity before he dies, then it will persist for his lifetime and then another 50 years after the author‟s death. These are called pseudononymous works.
COPYRIGHT INFRINGEMENT
This is the dealing with a work controlled by copyright in a manner contrary to the interests of the owner of the copyright without the owner‟s consent, authority, licence or permission.
The defendants conduct must be seen as to contravene the reserved rights to reproduce, communicate to the public, broadcast and perform the work.
PROOF OF COPYRIGHT INFRINGEMENT
1. There must be similarity –the issue is that similarity is a matter of fact and similarity is difficult in music.
2. There must be evidence of access – is there evidence that one person accessed the work of another? Dates are required.
3. The material copied must itself be copyrightable
DEFENCES TO COPYRIGHT INFRINGEMENT
1. Copyright does not subsist in the work i.e. if it is not original and its plain news or plain facts.
2. Fair dealing: this is defined under Section 26(1) of the Copyright Act 2001 as where one uses a work for criticism or review, private use.
3. Consent – be it written or verbal
4. Public Interest – if the copyright is used for the benefit of the public
REMEDIES TO COPYRIGHT INFRINGEMENT
1. Injunction
2. Damages
3. Account of profit
4. Delivery-up
5. Search and seizure
Compulsory licencing
In certain circumstances, the state may order the copyright owner to licence the work if it is important in the public interest e.g. health/ educational interest
This may be used where the owner has only produced or licenced a few copies, is charging exorbitantly or has refused to licence it on reasonable terms
The copyright owner is entitled to compensation at the going market rates.
TRADE MARKS
This is any word or sign used to indicate the co-relation between goods and services and the owner. It is a distinctive symbol that identifies particular products of a trader to the general public.
The symbol may consist of a device, words, or a combination of these.
A Trademark can be anything i.e. combination of names, combination of colours, designs all these can make a trademark.
Trademarks are IP rights granted in order to distinguish goods and services of one trade mark owner to those of his competitors.
Trade marks are also closely related to trade marks, certification marks, collective marks, domain names and service marks.
Examples of trade marks
1. Signs and signatures
2. Letters or numerals
3. Smell, scents or olfactory marks
4. Coloured marks used in words and letters
5. Available signs or sound marks e.g. songs, musical notes and cellular tunes
6. Three dimensional signs e.g. Toyota logo and Mercedes sign etc
7. Headings and titles e.g on products or papers
Trade marks must be registered for them to be protected. However, notorious marks, famous/ well-known marks may be protected even if unregistered e.g. the McDonald’s sign.
The proprietor of a trade mark must use it to continue enjoying protection.
Trade marks can exist infinitely but one has to renew his registration after certain periodic times such as seven-ear intervals.
Registration procedure
Applicants are required to send a written application to the Registrar in the prescribed form. The application must be accompanied by a power of attorney where applicable
The registrar will then advertise that there is a n application for a trade mark and that he will accept a notice of opposition i.e. an opposition to the registrar of trade marks which must be filed within 60 days from the date of the advertisement.
Use of Trademark
1. To distinguish the goods of one traded from those of another.
2. It refers to a particular quality more so like designer quality, like Gucci, Channel etc, the trademarks are associated with quality.
3. Trademark protects the investment of the inventor, labour capital and goodwill, this attribute has been questioned that it has no legal basis.
4. Identifying the origin of a product i.e when you see Omo you associate it with Unilever. This issue has become redundant in scholarly terms because of the issue of franchising e.g. Nandos in Kenya makes different tasting chicken from the Nandos in South Africa.
5. To promote the marketing and sale of a product when one has a trademark.
Trade Mark Infringement
This is the use of a Trade Mark in the Trade Mark sense without licence or approval of the trade mark owner.
Defences
1. Lack of title to the trade mark
2. Non- registration of the trade mark – this applies where the trade mark doesn’t have notoriety i.e. the trade mark is not famous or that the trade mark hasn‟t developed goodwill.
3. Non – Use of the Trade Mark – this applies where one hasn’t used the trade mark of has used it but not in the trade mark sense
4. Confusion – the defendant may argue that plaintiff’s trade mark is likely to cause confusion i.e. it is neither distinctive nor capable of distinguishing the products
5. Innocence – it’s not an absolute defence because one is deemed to have constructive notice by reason of the mark being registered
Remedies
1. Damages
2. Account of profit
3. Destruction of the infringing material
4. Self help remedies where the proprietor of a trade mark takes out an advertisement and promotional campaigns.
