CONSIDERING MUSIC AS PART OF PROTECTABLE SUBJECT MATTER UNDER KENYA’S TRADEMARK LAW

Abstract

In 2014 and 2018, two Kenyan musical artists took to social media claiming that phrases to their hit songs had been used by a major telecommunication company in a number of their audio visual and print marketing campaigns without their consent. The social media debate that erupted brought to light not only the lack of knowledge of creative’s rights, but specifically on the extent of copyright protection for musicians rights in Kenya and whether Kenya’s Copyright Act (No. 12 of 2001) is enough to effectively protect the music created by local acts.  Although Kenya’s copyright law gives provisions for the protection of music, this paper argues that trademark protection would be a supplementary solution for artists to attain overall protection as well as commercial control over their music in its entirety; this includes lyrics and jingles or sounds. Although the use of copyright and trademark law simultaneously would create an overlap of intellectual property rights, the concept is fairly common as many lawyers have explored this loophole in western jurisdictions such as the United States and the United Kingdom. It is from this overlap concept that this paper suggests the expansion of protectable subject matter under Kenya’s Trademark Act (Chapter 506 laws of Kenya) to include music in all its forms. It currently does not expressly mention music in any form as part of its protectable subject matter. This paper also explores international laws such as the TRIPs Agreement and common law doctrines that Kenya is privy to that have dealt with the use of trademark and copyright law overlaps over the same subject matter being used and concludes how such inclusion seeks to benefit national economic growth and development.