Say you are one of those creative types with grand, unique, unprecedented inventions or designs zipping through your mind, a mile a minute. Perhaps you have composed the next chart-topping hit, drawn or painted the next great masterpiece, written an amazing self-help book, biography or novel or taken a breathtaking photograph with award winning potential. Do you know the legal steps you need to take to protect and monetize that intellectual property in Kenya?
Here are a few steps to consider.
Identify the type of intellectual property you have created
The first step is to correctly identify the type of intellectual property you have created. There are several types of intellectual property rights recognized in Kenya, namely, copyright, patent, trademark, industrial design and utility model, just to name a few. Each of these protect a different set of works and give the holder of that protection, the exclusive right to financially exploit that work for gain.
One thing that does, however, need to be emphasized for all intellectual property creators is the distinction between an idea and the expression of that idea. With most of these intellectual property rights, you cannot protect the idea of something, you can only protect the manner in which you have brought that idea to life. The idea remains free for others to express in their own unique ways as well.
Obtain legal protection for the work
Once you have identified the type of intellectual property you have, the next step is to seek legal recognition and protection for it. This is generally done through registration with the particular authority tasked with the registration of that work such as the Kenya Copyright Board or the Kenya Industrial Property Institute.
However, it is important to note that while patents, utility models, trademarks and industrial designs derive their protection from the act of registration, copyright protection differs in the sense that it is vested in the work as soon as you create it. As soon as you compose those lyrics and infuse them with a melody, as soon as you write that book, as soon as you take that photograph or as soon as you create that work of art, it becomes protectable. You do not need to register it in order to get protection for it. However, registration is still advisable for evidentiary purposes.
A second way of protecting your intellectual property, especially where you need to disclose it to others for exploitation, is to require the signing of non-disclosure agreements with those parties, before you disclose your work or idea to them. A well drafted non-disclosure agreement will prevent the parties you are talking to from using and exploiting your work in the manner in which you have expressed or disclosed it, without your permission or involvement. But all contracts are as strong as their enforcement. You must be ready to enforce your rights under that contract in the event of breach or violation. The written word of the contract is not always sufficient as a deterrent.
Understand what you are entitled to under the legal protection you have obtained
Our assumption is that you have sought legal advice and assistance from a duly qualified advocate right from step one. The advocate should be able to explain to or outline for you what rights you are entitled to under the legal protection you have obtained, what others are prevented from doing as regards your work and how long that legal protection lasts.
Ascertain the best way to exploit the work
Now that you have identified the type of intellectual property you have and legally registered it in your name, the next step is to identify how best to make money from the work. This is where the rubber meets the road as you can have a slew of intellectual property works that are not financially profitable if you do not identify the right strategy to exploit them.
As with any other product, intellectual property works also require a ‘go-to-market’ strategy. It is important to think about what you are trying to achieve with the work and how best to get there. Undertake proper market research. Look at what your competition is doing. Identify those who have succeeded in terms of the goals you have and those who have not, and pin point what they did right and what they did wrong.
Be careful who you give rights or access to your work. Ensure that the persons you are partnering with actually have the capacity to deliver the goals you are seeking to achieve. Thoroughly interrogate all the contracts you are signing with respect to the work; do not just sign on the dotted line because the money is right. Above all else, do not give or share your work for exploitation without a written contract! Sign the right contracts every time.
And the right contract is the one that limits the rights you are giving to just the very specific ones that you need to give under the particular circumstances, to a person well equipped and capable of exploiting that right, for a mutually beneficial financial gain and for a duration that is not much longer than is necessary for the particular arrangement.
Be ready to enforce your rights in the event of violation
All the steps we have listed above may not be fully beneficial to you if you are not ready to enforce your right in the event of breach or violation. Often, this requires active policing and monitoring as well as being ready to take legal action where prior amicable interventions have failed. As indicated previously, the written word of the contract or the law is not always sufficient to deter those whose value system is not oriented towards doing the right thing because it is the right thing to do.
Picking the right partners whose value system and track record is known to you is critical to the financial success of your work. Similarly, being aggressive in protecting your work whenever it is violated, helps to assure a positive return on your work, or at the very least, to deter future violations.
So, for legal assistance, in any of these areas, please do not hesitate to reach out to us.