Copyright Act
The Act may be cited as the Copyright Act.
- Jurisdiction
- Kenya
- Instrument
- Act or statute
- Citation
- Cap. 130
- Version
- 31 Dec 2022
- Language
- en
- Official source
- View official record ↗
Source attribution: Source: Kenya Law
Statute overview
About this statute
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.
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Provisions of Copyright Act
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Part I
PRELIMINARY
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PRELIMINARY - 1. Short title
The Act may be cited as the Copyright Act.
Section 1. Short title Section This Act may be cited as the Copyright Act. - 2 Verify source ↗
PRELIMINARY - 2. Interpretation
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'.
Section 2. Interpretation Section 2(1)(a) paintings, drawings, etchings, lithographs, woodcuts, engravings and prints; Section 2(1)(b) maps, plans and diagrams; Section 2(1)(c) works of sculpture; Section 2(1)(d) photographs not comprised in audio-visual works; Section 2(1)(e) works of architecture in the form of buildings or models; and Section 2(1)(f) works of artistic craftsmanship, pictorial woven tissues and articles of applied handicraft and industrial art; Section 2(1)(a) a literary, musical dramatic or artistic work, means the person who first makes or creates the work; Section 2(1)(b) a photograph, means the person who is responsible for the composition of the photograph; Section 2(1)(c) a sound recording, means a person by whom the arrangements for the making of the sound recording were made; Section 2(1)(d) audio-visual works, means the person by whom the arrangements for the making of the work were made; Section 2(1)(e) a broadcast, means the first broadcaster; Section 2(1)(f) a published edition, means the publisher of the edition; Section 2(1)(g) a literary, dramatic, musical or artistic work or computer program which is computer generated, means the person by whom the arrangements necessary for the creation of the work were undertaken; and Section 2(1)(h) a computer programmer, means the person who exercised control over the making of the program; Section 2(1)(a) is blind; Section 2(1)(b) has a visual impairment or a perceptual or reading disability which cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or Section 2(1)(c) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading, regardless of any other disabilities; Section 2(1)(a) a live performance; or Section 2(1)(b) a transmission to the public, other than a broadcast, of the images or sounds or both, of a work, performance or sound recording; Section 2(1)(a) a copy, the making of which constitutes an infringement of any rights protected by this Act; Section 2(1)(aa) the transmission of a work or live performance which constitutes an infringement of any rights protected by this Act through wire or wireless means to the public, including the making available of a work or a live performance to the public in such a way that members of the public may access the work or live performance from a place and at such a time individually chosen by them; or Section 2(1)(b) where imported, a copy the making of which would have constituted an infringement of such rights if made in Kenya by the importer; Section 2(1)(a) novels, stories and poetic works; Section 2(1)(b) plays, stage directions, film sceneries and broadcasting scripts; Section 2(1)(c) textbooks, treatises, histories, biographies, essays and articles; Section 2(1)(d) encyclopaedias and dictionaries; Section 2(1)(e) letters, reports and memoranda; Section 2(1)(f) lectures, addresses and sermons; Section 2(1)(g) charts and tables; Section 2(1)(h) computer programs; and Section 2(1)(i) tables and compilations of data including tables and compilations of data stored and embodied in a computer or a medium used in conjunction with a computer, Section 2(1)(a) directly; Section 2(1)(b) by means of a film, slide, television image or otherwise on screen; Section 2(1)(c) by means of any other device or process; Section 2(1)(d) in the case of an audio-visual work, showing of individual images consequentially at a place or places where persons outside the normal circle of a family and its closest social acquaintances are or can be present irrespective of whether they are or can be present at the same place and time or at different places or times, where the work can be displayed without communication to the public; Section 2(1)(a) in the case of work other than an audio-visual work, the recitation, playing, dancing, acting or otherwise performing the work, either directly or by means of any device or process; Section 2(1)(b) in case of an audio-visual work, the showing of images in sequence and the making of accompanying sound audible; and Section 2(1)(c) in the case of a sound recording, making the recorded sounds audible at a place or at places where persons outside the normal circle of the family and its closest acquaintances are or can be present, irrespective of whether they are or can be present at the same place and time, or at different places or times, and where the performance can be perceived without the need for communication to the public; Section 2(2)(a) a work shall be taken to have been published if, but only if, copies have been issued in sufficient quantities to satisfy the reasonable requirements of the public; Section 2(2)(b) where in the first instance a part only of a work is published, that part shall be treated for the purposes of this Act as a separate work; and Section 2(2)(c) a publication in a country shall not be treated as being other than the first publication by reason only of an earlier publication elsewhere, if the two publications took place within a period of not more than thirty days.
Part II
ADMINISTRATION
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ADMINISTRATION - 10. Delegation by the Board
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.
Section 10. Delegation by the Board Section The Board may, by resolution either generally or in any particular case, delegate to any committee of the Board or to any member, officer, employee or agent of the Board, the exercise of any of the powers or the performance of any of the functions or duties of the Board under this Act or under any other written law. - 11 Verify source ↗
ADMINISTRATION - 11. Executive Director
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.
Section 11. Executive Director Section 11(1) There shall be an Executive Director of the Board who shall be appointed by the Board through a competitive process and whose terms and conditions of service shall be determined by the Board in the instrument of appointment or otherwise in writing from time to time. Section 11(2)(a) is an advocate of the High Court of Kenya of not less than five years' standing or has held judicial office in Kenya; Section 11(2)(b) has at least five years managerial experience; and Section 11(2)(c) has at least five years' experience in matters relating to copyright and other related rights. Section 11(3)(a) be an ex officio member of the Board but shall have no right to vote at any meetings of the Board; Section 11(3)(b) be the secretary to the Board; and Section 11(3)(c) subject to the directions of the Board, be responsible for the day to day management of the affairs of the Board. Section 11(4) The Executive Director shall be appointed for a term of four years and shall be eligible for reappointment for one further term of four years. [Act No. 11 of 2017 , Sch., Act No. 20 of 2019 , s. 5.] - 12 Verify source ↗
ADMINISTRATION - 12. Staff of the Board
The Board may appoint Deputy Executive Directors, Assistant Executive Directors, and other officers or staff as necessary and on terms and conditions it determines.
Section 12. Staff of the Board Section The Board may appoint such Deputy Executive Directors, Assistant Executive Directors, and such officers or other staff of the Board as are necessary for the proper discharge of its functions under this Act or any other written law upon such terms and conditions of service as the Board may determine. - 13 Verify source ↗
ADMINISTRATION - 13. The common seal of the Board
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.
Section 13. The common seal of the Board Section 13(1) The common seal of the Board shall be kept in such custody as the Board may direct and shall not be used except on the order of the Board. Section 13(2) The common seal of the Board when affixed to a document and duly authenticated shall be judicially and officially noticed and unless and until the contrary is proved, any necessary order or authorisation by the Board under this section shall be presumed to have been duly given. - 14 Verify source ↗
ADMINISTRATION - 14. Protection from personal liability
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 14. Protection from personal liability Section No matter or thing done by a member of the Board or any officer, employee or agent of the Board shall, if the matter or thing is done bona fide for executing the functions, powers or duties of the Board, render the member, officer, employee or agent or any person acting on his directions personally liable to any action, claim or demand whatsoever. - 15 Verify source ↗
ADMINISTRATION - 15.[Deleted by ActNo. 12 of 2012, Sch.]
Section 15 has been deleted.
Section 15.[Deleted by ActNo. 12 of 2012, Sch.] - 16 Verify source ↗
ADMINISTRATION - 16. Funds of the Board
The Cabinet Secretary may grant sums to the Board pursuant to subsection (2).
Section 16. Funds of the Board Section 16(1)(a) such sums as may be granted to the Board by the Cabinet Secretary pursuant to subsection (2); Section 16(1)(b) such monies or assets as may accrue to or vest in the Board in the course of the exercise of its powers or the performance of its functions under this Act or under any other written law; and Section 16(1)(c) all monies from any other source provided for or donated or lent to the Board. Section 16(2) There shall be made to the Board, out of monies provided by Parliament for that purpose, grants towards the expenditure incurred by the Board in the exercise of its powers or the performance of its functions under this Act. [Act No. 11 of 2017 , Sch., Act No. 19 of 2015 , s. 135.] - 17 Verify source ↗
ADMINISTRATION - 17. Financial year
The Board's financial year must be the twelve-month period ending on 30 June each year.
Section 17. Financial year Section The financial year of the Board shall be the period of twelve months ending on the thirtieth June in each year. - 18 Verify source ↗
ADMINISTRATION - 18. Annual estimates
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.
Section 18. Annual estimates Section 18(1) At least three months before the commencement of each financial year, the Board shall cause to be prepared estimates of revenue and expenditure of the Board for that year. Section 18(2)(a) the payment of the salaries, allowances and other charges in respect of the staff of the Board; Section 18(2)(b) the payment of pensions, gratuities and other charges in respect of the staff of the Board; Section 18(2)(c) the proper maintenance of the buildings and grounds of the Board; Section 18(2)(d) the remuneration of Board members pursuant to section 9 ; Section 18(2)(e) the maintenance, repair and replacement of equipment and other property of the Board; and Section 18(2)(f) the creation of such reserve funds to meet future or contingent liabilities in respect of retirement benefits, insurance or replacement of buildings or equipment, or in respect of such other matter as the Board may deem appropriate. Section 18(3) The annual estimates shall be approved by the Board before the commencement of the financial year to which they relate and shall be submitted to the Cabinet Secretary for approval and after the Cabinet Secretary’s approval, the Board shall not increase the annual estimates without the consent of the Cabinet Secretary. [Act No. 11 of 2017 , Sch., Act No. 19 of 2015 , s. 136.] - 19 Verify source ↗
ADMINISTRATION - 19. Accounts and audit
The Board must cause proper books and records of accounts of its income, expenditure and assets to be kept.
Section 19. Accounts and audit Section 19(1) The Board shall cause to be kept all proper books and records of accounts of its income, expenditure and assets. Section 19(2)(a) a statement of the income and expenditure of the Board during that year; and Section 19(2)(b) a statement of the assets and liabilities of the Board on the last day of that year. Section 19(3) The accounts of the Board shall be audited and reported in accordance with the provisions of the Public Audit Act (Cap. 412B). [Act No. 20 of 2019 , s. 6.] - 20 Verify source ↗
ADMINISTRATION - 20. Investment of funds
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.
Section 20. Investment of funds Section 20(1) The Board may invest any of its funds in securities in which for the time being trustees may by law invest trust funds, or in any other securities which the National Treasury may, from time to time, approve for that purpose. Section 20(2) The Board may place on deposit with such bank or banks as it may determine, any monies not immediately required for the purposes of the Board. - 21 Verify source ↗
ADMINISTRATION - 21. Appeals
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.
Section 21. Appeals Section 21(1) A person aggrieved by the decision of the Board under this Act may, within sixty days from the date of the decision, appeal to the Copyright Tribunal. Section 21(2) The Board shall provide written comments on any matter over which an appeal has been submitted to the Copyright Tribunal under this section upon request from the Copyright Tribunal. Section 21(3) The Copyright Tribunal shall issue a decision on the appeal within thirty days from the date of an appeal. [Act No. 20 of 2019 , s. 8.] - 3 Verify source ↗
ADMINISTRATION - 3. Establishment and incorporation of the Board
Establishes and incorporates the Board and states the Board may sue and be sued.
Section 3. Establishment and incorporation of the Board Section suing and being sued; - 4 Verify source ↗
ADMINISTRATION - 4. Headquarters
The Headquarters of the Board shall be in Nairobi.
Section 4. Headquarters Section The Headquarters of the Board shall be in Nairobi. - 5 Verify source ↗
ADMINISTRATION - 5. Functions of the Board
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 5. Functions of the Board Section direct, co-ordinate and oversee the implementation of laws and international treaties and conventions to which Kenya is a party and which relate to copyright and other rights recognised by this Act and ensure the observance thereof; - 6 Verify source ↗
ADMINISTRATION - 6. Composition of the Board
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.
Section 6. Composition of the Board Section 6(1)(a) a Chairperson appointed by the President; Section 6(1)(b) the Principal Secretary in the National Treasury or a designated representative; Section 6(1)(c) the Principal Secretary incharge of matters relating to culture and heritage or a representative; Section 6(1)(d) the Principal Secretary in the Ministry responsible for matters relating to information and communications technology or a designated representative; Section 6(1)(e) the Attorney-General or a representative; Section 6(1)(f) three persons each nominated by associations recognised by the Government as representing stakeholders in music, film and publishing respectively; and Section 6(1)(g) the Executive Director appointed under section 11 . Section 6(2) Spent Section 6(3) Appointments under paragraph (1) (f) shall be by the Attorney-General. [L.N. 54/2003, r. 2, Act No. 7 of 2007 , Sch, Act No. 18 of 2018 , Sch.] - 7 Verify source ↗
ADMINISTRATION - 7. Functions and powers of the Board
The Board has the power to control, supervise and administer the Board's assets in a way that best promotes the Board's purposes.
Section 7. Functions and powers of the Board Section control, supervise and administer the assets of the Board in such manner as best promotes the purposes for which the Board is established; - 8 Verify source ↗
ADMINISTRATION - 8. Conduct of business and affairs of the Board
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.
Section 8. Conduct of business and affairs of the Board Section 8(1) The conduct and regulation of the business and affairs of the Board shall be as provided in the First Schedule. Section 8(2) Except as provided in the First Schedule, the Board may regulate its own procedure. - 9 Verify source ↗
ADMINISTRATION - 9. Remuneration of Board members
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 9. Remuneration of Board members Section The Board shall pay its members such remuneration, fees, or allowances for expenses as it may determine after consultation with the Cabinet Secretary for the time being responsible for finance. [Act No. 11 of 2017 , Sch., Act No. 19 of 2015 , s. 134.]
Part III
COPYRIGHT AND RELATED RIGHTS
- 22 Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 22. Works eligible for copyright
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.
Section 22. Works eligible for copyright Section 22(1)(a) literary works; Section 22(1)(b) musical works; Section 22(1)(c) artistic works; Section 22(1)(ca) dramatic works; Section 22(1)(d) audio-visual works; Section 22(1)(e) sound recordings; and Section 22(1)(f) broadcasts. Section 22(2) A broadcast shall not be eligible for copyright until it has been broadcast. Section 22(3)(a) sufficient effort has been expended on making the work to give it an original character; and Section 22(3)(b) the work has been written down, recorded or otherwise reduced to material form. Section 22(4) A work shall not be ineligible for copyright by reason only that the making of the work, or the doing of any act in relation to the work, involved an infringement of copyright in some other work. Section 22(5) Rights protected by copyright shall accrue to the author automatically on affixation of a work subject to copyright in a material form, and non-registration of any copyright work or absence of either formalities shall not bar any claim from the author. [Act No. 18 of 2014 , Sch., Act No. 20 of 2019 , s. 9.] - 22A Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 22A. Register of copyright works
The Board must keep and maintain a register of all works under this Act in the prescribed manner.
Section 22A. Register of copyright works Section 22A(1) The Board shall keep and maintain a register of all works under this Act in such manner as may be prescribed. Section 22A(2) Without prejudice to the relevant provisions of this Act conferring Copyright, all works eligible for copyright may be entered on the Register on application in the prescribed format made by or on behalf of the author, owner, assignee or exclusive licensee of the work. Section 22A(3) The Register shall be prima facie evidence of particulars entered therein and documents, extracts or copies made there from if certified by the Board shall be admissible in evidence without further proof or production of the original. Section 22A(4) The register and the relevant details entered on application shall be available for search to the public on terms set by the Board. [Act No. 20 of 2019 , s. 10.] - 22B Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 22B. National rights registry
Establishes a National Rights Registry as an office within the Board and provides that the Registry's staff are staff of the Board.
Section 22B. National rights registry Section 22B(1) There is established a National Rights Registry which shall be an office within the Board. Section 22B(2) The staff of the Registry shall be staff of the Board. [Act No. 14 of 2022 , s. 4.] - 22C Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 22C. Functions of the Registry
Section 22C establishes functions of the Registry, including digital registration of right holders.
Section 22C. Functions of the Registry Section digital registration of right holders; - 22D Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 22D. Voluntary registration on the Registry
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 22D. Voluntary registration on the Registry Section 22D(1) Without prejudice to the generality of section 22C , the Board shall cause to be developed and maintained an online portal for registration of copyright works. Section 22D(2) The author of copyright works or an owner of copyright may register his or her works on the Registry. Section 22D(3) Subject to such conditions as may be prescribed by the Board and upon payment of the prescribed fees, any person may access the copyright works through the Registry. [Act No. 14 of 2022 , s. 4.] - 23 Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 23. Copyright by virtue of nationality or residence, and duration of copyright
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.
Section 23. Copyright by virtue of nationality or residence, and duration of copyright Section 23(1) Copyright shall be conferred by this section on every work eligible for copyright of which the author, or, in the case of a work of joint authorship, any of the authors is, at the time when the work is made, a citizen of, or is domiciled or ordinarily resident in, Kenya or is a body corporate which is incorporated under or in accordance with the laws of Kenya. Section 23(2) The term of a copyright conferred by this section shall be calculated according to the following table— Type of WorkDate of Expiration of Copyright1. Literary, musical, dramatic or artistic work other than photographsFifty years after the end of the year in which the author dies.2. Audio-visual works and photographsFifty years from the end of the year in which the work was either made, first made available to the public, or first published, whichever date is the latest.3. Sound recordingsFifty years after the end of the year in which the recording was made.4. BroadcastsFifty years after the end of the year in which the broadcast took place. Section 23(3) In the case of anonymous or pseudonymous literary, musical, dramatic or artistic works, the copyright therein shall subsist until the expiration of fifty years from the end of the year in which it was first published: Provided that in the event of the identity of the author becoming known the term of protection of a copyright shall be calculated in accordance with subsection (2). Section 23(4) In the case of a work of joint authorship, reference in the preceding table to the death of the author shall be taken to refer to the author who dies last, whether or not he is a qualified person. Section 23(5) Notwithstanding anything else contained in this Act copyright in works eligible for copyright and vested in the National Museums Board of Directors or the National Museums is conferred in perpetuity on the National Museums. [Act No. 6 of 2006 , s. 71, Act No. 20 of 2019 , s. 11.] - 24 Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 24. Copyright by reference to country of origin
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.
Section 24. Copyright by reference to country of origin Section 24(1)(a) being a literary, musical, dramatic or artistic work or any audio-visual work, is first published in Kenya; or Section 24(1)(b) being a sound recording, is made or first published in Kenya; or Section 24(1)(c) being a broadcast, is transmitted from transmitters situated in Kenya. Section 24(2) Copyright conferred on a work by this section shall have the same duration as is provided for in section 23 in relation to a similar work. [Act No. 20 of 2019 , s. 12.] - 25 Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 25. Copyright in works of Government and international bodies
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 25. Copyright in works of Government and international bodies Section 25(1) Copyright is conferred under this section on any work eligible for copyright which has been created pursuant to a commission from the Government or such international body or non-governmental body as may be prescribed, and on which no copyright has been conferred under section 23 (1) or 24 (1). Section 25(2) Copyright conferred by this section on a literary, musical, dramatic or artistic work, shall subsist until the end of the expiration of fifty years from the end of the year in which it was first published. Section 25(3) Copyright conferred by this section on any audio-visual work, photograph, sound recording or broadcast shall have the same duration as is provided for by section 23 in relation to a similar work. Section 25(4) Sections 23 and 24 shall not confer copyright on works to which this section applies. [Act No. 20 of 2019 , s. 13, Act No. 20 of 2019 , s. 13.] - 26 Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 26. Nature of copyright in literary, musical or artistic works and audio-visual works
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.
Section 26. Nature of copyright in literary, musical or artistic works and audio-visual works Section 26(1)(a) the reproduction in any material form of the original work; Section 26(1)(b) the translation or adaptation of the work; Section 26(1)(c) the distribution to the public of the work by way of sale, rental, lease, hire, loan, importation or similar arrangement; Section 26(1)(d) the communication to the public of the whole work or a substantial part thereof, either in its original form or in any form recognizably derived from the original; Section 26(1)(e) the making available of the whole work or a substantial part thereof, either in its original form or in any form recognizably derived from the original; and Section 26(1)(f) the broadcasting of the whole work or a substantial part thereof, either in its original form or in any form recognizably derived from the original. Section 26(2) Copyright in a work of architecture shall also include the exclusive right to control the erection of any building which reproduces the whole or a substantial part of the work either in its original form or in any form recognizably derived from the original; but the copyright in any such work shall not include the right to control the reconstruction of a building to which that copyright relates in the same style as the original. Section 26(3) The exclusive rights under this section shall be limited to the extent as provided for under the Second Schedule. [Act No. 20 of 2019 , s. 14.] - 26A Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 26A. Computer programmes
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.
Section 26A. Computer programmes Section 26A(1) A computer program shall be subject of fair dealing for the purposes of Part A of the Second Schedule. Section 26A(2)(a) to make copies of the program to the extent necessary to correct errors; Section 26A(2)(b) to make a back-up copy; Section 26A(2)(c) for the purpose of testing a program to determine its suitability for the person's use; or Section 26A(2)(d) for any purpose that is not prohibited under any license or agreement whereby the person is permitted to use the program. Section 26A(3) The authorization of the right holder of the program shall not be required to decompile the program, convert the program into a version expressed in different programming language, code, notation for the purpose of obtaining information needed to enable the program to operate with other programs. Section 26A(4) Any copies made pursuant to this section shall be used only for the purpose for which it was made and shall be destroyed when the person's possession of the computer program ceases to be lawful. [Act No. 20 of 2019 , s. 15.] - 26B Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 26B. Technological protection measures
Circumvention of technological protection measures is permitted in limited circumstances set out in the Second Schedule to this Act.
Section 26B. Technological protection measures Section Circumvention of technological protection measures shall be permitted in limited circumstances as set out in the Second Schedule to this Act. [Act No. 20 of 2019 , s. 15.] - 26C Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 26C. Visually impaired, and persons with other disabilities
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.
Section 26C. Visually impaired, and persons with other disabilities Section 26C(1)(a) an authorized entity to reproduce or to distribute copies or sound recordings of a previously published literary work if such copies or sound recordings are reproduced or distributed in specialized formats exclusively for use by visually impaired or other persons with disabilities; or Section 26C(1)(b) to make, import, distribute, lend or share accessible format copies by a beneficiary person or authorized entities or persons acting on behalf of a beneficiary person, including the circumvention of any technological protection measures that may be in place, subject to the terms and conditions set out under Regulations. Section 26C(2)(a) not be reproduced or distributed in a format other than a specialized format exclusively for use by visually impaired or other persons with disabilities; Section 26C(2)(b) bear a notice that any further reproduction or distribution in a format other than a specialized format is an infringement; and Section 26C(2)(c) include a copyright notice identifying the copyright owner and the date of the original publication. - 26D Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 26D. Artist resale right
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.
Section 26D. Artist resale right Section 26D(1) Artist resale right shall be valid as long as copyright continues to subsist in an original work of art. Section 26D(2) The artist resale right is absolutely inalienable and shall not be waived under any circumstances. Section 26D(3) Visual artists may form a collective management organization to manage the right under this section and in the absence of a registered collective management organization, the Attorney-General shall designate any registered collective management organization. Section 26D(4) The resale royalty shall be payable at the rate of five percent of the net sale price on the commercial resale of an artwork and the seller, the art market professional, the seller's agent and the buyer shall be jointly and severally liable to pay the resale royalty. Section 26D(5) If a mark or name purporting to identify a person as an artist of an artwork appears on the artwork, it shall be presumed in the absence of any other mark or evidence, that the person is the artist. Section 26D(6)(a) if the sale price is less than twenty thousand shillings; Section 26D(6)(b) if it concerns the resale of a building, or a drawing, plan or model of a building; Section 26D(6)(c) if it is an auction for charitable purposes; Section 26D(6)(d) if the works of fine art produced are of identical copies, or Section 26D(6)(e) if it concerns a manuscript of a literary, dramatic or musical work. - 27 Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 27. Broadcasting of works incorporated in audio-visual works
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.
Section 27. Broadcasting of works incorporated in audio-visual works Section 27(1) Where the owner of the copyright in any literary, musical, dramatic or artistic work authorizes a person to incorporate the work in audio-visual works and a broadcasting authority broadcasts such works, it shall, in the absence of any express agreement to the contrary, be deemed that the owner of the copyright authorized the broadcast. Section 27(2) Notwithstanding subsection (1), where a broadcasting authority broadcasts audio-visual works in which a musical work is incorporated, the owner of the right to broadcast the musical work shall, subject to the provisions of this Act, be entitled to receive fair compensation from the broadcasting authority, and in the absence of an agreement the amount of compensation shall be determined by the Copyright Tribunal appointed under section 48 ; [Act No. 20 of 2019 , s. 16.] - 28 Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 28. Nature of copyright in sound recordings
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.
Section 28. Nature of copyright in sound recordings Section 28(1)(a) the direct or indirect reproduction in any manner or form; or Section 28(1)(b) the distribution to the public of copies by way of sale, rental, lease, hire, loan or any similar arrangements; or Section 28(1)(ba) the making available of the sound recording in whole or in part either in its original form or in any form recognizably derived from the original; or Section 28(1)(c) the importation into Kenya; or Section 28(1)(d) the communication to the public or the broadcasting of the sound recording in whole or in part either in its original form or in any form recognizably derived from the original. Section 28(2) The provisions of paragraphs (a), (f), (j) and (h) of section 26 (1) shall apply mutatis mutandis to the copyright in a sound recording. Section 28(3) The rights of an owner of a copyright in a sound recording are not infringed by the making of a single copy of the recording for the personal and private use of the person making the copy; and in respect of such use the owner of copyright in the sound recording shall have the right to receive fair compensation consisting of a royalty levied on audio recording equipment or audio blank tape suitable for recording and other media intended for recording, payable at the point of first manufacture or entry in Kenya by the manufacturer or importer for commercial purposes of such equipment or media. Section 28(4) Deleted by ActNo. 20 of 2019, s. 17. Section 28(5) Deleted by ActNo. 20 of 2019, s. 17. Section 28(6) Any person who, for commercial purposes, makes available any audio recording equipment for the purposes of enabling any other person to make single copies of any sound recording for his personal or private use, without payment of the royalty levied under subsection (3) shall be guilty of an offence and shall be liable to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding four years or to both. [Act No. 18 of 2014 , Sch., Act No. 20 of 2019 , s. 17.] - 29 Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 29. Nature of copyright in broadcasts
Copyright in broadcasts includes "the fixation of the whole or a substantial part of the broadcast".
Section 29. Nature of copyright in broadcasts Section the fixation of the whole or a substantial part of the broadcast; - 30 Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 30. Rights of performers
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 30. Rights of performers Section 30(1)(a) broadcast his performance except where the broadcast is made from a fixation of the performance authorized by the performer; Section 30(1)(b) is made from a fixation of the performance; or Section 30(1)(b)(i) is made from a fixation of the performance; or Section 30(1)(b)(ii) is made from broadcast of the performance, authorized by the performer; Section 30(1)(c) make a fixation of a previously unfixed performance; and Section 30(1)(d) where the performance was initially fixed without the authorization of the performer; or Section 30(1)(d)(i) where the performance was initially fixed without the authorization of the performer; or Section 30(1)(d)(ii) where the reproduction is made for purposes different from those for which the performer gave his authorization; Section 30(1)(e) rent for commercial purposes to the public, the original and copies of their fixed performances; Section 30(1)(f) distribution of a fixation of his performance or copies thereof, to the public; Section 30(1)(g) the making available to the public of his fixed performance, by wire or wireless means in such a way that members of the public may access them from a place or a time individually chosen by them. Section 30(2)(a) the authorization to broadcast does not imply an authorization to license other organizations to broadcast the performance; Section 30(2)(b) the authorization to broadcast does not imply an authorization to make a fixation of the performance; and Section 30(2)(c) the authorization to broadcast and fix the performance does not imply an authorization to reproduce the fixation. Section 30(3) A binding authorisation given under this section may be given by the performer or by a duly appointed representative to whom he has granted in writing the right to give such authorisation; and any authorisation given by the performer claiming that he has retained the relevant rights or by a person claiming to be a duly appointed representative of a performer shall be considered valid. Section 30(4) Protection of the rights of the performer under this section shall subsist for fifty years after the end of the year in which the performance was fixed. Section 30(5)(a) be identified as the performer of his performances and to object to any distortion, mutilation, or other modification of his performances that would be prejudicial to his reputation; and Section 30(5)(b) seek relief in connection with any distortion, mutilation or other modification of, and any other derogatory action in relation to his work, where such work would be or is prejudicial to his honour or reputation; Section 30(6) The rights of an owner of a copyright in a fixation of their performance are not infringed by the making of a single copy of the performance for the personal and private use of the person making the copy and in respect of such use the owner of a related right in the performance shall have the right to receive fair compensation consisting of a royalty levied on audiovisual recording equipment or audio-visual blank media suitable for recording and other media intended for recording, payable at the point of first manufacture or entry in Kenya by the manufacturer or importer for commercial purposes of such equipment or media. Section 30(7) Deleted by ActNo. 20 of 2019, s. 19. Section 30(8) Deleted by ActNo. 20 of 2019, s. 19. [Act No. 12 of 2012 , Act No. 11 of 2017 , Sch., Act No. 20 of 2019 , s. 19.] - 30A Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 30A.[Deleted by ActNo. 11 of 2017, Sch.]
Section 30A was deleted by Act No. 11 of 2017 (Schedule).
Section 30A.[Deleted by ActNo. 11 of 2017, Sch.] - 30B Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 30B. Collection and payment of royalty
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.
Section 30B. Collection and payment of royalty Section 30B(1) Subject to the provisions of sections 28 and 30 of this Act, the Kenya Revenue Authority or any other designated entity by the Board shall collect royalties on behalf of collective management organizations licensed to represent performers and owners of sound recordings. Section 30B(2) All claims for compensation under this section shall be made through the collective management organizations representative of performers and producers of sound recordings. Section 30B(3) The level of the royalty payable shall be agreed between the collective management organization representative of performers and producers of sound recordings and the organization representative of manufacturers and importers of audio recording equipment, audio blank tape and media intended for recording or failing such agreement by the Board. Section 30B(4) The Board shall determine and, by notice in the Gazette , publish the share of the private copying remuneration applicable to the respective rights holders. [Act No. 20 of 2019 , s. 20.] - 30C Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 30C. Payment of ring back tune revenue
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.
Section 30C. Payment of ring back tune revenue Section 30C(1)(a) the premium rate service provider at eight point five percent; Section 30C(1)(b) the telecommunication operator at thirty nine point five percent; Section 30C(1)(c) the artiste or owner of the copyright at not less than fifty two percent. Section 30C(2) Despite subsection (1), all contracts between premium rate service providers and artistes or owners of the copyright existing before the commencement of this Act shall apply until their expiry, and subsequent contracts shall conform to this provision. Section 30C(3) The telecommunication operator shall remit directly to the artiste or owner of the copyright the ring back tune net revenue share allocated to them as specified subsection (1). [Act No. 14 of 2022 , s. 3.] - 31 Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 31. First ownership of copyright
Copyright conferred by section 25 initially vests in the Government or prescribed international or governmental organizations, and not in the author.
Section 31. First ownership of copyright Section 31(1)(a) is commissioned by a person who is not the author’s employer under a contract of service; or Section 31(1)(b) not having been so commissioned, is made in the course of the author’s employment under a contract of service, Section 31(2) Copyright conferred by section 25 shall vest initially in the Government or such international bodies or other governmental organizations as may be prescribed, and not in the author. Section 31(3)(a) where the economic rights are vested in the author, means the author; Section 31(3)(b) where the economic rights are originally vested in a physical person other than the author or in a legal entity, means that person or entity; and Section 31(3)(c) where the ownership of the economic rights has been transferred to a physical person or legal entity, means that person or entity. - 32 Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 32. Moral rights of an 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.
Section 32. Moral rights of an author Section 32(1)(a) claim the authorship of the work; and Section 32(1)(b) object to any distortion, mutilation or other modification of or other derogatory action in relation to, the said work which would be prejudicial to his honour or reputation. Section 32(2) None of the rights mentioned in subsection (1) shall be transmissible during the life of the author but the right to exercise any of the said rights shall be transmissible by testamentary disposition or by operation of the law following the demise of the author. Section 32(3) The author has the right to seek relief in connection with any distortion, mutilation or other modification of, and any other derogatory action in relation to his work, where such work would be or is prejudicial to his honour or reputation. - 33 Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 33. Assignment and licences
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.
Section 33. Assignment and licences Section 33(1) Subject to this section, copyright shall be transmissible by assignment, by licence, testamentary disposition, or by operation of law as movable property. Section 33(2) An assignment, license or testamentary disposition of copyright may be limited so as to apply only to some of the acts which the owner of the copyright has the exclusive right to control, or to a part only of the period of the copyright, or to a specified country or other geographical area. Section 33(3) No assignment of copyright and no exclusive licence to do an act the doing of which is controlled by copyright shall have effect unless it is in writing signed by or on behalf of the assignor, or by or on behalf of the licensor, as the case may be. Section 33(3A) An assignment under subsection (3) shall not be valid unless it is lodged at the Board and a certificate of recordal issued to the applicant and entry made in the Assignment Register. Section 33(4) A non-exclusive licence to do an act the doing of which is controlled by copyright may be written or oral, or may be inferred from conduct, and may be revoked at any time, but a licence granted by contract shall not be revoked, either by the person who granted the licence or his successor in title, except as the contract may provide, or by a further contract. Section 33(5) An assignment, licence or testamentary disposition may be effectively granted or made in respect of a future work, or an existing work in which copyright does not yet subsist, and the prospective copyright in any such work shall be transmissible by operation of law as movable property. Section 33(6) A testamentary disposition of the material on which a work is first written or otherwise recorded shall, in the absence of contrary indication, be taken to include the disposition of any copyright or prospective copyright in the work which is vested in the deceased. Section 33(7) Where an agreement for license of copyright does not specify the period of license, the license shall terminate after three years. Section 33(8) In the case of agreements regarding future works which are not specified in detail, either party may, on giving not less than one month’s notice, terminate the agreement not earlier than three years after it was signed or such shorter period as may be agreed. Section 33(9) A licence granted in respect of any copyright by the person who, in relation to the matters to which the licence relates, is the owner of the copyright, shall be binding upon every successor in title to his interest in the copyright, except a purchaser in good faith and without notice, actual or constructive, of the licence, or a person deriving title from such purchaser and any reference in this Act to the doing of anything in relation to any copyright, with or without the licence of the owner of the copyright, shall be construed accordingly. Section 33(10) Where the doing of anything is authorised by the grantee of a licence or a person deriving title from the grantee, and it is within the terms, including any implied terms of the licence for him to authorise it, it shall for the purpose of this Act be deemed to be done with the licence of the grantor and of every person, if any, upon whom the licence is binding. [Act No. 20 of 2019 , s. 21.] - 33A Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 33A. Grant of licences in copyright works withheld from Kenyan market
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.
Section 33A. Grant of licences in copyright works withheld from Kenyan market Section 33A(1)(a) refuses to republish or allow the republication of the work or to allow the performance of the work in public, and by reason of such refusal the work is withheld from the public; or Section 33A(1)(b) communication of such work to the public; or Section 33A(1)(b)(i) communication of such work to the public; or Section 33A(1)(b)(ii) in the case of a sound recording, the communication of the work recorded in such recording to the public by broadcast, Section 33A(2) The Board may, after giving to the owner of the copyright in the work a reasonable opportunity to be heard and after holding such inquiry as it may deem necessary, if it is satisfied that the grounds for such refusal are not reasonable, grant to the complainant a licence to republish the work or communicate the work to the public by broadcast, as the case may be, subject to payment to the owner of the copyright of such compensation and subject to such other terms and conditions as the Board may determine. Section 33A(3) Where two or more persons make an application in respect of the same work, the license shall be granted to the applicant who in the opinion of the Board would best serve the interests of the general public upon proof of refusal of license and subject to the terms set by the Board in its regulations. [Act No. 18 of 2014 , Sch., Act No. 20 of 2019 , s. 22.] - 34 Verify source ↗
COPYRIGHT AND RELATED RIGHTS - 34. Rights of action and remedies of exclusive licensee and sub-licensee
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 34. Rights of action and remedies of exclusive licensee and sub-licensee Section 34(1) An exclusive licensee and exclusive sub-licensee shall have the same rights of action and be entitled to the same remedies, as if the licence were an assignment and those rights and remedies shall be concurrent with the rights and remedies of the owner of the copyright under which the licence and sub-licence were granted. Section 34(2) Before an exclusive licensee or sub-licensee institutes proceedings under subsection (1), he shall give notice in writing to the owner of the copyright concerned, of his intention to do so, and the owner may intervene in such proceedings and recover any damages he may have suffered as a result of the infringement concerned or a reasonable royalty to which he may be entitled.
Part IV
INFRINGEMENT
- 35 Verify source ↗
INFRINGEMENT - 35. Infringement
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.
Section 35. Infringement Section 35(1)(a) does, or causes to be done, an act the doing of which is controlled by the copyright or related rights; or Section 35(1)(b) imports, or causes to be imported, otherwise than for his private and domestic use, an article which he knows to be an infringing copy. Section 35(2)(a) does, or causes to be done, any act specified in section 30 (1); or Section 35(2)(b) imports or causes to be imported, otherwise than for his own private or domestic use, an article which he knows would have been made contrary to section 30 had it been made in Kenya by the importer. Section 35(2A)(a) does or causes to be done, any act specified in section 28 (1); or Section 35(2A)(b) imports or causes to be imported, otherwise than for his private use, an article which he knows would have been made contrary to section 28 (1) had it been made in Kenya by the importer. Section 35(3)(a) circumvents any effective technological protection measure designed to protect works; or Section 35(3)(b) manufactures or distributes devices which are primarily designed or produced for the purpose of circumventing technological protection measures designed to protect works protected under this Act; or Section 35(3)(c) removes or alters any electronic rights management information; or Section 35(3)(d) distributes, imports, broadcasts or makes available to the public, protected works, records or copies from which electronic rights management information has been removed or has been altered without the authority of the right holder. Section 35(4)(a) the relief by way of damages, injunction, accounts or otherwise that is available in any corresponding proceedings in respect of infringement of other proprietary rights; Section 35(4)(b) delivery up to the plaintiff of any article in the possession of the defendant which appears to the court to be an infringing copy, or any article used or intended to be used for making infringing copies; Section 35(4)(c) in lieu of damages, the plaintiff at his option, be awarded an amount calculated on the basis of reasonable royalty which would have been payable by a licensee in respect of the work or type of work concerned; Section 35(4)(d) for the purpose of determining the amount of damages or a reasonable royalty to be awarded under this section or section 33 (2), the court may direct an enquiry to be held and may prescribe such procedures for conducting such enquiries as the court considers necessary; and Section 35(4)(e) before the owner of the right institutes proceedings under this section, he shall give notice in writing to the exclusive licensee or sub-licensee of the copyright concerned of the intention to do so, and the exclusive licensee or sub-licensee may intervene in such proceedings and recover any damages he may have suffered as a result of the infringement concerned or a reasonable royalty to which he may be entitled. Section 35(5)(a) that an infringement was committed; but Section 35(5)(b) that at the time of the infringement the defendant was not aware, and had no reasonable grounds for suspecting, that copyright subsisted in the work to which the action relates, the plaintiff shall not be entitled under this section to any damages against the defendant in respect of the infringement whether or not other relief is granted under this section. Section 35(6)(a) the flagrancy of the infringement; and Section 35(6)(b) any benefit shown to have accrued to the defendant by reason of the infringement, Section 35(7) No injunction shall be issued in proceedings for infringement of any right protected under this Act which requires a completed or partly built building to be demolished or prevents the completion of a partly built building. Section 35(8)(a) copyright shall be presumed to subsist in the work or other subject matter to which the action relates, if the defendant does not put in issue the subsistence of copyright therein; and Section 35(8)(b) where the subsistence of copyright is proved, admitted or presumed under paragraph (a), the plaintiff shall be presumed to be the owner of the copyright if he makes a claim thereto and the defendant does not dispute that claim. Section 35(9) Where in an action under this section, a name purporting to be the name of the author or joint author appears on copies of a literary, dramatic or musical work as published or an artistic work when it was made, any person whose name so appears, if it is his true name or the name by which he is commonly known, shall be presumed, unless the contrary is proved, to be the author of the work. Section 35(10) In the case of an anonymous or pseudonymous work, the publisher whose name appears on the work shall, in the absence of any proof to the contrary, be presumed to represent the author and, in this capacity, shall be entitled to exercise and enforce the moral and economic rights of the author: Provided that the presumption under this subsection shall cease to apply when the author reveals his identity or where the pseudonym leaves no doubts as to the identity of the author. Section 35(11)(a) that the work is eligible for copyright; and Section 35(11)(b) that any allegation by the plaintiff that the work is a first publication and was published in a specified country on a specified date, is true. Section 35(12) Where, in an action under this section, the sound recording to which the action relates is reproduced on a record bearing a label or other mark which has been issued to the public, any statement on that label or mark to the effect that a person named thereon was the maker of the sound recording or by whom the recording was first published in a specified year shall, unless the contrary is proved, be presumed to be true. Section 35(13) In this section— “record” means any disc, tape, perforated roll or other device in which sounds or the representations of sounds are embodied which are capable of reproduction therefrom with or without the aid of another instrument; “action” includes a counterclaim and references to the plaintiff and to the defendant in an action shall be construed accordingly; “court” means a court of competent jurisdiction; “owner of the copyright” means the first owner, an assignee or an exclusive licensee, as the case may be, of the relevant portion of the copyright. [Act No. 20 of 2019 , s. 23.] - 35A Verify source ↗
INFRINGEMENT - 35A. Protection of Internet Service Provider
States that the section does not initiate transmission.
Section 35A. Protection of Internet Service Provider Section does not initiate transmission; - 35B Verify source ↗
INFRINGEMENT - 35B. Takedown notice
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.
Section 35B. Takedown notice Section 35B(1) A person whose rights have been infringed by content to which access is being offered by an Internet Service Provider may request, by way of a takedown notice, that Internet Service Provider removes the infringing content. Section 35B(2)(a) be in writing and addressed by complainant or his agent to the Internet Service Provider or their designated agent; Section 35B(2)(b) contain the full names and telephone, physical and email address of the complainant; Section 35B(2)(c) be signed by the complainant or his authorized agent; Section 35B(2)(d) describe in specific detail the copyright work subject to the alleged infringement or sought to be removed; Section 35B(2)(e) identify the rights being infringed; Section 35B(2)(f) set out the content sought to be removed with details of where the content is contained; Section 35B(2)(g) attach an affidavit or any other declaration attesting to claim of ownership, validity of the rights, good faith and setting out any efforts to have entities responsible for making the content available to remove the content; Section 35B(2)(h) be copied to the Board, Communication Authority and the recognised umbrella association of service providers. Section 35B(3) A takedown notice shall be deemed delivered on the next business day following physical delivery at its registered offices or two days following the day it is sent by registered post or immediately it is sent by electronic communication to a designated address of the Internet Service Provider or its designated agent. Section 35B(4) An Internet Service Provider shall, upon receipt of a valid takedown notice, notify the person responsible for making available the alleged infringing content and provide them with a copy of the notice as soon as is practicable. Section 35B(5) An Internet Service Provider shall disable access to the material within forty eight business hours unless it receives a counter notice fulfilling the requirements set out for a takedown notice and contesting the contents of the takedown notice. Section 35B(6) An Internet Service Provider which fails to take down or disable access when it receives a takedown notice shall be fullyli able for any loss or damages resulting from non-compliance to a takedown notice without a valid justification. Section 35B(7) An Internet Service Provider which contravenes the provisions of subsection (4) commits an offence and shall, upon conviction, be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding five years, or to both. Section 35B(8) Any person who falsely or maliciously lodges a takedown notice or a counter notice under this section commits an of fence and shall, upon conviction, be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding five years, or to both. Section 35B(9) A person responsible for such misrepresentation under subsection (7) shall, in addition to the penalty provided under that subsection, be liable for any damages resulting from such false or malicious misrepresentation. Section 35B(10) An Internet Service Provider shall not be liable for wrongful takedown in response to a valid takedown notice. [Act No. 20 of 2019 , s. 24.] - 35C Verify source ↗
INFRINGEMENT - 35C. Role of Internet Service Provider
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.
Section 35C. Role of Internet Service Provider Section 35C(1)(a) to provide information to investigative agencies regarding identity of the subscribers of their services suspected to be engaging in infringement of content on orders of the court upon application by the copyright owner whose rights have been subject of a takedown notice; Section 35C(1)(b) to designate an agent or electronic or other address for receiving such notices under its terms and conditions of service section. Section 35C(2)(a) monitor the material transmitted, stored or linked; or Section 35C(2)(b) actively seek facts or circumstances indicative of infringing activity within its services. - 35D Verify source ↗
INFRINGEMENT - 35D. Application for injunction
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.
Section 35D. Application for injunction Section 35D(1) A person may apply to the High Court for the grant of interim relief where he or she has reasonable grounds to believe that his or her copyright is being or may be infringed by a person situated in or outside Kenya. Section 35D(2)(a) a person enabling or facilitating the infringement of copyright, or whose service is used by another person to infringe copyright, to cease such enabling or facilitating activity or disable that person's access to its service for the infringing purpose; Section 35D(2)(b) a person hosting or making available an online location, service or facility situated in or outside Kenya which is used to infringe copyright or which enables or facilitates the infringement of copyright, to disable access to such online location, service or facility as replaced, amended or moved from time to time; or Section 35D(2)(c) an internet service provider to prevent or impede the use of its service to access an online location, service or facility situated in or outside Kenya that is used to infringe copyright as replaced, amended or moved from time to time. - 36 Verify source ↗
INFRINGEMENT - 36. Authentication of copyright
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.
Section 36. Authentication of copyright Section 36(1) Every sound and audio-visual recording made available to the public by way of sale, lending or distribution in any other manner to the public for commercial purposes in Kenya shall have affixed on it an authentication device prescribed by the Board. Section 36(2) The Board shall authenticate copyright works according to all required documents furnished to it by the applicant for that purpose and shall issue an approval certificate in the prescribed form to the applicant for authority to purchase an authentication device. Section 36(3) The authentication device shall be issued to an applicant upon proof that the applicant has been authorized by the copyright owner to manufacture, reproduce, sell, import, rent or otherwise distribute the work. Section 36(4) The authentication device shall be affixed to each copy of the copyright work made or published by the applicant. Section 36(5) No person shall sell or exhibit for sale any copyright works that require an authentication device in any form without an authentication device affixed thereto pursuant to subsection (4). Section 36(6) Any person who knowingly sells or offers for sale any copyright work that require an authentication device without an authentication device affixed thereto is guilty of an offence and is liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding four years, or to both. Section 36(7) Any work requiring an authenticating device and which is sold or exhibited for sale without the authentication device shall be presumed to be an infringing copy. Section 36(8)(a) is found to be in possession of or to have reproduced, a security device; or Section 36(8)(b) is found to be in possession of any machine, instrument or contrivance intended to be used to produce or reproduce a security device, Section 36(9) The Court upon conviction of a person under this section shall order for the destruction of the material seized. [Act No. 12 of 2012 , Sch., Act No. 20 of 2019 , s. 25.] - 37 Verify source ↗
INFRINGEMENT - 37. Anton Piller orders
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 37. Anton Piller orders Section 37(1)(a) he has a cause of action against another person which he intends to pursue; Section 37(1)(b) the other person has, in his possession, documents infringing copies or other things of whatsoever nature which constitute evidence of great importance in substantiation of that cause of action; and Section 37(1)(c) there is the real and well-founded apprehension that the documents, infringing copies or other things may be hidden, destroyed or rendered inaccessible before discovery can be made in the usual way, Section 37(2) An order made under subsection (1) may be granted ex parte. [Act No. 20 of 2019 , s. 26.] - 38 Verify source ↗
INFRINGEMENT - 38. Offence and penalties for infringement
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.
Section 38. Offence and penalties for infringement Section 38(1)(a) makes for sale or hire an infringing copy; Section 38(1)(b) sells or lets for hire or, by way of trade, exposes or offers for sale an infringing copy; Section 38(1)(c) distributes infringing copies; Section 38(1)(d) possesses otherwise than for his private and domestic use, an infringing copy; Section 38(1)(e) imports into Kenya otherwise than for his or her private and domestic use an infringing copy; Section 38(1)(f) makes or has in his or her possession a contrivance used or intended to be used for the purpose of making an infringing copy; Section 38(1)(g) causes a broadcast to be rebroadcast or transmitted in a diffusion service, knowing that copyright subsists in the broadcast and that such rebroadcast or transmission constitutes an infringement of the copyright; Section 38(1)(h) causes a program carrying signals to be distributed by a distributor for whom they were not intended, knowing that copyright subsists in the signals and that such distribution constitutes an infringement of the copyright; Section 38(1)(i) circumvents a technological protection measure or manufactures or distributes devices designed for circumventing technological protection measures; or Section 38(1)(j) removes or alters rights management information or imports or distributes, or makes available to the public a copy of a work from which electronic rights management information has been removed or altered, Section 38(2) Any person who causes a literary or musical work, an audio-visual work or a sound recording to be performed in public at a time when copyright subsists in such work or sound recording and where such performance is an infringement of that copyright shall be guilty of an offence. Section 38(3) For the purposes of paragraphs (a) to (f) of subsection (1), any person who has in his possession, custody or control two or more infringing copies of a work in the same form, shall, unless the contrary is proved, be presumed to be in possession of or to have imported such copies otherwise than for private and domestic use. Section 38(4)(a) in the case of a first conviction, a fine of five times the market value of the legitimate work or one thousand shillings for each infringing copy whichever is higher or to imprisonment for a term not exceeding ten years, or to both; and Section 38(4)(b) in any other case to a fine of ten times the market value of the legitimate work or two thousand shillings for each infringing copy, whichever is higher or imprisonment for a term not exceeding twenty years, or to both. Section 38(5) A person convicted of an offence under subsection (1)(f), (g), (h), (i) or (j) shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding five years or to both. Section 38(6) Deleted by ActNo. 20 of 2019, s. 27. Section 38(7) A person convicted of an offence under subsection (2) shall be liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding four years, or to both. Section 38(8) The court before which a person is charged with an offence under this section, shall whether such person is convicted of the offence or not, order that any article in his possession which appears to the court to be an infringing copy, or to be an article used or intended to be used for making infringing copies, be destroyed or delivered up to the owner of the copyright in question or otherwise dealt with as the court may think fit. Section 38(9)(a) after the expiration of the period of three years immediately following the date of the alleged offence; and Section 38(9)(b) except, before the High Court or a Resident Magistrate’s Court. Section 38(10) One half of all fines imposed and recovered by a competent court in respect of the contravention of any of the provisions of this Act or of any regulations made thereunder shall be paid into the revenues of the Board and the other half shall be paid into the general revenues of Kenya. Section 38(11) Any complaint alleging a breach of this section may be lodged by a licensed collective management organization where such rights are managed collectively. [Act No. 20 of 2019 , s. 27.] - 38A Verify source ↗
INFRINGEMENT - 38A. Offence by body corporate
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.
Section 38A. Offence by body corporate Section 38A(1) Where a body corporate is convicted of an offence under this Act, every person who at the time the offence was committed was in charge of or was responsible to the body corporate for the conduct of its business and affairs is also deemed to have committed the offence and shall be liable to prosecution. Section 38A(2) Where it is proven that a body corporate committed an offence under this Act with the consent, connivance or willful lack of due diligence by a person in charge of or responsible to the body corporate for the conduct of its business and affairs, the person shall be guilty of the offence. Section 38A(3)(a) "body corporate" includes a firm or other association of persons; and Section 38A(3)(b) "director" in relation to a firm includes the partner in the firm.
Part V
INSPECTION
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INSPECTION - 39. Inspectors
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.
Section 39. Inspectors Section 39(1) The Board shall, for the purposes of enforcing the provisions of this Act, appoint such number of inspectors as the Board considers appropriate and shall issue to them, in writing or in such form as may be prescribed, certificates of authority to act as such inspectors. Section 39(2) In addition to inspectors appointed under subsection (1), any member of the Board or a police officer may perform the functions of an inspector under this Act. Section 39(3) A person appointed as an inspector shall hold office subject to such conditions as the Board may determine with approval of the Cabinet Secretary. [Act No. 11 of 2017 , Sch., Act No. 19 of 2015 , s. 137] - 40 Verify source ↗
INSPECTION - 40. Entry into premises
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.
Section 40. Entry into premises Section Subject to the provisions of this section, an inspector may, at any reasonable time and on production of his certificate of authority, enter any premises, ship, aircraft or vehicle for the purpose of ascertaining whether there is or has been, on or in connexion with such premises, ship, aircraft or vehicle any contravention of this Act. - 41 Verify source ↗
INSPECTION - 41. Mode of inspection
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.
Section 41. Mode of inspection Section 41(1)(a) any substance or article appearing to him to be a work; Section 41(1)(b) any container or package used or intended to be used to contain any work; or Section 41(1)(c) any plant or equipment appearing to him to be used or intended to be used in connexion with the production, reproduction or otherwise manufacture of a work. Section 41(2) An inspector may seize and detain any substance or article which he has reasonable cause to believe to be an infringing copy of any work or in relation to which or by means of which he has reasonable cause to believe that an offence under this Act has been or is being committed, and any document which he has reasonable cause to believe to be a document which may be required in proceedings under this Act. Section 41(3) Where an inspector seizes any work he shall in writing, notify the person from whom it is seized the fact of that seizure and shall in that notification specify any item seized. Section 41(4)(a) willfully obstructs an inspector in the discharge of the inspector’s duties; or Section 41(4)(b) willfully fails to comply with any requirement properly made to him by an inspector; or Section 41(4)(c) without reasonable cause fails to give to the inspector any assistance or information which the inspector may reasonably require of that person for the purpose of the performance of his duties under this Act; or Section 41(4)(d) in giving any such information as is mentioned in subparagraph (c), makes any statement which he knows to be false or does not believe to be true, - 42 Verify source ↗
INSPECTION - 42. Powers of arrest
Police officers and authorized Board officers may arrest without a warrant in specified circumstances; police may, with a warrant, effect arrest and confiscate material.
Section 42. Powers of arrest Section 42(1) A police officer may arrest, without a warrant, any person suspected, upon reasonable grounds, of having committed an offence under this Act, and any officer of the Board who at the time is wearing a visible badge of office and authorized thereto in writing by the Board, may arrest, without warrant, any person, who, in his presence, commits any such offence, and may detain such person until that person can be delivered into the custody of a police officer to be dealt with according to law: Provided that a person shall not be arrested or detained without warrant unless reasonable grounds exist for believing that, except by such arrest, the person may not be found or made answerable to justice without unreasonable delay, trouble or expense. Section 42(2) A police officer who is notified of an offence suspected to have been committed under subsection (1) may, upon obtaining a warrant of arrest, effect an arrest, and may thereupon confiscate any offending material necessary for evidence before a Court. [Act No. 10 of 2010 , s. 77, Act No. 12 of 2012 , Sch.] - 43 Verify source ↗
INSPECTION - 43. Conduct of prosecution
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.
Section 43. Conduct of prosecution Section 43(1) The Director of Public Prosecutions may, pursuant to the provisions of the Criminal Procedure Code ( Cap. 75 ), appoint public prosecutors for the purposes of cases arising under this Act. Section 43(2) The Board shall, for the purposes of section 171(4) of the Criminal Procedure Code ( Cap. 75 ), be deemed to be a public authority. [Act No. 20 of 2019 , s. 29.] - 44 Verify source ↗
INSPECTION - 44. Inspectors not personally liable for acts done under this Act
An inspector is exempt from personal liability for acts done in good faith while performing duties under this Act.
Section 44. Inspectors not personally liable for acts done under this Act Section An inspector shall not be personally liable in respect of any act done in good faith by him in the course of his employment and in the execution or purported execution of any duty under this Act.
Part VI
PUBLIC DOMAIN
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PUBLIC DOMAIN - 45. Works in the public domain
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.
Section 45. Works in the public domain Section 45(1)(a) works whose terms of protection have expired; Section 45(1)(b) works in respect of which authors have renounced their rights; and Section 45(1)(c) foreign works which do not enjoy protection in Kenya. Section 45(2) For the purposes of paragraph (b), renunciation by an author or his successor in title of his rights shall be in writing and made public but any such renunciation shall not be contrary to any previous contractual obligation relating to the work. Section 45(3) Subject to the payment of such fees as may be determined by the Cabinet Secretary in relation thereto, a work which has fallen into the public domain may be used without any restriction. [Act No. 11 of 2017 , Sch.]
Part VII
COLLECTIVE ADMINISTRATION OF COPYRIGHT
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COLLECTIVE ADMINISTRATION OF COPYRIGHT - 46. Collective administration of Copyright
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.
Section 46. Collective administration of Copyright Section 46(1) No person or association of persons shall commence or carry on the business of a copyright collective management organisation except under or in accordance with a certificate of registration granted under this section. Section 46(2) Applications for registration as collective management organisations shall be made to the Board accompanied with the prescribed fees and the Board, by a Gazette notice is empowered to declare a body which has applied for registration a collecting society, for all relevant copyright owners or for such classes of relevant copyright owners as are specified in the notice. Section 46(3) Every certificate issued to a collective management organisation shall be in the prescribed form and shall unless cancelled be valid for a period of twelve months from the date of issue. Section 46(3A) Where the collective management organization has not submitted a complete application or where administrative shortfalls are apparent, the Board may issue a provisional license for a period not exceeding six months and such provisional license shall be counted as part of the complete license if the license is subsequently issued. Section 46(4)(a) the body is a company limited by guarantee and incorporated under the Companies Act (Cap. 486); Section 46(4)(b) it is a non-profit making entity; Section 46(4)(c) its rules and regulations contain such other provisions as are prescribed, being provisions necessary to ensure that the interests of members of the collecting society are adequately protected; Section 46(4)(d) its principal objectives are the collection and distribution of royalties; and Section 46(4)(e) its accounts are regularly audited by independent external auditors elected by the society. Section 46(5) The Board shall not approve another collective management organisation in respect of the same class of rights and category of works if there exists another collective management organisation that has been licensed and functions to the satisfaction of its members. Section 46(6) The Board may, where it finds it expedient, assist in establishing a collective management organisation for any class of copyright owners. Section 46(7) Deleted by ActNo. 20 of 2019, s. 30. Section 46(8) Deleted by ActNo. 20 of 2019, s. 30. Section 46(9)(a) is not functioning adequately as collective management organisation; Section 46(9)(b) is not acting in accordance with its Memorandum and Articles of Association or in the best interests of its members; Section 46(9)(c) has altered its rules so that it no longer complies with subsection 4 of this section; and Section 46(9)(d) it has refused or failed to comply with any of the provisions of this Act. Section 46(10) Before deregistering a collective management organization, the Board shall notify the organization in writing and invite it and any of its members to make written representations against deregistration within twenty one days from the date of the notice. Section 46(11) If, after consideration of any written representations made in terms of subsection (10), the Board is of the opinion that the failure in question on the part of the organisation is materially prejudicing or has materially prejudiced its members, the Board may withdraw the registration thereof or otherwise sanction members of the Board of Directors or Management of the organization as set out under this Act. Section 46(12) Any person who purports to collect royalties from users as provided for under this section without authority of the Board commits an offence and shall be liable to a fine not exceeding five hundred thousand shillings, or to imprisonment to a term not exceeding four years, or both. [Act No. 11 of 2017 , Sch., Act No. 19 of 2015 , s. 138, Act No. 20 of 2019 , s. 30.] - 46A Verify source ↗
COLLECTIVE ADMINISTRATION OF COPYRIGHT - 46A. Approval for imposition and collection of levy
Tariffs must be approved and published in the Gazette by the Cabinet Secretary in charge of copyright issues before being used for levies.
Section 46A. Approval for imposition and collection of levy Section impose or collect royalty based on a tariff that has not been approved and published in the Gazette by the Cabinet Secretary in charge of copyright issues in the Gazette from time to time; or - 46B Verify source ↗
COLLECTIVE ADMINISTRATION OF COPYRIGHT - 46B. Qualification and tenure of Directors and Chairpersons of collective management organizations
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.
Section 46B. Qualification and tenure of Directors and Chairpersons of collective management organizations Section 46B(1) A member of a collective management organization shall be eligible for election as a director if he holds a postsecondary qualification recognized in Kenya. Section 46B(2) A director elected under this section shall serve for a term of three years and shall be eligible for re-election for one further term. Section 46B(3) A director elected as a chairperson of a collective management organization shall hold office for a term of three years and shall be eligible for re-election for one further term. Section 46B(4) A chief executive officer of a collective management organization shall hold office for a term of four years and shall be eligible for reappointment for one further term upon satisfactory performance as evaluated by the directors. [Act No. 20 of 2019 , s. 31.] - 46C Verify source ↗
COLLECTIVE ADMINISTRATION OF COPYRIGHT - 46C. Role and types of collective management organizations
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.
Section 46C. Role and types of collective management organizations Section 46C(1) Authors, producers, performers, visual artists and publishers may form a collective management organization to collect, manage and distribute royalties and other remuneration accruing to their members. Section 46C(2) Any new collective management organization to deal with rights not provided for under subsection (1) may be approved by the Kenya Copyright Board as may be necessary. Section 46C(3) The designated extent of operation shall be set by Regulations made under this Act. [Act No. 20 of 2019 , s. 31.] - 46D Verify source ↗
COLLECTIVE ADMINISTRATION OF COPYRIGHT - 46D. Submission and publication of information royalties
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.
Section 46D. Submission and publication of information royalties Section 46D(1) A collective management organization shall submit to the Board information on its total collection and distribution of royalties annually. Section 46D(2) The Board shall, by notice in the Gazette , publish information submitted under subsection (1). [Act No. 20 of 2019 , s. 31.] - 46E Verify source ↗
COLLECTIVE ADMINISTRATION OF COPYRIGHT - 46E. Inspection and control of collective management organisations
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.
Section 46E. Inspection and control of collective management organisations Section 46E(1) The Executive Director may authorize a person, in writing, to inspect the books of accounts and records of a collective management organization. Section 46E(2) When an inspection is made under subsection (1), the collective management organisation concerned and every officer and employee thereof shall produce and make available to the person making the inspection all the books, accounts, records and other documents of the organization as the person making the inspection may require and within seven days or such longer times as he may direct in writing. Section 46E(3) A person who wilfully fails to produce any books, accounts, records document, correspondence, statements, returns or other information within the period specified in the direction under subsection (2) commits an offence under the provisions of this Act and shall on conviction be liable to a fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding three months or to both. Section 46E(4)(a) any breach or non-observance of the requirements of this Act or regulations; Section 46E(4)(b) any irregularity in the manner of conduct of the business of the organization; Section 46E(4)(c) any apparent mismanagement or lack of management skills in the organization; or Section 46E(4)(d) any other matter warranting remedial action or a forensic audit. Section 46E(5) The Executive Director of the Kenya Copyright Board shall, by notice in writing, and after giving the collective management organization reasonable opportunity of being heard, require the inspected organization to comply by such date or within such period as may be specified therein, with such directions as he considers necessary in connection with any matter arising out of a report made under this section. Section 46E(6)(a) where a petition for inspection has been made by not less than forty five percent of the membership specifying breach of instruments establishing the entity, the regulations or the Act; Section 46E(6)(b) failure by a collective management organization to account for monies to at least twenty percent of its members; Section 46E(6)(c) failure by a collective management organization to offer an account of the exploitation of the copyright works assigned or licensed to it; Section 46E(6)(d) where a collective management organization has acted beyond its powers in administering the rights to which it is assigned or licensed; Section 46E(6)(e) where a collective management organization has altered its memorandum or other internal rules to exclude a section of its members in participating in its affairs or as to alter its core business; Section 46E(6)(f) where a collective management organization has persistently failed to adhere to its set administrative budget without a reasonable cause; or Section 46E(6)(g) where a collective management organisation has failed to comply with a request for information or records from its members or the Board. - 46F Verify source ↗
COLLECTIVE ADMINISTRATION OF COPYRIGHT - 46F. Directions and orders of the Board
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.
Section 46F. Directions and orders of the Board Section recommend the 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. - 46G Verify source ↗
COLLECTIVE ADMINISTRATION OF COPYRIGHT - 46G. Record keeping and attendance of meetings by Board representatives
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.
Section 46G. Record keeping and attendance of meetings by Board representatives Section 46G(1) The directors of a collective management organization shall cause minutes of all resolutions and proceedings of their meetings to be entered and updated in books kept for that purpose. Section 46G(2) The Board may, through a designated representative, attend and advise a meeting of the directors of a collective management organization where matters affecting members' interests are proposed for discussion. [Act No. 20 of 2019 , s. 31.] - 47 Verify source ↗
COLLECTIVE ADMINISTRATION OF COPYRIGHT - 47. Annual reports and accounts
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 47. Annual reports and accounts Section 47(1)(a) a report of its operations during that year; Section 47(1)(b) a copy of its audited accounts in respect of that year. Section 47(2) The obligations imposed by subsection (1) are in addition to those imposed by the Companies Act (Cap. 486), in the case of a collective management organisation that is a company. [Act No. 19 of 2015 , s. 139, Act No. 20 of 2019 , s. 32.] - 48 Verify source ↗
COLLECTIVE ADMINISTRATION OF COPYRIGHT - 48. Appointment and duties of Copyright Tribunal
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.
Section 48. Appointment and duties of Copyright Tribunal Section 48(1) There shall be a Copyright Tribunal appointed by the Chief Justice for the purpose of exercising jurisdiction under this Act where any matter requires to be determined by such Tribunal. Section 48(2) The Copyright Tribunal shall consist of not less than three and not more than five persons, one of whom shall be an Advocate of not less than seven years standing or a person who has held judicial office in Kenya as Chairperson, appointed by the Chief Justice where any matters requires to be determined by the Tribunal. Section 48(3) No person shall be appointed under this section, nor shall any person so appointed act as a member of the Copyright Tribunal, if he, his partner, his employer body (whether statutory or not) of which he is a member has a pecuniary interest in any matter which requires to be determined by the Tribunal. Section 48(4)(a) a dispute over registration of copyright; and Section 48(4)(b) the Board's refusal to grant a certificate of registration to a collective management organization; Section 48(4)(b)(i) the Board's refusal to grant a certificate of registration to a collective management organization; Section 48(4)(b)(ii) imposition of unreasonable terms or conditions by the Board for the grant of a certificate of registration; Section 48(4)(b)(iii) unreasonable refusal by a collective management organization to grant a licence in respect of a copyright work; or Section 48(4)(b)(iv) imposition of unreasonable terms or conditions by a collective management organization for the grant of a licence in respect of a copyright work; Section 48(5) Before determining a matter referred to it under this section, the Copyright Tribunal shall, in accordance with such procedure as may be prescribed, give both parties an opportunity to present their respective cases, either in person or through representatives, both orally and in writing. Section 48(6) The Copyright Tribunal may order the grant of a certificate of registration or the grant of a license in respect of a copyright work subject to the payment of the applicable fees. [Act No. 11 of 2017 , Sch., Act No. 19 of 2015 , s. 140, Act No. 20 of 2019 , s. 33.]
Part VIII
MISCELLANEOUS
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MISCELLANEOUS - 49. Regulations
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.
Section 49. Regulations Section 49(1) The Cabinet Secretary may make regulations generally for the better carrying into effect of the provisions of this Act, including the extension of its application. Section 49(2)(a) the audit of collective management organizations; Section 49(2)(a)(i) the audit of collective management organizations; Section 49(2)(a)(ii) the annual and special general meetings of collective management organizations; Section 49(2)(a)(iii) guidelines on the gender representation and participation of persons with disability and other marginalized groups on the boards of collective management organizations; Section 49(2)(a)(iv) the procedure of handling complaints made to the Board; Section 49(2)(a)(iva) the fees for accessing the National Rights Registry; Section 49(2)(a)(ivb) the format for registrations of the respective copyright works; Section 49(2)(a)(ivc) the type of copyright works that are registrable with the National Rights Registry; Section 49(2)(a)(ivd) anything necessary for the performance of the functions of the National Rights Registry; Section 49(2)(a)(v) ratios of distributable income to administrative costs including deductions applicable to collective management organizations; Section 49(2)(a)(vi) the manner of approval of distribution rules; Section 49(2)(a)(vii) the manner of approval of cash reserves; Section 49(2)(a)(viii) the manner of approval of membership to a collective management organization; Section 49(2)(a)(ix) a system for the identification of copyright works and monitoring of payment, collection and distribution of royalties; and Section 49(2)(a)(x) anything required by this Act to be prescribed; Section 49(2)(b) to individuals or bodies corporate who are citizens of, domiciled or resident in or incorporated under the laws of Kenya or a country which is a party to a treaty to which Kenya is also a party and which provides for the protection of copyright and related rights in works to which the application of this Act extends; Section 49(2)(b)(i) to individuals or bodies corporate who are citizens of, domiciled or resident in or incorporated under the laws of Kenya or a country which is a party to a treaty to which Kenya is also a party and which provides for the protection of copyright and related rights in works to which the application of this Act extends; Section 49(2)(b)(ii) to works, other than sound recordings, first published in Kenya or a country which is a party to a treaty to which Kenya is also a party and which provides for the protection of copyright and related rights in works to which the application of this Act extends; or Section 49(2)(b)(iii) to sound recordings made or published in Kenya or a country which is a party to a treaty to which Kenya is also a party and which provides for the protection of copyright and related rights in works to which the application of this Act extends; and Section 49(2)(c) restrict the right to control the translation or the reproduction of a work up to the extent permitted by any Copyright Convention for the time being in force in Kenya: Section 49(3)(a) the purpose and objective of delegation under this section is to enable the Cabinet Secretary to make regulations to provide for the better carrying into effect of the provisions of this Act and to enable the Board to discharge its functions more effectively; Section 49(3)(b) the authority of the Cabinet Secretary to make regulations under this Act will be limited to bringing into effect the provisions of this Act and to fulfil the objectives specified under this section; Section 49(3)(c) the principles and standards applicable to the regulations made under this section are those set out in the Interpretation and General Provisions Act ( Cap. 2 ) and the Statutory Instruments Act (Cap. 2A). - 50 Verify source ↗
MISCELLANEOUS - 50. Application to works made before commencement of 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.
Section 50. Application to works made before commencement of Act Section 50(1)(a) works, performances, sound recordings and broadcasts made prior to the commencement of this Act, where the term of protection had not expired under the former Act or under the legislation of the country of origin of such works; Section 50(1)(b) performances, sound recordings or broadcasts that are to be protected under an international treaty to which Kenya is a party. Section 50(2) This Act shall not affect contracts on works, performances, sound recordings and broadcasts concluded before the commencement of this Act. - 51 Verify source ↗
MISCELLANEOUS - 51. Abrogation of common law rights
No copyright or right in the nature of copyright shall subsist except by virtue of this Act or some other enactment.
Section 51. Abrogation of common law rights Section No copyright or right in the nature of copyright shall subsist otherwise than by virtue of this Act or of some other enactment in that behalf.
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