‘A click is a forever thing.’ These words have turned out to be somewhat accurate as photography has had a huge impact in the world. From playing a huge role in recording history during the World Wars to over 100 years later where photography laws have been developed across the world.
This article will provide a reflection on the laws governing photography in Kenya from three angles: copyright laws; image rights and privacy laws; and security. Firstly, Article 40 of the Constitution of Kenya provides for the protection of property. It recognizes the right to property, calls for support, promotion and protection of intellectual property. This has been achieved by the enactment of the Copyright Act (Act No.12 of 2001).
Photography in Kenya is protected under copyright is described as a form of artistic work under the Act. Copyright forms part of intellectual property which includes artistic, literary, audio-visual and sound recordings. The qualifications for the protection of copyright are that there must be proof of sufficient effort in the making of the work. This means that the work must be original. Secondly, the work must be expressed in material form. This implies that copyright law protects the expression and not the idea.
A question that may arise is on the ownership rights of the copyright in a photograph. The Copyright Act provides for the author as the first person who makes or creates the work. On the other hand, owner of the copyright is defined as the first owner, assignee or an exclusive licensee of the relevant portion of the copyright.
Section 31 of the Copyright Act touches on the first ownership of the copyright and provides for instances where work is made in the course of employment. For such works, the copyright is deemed to be that of employer or who commissioned the work. The employer is thus deemed to be the author of the photograph. This right may be limited as the Act allows for the parties to exclude the authorship of the employer from the contract. The specific contract should thus be able to define the owner of the work and how the copyrights can be transferred.
An author has moral and economic rights over the photograph. Moral rights imply that the author has the right to claim authorship of the work and can also object to any distortion, mutilation or distortion of the said work. Economic rights on the other hand enable the author to earn from the work. Copyright infringement thus arises when a third party goes against the moral and economic rights without prior consent of the author.
The second angle on image rights and privacy has been a notable issue in Kenya over the past few years where photographers have raised claims against several parties when their works are used without their consent. Image rights entail the right of an individual to control the publication of the image or to prevent the image form commercial exploitation without the author’s consent.
The Court in the case of Ann Njoki Kumena v KTDA (2019) eKLR relied on a three-part test to determine whether image rights and privacy had been infringed. The plaintiff demonstrated that there was the use of a protected attribute, for an exploitative purpose and without the consent of the author. The Courts have upheld the relation between image rights, the right to privacy and a constitutional right as well as human dignity.
On the third angle on photography and security, there have been several complains of harassment of photographers by law enforcement personnel on the claims of ‘nuisance’ and ‘prohibited areas if photography and videography.’ The Official Secrets Act provides that one must seek authority in charge before taking photographs in a prohibited place.
In conclusion, the progressive recognition of copyrights, image rights and right to privacy is set the moral and economic value of photographs and will further cultivate a culture upholding personality rights as well as privacy rights.
Article by: Wendy Kuyoh
We are available to assist and advice on photography laws in Kenya or other inquiries relating to photography. Kindly reach out to us on info@mmsadvocates.co.ke or wkuyoh@mmsadvocates.co.ke