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.

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.

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.

PART III – COPYRIGHT AND RELATED RIGHTS
22A.
Register of copyright works
(1)

The Board shall keep and maintain a register of all works under this Act in such manner as may be prescribed.

(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.

(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.

(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.]

26A.
Computer programmes
(1)

A computer program shall be subject of fair dealing for the purposes of Part A of the Second Schedule.

(2)

Notwithstanding the provisions of subsection (1), 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;

(b)

to make a back-up copy;

(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.

(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.

(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.
Technological protection measures

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.
Visually impaired, and persons with other disabilities
(1)

Notwithstanding the provisions of section 26, it shall not be an infringement of copyright for—

(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

(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.

(2)

Copies or sound recordings to which this section applies shall—

(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;

(b)

bear a notice that any further reproduction or distribution in a format other than a specialized format is an infringement; and

(c)

include a copyright notice identifying the copyright owner and the date of the original publication.

[Act No. 20 of 2019, s. 15.]

26D.
Artist resale right
(1)

Artist resale right shall be valid as long as copyright continues to subsist in an original work of art.

(2)

The artist resale right is absolutely inalienable and shall not be waived under any circumstances.

(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.

(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.

(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.

(6)

There shall be no resale royalty payable on commercial resale of an artwork—

(a)

if the sale price is less than twenty thousand shillings;

(b)

if it concerns the resale of a building, or a drawing, plan or model of a building;

(c)

if it is an auction for charitable purposes;

(d)

if the works of fine art produced are of identical copies, or

(e)

if it concerns a manuscript of a literary, dramatic or musical work.

[Act No. 20 of 2019, s. 15.]

30B.
Collection and payment of royalty
(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.

(2)

All claims for compensation under this section shall be made through the collective management organizations representative of performers and producers of sound recordings.

(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.

(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.]

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.