Commissioned works, Computer Software, Copyright Act, Digital Genius, Employee Innovations, Employment Law, Estoppel by conduct, Intellectual Property, Kenya Copyright Act, Labour Pains, Lucas Kamau, Riara Group of Schools, Section 31, Works eligible for copyright, Works for Hire
Suppose an employee develops a work eligible for copyright- could be literary works, musical works, artistic works, audio-visual works, sound recordings or broadcasts, who owns it? The employer or the employee? Kenyan law provides as follows:
Section 31, Copyright Act:
Copyright conferred by sections 23 and 24 shall vest initially in the author:
Provided that where a work
a.) Is commissioned by a person who is not the author’s employer under a contract of service; or
b.) Not having been so commissioned, is made in the course of the author’s employment under a contract of service,
the copyright shall be deemed to be transferred to the person who commissioned the work or the author’s employer, subject to any agreement between the parties excluding or limiting the transfer.
This section, on the face of it, suggests that labour pains, quite literally- employees will toil in creating works which may eventually belong to their employers in the absence of an agreement to the contrary. The plight of employees in these circumstances is not new. See Samson Ngengi v Kenya Revenue Authority in which Kenyans raised an uproar after KRA received a number of accolades for an invention of one of its employees.