Copyright is the most widely applicable form of intellectual property protection in Kenya. It protects a broad range of creative works automatically, without registration, from the moment they are created and expressed in a material form. The governing statute is the Copyright Act (Cap 130 of the Laws of Kenya).
What Copyright Protects
The Copyright Act protects literary works (including books, articles, contracts, and software code), musical works, artistic works (including paintings, drawings, photographs, and architectural plans), audiovisual works, sound recordings, and broadcasts. Copyright does not protect ideas, concepts, or information. It protects the specific expression of those ideas in material form.
Ownership
For works created by an employee in the course of employment, copyright vests in the employer. For commissioned works, copyright vests in the author unless the commission agreement provides otherwise. This is a common trap for businesses commissioning websites, logos, and software from freelancers. Without a written assignment, the commissioning business does not own the copyright in work it paid for.
Duration of Protection
Copyright protection lasts for the life of the author plus fifty years. For corporate works, sound recordings, and audiovisual works, the period is fifty years from the date of publication. After expiry, the work enters the public domain.
Rights Granted
Copyright gives the owner the exclusive right to reproduce the work, publish it, perform it in public, make an adaptation, broadcast it, and make it available online. These are economic rights. Kenyan law also protects moral rights: the author’s right to be identified as creator (paternity right) and the right to object to derogatory treatment (integrity right). Moral rights cannot be assigned but can be waived.
Permitted Uses: Fair Dealing
The Copyright Act permits certain uses without the owner’s consent, including fair dealing for research, private study, criticism, review, or reporting current events. The fair dealing defence is narrower than the US fair use doctrine and should not be assumed to cover commercial uses.
Infringement and Enforcement
Copyright infringement occurs when a person does any reserved act without authorisation and without a defence. The Kenya Copyright Board (KECOBO) has enforcement powers, including the authority to seize infringing goods. Civil remedies include damages, injunctions, and delivery up of infringing copies. Criminal penalties apply to commercial-scale infringement.
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