HOW TO COPYRIGHT YOUR SCRIPT IN KENYA
Imagine this; You come home after spending the whole Saturday at a relative's wedding and you were a guest at this auspicious ceremony – it was a miserable wet day; the groom was hung over and could barely stand through the vows; the bride was un-fashionably late and even when she arrived she was such a bundle of nerves and doubts; the mother of the bride was clucking around trying to get in every photograph in between fits of tears for the “loss” of her daughter; the groom's father constantly taking phone calls during the church ceremony. The extended family were a mess - a mixture of dissatisfaction with the hospitality; criticism of the decorations and choice of caterer; lack of awareness and brazen exposure of the family's folly; and, unashamed hoarding of cake and cutlery to stock their homes with. To cap it all every aunt and uncle was asking you when “your turn” was to come. Even though the crazy dancing at the end prevented the event from ripping your sanity to shreds you are glad to be back in your humble flat where it is quiet and you can hear yourself think.
As you run through the events of the day in your mind you wonder at the ridiculousness of it all. It is funny. Not just funny, downright hilarious. You see it all replay in your mind's eye. This could make a funny sketch. Wait a minute – it can make a fantastic sketch of a typical Kenyan wedding scene. You see hours worth of material for a play or a comedy or a drama piece.
Then you stop – what should I be thinking about before I embark on such a project? Where do I find the time? How will I come up with a script? Who will go over my script and make sure it works? How will I get the eventual script onto the screen? How will I make money out of it? Are there any legal considerations?
Well, I wish this article would tackle the artistic concerns raised above and the myriad others that may crop up. Unfortunately it will not. However I will endeavour to deal with the last consideration – the legal one, more particularly, how to protect the copyright in your script.
Copyright – What is it?
When someone writes a book, a script (or an article, like this one!), they use their time, resources, skill, creativity, knowledge and/or expertise to come up with the final work. Put simply copyright is the exclusive right a person has in the tangible copy of their literary, artistic or musical works they have created. Copyright makes it unlawful for someone to copy another person's work without their permission.
Copyright does three main things:
1. It gives an individual legal recognition for their work;
2. It allows such a person to use or authorize the use of their work in whichever way they choose; and
3. It allows the owner to commercially exploit their work for profit and prevents anyone else from so doing.
When these rights are protected, authors and composers are able to make money from the work they produce, for example, by licensing or selling one's work. Authors and scriptwriters can then thrive without fear of wasting energies into a piece of work that is open to theft and misuse. Oh...! Article 40 of the Constitution of Kenya 2010 guarantees your intellectual property rights which include copyright!
Copyright, Scriptwriters and Scripts.
The law on copyright in Kenya is contained in the Copyright Act 2001 (Cap 130) (which shall be referred to from now on as the “Act” for expediency). This Act establishes the Kenya Copyright Board (KECOBO) whose functions include registering of copyright works and enforcing those rights against infringers of registered copyright works.
Section 22 of the Act also sets out what qualifies for copyright protection and that includes the following:
-Literary works; -Musical works; -Artistic works; -Audio-visual works; -Sound recordings; and -Broadcasts
As this article is concerned with scriptwriters I shall focus on them when explaining the legal mumbo jumbo.
„Literary works? is just a fancy way of saying “anything that can be written down and read”. Well, almost anything. Happily plays/ scripts/ screenplays are counted amongst that number as they are...well ...written down and read!
Now this next piece of information is very important and due attention must be paid:
It may look like a duck, walk like a duck and quack like a duck – it does not necessarily follow that it is a duck. It is not enough that your script looks like a script. The Act is very clear on this. It states that for a literary work to qualify for copyright protection, “sufficient effort” must have been spent on the said literary work to give it “original character”. The literary work must also be “written down, recorded or otherwise reduced to material form” (Section 22 of the Act)
Pretty serious stuff, eh? Let?s recap.
First of all it must be written (or recorded in some way). Secondly, it must be original. Third it must be written in a way that shows that the writer spent “sufficient” effort on the script to make that script attributable to him; identifiable with him and him alone. So it is not enough to write a two-page script dealing with generic HIV or high school or teenage pregnancy issues. That script should be detailed and researched enough to make that script undeniably yours. Now that's something to really consider- just how creative and distinct your work can be.
Another thing to keep in mind is that you should not wait until your final finished work (which could take anything from one to infinity drafts/rewrites/alterations etc) before you go ahead to register your copyright. As soon as you have something tangible and developed enough (for example, concept notes that are specific) go and register it in the manner that is described below. You can always update your copyright file as you develop and perfect your work until you arrive at a finished script. Registering your work early protects your written ideas and the investment you are making into bringing about a final script. But please remember, you can only register something that is written down, original and that has had sufficient effort spent on it. If you tell your mates at drama camp about your great pitch for a script and your new best friend takes your ideas and writes them down building upon your great ideas and registers the script, then your clever new (soon to be ex-)best friend will lawfully get the copyright in that script (and rightfully so). There is no copyright in plain ideas.