Articles

Protecting Intellectual Property as an Employee in Kenya’s Creative Industry

Kenya’s creative industries, encompassing fields like media, design, film, music, and digital content creation, are experiencing rapid growth. This vibrant sector contributes significantly to the economy, with creative professionals producing innovative works ranging from graphic designs to films and software applications. However, for employees in these industries, questions surrounding the ownership of intellectual property (IP) created during employment often arise. Understanding the legal framework governing IP rights, particularly under the Employment Act, 2007, and the Copyright Act, 2001, is crucial for safeguarding creative output and navigating employer-employee dynamics. This article explores the nuances of IP ownership for employees in Kenya’s creative sectors, the role of employment contracts, employer claims on IP, and practical steps to secure IP rights through legal agreements.

The Legal Framework: Employment Act, 2007, and Copyright Act, 2001

In Kenya, the ownership of work-related IP is primarily governed by two key pieces of legislation: the Employment Act, 2007, and the Copyright Act, 2001. These laws provide the foundation for determining who owns the IP created by employees and how disputes can be resolved.

The Employment Act, 2007

The Employment Act, 2007, regulates the relationship between employers and employees, including matters related to work produced during employment. While the Act does not explicitly address IP ownership, it establishes the principle that work performed within the scope of employment typically belongs to the employer. Section 2 of the Act defines an employee as a person employed for wages or a salary, and it implies that creations made in the course of employment, particularly those using company resources or within working hours, are generally considered the property of the employer unless otherwise stipulated in a contract.

For creative industry employees, this means that designs, scripts, or other outputs produced as part of their job duties are presumed to belong to the employer. For instance, a graphic designer creating marketing materials for a company during regular work hours would likely see their work claimed by the employer unless a specific agreement states otherwise.

The Copyright Act, 2001

The Copyright Act, 2001, provides more specific guidance on IP ownership, particularly for creative works such as literary, artistic, musical, and audiovisual creations. Section 31 of the Act addresses ownership of copyright in the context of employment. It states that where a work is created by an employee in the course of their employment, the employer is the first owner of the copyright unless an agreement provides otherwise. This provision applies to many outputs in the creative industries, such as films, photographs, music compositions, and software code.

However, the Act also allows for flexibility through contractual agreements. Employees and employers can negotiate terms that deviate from the default rule, enabling employees to retain certain rights over their creations. This is particularly important in Kenya’s creative economy, where freelancers, part-time workers, and project-based employees are common, and clear agreements can prevent disputes.

Navigating Employment Contracts in the Creative Industries

Employment contracts play a pivotal role in defining IP ownership. In Kenya’s creative industries, contracts often include clauses that address ownership, usage, and transfer of IP rights. Employees must carefully review these clauses to understand their rights and obligations.

Common Contract Clauses Related to IP

  1. Work-for-Hire Clauses: These clauses stipulate that any work created by an employee during their employment belongs to the employer. For example, a contract for a media company employee might state that all content produced, such as articles or videos, is owned by the company. This aligns with the default provisions of the Copyright Act, 2001.

  2. Assignment of Rights: Some contracts require employees to assign their IP rights to the employer, even for work created outside the scope of employment. For instance, a designer might be asked to assign rights to personal projects if they relate to the employer’s business. Such clauses can limit an employee’s ability to use their work elsewhere.

  3. Non-Compete and Confidentiality Clauses: These clauses may restrict employees from using their creative output for competing businesses or sharing proprietary information. In the creative industries, this could mean an employee cannot use a design or concept developed for one employer in a similar project for another.

  4. Royalty or Licensing Agreements: In some cases, contracts may allow employees to retain certain rights, such as receiving royalties for their work or licensing it to the employer for specific uses. For example, a musician employed by a production company might negotiate a clause allowing them to retain performance rights for their compositions.

Reviewing and Negotiating Contracts

Employees in Kenya’s creative industries should approach employment contracts with diligence. Before signing, it is advisable to:

  • Understand the Scope of Employment: Clarify which tasks fall within the job description. Work created outside the scope of employment, such as personal projects, may not automatically belong to the employer unless specified in the contract.

  • Seek Clarity on IP Ownership: Ensure the contract explicitly states who owns the IP for specific types of work. If the default ownership lies with the employer, consider negotiating terms that allow retention of certain rights, such as portfolio use.

  • Consult a Legal Professional: Given the complexity of IP clauses, consulting a lawyer with expertise in employment and IP law can help employees understand their rights and negotiate favorable terms.

Employer Claims on Intellectual Property

Employers in Kenya’s creative industries often assert ownership over IP created by employees, particularly when the work is produced using company resources, during work hours, or as part of job duties. This is common in sectors like advertising, film production, and software development, where outputs are directly tied to business operations.

When Employers Claim IP

Employers may claim IP under the following circumstances:

  • Use of Company Resources: If an employee uses company equipment, software, or facilities to create a work, the employer is likely to claim ownership. For example, a photographer using a company-provided camera to shoot images for a campaign would see those images owned by the employer.

  • Work Within Job Scope: Creations that align with an employee’s role, such as a scriptwriter drafting a screenplay for a film company, are typically owned by the employer.

  • Contractual Agreements: As noted earlier, contracts often reinforce employer ownership through work-for-hire or assignment clauses.

Exceptions to Employer Ownership

There are scenarios where employees may retain IP rights:

  • Work Created Outside Employment Scope: If an employee creates a work unrelated to their job duties, such as a personal art project completed outside work hours, they may retain ownership. However, this depends on the absence of broad assignment clauses in the contract.

  • Negotiated Agreements: Employees who negotiate specific terms, such as retaining copyright for certain works or licensing them to the employer, can maintain some control over their IP.

  • Moral Rights: Under the Copyright Act, 2001, employees retain moral rights to their work, even if the employer owns the copyright. Moral rights include the right to be identified as the creator and to object to derogatory treatment of the work.

Securing IP Rights Through Legal Agreements

To protect their IP rights, employees in Kenya’s creative industries can take proactive steps through legal agreements and strategic planning. These measures can help balance the employer-employee relationship while safeguarding creative output.

Practical Steps for Employees

  1. Negotiate Clear Contract Terms: Before accepting a job, negotiate clauses that specify ownership and usage rights. For example, a designer might request the right to include work in their portfolio or retain ownership of preliminary sketches not used by the employer.

  2. Document Personal Projects: Employees should keep records of work created outside employment, such as timestamps or drafts, to prove it was not produced as part of their job. This can help in disputes over ownership.

  3. Use Licensing Agreements: Instead of assigning full rights to an employer, employees can propose licensing their work for specific uses. For instance, a filmmaker might license a short film to a company for promotional use while retaining rights for festival submissions.

  4. Register Copyrights: While copyright in Kenya is automatic upon creation, registering works with the Kenya Copyright Board can provide additional legal protection and evidence of ownership.

  5. Seek Legal Advice: Engaging a lawyer to review contracts or draft agreements can ensure that IP rights are clearly defined and protected.

The Role of Legal Agreements

Legal agreements, such as employment contracts, freelance agreements, or standalone IP agreements, are essential tools for securing rights. These agreements should:

  • Clearly define the scope of work and ownership of IP.

  • Specify any rights retained by the employee, such as portfolio use or royalties.

  • Address moral rights, ensuring the employee is credited as the creator.

  • Include dispute resolution mechanisms, such as mediation or arbitration, to handle conflicts over IP ownership.

Kenya’s Growing Creative Economy and IP Protection

Kenya’s creative economy is flourishing, driven by a young, innovative workforce and increasing global demand for African content. Sectors like film, music, fashion, and digital design are gaining international recognition, with Nairobi emerging as a creative hub. However, the growth of this sector also highlights the need for robust IP protection. Employees who understand their rights under the Employment Act, 2007, and the Copyright Act, 2001, are better equipped to navigate the complexities of IP ownership and contribute to a sustainable creative ecosystem.

By negotiating clear contracts, documenting personal work, and seeking legal guidance, creative professionals can protect their IP while fostering productive relationships with employers. As Kenya’s creative industries continue to expand, awareness of IP rights will be critical for empowering employees and ensuring fair recognition and compensation for their contributions.

For expert guidance, contact us at +254 716 808 104 or info@lawguide.co.ke.