Who owns online content: copyright foundations in Kenya
Kenyan copyright has two features that surprise almost everyone — the commissioner of a work usually owns it, and the country runs on a shorter protection term than the jurisdictions most online advice is written for.
Almost every online content dispute turns, at some point, on ownership. Who owns the photograph, the article, the video, the design, the code? In Kenya the answer is set by the Copyright Act (Cap 130, originally Act No. 12 of 2001) as amended, principally by the Copyright (Amendment) Act No. 20 of 2019 and the Copyright (Amendment) Act No. 14 of 2022, with the Copyright Regulations in Legal Notice No. 177 of 2020.
Two features of that framework routinely catch people out, and both cut against the assumptions imported from British and American online advice.
Duration: life plus fifty
Kenya is a life-plus-fifty jurisdiction, not life-plus-seventy.
| Work | Term |
|---|---|
| Literary, musical, dramatic and artistic works (other than photographs) | Life of the author plus 50 years |
| Audiovisual works and photographs | 50 years from the end of the year in which the work was made, first made available to the public, or first published — whichever is most recent |
| Sound recordings | 50 years from the end of the year the recording was made |
| Broadcasts | 50 years from the end of the year the broadcast took place |
| Anonymous and pseudonymous authorial works | 50 years from the end of the year of first publication, reverting to the normal calculation if the author’s identity becomes known |
The gap matters in cross-border matters. A work may be in the public domain in Kenya while still protected elsewhere, and a takedown asserted against a Kenyan republication of an older work may have no basis at all.
Ownership: the commissioning rule
This is the provision most likely to defeat an assumption.
Under section 31, where a person commissions a work from someone who is not an employee under a contract of service, the commissioner acquires the copyright. Where a work is made in the course of the author’s employment under a contract of service, and was not commissioned, copyright is transferred to the employer. Both rules are subject to any agreement between the parties excluding or limiting the transfer.
The commissioning rule is the reverse of the position in the United Kingdom and the United States, where a freelancer retains copyright unless there is a written assignment. The practical consequences run in both directions:
- A Kenyan business that paid a photographer, designer or developer for a specific commission is likely to own the output, without needing a separate assignment.
- A Kenyan creative who accepts commissioned work without addressing copyright in the contract is likely to have given it away.
Anyone drafting or reviewing a creative or development engagement in Kenya should address ownership expressly rather than relying on the default, precisely because the default is unusual and the parties may each be assuming a different one.
Note also section 33, which provides that an assignment falling within its written-assignment provision is not valid unless it is lodged with the Kenya Copyright Board, a certificate of recordal is issued and an entry is made in the Assignment Register. An assignment clause that has never been recorded may not do what the parties believe it does, and any assignment relied on in a dispute should be checked against the register rather than the file copy.
Moral rights
Section 32 gives the author — necessarily a natural person — the right to claim authorship and to object to distortion, mutilation, modification or other derogatory action prejudicial to their honour or reputation.
Moral rights cannot be transferred during the author’s lifetime. They pass on death by testamentary disposition or by operation of law. This means an author who has assigned every economic right may still have a claim where their work is altered or misattributed — a point of real practical use where a photograph or article has been reposted in a distorted or misleading form and the economic rights sit elsewhere.
What the 2019 amendments added
The Copyright (Amendment) Act No. 20 of 2019 was a substantial reform. Alongside the takedown regime described below, it introduced:
- Registration with KECOBO on a voluntary basis, with the register serving as evidence of the recorded particulars.
- New exceptions for works adapted for blind and visually impaired persons, implementing the Marrakesh framework, alongside exceptions for educational institutions and libraries.
- Section 26D — an artist’s resale royalty right.
- Parody as an exception, subject to acknowledgement.
- Recognition of dramatic works as a separate category; a requirement of graphical notation in the definition of musical works; renaming of collecting societies as collective management organisations; and a Copyright Tribunal constituted by the Chief Justice.
The Copyright (Amendment) Act No. 14 of 2022 changed the ring-back tone revenue split, entitling artists to not less than 52 per cent with direct remittance by telecommunications operators, and established the National Rights Registry. Significantly, a proposal in that Bill to repeal the takedown, intermediary and injunction provisions introduced in 2019 was rejected in Parliament. The 2019 regime stands.
The takedown regime
Section 35B provides a statutory notice-and-takedown mechanism against internet service providers, and section 35D provides for High Court injunctions against a person facilitating infringement.
What a valid notice must contain. The notice must be in writing to the ISP or its agent and must set out the complainant’s name and address; a signature; details of the copyrighted works allegedly infringed; identification of the rights violated; details and the location of the infringing content; and a sworn statement confirming ownership, the validity of the rights, good faith, and unsuccessful prior attempts to contact the alleged infringer. A copy must be sent to the Communications Authority and to a recognised ISP umbrella body.
The sworn-statement requirement is not a formality. It requires the complainant to have actually attempted to contact the infringer first, and to swear to ownership — which is where a shaky ownership theory becomes a serious problem.
Deemed delivery. The next business day after physical delivery to the ISP’s registered office; two days after posting by registered mail; immediately on electronic transmission to the ISP’s designated address.
The timeline. An ISP must, within 48 business hours of receiving a valid takedown notice, disable access to the material, unless it receives a valid counter-notice. It must notify the alleged infringer as soon as is practicable. Note that this is 48 business hours, and that “business hour” is not defined in the Act — a live ambiguity that should not be smoothed over into “48 hours” when advising on timing.
Consequences for the ISP. An ISP that fails to act on a valid notice without valid justification is fully liable for any loss or damages. Breach of the notification duty carries a fine of KES 500,000 or five years’ imprisonment, or both. Conversely, an ISP is not liable for wrongful takedown in response to a valid notice, and its liability is limited where it lacks actual knowledge of infringement, derives no financial benefit from the infringing activity, and acts on a valid notice.
Consequences for an abusive complainant. A false or malicious takedown notice — or counter-notice — is an offence carrying a fine of up to KES 500,000 or up to five years’ imprisonment, or both, in addition to damages resulting from the misrepresentation. Kenya’s sanction for takedown abuse is therefore materially heavier than the equivalent civil provision under United States law. This should be explained to any client tempted to use a copyright notice to remove content they do not own.
The gap. The Act says what triggers a takedown and what a counter-notice prevents, but it does not set out what an ISP must do once a counter-notice is filed. There is no statutory put-back procedure and no adjudication standard. In a genuinely contested matter, the statutory route runs out and the parties are back to section 35D or ordinary proceedings.
Choosing the right instrument
Copyright is a powerful tool where the client actually owns the work. It is a liability where they do not. Before a notice is drafted, three questions should be answered on the documents rather than on instinct:
- Who authored the specific file? Not who appears in it, not who paid for the campaign — who created it.
- Has ownership moved? By commission under section 31, by employment, or by a recorded assignment under section 33.
- Is the use actually infringing? Or is it quotation, reporting, criticism, parody or another exception?
Where those questions do not produce a clean answer, the grievance is usually about reputation, privacy or personal data rather than copyright, and it should be routed accordingly. When a takedown is the wrong move sets out what goes wrong when it is not.
It describes the law as understood at the date of review and does not take account of your circumstances. Law and platform practice both change. Reading it does not create an advocate–client relationship with JM Sons Advocates. Before acting or deciding not to act, take advice on your own facts.