[kictanet] Resign and seek to supply the system as an outsider

Thu Nov 22 15:41:12 EAT 2012

I will give my 2 cents from a legal perspective ....There is no standard
legal way that is used to deal with copy right issues touching on employee
and employer relationships,mostly different countries have different
national legislation to deal with the issue ....and IP rights or laws
differs substantially between the two main legal systems in the world
today, the common law system and the civil law system.

In the common law system e.g. in the United States and in the United
Kingdom (Kenya has borrowed from the two), the investor (employer) benefits
from its employees’ intellectual creations.  In those countries the
employer is the initial owner of the employees’ intellectual property
rights produced in the course of the employment. The
employer is treated as the first owner, but not deemed to be the author.
Therefore the duration of copyright, for example, is measured with
reference to the life of the employed creator. Further on, the national
laws in these countries make it clear that contractual provisions, whether
expressed or implied, can affect the employer’s initial
ownership.

In the civil law system to which most of the countries of Continental
Europe –Germany, France and the Nordic countries, for example – belong, a
legal person such as an employer, may not generally be deemed the first
holder of an intellectual property right. Those rights are normally linked
to individual persons. Therefore, an employer may normally only obtain
intellectual property rights by assignment by law or in contract.

Since Kenya lacks exhaustive and detailed legislation to deal with
copyright issues of this nature I will borrow from the EU.The European
Commission published proposals for copyrights within the EU,If you look at
Directive 91/250/EEC on the Legal Protection of Computer Programs,. Article
2(3) of the Directive contains a mandatory requirement on employees’
programs.The employer shall exclusively be entitled to exercise all
economic rights in an employee’s computer program, where a program is
created in the execution of the employee’s duties or where the employee is
following instructions given by the employer. It is an automatic legal
transfer of the copyright in computer programs. However, if the parties
agree, the employed author of the computer program can recover the rights
through a specific clause in the employment contract or a separate
agreement on the exploitation of the computer program made by the employee
(waiving the legal automatic transfer of rights).

My advice to the concerned employee is he could have found away of handling
the issue amicably with the employer. Short of sounding pre-judicial he can
not stop KRA from tendering for the software or using it.But all is not
lost he can sell it to county governments and help them collect revenue
from real estate as well.

My arguments are from a law student perspective and I stand corrected from
other senior and experienced legal ccontributors in this list.

Thanks

On Thu, Nov 22, 2012 at 2:45 PM, J.R. Kirongothi <kirongothi at kasneb.or.ke>wrote:

> This is very strange. Its obvious that the employee developed the system
> as an employee hence for the employer. Simply put, it belongs to KRA! Why
> then would KRA be buying its property from a third party? And while the
> employee resigns to seek to supply, will he pay for the organisation's
> resources (including time) that he used to develop the system?
>
> Capt(rtd) Jessie R. Kirongothi
> Email: kirongothi at kasneb.or.ke
>
> ----- Original Message ----- From: <ngethe.kariuki2007 at yahoo.co.**uk<ngethe.kariuki2007 at yahoo.co.uk>
> >
> To: "Jessie R. Kirongothi" <kirongothi at kasneb.or.ke>
> Cc: "KICTAnet ICT Policy Discussions" <kictanet at lists.kictanet.or.ke**>
> Sent: Thursday, November 22, 2012 9:31 AM
> Subject: Re: [kictanet] Resign and seek to supply the system as an outsider
>
>
> KRA is a public body funded by taxpayers.Clearly it cannot behave like a
> private entity.Is there a public interest matter in this issue?
> Sent from my BlackBerry®
>
> -----Original Message-----
> From: robert yawe <robertyawe at yahoo.co.uk>
> Sender: "kictanet"
> <kictanet-bounces+ngethe.**kariuki2007=yahoo.co.uk at lists.**kictanet.or.ke<yahoo.co.uk at lists.kictanet.or.ke>
> >
> Date: Thu, 22 Nov 2012 06:02:26
> To: <ngethe.kariuki2007 at yahoo.co.**uk <ngethe.kariuki2007 at yahoo.co.uk>>
> Reply-To: robert yawe <robertyawe at yahoo.co.uk>
> Cc: KICTAnet ICT Policy Discussions<kictanet at lists.**kictanet.or.ke<kictanet at lists.kictanet.or.ke>
> >
> Subject: Re: [kictanet] Resign and seek to supply the system as an outsider
>
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> for people and institutions interested and involved in ICT policy and
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> KICTANetiquette : Adhere to the same standards of acceptable behaviors
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> for people and institutions interested and involved in ICT policy and
> regulation. The network aims to act as a catalyst for reform in the ICT
> sector in support of the national aim of ICT enabled growth and development.
>
> KICTANetiquette : Adhere to the same standards of acceptable behaviors
> online that you follow in real life: respect people's times and bandwidth,
> share knowledge, don't flame or abuse or personalize, respect privacy, do
> not spam, do not market your wares or qualifications.
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