The Right of Divulgation: Expanding the Scope of Authors' Moral Rights under the Copyright Act, 2001

Abstract

Despite being perceived as a highly esoteric concept in many jurisdictions, the authors’ right of divulgation is of indispensable essence as it provides protection for authors and their works in instances where creators no longer own copyright in their works. It reserves to the author the fundamental decision whether at all, when and how to release his work from the private sphere and to expose it the public. This research envisages determining the extent to which authors may enjoy the right of divulgation and whether limiting this right to protect the copyright owners’ economic rights and the public interest may be justified. It also envisions assessing the nature, role and significance of the right of divulgation if incorporated into Kenya’s intellectual property rights regime. The basic theory that forms the cornerstone of this research is the Personhood Theory which holds that the protection of the right of divulgation is necessary because intellectual property are manifestations of one’s personality in one’s intellectual expressions. This research finds that the right of divulgation is an inalienable right which is distinct from the economic rights and may only be passed by way of testamentary disposition. Nevertheless, it is not an absolute right. Consequently, this research concludes that the right may be limited using the constitutional criteria enshrined under Article 24 of the Constitution of Kenya. This right may also be limited upon waiver by the author and also upon its extinguishment. Moreover, public interest such as the administration of justice and public safety shall be a valid ground for limiting the right of divulgation. Ultimately, this research recommends that the Kenyan legislature should amend Section 32(1) of the Copyright Act, to include the right of divulgation. It also recommends the enactment of a regulatory framework which shall enshrine concepts such as the waiver and extinguishment of this right. Finally, due to the fact that the right of divulgation has been perceived in many jurisdictions as an obscure subject, this research recommends the sensitization and creation of awareness among judicial officers as well as authors.