Copyright Act

The Act may be cited as the Copyright Act.

Section 2 provides multiple definitions for categories of works (for example literary, photographic, sound and audio-visual works), identifies who is regarded as the maker or author for each category, and defines when a work is 'published'.

The Board may, by resolution, delegate any of its powers, functions or duties to a committee or to a member, officer, employee or agent of the Board.

The Board must appoint an Executive Director by competitive process and determine the Executive Director's terms; the Executive Director serves management and secretarial roles and is an ex officio Board member but has no right to vote.

The Board may appoint Deputy Executive Directors, Assistant Executive Directors, and other officers or staff as necessary and on terms and conditions it determines.

The common seal of the Board must be kept in custody as the Board may direct and must not be used except on the order of the Board; when affixed to a document and duly authenticated it will be judicially and officially noticed.

Members of the Board, its officers, employees, agents, and persons acting on their directions are not personally liable for actions done bona fide in executing the Board's functions, powers or duties.

Section 15 has been deleted.

The Cabinet Secretary may grant sums to the Board pursuant to subsection (2).

The Board's financial year must be the twelve-month period ending on 30 June each year.

The Board must prepare and approve annual revenue and expenditure estimates before each financial year, submit them to the Cabinet Secretary for approval, and after Cabinet Secretary approval the Board must not increase estimates without that consent.

The Board must cause proper books and records of accounts of its income, expenditure and assets to be kept.

The Board may invest its funds in certain securities (those trustees may lawfully use for trust funds or securities approved by the National Treasury) and may place surplus monies on deposit with banks it chooses.

An aggrieved person may appeal a Board decision to the Copyright Tribunal within 60 days; the Board must provide written comments to the Tribunal on request; and the Tribunal must decide appeals within 30 days.

Establishes and incorporates the Board and states the Board may sue and be sued.

The Headquarters of the Board shall be in Nairobi.

The Board must direct, co‑ordinate and oversee the implementation of laws and international treaties relating to copyright and other rights recognised by this Act, and ensure their observance.

Section 6 lists who composes the Board: a Chairperson appointed by the President; the Principal Secretary in the National Treasury or representative; the Principal Secretary in charge of culture and heritage or representative; the Principal Secretary for ICT or representative; the Attorney‑General or representative; three persons nominated by recognised associations representing music, film and publishing; and the Executive Director appointed under section 11. Appointments for paragraph (1)(f) shall be by the Attorney‑General.

The Board has the power to control, supervise and administer the Board's assets in a way that best promotes the Board's purposes.

The Board's conduct and regulation of its business and affairs are set out in the First Schedule; except as provided there, the Board may regulate its own procedure.

The Board must pay its members remuneration, fees, or allowances for expenses as it may determine after consulting the Cabinet Secretary responsible for finance.

Section 22 lists categories of works eligible for copyright and states that copyright rights accrue to the author automatically when a work is affixed in material form; it also provides that a work is not made ineligible solely because its making involved infringement and that broadcasts are not eligible until broadcast.

The Board must keep and maintain a register of all works under this Act in the prescribed manner.

Establishes a National Rights Registry as an office within the Board and provides that the Registry's staff are staff of the Board.

Section 22C establishes functions of the Registry, including digital registration of right holders.

The Board must develop and maintain an online registration portal; authors or owners may register works; any person may access works on the Registry subject to Board-prescribed conditions and payment of fees.

Section 23 confers copyright on works whose author is a Kenyan citizen, domiciled or ordinarily resident in Kenya, or on bodies corporate incorporated under Kenyan law, and sets 50-year terms for various categories of works; it also grants perpetual copyright to the National Museums for works vested in them.

Copyright is treated as first published, made or transmitted in Kenya when: a literary, musical, dramatic, artistic or audio-visual work is first published in Kenya; a sound recording is made or first published in Kenya; or a broadcast is transmitted from transmitters situated in Kenya. Copyright conferred by this section has the same duration as provided for similar works in section 23.

Copyright is conferred under this section on works commissioned by the Government or an international or prescribed non-governmental body, provided no copyright was conferred under section 23(1) or 24(1).

Section 26 lists the exclusive rights that constitute copyright, including reproduction; translation or adaptation; distribution (sale, rental, lease, hire, loan, importation or similar arrangements); communication to the public; making available to the public; and broadcasting; it also grants an exclusive right to control erection of buildings reproducing architectural works but exempts reconstruction in the same style; and states rights are limited by the Second Schedule.

Computer programs are subject to fair dealing; permitted acts include making copies to correct errors, making a backup copy, testing for suitability, and uses not prohibited by licence; authorization of the right holder is not required to decompile to obtain information for interoperability; copies made under this section must be used only for their purpose and destroyed when the person's possession of the program ceases to be lawful.

Circumvention of technological protection measures is permitted in limited circumstances set out in the Second Schedule to this Act.

Authorised entities and beneficiary persons may make and distribute accessible-format copies for visually impaired persons; beneficiary acts and authorised entities may circumvent technological protection measures when doing so under Regulations.

Artists have an inalienable resale right while copyright subsists; a 5% resale royalty on commercial resales is payable and the seller, art market professional, seller's agent and buyer are jointly liable; visual artists may form or be represented by a collective management organization; specified exceptions apply.

If a broadcasting authority broadcasts an audio-visual work that incorporates a musical work, the owner of the broadcasting right in that musical work is entitled to receive fair compensation from the broadcasting authority; if there's no agreement the Copyright Tribunal will determine the amount.

Owners of copyright in sound recordings are not infringed by single private copies; they are entitled to a royalty on recording equipment and media payable by manufacturers or importers at first manufacture or entry, and making equipment available commercially without paying that royalty is an offence with specified penalties.

Copyright in broadcasts includes "the fixation of the whole or a substantial part of the broadcast".

Section 30 lists rights granted to performers (e.g., to broadcast, fix, rent, distribute, make available, and moral rights), permits the performer or a written representative to give binding authorisations, and sets a 50-year protection period for those rights.

Section 30A was deleted by Act No. 11 of 2017 (Schedule).

The Kenya Revenue Authority or another entity designated by the Board must collect royalties for licensed collective management organizations; collective management organizations and manufacturers/importers must agree royalty levels or the Board will decide; and the Board must determine and publish shares of private copying remuneration in the Gazette.

Allocates ring back tune revenue shares: premium rate service provider 8.5%; telecommunication operator 39.5%; artiste/owner not less than 52%. Existing contracts prior to commencement remain until expiry; subsequent contracts must conform. The telecommunication operator must remit the artiste/owner share directly.

Copyright conferred by section 25 initially vests in the Government or prescribed international or governmental organizations, and not in the author.

Authors have moral rights: to claim authorship, to object to derogatory treatment of their work, and to seek relief; these rights are not transferable during the author's life but the right to exercise them may pass by will or operation of law after death.

This section governs how copyright and prospective copyright may be assigned or licensed, requires written assignments or exclusive licences to be signed, allows non-exclusive licences to be oral or inferred and revocable (but contractual licences are not revocable except as the contract provides), provides recordal requirements for assignments, sets default termination and notice periods for certain licences and makes licences binding on successors in title except bona fide purchasers without notice.

The Board may, after giving the copyright owner a chance to be heard and holding any inquiry it deems necessary, grant a licence to a complainant to republish a work or communicate it by broadcast if the Board is satisfied the refusal to license is not reasonable, subject to payment of compensation and other terms the Board sets.

Exclusive licensees and exclusive sub-licensees have the same rights of action and remedies as if the licence were an assignment; before instituting proceedings they must give written notice to the copyright owner, who may intervene and recover damages or a reasonable royalty.

Section 35 lists acts that constitute infringement (including doing controlled acts, importing infringing copies, circumventing technological protection, and removing electronic rights management information), available remedies and presumptions in infringement proceedings, and procedural rules such as a required written notice to exclusive licensees before instituting proceedings.

States that the section does not initiate transmission.

Gives the procedure for takedown notices for copyrighted content and duties for complainants and Internet Service Providers, including notice contents, delivery rules, ISP notification and takedown timing, liability and offences.

Internet service providers must provide subscriber identity information to investigative agencies on court order after application by a copyright owner with a takedown notice, and must designate an agent or address to receive such notices.

Allows a person to apply to the High Court for interim relief where they reasonably believe their copyright is being or may be infringed, and requires persons, hosts and internet service providers involved in enabling copyright infringement to cease the conduct or disable access.

Recordings made available commercially in Kenya must have an authentication device prescribed by the Board; the Board authenticates works and issues approval to applicants and devices are to be affixed to each copy; selling without a device is an offence with fines or imprisonment.

Court may grant an Anton Piller order if the applicant has a cause of action, the respondent possesses important documentary evidence, and there is a real risk that that evidence may be hidden, destroyed or rendered inaccessible; such an order may be granted ex parte.

Section 38 lists acts constituting copyright infringement, creates presumptions about possession of multiple infringing copies, sets criminal liability for causing infringing public performances, provides court powers to destroy or deliver infringing articles, and specifies fines and imprisonment ranges for different offences.

If a company is convicted of an offence under the Act, persons who were in charge of or responsible for its business at the time are treated as having committed the offence and may be prosecuted; if the offence involved their consent, connivance or willful lack of due diligence they shall be guilty of the offence.

The Board must appoint inspectors and issue them certificates of authority; Board members or police officers may act as inspectors; inspectors' terms are subject to conditions the Board may set with Cabinet Secretary approval.

An inspector may enter any premises, ship, aircraft or vehicle at any reasonable time, on production of his certificate of authority, to check for contraventions of the Act.

Inspectors may seize suspected infringing works and documents; when an inspector seizes a work he must notify the person it was seized from; it is an offence to obstruct or fail to assist an inspector or to give false information.

Police officers and authorized Board officers may arrest without a warrant in specified circumstances; police may, with a warrant, effect arrest and confiscate material.

The Director of Public Prosecutions may appoint public prosecutors (pursuant to the Criminal Procedure Code) for cases arising under this Act; the Board shall be deemed to be a public authority for the purposes of section 171(4) of the Criminal Procedure Code.

An inspector is exempt from personal liability for acts done in good faith while performing duties under this Act.

Works are in the public domain if protection has expired, if the author has renounced rights, or if foreign works lack protection in Kenya; renunciation must be in writing and made public; public-domain works may be used without restriction subject to payment of fees determined by the Cabinet Secretary.

Collective management organisations may not operate without a certificate of registration; the Board processes registration applications, may issue provisional licences up to six months, may declare applicants a collecting society by Gazette notice, and the Board must notify organisations before deregistration, allowing 21 days for representations. Unauthorized collectors commit an offence punishable by fine or imprisonment.

Tariffs must be approved and published in the Gazette by the Cabinet Secretary in charge of copyright issues before being used for levies.

Members with a Kenya-recognized postsecondary qualification are eligible for election as directors; directors and chairpersons serve three-year terms with one possible re-election; chief executive officers serve four-year terms and may be reappointed once upon satisfactory performance.

Authors, producers, performers, visual artists and publishers may form collective management organizations to collect, manage and distribute royalties; new organizations for other rights may be approved by the Kenya Copyright Board; regulations set the designated extent of operation.

Collective management organisations must annually submit information on total collection and distribution of royalties to the Board; the Board must publish that information by notice in the Gazette.

The Executive Director may authorize inspections of collective management organisations' books; those organisations and their officers must produce records within seven days (or a longer written direction); wilful failure is an offence punishable by a fine up to 200,000 shillings or up to three months' imprisonment; the Executive Director may require compliance after a hearing.

The Board may recommend suspension or removal of any officer or employee of the organization who, in the opinion of the Board, has contributed or caused the contravention of any law.

Directors must record and keep minutes of all meeting resolutions and proceedings; the Board may attend and advise directors' meetings through a designated representative when members' interests are discussed.

Subsection (1) requires a report of operations and a copy of audited accounts for the year; subsection (2) states these obligations are in addition to those under the Companies Act for a collective management organisation that is a company.

Section 48 establishes a Copyright Tribunal appointed by the Chief Justice, sets its required composition, disqualifies persons with pecuniary interests from appointment or service, requires the Tribunal to give both parties an opportunity to present their cases, and allows the Tribunal to order registration or licences subject to payment of applicable fees.

The Cabinet Secretary may make regulations to give effect to this Act, including many specific matters listed such as audits, meetings, registry fees, registration formats, registrable works, distribution rules, reserves, membership, identification systems and anything required by the Act.

The section specifies which works made before the Act's commencement are covered and states that the Act does not affect contracts concluded before commencement.

No copyright or right in the nature of copyright shall subsist except by virtue of this Act or some other enactment.