Point in Time
Act No: No. 12 of 2001
Act Title: COPYRIGHT
[ Date of commencement: 1st February, 2003. ]
[ Date of assent: 31st December, 2001. ]
Arrangement of Sections
PART I – PRELIMINARY
1.
Short title

This Act may be cited as the Copyright Act, 2001.

PART II – ADMINISTRATION
3.
Establishment and incorporation of the Board
(1)

There is established a Board to be known as “the Kenya Copyright Board” which shall be a body corporate with perpetual succession and a common seal and which shall be capable, in its corporate name of—

(a)

suing and being sued;

(b)

purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property;

(c)

borrowing and lending money; and

(d)

doing or performing all such other things or acts as may be necessary for the proper performance of its functions under this Act which may lawfully be done by a body corporate.

4.
Headquarters

The Headquarters of the Board shall be in Nairobi.

5.
Functions of the Board

The functions of the Board shall be to—

(a)

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;

(b)

license and supervise the activities of collective management societies as provided for under this Act;

(c)

devise promotion, introduction and training programs on copyright and related rights, to which end it may co-ordinate its work with national or international organisations concerned with the same subject matter;

(d)

organise the legislation on copyright and related rights and propose other arrangements that will ensure its constant improvement and continuing effectiveness;

(e)

enlighten and inform the public on matters relating to copyright and related rights;

(f)

maintain an effective data bank on authors and their works; and

(g)

administer all matters of copyright and related rights in Kenya as provided for under this Act and to deal with ancillary matters connected with its functions under this Act.

8.
Conduct of business and affairs of the Board
(1)

The conduct and regulation of the business and affairs of the Board shall be as provided in the Schedule.

(2)

Except as provided in the Schedule, the Board may regulate its own procedure.

10.
Delegation by the Board

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.

12.
Staff of the Board

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.
The common seal of the Board
(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.

(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.
Protection from personal liability

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.

17.
Financial year

The financial year of the Board shall be the period of twelve months ending on the thirtieth June in each year.

19.
Accounts and audit
(1)

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

(2)

Within a period of four months from the end of each financial year, the Board shall submit to the Auditor General (Corporations) or to an auditor appointed under this section, the accounts of the Board together with—

(a)

a statement of the income and expenditure of the Board during that year; and

(b)

a statement of the assets and liabilities of the Board on the last day of that year.

(3)

The accounts of the Board shall be audited and reported upon in accordance with sections 29 and 30A of the Exchequer and Audit Act (Cap. 412), by the Auditor-General (Corporations), or by an auditor appointed by the Board with the approval of the Auditor-General (Corporations) given in accordance with section 29(2)(b) of the Exchequer and Audit Act (Cap. 412).

20.
Investment of funds
(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 Treasury may, from time to time, approve for that purpose.

(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.
Appeals
(1)

Any person aggrieved by the decision of the Board under this Act may, within sixty days from the date of the decision, appeal to the competent authority.

(2)

On request from the competent authority, the Board shall provide written comments on any matter over which an appeal has been submitted to the competent authority under this section.

(3)

The competent authority shall issue a decision on the appeal within thirty days from the date of such an appeal, and such decision shall be final.

PART III – COPYRIGHT AND OTHER RELATED RIGHTS
24.
Copyright by reference to country of origin
(1)

Copyright shall be conferred by this section on every work, other than a broadcast which is eligible for copyright and which—

(a)

being a literary, musical or artistic work or any audio-visual work, is first published in Kenya; or

(b)

being a sound recording, is made or first published in Kenya; or

(c)

being a broadcast, is transmitted from transmitters situated in Kenya.

(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.

25.
Copyright in works of Government and international bodies
(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).

(2)

Copyright conferred by this section on a literary, musical 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.

(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.

(4)

Sections 23 and 24 shall not confer copyright on works to which this section applies.

26.
Nature of copyright in literary, musical or artistic works and audio-visual works
(1)

Copyright in a literary, musical or artistic work or audio-visual work shall be the exclusive right to control the doing in Kenya of any of the following acts, namely the reproduction in any material form of the original work or its translation or adaptation, the distribution to the public of the work by way of sale, rental, lease, hire, loan, importation or similar arrangement, and the communication to the public and the broadcasting of the whole work or a substantial part thereof, either in its original form or in any form recognisably derived from the original; but copyright in any such work shall not include the right to control—

(a)

the doing of any of those acts by way of fair dealing for the purposes of scientific research, private use, criticism or review, or the reporting of current events subject to acknowledgement of the source;

(b)

the reproduction and distribution of copies, or the inclusion in a film or broadcast, of an artistic work situated in a place where it can be viewed by the public;

(c)

the incidental inclusion of an artistic work in a film or broadcast;

(d)

the inclusion in a collection of literary or musical works of not more than two short passages from the work in question if the collection is designed for use in a school registered under the Education Act (Cap. 211) or any university established by or under any written law and includes an acknowledgement of the title and authorship of the work;

(e)

the broadcasting of a work if the broadcast is intended to be used for purposes of systematic instructional activities;

(f)

the reproduction of a broadcast referred to in the preceding paragraph and the use of that reproduction in a school registered under the Education Act (Cap. 211) or any university established by or under any written law for the systematic instructional activities of any such school or university;

(g)

the reading or recitation in public or in a broadcast by one person of any reasonable extract from a published literary work if accompanied by a sufficient acknowledgement of the author;

(h)

the reproduction of a work by or under the direction or control of the Government, or by such public libraries, non-commercial documentation centres and scientific institutions as may be prescribed, where the reproduction is in the public interest and no revenue is derived therefrom;

(i)

the reproduction of a work by or under the direction or control of a broadcasting authority where the reproduction or copies thereof are intended exclusively for broadcast by that broadcasting authority authorised by the copyright owner of the work and are destroyed before the end of the period of six calendar months immediately following the making of the reproduction or such longer period as may be agreed between the broadcasting authority and the owner of the relevant part of the copyright in the work; and any reproduction of a work made under this paragraph may, if it is of an exceptional documentary nature, be preserved in the archives of the broadcasting authority, but, subject to the provisions of this Act, shall not be used for broadcasting or for any other purpose without the consent of the owner of the relevant part of the copyright in the work;

(j)

the broadcasting of a literary, musical or artistic work or audio-visual works already lawfully made accessible to the public with which no licensing body referred to under section 46 is concerned:

Provided that subject to the provisions of this section the owner of the broadcasting right in the work receives fair compensation determined, in the absence of agreement, by the competent authority appointed under section 48; and

(k)

any use made of a work for the purpose of a judicial proceeding or of any report of any such proceeding.

(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.

(3)

Copyright of a computer program shall not constitute fair dealing for the purposes of paragraph (a) of subsection (1).

(4)

Notwithstanding the provisions of subsection (3), a person who is in lawful possession of a computer program may do any of the following acts without the authorization of the right holder whereby copies are necessary for the use of the computer program in accordance with its intended purpose—

(a)

to make copies of the program to the extent necessary to correct errors; or

(b)

to make a back-up copy; or

(c)

for the purpose of testing a program to determine its suitability for the person’s use; or

(d)

for any purpose that is not prohibited under any license or agreement whereby the person is permitted to use the program.

(5)

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.

(6)

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.

27.
Broadcasting of works incorporated in audio-visual works
(1)

Where the owner of the copyright in any literary, musical 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.

(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 competent authority appointed under section 48.

29.
Nature of copyright in broadcasts

Copyright in a broadcast shall be the exclusive right to control the doing in Kenya of any of the following acts, namely, the fixation and the rebroadcast of the whole or a substantial part of the broadcast and the communication to the public of the whole or a substantial part of a television broadcast either in its original form or in any form recognizably derived from the original, but—

(a)

paragraphs (a), (f), (e) and (k) of section 26(1) shall apply mutatis mutandis to the copyright in a broadcast; and

(b)

the copyright in a television broadcast shall include the right to control the taking of still photographs therefrom.

31.
First ownership of copyright
(1)

Copyright conferred by sections 23 and 24 shall vest initially in the author:

Provided that where a work—

(a)

is commissioned by a person who is not the author’s employer under a contract of service; or

(b)

not having been so commissioned, is made in the course of the author’s employment under a contract of service,

the copyright shall be deemed to be transferred to the person who commissioned the work or the author’s employer, subject to any agreement between the parties excluding or limiting the transfer.

(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.

(3)

In this section “owner of copyright”

(a)

where the economic rights are vested in the author, means the author;

(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

(c)

where the ownership of the economic rights has been transferred to a physical person or legal entity, means that person or entity.

32.
Moral rights of an author
(1)

Independently of the author’s economic rights and even after the transfer of the said rights, the author shall have the right to—

(a)

claim the authorship of the work; and

(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.

(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.

(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.
Assignment and licences
(1)

Subject to this section, copyright shall be transmissible by assignment, by licence, testamentary disposition, or by operation of law as movable property.

(2)

An assignment 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.

(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 and the written assignment of copyright shall be accompanied by a letter of verification from the Board in the event of an assignment of copyright works from outside Kenya.

(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.

(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.

(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.

(7)

Where an agreement for assignment of copyright does not specify the period of assignment, the assignment shall terminate after three years.

(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.

(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.

(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.

34.
Rights of action and remedies of exclusive licensee and sub-licensee
(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.

(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.
Infringement
(1)

Copyright shall be infringed by a person who, without the licence of the owner of the copyright—

(a)

does, or causes to be done, an act the doing of which is controlled by the copyright; or

(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.

(2)

The rights of a performer shall be infringed by a person who without the consent of the performer—

(a)

does, or causes to be done, any act specified in section 30(1); or

(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.

(3)

Copyright and related rights shall be infringed by a person who—

(a)

circumvents any effective technical measure designed to protect works; or

(b)

manufactures or distributes devices which are primarily designed or produced for the purpose of circumventing technical measures designed to protect works protected under this Act; or

(c)

removes or alters any electronic rights management information; or

(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.

(4)

Infringement of any right protected under this Act shall be actionable at the suit of the owner of the right and in any action for infringement the following reliefs shall be available to the plaintiff—

(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;

(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;

(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;

(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

(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.

(5)

Where in an action for infringement of copyright it is proved or admitted—

(a)

that an infringement was committed; but

(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.

(6)

Where in an action under this section an infringement of copyright protected under this Act is proved or admitted, and the court, having regard (in addition to all other material considerations) to—

(a)

the flagrancy of the infringement; and

(b)

any benefit shown to have accrued to the defendant by reason of the infringement,

is satisfied that effective relief would not otherwise be available to the plaintiff, the court, in assessing damages for the infringement, may award such additional damages by virtue of this subsection as the court may consider appropriate in the circumstances.

(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.

(8)

In an action under this section—

(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

(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.

(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 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.

(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.

(11)

Where, in any action under this section, the author of the literary, musical or artistic work to which the action relates is dead, it shall be presumed, unless the contrary is proved—

(a)

that the work is eligible for copyright; and

(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.

(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.

(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.

37.
Anton Piller orders
(1)

If a person has prima facie evidence that his right has been infringed by another party and he satisfies the court or competent authority that prima facie

(a)

he has a cause of action against another person which he intends to pursue;

(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

(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,

the court or competent authority as the case may be, may make such order as it considers necessary or appropriate to secure the preservation of the documents, copies or things as evidence.

(2)

An order made under subsection (1) may be granted ex parte.

PART V – INSPECTION
40.
Entry into premises

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.
Mode of inspection
(1)

For the purpose of ascertaining whether there is or has been a contravention of this Act, an inspector may inspect—

(a)

any substance or article appearing to him to be a work;

(b)

any container or package used or intended to be used to contain any work; or

(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.

(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.

(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.

(4)

Any person who—

(a)

wilfully obstructs an inspector in the discharge of the inspector’s duties; or

(b)

wilfully fails to comply with any requirement properly made to him by an inspector; or

(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

(d)

in giving any such information as is mentioned in paragraph (c), makes any statement which he knows to be false or does not believe to be true,

shall be guilty of an offence and shall be liable to a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding six months or to both.

43.
Conduct of prosecution
(1)

The Attorney-General may, pursuant to the provisions of the Criminal Procedure Code (Cap. 75), appoint public prosecutors for the purposes of cases arising under this Act.

(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.

44.
Inspectors not personally liable for acts done under this Act

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
PART VII – COLLECTIVE ADMINISTRATION OF COPYRIGHT
PART VIII – MISCELLANEOUS
50.
Application to works made before commencement of Act
(1)

This Act shall apply to—

(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;

(b)

performances, sound recordings or broadcasts that are to be protected under an international treaty to which Kenya is a party.

(2)

This Act shall not affect contracts on works, performances, sound recordings and broadcasts concluded before the commencement of this Act.

51.
Abrogation of common law rights

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.

SCHEDULE

[Section 8.]

PROVISIONS AS TO THE CONDUCT OF BUSINESS AND AFFAIRS OF THE BOARD
1.
Tenure of office

The chairman or a member of the Board other than an ex officio member shall, subject to the provisions of this Schedule, hold office for a period of three years, on such terms and conditions as may be specified in the instrument of appointment, but shall be eligible for re-appointment.

2.
Vacation of office

The chairman or a member other than an ex officio member may—

(a)

at any time resign from office by notice in writing to the Minister;

(b)

be removed from office by the Minister on the recommendation of the Board if the member—

(i) has been absent from three consecutive meetings of the Board without the permission of the Board;
(ii) is convicted of a criminal offence and sentenced to imprisonment for a term exceeding six months or to a fine exceeding ten thousand shillings;