Intellectual Property: Why you can't lock out co-creator of YouTube content

It is unfair to lock someone out of a show she co-created without any compensation or regard for her contributions.  

Last week a leading YouTuber lost her channel to her partner after they split. After the split, her partner reportedly went ahead to rebrand the channel, locking her from accessing the platform. This is a risk many joint co-authors face whereby one makes unilateral decisions to the detriment of the other.

The creative economy in Kenya is large and contributes about 5.3 percent of the gross domestic product. Many celebrity couples own YouTube channels, which they monetise.

The unilateral move by this YouTuber’s partner wiped out years of investment and hard work. Was this move legal? Absolutely not. I may not be privy to all the facts but general intellectual property rights laws are on her side. It is unfair to lock someone out of a show she co-created without any compensation or regard for her contributions. The YouTuber had the right to co-own the content she created.

Section 23 of the Copyright Act sets out the rights of co-authors and co-creators of any works eligible for copyright. These works include books, literary works, music and other sound recordings, artistic works and audio-visual works. YouTube content is eligible for copyright protection under Kenyan law and as a co-creator, she is entitled to co-ownership.

The law gives co-authors the right to co-own the content they have jointly created for 50 years from the date of publication. This means that the YouTubers’ ownership claim subsists for 50 years from the date of publication.

The Copyright Act gives the co-owners certain joint rights to their content such as the right to control adaptation, translation, reproduction and sale of the content. The joint authors have the right to control commercialisation of their content without authority.

In conclusion, the act of the YouTuber’s partner erred in unilaterally locking her out. If she files a suit against him, she can seek several orders. This includes getting a court injunction to stop the unilateral takeover and rebranding. The right thing for her partner to have done is to either buy her out or sell his stake. I will put a disclaimer at this point in that I am not privy to all the facts in the particular case.

There is sufficient case law in Kenya to guard against “hostile takeovers” of jointly owned works to the exclusion and detriment of others.

One leading case is the case of a leading gospel band Adawnage. Adawnage, an award-winning gospel band formed by a group of musicians worked and performed together for more than eight years. So successful was the band that it won several awards, including the prestigious Groove Awards in 2017. The band’s songs are very popular.

However, the band members faced a lawsuit by one of the vocalists who argued that the band did not remit her portion of royalties for six years despite making a lot of money during that period. The vocalist won the case and the court ruled in her favour.

A collaboration agreement can help co-authors prevent and minimise disputes such as these. A collaboration agreement sets out the ownership rights of the co-creators and also sets out the respective shares of the co-creators.

An indefeasible share is advantageous as it would be easier to sell and also get accurate compensation in the event of a buyout. The share can be traded. The agreement sets out the revenue-sharing formula for the co-creators and safeguards each person’s rights.

Ms Mputhia is the founder of C Mputhia Advocates | [email protected]

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