Copyright Law in Kenya: What Creators and Businesses Need to Know

Copyright law in Kenya protects creative works automatically from the moment they are expressed in material form, without registration. The governing statute is the Copyright Act, 2001 (No. 12 of 2001), administered by the Kenya Copyright Board (KECOBO). Section 22(5) provides that rights protected by copyright accrue to the author automatically on affixation of a work in a material form, and that non-registration does not affect them.

Copyright Law in Kenya: What Works Are Protected

Section 22(1) makes the following eligible for copyright or related rights: literary works, musical works, artistic works, dramatic works, audio-visual works, sound recordings and broadcasts. A literary, musical or artistic work must have had sufficient effort expended on it to give it an original character, and must have been written down, recorded or otherwise reduced to material form (section 22(3)). Copyright protects the specific expression of an idea rather than the idea itself, so two independently created works on the same subject can each hold copyright in their own expression. Computer programmes are addressed specifically in section 26A.

Ownership: The Default Rule Favours the Commissioning Business

Ownership is the most commonly misunderstood area of Kenyan copyright law. Under section 31(1), copyright vests initially in the author. But where a work is commissioned by a person who is not the author’s employer under a contract of service, or is made in the course of the author’s employment under a contract of service, the copyright is deemed to be transferred to the person who commissioned the work or the employer, subject to any agreement between the parties excluding or limiting the transfer.

In practice, employee-created and commissioned work will generally vest in the employer or commissioning party unless the contract provides otherwise. A business that commissions a website, logo or custom software from a freelancer therefore has a statutory starting point in its favour, but a written IP assignment remains important: it removes any argument about whether the engagement qualifies as a commission on the facts, and it gives a clean chain of title for investors, acquirers or a court. A freelancer who wants to keep copyright must negotiate that expressly. See our guide to content licensing and rights management in Kenya.

Duration of Protection: Four Categories

Section 23(2) sets out four categories, each with its own trigger:

• Literary, musical, dramatic or artistic works other than photographs: fifty years after the end of the year in which the author dies.
• Audio-visual works and photographs: fifty years from the end of the year in which the work was made, first made available to the public or first published, whichever date is the latest.
• Sound recordings: fifty years after the end of the year in which the recording was made.
• Broadcasts: fifty years after the end of the year in which the broadcast took place.

For anonymous or pseudonymous literary, musical, dramatic or artistic works, section 23(3) runs the term from the end of the year of first publication, recalculated under the table if the author’s identity becomes known. For joint authorship, the reference to the author’s death means the author who dies last (section 23(4)). A business relying on an expiry date should first identify which category its work falls into. A sound recording’s term runs from the year it was made, not the year it was released.

Economic and Moral Rights

Section 26(1) gives the copyright owner of a literary, musical, artistic or audio-visual work the exclusive right to control reproduction, translation or adaptation, distribution to the public, communication to the public, making available, and broadcasting. Economic rights can be assigned and licensed (section 33). Separately, section 32(1) gives the author, independently of the economic rights and even after their transfer, the right to claim authorship and to object to any distortion, mutilation or other modification, or derogatory action, prejudicial to the author’s honour or reputation. Under section 32(2) these rights are not transmissible during the author’s life. This matters in commissioning and employment contexts, where economic copyright may vest in the business under section 31 while the author’s moral rights persist.

Permitted Uses: Fair Dealing

The Second Schedule provides that the exclusive rights under section 26 do not include the right to control acts done by way of fair dealing for scientific research, private use, criticism or review, or the reporting of current events, nor acts done by way of parody, pastiche or caricature, or the right to quote, among other exceptions. Whether a use is fair depends on the facts. A use that takes more than is reasonably necessary for its purpose, or that substitutes for the original rather than commenting on it, is unlikely to qualify, whatever the user’s intentions.

Infringement and Enforcement

Under section 35(1), copyright is infringed by a person who, without the licence of the owner, does or causes to be done an act controlled by the copyright, or imports an article known to be an infringing copy other than for private and domestic use. Section 39 empowers the Board to appoint inspectors to enforce the Act, and section 37 provides for Anton Piller orders. Section 38 creates criminal offences: for knowingly making for sale, selling, distributing or possessing infringing copies other than for private and domestic use, a first conviction carries a fine of five times the market value of the legitimate work or KES 1,000 per infringing copy, whichever is higher, or imprisonment of up to ten years, or both (section 38(4)(a)). Document any infringement and its commercial scale early, because it shapes whether a civil claim, a KECOBO referral or both is the right route.