Kenya

Legal background

Scope and duration of copyright

Does copyright end immediately after the minimum period mandated by the Berne Convention? Yes
Has a court or tribunal ever limited the exercise of IP rights under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders? In part
There is little regulation of royalties. Compulsory licensing is limited to reproduction under control of Government, Public libraries, non- commercial documentation centers and research institutions.
Has a court or tribunal ever limited the exercise of IP rights pursuant to a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? Yes
Freedom of speech and other similar rights are ensrined in the constitution which overrides copyright law.
Can databases of non-original material be reproduced without infringing a copyright or sui generis database right? Yes
Are rights holders prohibited from excluding user rights under copyright law? In part
Exceptions an limitations prevail over contracts. However the exceptions and limitations provided for in the law are narrow and therefore inadequate.
Is computer software excluded from the scope of patentable subject matter?

Freedoms to access and use

By Home UsersIs there any general user right that is based on a set of balancing criteria, such as a "fair use" right? No
However there are specific criteria for purposes of criticism, review, scientific research, private use, by an educational institution, and for educational purposes.
KCA sec 26(1) a-k
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? In part
Legitimate owners of program can only do the following: make copies for correcting errors, make back-ups, test for suitability and any other use not prohibited by the license agreement. Decompiling of a computer program is allowed but any such copies must be destroyed once the purpose has been achieved or the owner ceases to be the rightful owner of the program.
KCA sec 26(5)
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? In part
Limited by fair dealing and the license agreement.
KCA sec 26(3), 26(4)
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? No
No explicit provision for this.
For EducationMay students copy works for private research or study? In part
Under fair dealing; where this is limited to “2 short passages for purposes of study/education”.
KCA sec 26(1)(d)
Does any such research and study provision cover distance and online education? No
May translations of works be made for educational purposes? In part
Under fair dealing.
May educators copy works for use in the classroom? In part
OnlineAre temporary or transient copies, incidental to a lawful use, excepted from copyright? In part
Not covered, so the law is unclear.
Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network? No
Not covered.
Is Internet access free of ISP filtering or monitoring for potential copyright-infringements? Yes
By content creatorsIs there any protection for consumers who non-commercially remix or mash up copyright works? No
May computer software be reproduced or transformed for the purpose of reverse-engineering interoperable software? Yes
KCA sec 26(5)
Is the incidental inclusion of a work in other material permitted? No
Is there are copyright exception for parody or satire? No
By the pressIs there a copyright exception for the news of the day? No
May copyright material be reproduced for the purposes of review and criticism? Yes
Subject to acknowledgment of source.
KCA sec 26(1)(a)
May quotations be used for any purpose? No
By LibrariesMay libraries copy works if they cannot reasonably be obtained commercially? In part
Subject to license agreement with copyright collective societies
May librarians copy works for users for the purpose of research or study? In part
Subject to license agreement with copyright collective societies.
Are libraries allowed to make preservation or archive copies of materials in their collections? In part
Can lending libraries operate without incurring public lending rights fees to copyright owners?
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? No
In public affairsAre laws excluded from copyright? Yes
Are other governmental works either excluded from copyright, or routinely shared under permissive licences? Yes
Are the results of publicly funded research required to be published under an open access licence? No

Freedoms to share and transfer

Do copyright owners have the right to release their works to the public domain, without any limitation on how those works may be used? In part
The author/ creator must renounce the work- which must be in written form and made public.
Can public domain works be used without the need for any payment or registration of the use?
Does the law make special provision for the legal use of orphaned works? No
Is parallel importation of copyright works permitted? No
Are there national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources? No
Are there national programmes or policies that specify or promote the use of open document formats? No

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? Ksh 500,000(USD 7000) KCA sec 34(4) a-c, sec 36(c)
What is the maximum penalty for copyright infringement for a corporation? Ksh 500,000(USD 7000) KCA sec 34(4) a-c, sec 36(c)
Is innocent infringement of IP treated differently by the law? No
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for legal purposes? No
Creation and distribution of such devices constitute infringement. There is no provision for their use in any other way.
KCA sec 35(30)(b)
Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights? No
There is no provision for their use in any other way.
Does national copyright or consumer protection law require that the effect of TPMs distributed with copyright works be disclosed to consumers? No
Are there cases in which the availability of injunctive relief for IP infringement is limited by the law on public policy grounds?
Does the law protect a user's Internet access from being suspended for alleged copyright infringement, except after a hearing in court? No
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? No
Are damages for copyright infringement limited to the loss sustained, rather than a pre-established or statutory damages award? No
Is there provision to penalise the wrongful allegation of copyright infringement? No
Not in the KCA.
Is there provision to penalise the obstruction of consumers' exercise of user rights?
Does the patent system allow for pre-grant opposition?

Recent or upcoming changes

Summary of position

The KCA is focused on the protection of the rights of the copyright holders with little focus on consumer protection. The law provides for the rewarding of copyright owners through the collecting bodies at the detrimemnt of the consumers.

Exceptions and limitations are narrow and inadequate; e.g. there are no provisions for those with disabilities such as the visually impaired. Also the closest that the law comes to compulsory licencing is in sec 26 of the KCA which provides for the government or public instituition to reproduce or order the reporduction of a work if it is in public interest or where no revenue is dervived from the reproduction.

The law is currently under review and therefore an oportunity to strengthen it for the benefit of consumers.

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