Month: March 2024

On 31st December 2020, the Cabinet Secretary for Lands and Physical Planning, Ms. Farida Karoney published Gazette Notice No. 11348 of 2020 (“the Notice”) notifying the general public of the conversion of specific old land registration numbers to new parcel numbers. The Notice outlines the old registration numbers and the new parcel numbers. It also categorises the listed parcels of land under newly established land registration units, bearing various block numbers.

1. LEGALITY OF THE NOTICE

The Notice is premised on the provisions of the Land Registration (Registration Units) Order of 2017 (“the Regulations”) promulgated under Section 6 of the Land Registration Act, 2012 (“the Act”). Section 6 of the Act empowers the Cabinet Secretary to constitute an area as a land registration unit, as well as vary the unit’s limits at any time.

Under Regulation 4 of the Regulations, the office responsible for land survey is mandated to prepare cadastral maps together with a conversion list for existing titles issued under the repealed land Acts. Thereafter, the cadastral maps and conversion list are presented to the Registrar, who forwards them to the Cabinet Secretary for publication in the Kenya Gazette and two (2) national dailies within thirty(30) days of receipt. The Cabinet Secretary is required to specify in the publication, a date not exceeding four (4) months when new land registration units are to take effect.

It is on this basis that the Notice was published and specified 1st April 2021 as the effective date. All subsequent dealings in the listed parcels will be undertaken in the new registers, under the new land registration units, from that date henceforth. Likewise, all existing registers shall be closed to pave the Way for the operationalization of the new registers by that date. Nevertheless, the closed registers and supporting documents will be retained in both physical and electronic formats.

Any aggrieved person having an interest in a property listed in the Notice, may in the meantime lodge a complaint with the Registrar within ninety (90) days of the Notice’s publication. The person may also register a caution pending clarification or resolution of the complaint. There is also a further avenue for appeal of the Registrar’s decision to court.

Lastly, the Registrar will initiate the process of migration of titles for the affected properties. This will be done by advertising in two (2) national dailies and on radio stations of nationwide coverage, a notice calling upon the concerned owners to apply for new titles in the prescribed format. Each application shall be accompanied by the original title and the owners should make a complaint to the Registrar in the prescribed form (Form LRA 96) set out in the regulations regarding the conversion list or the cadastral map: Pending the resolution of any complaint, apply for registration of a caution in the prescribed form (Form LRA 67) set out in the regulations. registration documents, for proof of ownership. Once new titles are issued, the previous ones will be canceled and retained by the Registrar for safekeeping.

2. EFFECT OF THE NOTICE

From the 1st of April 2021, all transactions with the outlined parcels of land shall be carried out under the new registers. As such, the owners of those parcels should acquire new titles to enable future effective dealings in their properties. Any aggrieved person may within ninety (90) days from 31st December 2021:

• Make a complaint to the Registrar in the prescribed form (Form LRA 96) set out in the regulations regarding the conversion list of the cadastral map; or
• Pending the resolution of any complaint, apply for registration of caution in the prescribed form (Form LRA 67) set out in the regulations.

3. REGISTRY INDEX MAPS

Vide Press Statement issued to expound on the Notice, the Cabinet Secretary has indicated that the

conversion would also entail the use of Registry Index Maps(RIMs), as registration instruments to replace deed plans, with the use of RIMs expected to minimize land fraud, given that they capture all land parcels within a designated area, whereas a deed plan only captures data on a specified parcel. This would ostensibly make it easier to detect any changes or alterations.

4. CONCLUSION

It is evident that the conversion exercise is a novel undertaking with far-reaching consequences.  Therefore, the affected proprietors must be vigilant and compliant with all the notices or requirements that the Cabinet Secretary or Registrar may prescribe, to facilitate a smooth transition of their respective properties’ records. In the meantime, they should also where necessary, seek clarification or lodge complaints, to ensure that their concerns are promptly addressed.

On 7th May 2021, the Cabinet Secretary for the Ministry of Lands and Physical Planning (the “Ministry”) issued a notice (the “Notice”) informing the general public of the conversion of long-term leases that do not conform with section 54 (5) of the Land Registration Act, 2012 (the “LRA”) and section 13 of the Sectional Properties Act, 2020 (the “SPA”).

Section 54 (5) of the LRA stipulates that the Registrar shall register long-term leases and issue certificates of lease to confer ownership in apartments, flats, maisonettes, townhouses, or offices (collectively “units”). The registration and issuance of title will only be done where the units comprised are properly geo-referenced and approved by the statutory body responsible for the survey of land.

Section 13 (2) of the SPA stipulates that all long-term sub-leases that were intended to confer ownership of an apartment, flat, maisonette, townhouse, or office and were registered before the commencement of the SPA, shall be reviewed so as to bring them into conformity with section 54 (5) of the LRA highlighted above.

 

In a bid to harmonize the foregoing provisions of the LRA and SPA, the Ministry is set to embark on the conversion of long-term leases previously registered on the basis of architectural drawings, to conform with the current land regime. Further, the Ministry has stipulated that from 10th May 2021, it will no longer register long-term leases supported by architectural drawings intending to confer ownership. We however note that as of the date of this alert, the Lands Office, for the time being, continues to accept long-term leases supported by architectural drawings.

The effect of the Notice is that all sectional units shall now be required to have properly registered sectional plans. All sectional plans submitted for registration should be geo-referenced, indicating the parcel plans, the number identifying the unit, the approximate floor area of each unit, and the user of the units. The sectional plans must also be signed by the proprietor and signed and sealed by the Director of Survey.

For purposes of conversion of already registered long-term sub-leases, the owners of the property will be required to make an application in the prescribed form and attach the following documents to the land’s registry:

• a sectional plan;
• the original title document;
• the long-term lease previously registering the unit; and
• the rent apportionment for the unit.

The Registrar may however dispense with the production of the original title if the developer is not willing or is unavailable to surrender the title, for the purposes of conversion.

Upon submission of the above, the sectional plan will be registered, and the previous register closed. A new register will be opened with respect to each unit in a registered sectional plan and a Certificate of Lease issued. It is indicated that owners will not incur fresh or additional stamp duty charges upon conversion if the requisite stamp duty was paid when registering the long-term lease.

The above developments come in the wake of numerous land-related changes in Kenya, ranging from digitization to conversion of titles issued under old land title regimes to new titles. In spite of the progressive steps taken, there are still some concerns around the conversion process. These include the absence of clearly articulated procedures for conversion; regulatory gaps as the draft Sectional Property Regulations are still at the stakeholder engagement stage; and opacities in relation to ongoing transactions.

We note that the Law Society of Kenya and the Ministry are currently engaged in discussions to resolve some of the issues arising from these legislative gaps. We are, therefore, keenly following these developments and ongoing discussions and shall keep you updated

The Supreme Court of the United States has recently handed down a decision upholding Google’s use of part of the JAVA SE API Code (the SE Code) created by Oracle. Google had, in the course of creating a new Android Platform for smartphone networks, copied approximately 11,500 lines of the SE Code thereby prompting the institution of the suit by Oracle on the grounds of alleged copyright infringement. Google contested this suit, arguing that its use of the SE Code did not amount to copyright infringement as the same fell within the permitted fair use exception under copyright law.

Over the course of protracted litigation, the lower Courts had concluded that Google’s copying of the SE Code did not fall within the permitted fair use exceptions. However, in overturning the lower Courts’ decisions, the Supreme Court found that Google’s adoption of the SE Code in the circumstances of the case fell within the ambits of fair use. In particular, the Supreme Court was of the view that Google could not be deemed culpable of copyright infringement on the grounds that Google only copied what was needed to allow programmers to work in a different computer programming language, without discarding a portion of familiar programming language.

The decision, which is set to upend current thinking within the software developing community, extends the application of the fair use doctrine, in that rights held in copyright, will not be deemed to be infringed where the copied content is applied towards transformative use. Practically, the decision is poised to create wriggle room for developers to use existing codes within licensed software programs, so as to build interoperable platforms, without the risk of incurring liability for copyright infringement.

This view marks a radical shift from the exclusive protections granted under copyright and is likely to offset a multitude of renegotiations of existing multinational software licensing agreements in a bid to set out the permitted uses of licensed software.

Closer home, whereas the decision is of persuasive, rather than binding force in Kenya, the precedent is nevertheless likely to impact software developers and software companies alike, with the expanded use of the doctrine of fair use, quite consistent with the fair dealing doctrine provided under the section 26 (3) of the Copyright Act, 2001.

As such it will be critical for software developers and software companies to undertake a review of their licensing agreements including the terms and conditions to better safeguard their intellectual property.

Kirani Ayat (‘Kirani’) tweeted on 27th September 2022 that: “The president of Ghana has used my video ‘GUDA’ in this ad to promote Ghana. I was actively reaching out to the Ministry of Tourism in 2018/19 to use this video to push tourism in the North and got a ‘NO’ in reply, yet today it’s in an ad and no one has reached out to me for permission”.

Kirani’s tweet has attracted a lot of comments:

On 27th September, the Joy FM online platform published, ‘Kirani Ayat Calls Out Akuffo-Addo, Tourism Ministry after a promo video featured shots from his ‘Guda’ visuals’.

The Ghana Tourism Authority (GTA) issued a statement dismissing Kirani’s claims and argued that his rights to the content used for the promotional video by the president had not been infringed upon, since they obtained the right to use the contents from an agency.

Samsal, the creative agency mentioned by GTA, has stated that the video it created for GTA is not what has been published and that it never authorized GTA to publish the content.

BBC News Africa reported: “Ghana’s President Nana Akufo-Addo has been accused of using a musician’s work without permission or credit to advertise the country to tourists”.

The above comments raise legal issues related to copyright infringement in Ghana regarding content created by artists. This article examines regulation of copyright in Ghana and the legal issues arising in the Kirani case.

Copyright

Copyright is a right (both economic and moral) that enables creators of literary and artistic works such as writers, artists, painters, musicians, software developers, and others to receive recognition for their creative work. The rights are conferred in the expression and not dependent on registration. The right entitles the author of the creative work to:

• authorize or prohibit the use of their work by others;
• claim authorship of the work and demand mention whenever used; and
• receive compensation for the use of their work.

Effective Copyright System

The essence of copyright law is to confer rights on the author and protect his or her expression from unauthorized use. To effectively achieve that goal, an efficient copyright system must be anchored on three (3) pillars:

1. Appropriate copyright legislation – the Copyright Act, 2005 (Act 690) and the Copyright Regulations, 2010 (L.I 1962) cater to this.
2. Sufficiently developed system for management of rights. There are three (3) Collective Management Organisations (CMOs) at the moment, namely:

• the Ghana Music Rights Organisation (GHAMRO);
• the Audiovisual Rights Society of Ghana (ARSOG); and
• CopyGhana (a Reprographic Rights Organisation).

3. Enforcement – i.e. the system of sanctions to be applied when rights under the law are infringed.

Copyright Infringement

Infringement of copyright is the unauthorized use of copyrighted work in a manner that violates the copyright owner’s exclusive right to produce or perform the copyrighted work. Infringement includes piracy, plagiarism, duplication, distribution, and exhibition in public places. Most affected works are music, audio-visual work (films, music videos, etc.), books or literary work, and computer software.

Any such unauthorized use constitutes an infringement that breaches the author’s rights. Such breaches constitute an offense under the Copyright Law – which provides that offenses include reproduction, duplication, extracts, imitation, and importation (except for private use). A person found guilty of copyright infringement can face civil or criminal prosecution. The civil remedies available under the law include injunction, compensation, seizure, forfeiture, or destruction of offending materials.  In addition to civil remedies, the law provides criminal penalties for violations or infringements which include a jail-term and/or a fine.

Enforcement Measures

The system of sanctions to be applied when rights under the law are infringed are grouped as civil remedies, criminal sanctions, and border measures. A person whose copyright has been violated can approach the court for redress by way of civil action. The court may grant an injunction to prevent the infringement or prohibit the continuation of the infringement. Additionally, criminal prosecution can be initiated when a report is made to the relevant institution. In respect of imported goods, a report can be made to the Customs Excise and Preventive Service to detain the goods.

Legal Issues Arising – The Kirani Context

The issue arising in this case is that Kirani has alleged a breach of his copyright on the basis that permission was not obtained by the GTA for the use of his ‘GUDA’ video. If this allegation is true, it means Kirani can make a claim for copyright infringement. However, GTA will not be considered to be in breach where it is able to establish that it obtained the requisite permission for the use of the ‘GUDA’ video.

A number of legal issues arise based on the above facts: including whether the GUDA video is protected under law; who the GUDA video’s owner is; whether permission was granted by the owner; the rights granted and the terms on which they were granted.

Is the Material Protected Under Copyright Law?

Generally, the protection of copyright is not dependent on registration. Literary work is typically protected under law unless the work has fallen into the public domain. Work that has fallen into the public domain is work with expired protection, work of authors who have renounced their rights, and foreign work that does not enjoy protection in Ghana.

From the facts available, the GUDA video has not fallen into the public domain. Consequently, its use must be subject to permission from the author.

Identify the Owner

Identifying the work’s owner is crucial in obtaining permission. Some kinds of art, such as video content and recorded music, can involve multiple owners. The recognized organizations that currently manage copyright in Ghana are the CMOs listed above. Hence, persons who wish to use copyright work can contact the relevant CMO.

From the facts available, GTA has stated that it obtained rights from Samsal to use the GUDA video for a promotional video. The issue arising is whether the creative agency was authorized by any of the CMOs to grant GTA the right to use the GUDA video.

Rights to Use Copyright Work

Copyright holders have the right to permit others to use their work for agreed purposes. The granting of a permit can be done in one of two ways:

• Assignment – transfer ownership of the copyright to another person
• License- grant of a copyright license whereby another person (licensee) is allowed to use the work based on agreed terms.

Generally, licensing is the preferable method as it allows copyright holders to keep the copyright over their work.

1. Identify the Rights you Need

There is a need to identify the rights needed when asking for rights to use copyright work. Each copyright owner controls a bundle of rights related to the work, including the right to reproduce, distribute, and modify the work. Because so many rights are associated with copyrighted work, the rights needed must be specified.

The GTA has stated that per terms of the MoU[1] it executed with Samsal, Samsal was to “Deliver imaginative and impactful social strategies, such as content or documentaries for the use of GTA ‘as it so wishes”. It is unclear what right Samsal had that enabled it to grant GTA any rights in the GUDA video.

1. Term/ Payment Negotiation

The length of time for which you are allowed to use a work is often referred to as the ‘term’. Your rights under a license agreement will often be limited in duration.  If there is no express limitation on its use, you are allowed to use the material for as long as you want or until the copyright owner revokes the permission. In reality, the copyright owner can only grant permission for as long as the owner’s copyright protection lasts. Additionally, when negotiating permission to use copyright work, payment must also be negotiated.

From the facts, Kirani did not receive payment for the use of the GUDA video for the promotional video.

1. Get it in Writing

Relying on an oral agreement or understanding is not sufficient. The user and rights owner may have misunderstood each other or remembered the terms of the agreement differently. This can lead to disputes. It is essential that the two parties enter into a well-drafted license agreement that sets out the license’s use.

Conclusion

We must be reminded that the original intention of copyright law is not to prevent information usage but to protect against infringement. To achieve this, there must be a commitment to safeguarding the rights of both creators and the persons who seek to use their ideas. Many people who violate copyright law may do so simply out of ignorance. There is therefore a need to seek relevant advice prior to using the creative work of others. In the Kirani case, it is recommended that the parties negotiate a settlement – pursuant to which a license agreement is entered into that specifies the consideration payable to the author and terms under which GTA can use the GUDA video.