Copyright Protection

Copyright protection is the legal framework that grants to creators of original literary, musical, artistic, and audiovisual works the exclusive right to control the reproduction, distribution, performance, broadcast, and adaptation of their works. In Kenya, copyright is governed by the Copyright Act, 2001, administered by the Kenya Copyright Board (KECOBO). Copyright arises automatically upon the creation of an original work — no registration is required for copyright to subsist — but registration with KECOBO provides evidentiary benefits and is recommended for works that are likely to be the subject of commercial exploitation or disputes.

This area covers the registration, licensing, and enforcement of copyright. Advocates advise creators and businesses on the ownership of copyright in works created by employees, contractors, and collaborators — a critical issue that is often poorly documented and that becomes contentious when the work acquires commercial value. Advocates prepare assignments of copyright (which transfer ownership) and licences of copyright (which grant permission to use without transferring ownership), and they ensure that these agreements clearly define the scope of the rights granted, the territory, the duration, and the consideration.

Advocates handle the registration of copyright works with KECOBO — including literary works (books, articles, software code), musical works (compositions and lyrics), sound recordings, audiovisual works (films, television programmes, online videos), artistic works (paintings, sculptures, photographs, designs), and dramatic works. Advocates prepare the registration application, the deposit of the work, and the supporting documentation, and they follow up with KECOBO until the registration certificate is issued.

For the music industry, they advise on the management of copyright through the collective management organisations (CMOs) — the Music Copyright Society of Kenya (MCSK), which administers the performing rights in musical works; the Kenya Association of Music Producers (KAMP), which administers the rights of producers of sound recordings; and the Performers Rights Society of Kenya (PRISK), which administers the rights of performers. Advocates advise on the registration of works with the CMOs, the collection and distribution of royalties, and the resolution of disputes over royalty allocation.

Advocates handle the enforcement of copyright — including the identification of infringements, the preparation and service of cease-and-desist letters, the pursuit of takedown notices under the Copyright (Electronic Commerce) Regulations, and the filing of infringement proceedings before the High Court. Advocates also act in cases of online infringement — including the unauthorised uploading of content to streaming platforms, the sale of pirated copies on online marketplaces, and the unauthorised use of copyrighted material in advertising and marketing.

For software and technology businesses, they advise on the copyright protection of software — including the source code, object code, user interfaces, and documentation. Advocates prepare software licensing agreements — including end-user licence agreements (EULAs), software-as-a-service (SaaS) agreements, and enterprise licence agreements — and they advise on the open-source licensing landscape and the compliance obligations that arise from the use of open-source components.

Advocates also handle the defence of clients against allegations of copyright infringement — including the assessment of the alleged infringement, the evaluation of defences (such as fair dealing, independent creation, and the idea-expression dichotomy), and the negotiation of settlements and licences where appropriate.